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ted by the respondent in this action to be word "heirs" in its ordinary or customary insufficiently pleaded; but we do hold that sense means the kindred of the decedent upon in an action of this character the said in the absence of a devisee, and has reference

whom the law casts the estate in real property amended answer so tendered to the trial to the law of succession (citing 4 Words & court, and by it allowed to be filed in con- Phrases, p. 3241). nection with the affidavit of Mr. McNamee, | 4. PUBLIC LANDS ($ 35*)-RIGHT TO PATENT one of the attorneys for the respondent, is

-DEATH OF ENTRYMAN. a sufficient compliance with statutory en- att, had complied with the homestead law in

As the deceased homestead entryman, Wyactment and the decisions of the courts, and every respect at the date of his death, had givthat the answer as a whole shows a defense en notice of the time of making his final proof, upon which respondent is entitled to be and all that remained for him to do was to

present his final proof, he was then entitled to given his day in court.

à patent, and the right to a patent once vested The order and judgment of the district is treated by the general government when court will be affirmed, with costs in favor dealing with the public lands as equivalent to of respondent.

a patent issued.

[Ed. Note.-For other cases, see Public Lands,

Cent. Dig. § 75; Dec. Dig. $ 35.*] AILSHIE, P. J., and SULLIVAN, J., con- 5. Public LANDS ($ 135*)-DEVISE OF HOME

STEAD ENTRY.

The homestead laws were enacted, not

only to protect the widow and minor children, (19 Idaho, 634)

but to support and assist the entryman in his PARSONS v. WRBLE.

declining years, and under the facts of this

case he had a right to devise the same. (Supreme Court of Idaho. March 30, 1911.)

[Ed. Note.--For other cases, see Public Lands, Appeal from District Court, Nez Perce Coun- Dec. Dig. § 135.*] ty ; E. C. Steele, Judge. Action by L. F. Parsons against John Wrble. 6. PUBLIC LANDS ($ 135*)—RIGHTS OF EN

TRYMAN. From a judgment for defendant and a certain order, plaintiff appeals. Affirmed.

Under the provisions of said sections 2291

and 2292, Rev. St. (U. S. Comp. St. 1901, pp. J. 0. Bender and 'D. E. Hodge, for appellant. 1390, 1394), it is left to the option of the Clay McNamee, for respondent.

homesteader, either to leave his homestead to

his adult heirs, where he has no widow or WOODS, District Judge. The facts in this minor children, without making a will, or, if he case being almost identical with those in the prefers to devise the homestead to someone case of the same plaintiff against Joe Wrble, other than his heirs, he may do so, and thereby but for a different tract of land, upon the au- cut off the adult children. thority of Parsons v. Joe Wrble, 115 Pac. 8, [Ed. Note.-For other cases, see Public Lands, just decided, the judgment and order of the Dec. Dig. 135.*] lower court will be affirmed. Costs awarded in favor of respondent.

Appeal from District Court, Boise County ; Fremont Wood, Judge.

Action by Samuel H. Hays against William (13 Idaho, 544) HAYS v. WYATT et al.

W. Wyatt and another. Judgment for plain

tiff, and defendants appeal. Affirmed. (Supreme Court of Idaho. March 17, 1911.)

Martin & Martin, for appellants. Henry Z. (Syllabus by the Court.)

Johnson and S. H. Hays, for respondent. 1. PUBLIC LANDS (8 35*)-HOMESTEAD LAWS -DEATH OF ENTRYMAN. Section 2291, Rev. St. U. S. (U. S. Comp.

SULLIVAN, J. This action was brought St. 1901, p. 1390), provides for the issuance of to quiet title to certain real estate situated patents to land entered under the homestead in Boise County. The defendants William made to the "heirs or devisees" in case of the W. and J. Lee Wyatt, and Verina E. Wyatt death of the entryman leaving no widow," and Stafford, are the children of Anneas Wyatt, under the provisions of section 2292, Rev. St. deceased, the entryman of the land embraced U. S. (page 1394), in case both father and in the controversy. mother die, leaving a minor child or children, the right and fee inures to the benefit of such

It is alleged in the complaint that Anneas minor child or children.

Wyatt, deceased, settled upon said land in [Ed. Note.-For other cases, see Public Lands, the year 1885, with the purpose and intent of Cent. Dig. § 75; Dec. Dig. § 35.*]

claiming the said premises as a homestead 2. PUBLIC LANDS ($ 35*)-HOMESTEAD LAWS under the laws of the United States; that he -DEATH OF ENTRYMAN.

It is the practice of the land department resided on said premises continuously from of the government to issue patents to the the year 1885 to the time of his death on "heirs or devisees,” in case of the death of the December 26, 1899; that at the time of his entryman, leaving no widow or minor children, and to leave it to the courts to determine who first settlement thereon said lands were unare the devisees or heirs of the deceased, and surveyed, and that thereafter, in the year the extent of their respective interests.

1896, they were surveyed and plats thereof [Ed. Note. For other cases, see Public Lands, approved and filed with the Surveyor GenCent. Dig. $ 75; Dec. Dig. § 35.*]

eral of the United States for the state of 3. WORDS PHRASES “DEVISEE'

Idaho; that said deceased thereupon, on the HEIRS. The word "devisee" is used to denote one

3d day of October, 1896, made a homestead to whom real estate passes by will; and the entry on said lands; that on December 1, *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

AND

1899, he gave notice in the manner prescribed | ferred to was also attached to and made a by law that he would thereafter make his part of the complaint, and is dated April 20, final proof for said lands for the purpose of 1886. The said deceased was the defendant procuring a patent therefor; that prior to in that action. After decreeing the divorce the date on which said final proof was to be between the parties, certain personal propsubmitted to the register and receiver of the erty, consisting of a band of horses, some United States land office, he died; .that on cattle, hogs, and hay, was directed to be sold the 14th day of February, 1899, he made and and one half of the proceeds thereof to be executed his last will and testament, where paid to the wife and the other half to defray hy he gave, bequeathed, and devised to one the expenses of the suit and to be paid to the James Walton all of his estate, both real plaintiff's attorneys. The last clause of said and personal, with certain exceptions speci- decree is as follows: "That the real estate fied in said will; that said will was, on Jan- and all personal property, except the horses, uary 25, 1900, offered for probate in the cattle, hogs, and hay above mentioned, and probate court of Boise county, that being also the household goods now in the possesthe county in which said land is situated, sion of the plaintiff, are hereby decreed to and the county of the residence of said the defendant; and also four horses, to be deceased; that after due notice was given selected by the defendant, and the costs in and due proof made said will was admitted action are decreed to defendant." to probate by the probate court of said Boise To the complaint in this action, the defendcounty; that no contest of said will or the ants filed a general and special demurrer, validity thereof was ever filed, and no ap- which was overruled by the court, and they peal has ever been taken from the order of thereafter refused to answer. The case was the probate court admitting said will to tried by the court, and judgment was entered probate; that said order is still in full force in favor of the plaintiff and the title to said and effect; that on the 28th day of October, premises quieted in him. This appeal is 1900, said James Walton, devisee under said from the judgment. will, made final proof upon said homestead The question to be determined upon this entry, and in due course a patent for said appeal is whether, under the provisions of lands was issued by the United States, which sections 2291 and 2292, Revised Statutes of patent granted said lands in the manner the United States (U. S. Comp. St. 1901, pp. customary in such cases, to wit, “unto the 1390, 1394), under the facts of this case, the said heirs or devisees of Anneas Wyatt"; devisee, Walton, took said land to the exthat after making said final proof, said Wal- clusion of said children of the deceased, or ton granted, bargained, sold, conveyed, and whether the children took the land to the confirmed unto Samuel H. Hays, the plain-exclusion of said devisee. In other words, tiff and respondent in this action, the said had the entryman the power, by will, to described premises; that the defendants are devise said land to said Walton? all of the children of said deceased, be- [1] Section 2291 is as follows: "No certifing the children of said Wyatt and his di- icate, however, shall be given, or patent isvorced wife, and that each and all of said sued therefor, until the expiration of five children were at the time of the death of years from the date of such entry; and if said Wyatt above the age of 37 years; that at the expiration of such time, or at any time about the year 1886 said Wyatt was divorced within two years thereafter, the person makfrom his wife, suit having been commenced | ing such entry; or if he be dead, his widow; in the year 1985, and at the time of his death or in case of her death, his heirs or devisee; he had no wife and left no widow surviving or in case of a widow making such entry, her him; that said lands were in the possession heirs or devisee, in case of her death, proves of said Wyatt at the time of his death, and by two credible witnesses that he, she, or that the defendants claimed some interest they have resided upon or cultivated the in them, and respondent prayed that they be same for the term of five years immediately required to set forth the nature of their succeeding the time of filing the affidavit, claim to sa id premises, and that the title be and makes affidavit that no part of such land quieted in the respondent. A copy of said has been alienated, except as provided in will is attached to the complaint and made a section twenty-two hundred and eighty-eight, part thereof, and it appears that at the and that he, she, or they will bear true alletime of making said will said deceased was giance to the government of the United of the age of 77 years, and the first bequest States; then, in such case, he, she, or they, is as follows: “I give and bequeath unto my if at that time citizens of the United States, friend, James Walton, who has aided and be shall be entitled to a patent, as in other friended me when all others have refused, cases provided by law." all of my property, real and personal, where: Section 2292 is as follows: "In case of the soever situated except the special bequests, death of both father and mother, leaving an hereinafter in the next clause contained.” infant child or children under twenty-one and bequeaths thereby to each of his chil- years of age, the right and fee shall inure dren the sum of $1.

to the benefit of such infant child or chil

guardian may, at any time within two years, one to whom real estate passes by will. Page after the death of the surviving parent, and on Wills, 8 2. The word "heirs” in its orin accordance with the laws of the state in dinary or customary sense means the kinwhich such children, for the time being, have dred of the decedent upon whom the law, their domicile, sell the land for the benefit immediately upon his death, casts the estate of such infants, but for no other purpose, in real property in the absence of a devise. and the purchaser shall acquire the absolute Appeal of Dodge, 106 Pa. 216, 51 Am. Rep. title by the purchase, and be entitled to a 519; Words & Phrases, vol. 4, p. 3241. The patent from the United States on the pay- devisee is a person specially nominated by ment of the office fees and sum of money the decedent in his will to take his estate. above specified.”

He, as special nominee, takes precedence over The patent from the government conveyed the heirs who only take the estate in the abthe lands, as above stated, "unto the said sence of a devise. However, appellant conheirs or devisees of Anneas Wyatt.” It is tends that the right to devise property unthe custom of the General Land Office of the der the provisions of said sections of the United States to issue patents in such cases statute is limited to cases in which there in that form.

are no heirs. We find no such limitation in In the case of Agnew v. Morton, 13 Land the statute. There being no minor children, Dec. Dep. Int. 228, it is said : “Section 2291 said section 2291 gives a priority in favor of of the Revised Statutes provides for the is- the widow over the heirs or devisees, and suance of patent, after satisfactory final section 2292 gives a priority in favor of inproof, to the ‘heirs or devisee,' in case of the fant children, and, in construing those two death of the entryman, leaving no widow.” sections together, the Supreme Court of the

Section 2292 provides that in case of the United States held, in Bernier v. Bernier, 147 death of both father and mother, leaving an U. S. 242, 13 Sup. Ct. 244, 37 L. Ed. 152, that infant child, the right and fee shall inure the homestead would descend equally to minor to the benefit of the infant child.

and adult children. In that case there were In the Huls Case, 9 Land Dec. Dep. Int. five minors and five adults, and no widow or 401, cited in 13 Land Dec. Dep. Int. 49, it devisee. Taking the provisions of the two was said that the patent should be issued in sections as they stand under that decision, the name of the heirs generally, leaving it to they recognize the rights accruing to a homethe local courts to decide who are the heirs stead in the following manner: First, to the and their respective interests.

widow, if there be one; second, to the minor [2] It is the practice of the Land Depart-children, and, if the children are partly miment of the Interior to issue patents in this nors and partly adults, then in equal shares form, leaving it to the local courts to deter- to each, without regard to minority; third, mine who are the devisees or heirs and the to the devisee, if there be one; fourth, to the extent of their respective interests. In this heirs. case there is no question as to the validity In the Bernier Case, Edward Bernier made of the will. It has been admitted to probate a homestead entry on the land in controversy by the proper court and was not contested. | under the provisions of the homestead law There is no question about the identity of of the United States, on the 24th of May, the devisee or the extent of his interest. Un- 1875. At that time he was a widower; his less there was a want of power on the part wife having died in April, 1872. He occupied of the deceased, said land passed by virtue the premises as a homestead until his death of the terms of said will, the patent, and the on June 17, 1876. It will thus be seen that statute to the devisee, Walton, and from him a little less than 13 months passed after the by deed to the respondent.

entry until his death. He left 10 children It is contended that nothing passed to the surviving him,, five of whom were at the devisee by virtue of the patent, but that the time of his death over 21 years of age, and patent conveyed the land to the children of five were under 21 years. In October, 1876, the deceased. We must look to the stat. one of the adult heirs, on behalf of all of the ute itself for the power granted, and also for 10 heirs, made the required proof for comthe limitations, if there are any imposed. muting the homestead entry, paid the miniSaid section 2291, Rev. Stat., provides that mum price for the land, and received a cerafter the prescribed time the patent shall is- | tificate entitling him to a patent therefor. sue “to the person making such entry or, if | This certificate was never canceled nor was he be dead, to his widow, or in case of her any proceeding taken for its cancellation, nor death, his heirs or devisees” upon proper was any notice given of a contest respecting proof being submitted. In this case the en- it, nor was any irregularity in its issue altryman being dead, and there being no wid- leged. The only proof of occupation was ow, the patent was issued to the "heirs or made by Samuel F. Bernier, one of the adult devisees” of the deceased. The provisions heirs, and the only sums paid for the land of said section are clear, and the construc- were advanced by him on behalf of all of tion given it should be fair and reasonable the heirs. Notwithstanding those facts, some rather than strained.

time in April, 1877, a second certificate was [3] The word "devisee" is used to denote issued to the minor heirs of Edward Bernier, which was issued upon the commutation, but, before the date for the final proof, died. proof presented by said Samuel F. Bernier, Here the entryman had fully complied with as above stated, and on the 25th of said the law with the exception of making final month a patent was issued to them. The proof. Upon presenting the required final bill in the Bernier Case alleged that all of proof, he would have been entitled to a pat. the steps to change the filing on the lands ent. The right to a patent once vested is from a pre-emption claim to a homestead treated by the government when dealing with entry and in commuting the homestead entry public lands as equivalent to a patent issued. and securing a patent for the lands were Stark v. Starr, 6 Wall. 402, 18 L. Ed. 925. taken through an attorney at law, who was At the date of Wyatt's death he was entitled acting for the said heirs of Edward Bernier; to a patent. His wife had procured a dithat when he received the patent he supposed vorce from him about 14 years prior to his the same ran to those Heirs, and, without death. His three children had deserted him, examining it or discovering his mistake, he or left him alone, and at the age of 78 he placed the same on record, and the mistake died, and would have, no doubt, suffered was only recently discovered; that for many penury and want in his old age, had it not years previous to said discovery all of the been for his friend, the said James Walton, heirs, including the minors, treated the land to whom the old man refers in his last will as their joint property, but since the dis- as one “who aided and befriended me when covery of the mistake, and vnly since, the mi- all others have refused." [5] The homestead nor heirs pretend to claim that they are law was not only enacted to protect widows the sole and only heirs, and claim that the and minor children, but to assist the entrycomplainants have no interest, right, or title man in his declining years, when deserted in the lands, which claim complainants by his children and other kindred. When so charged was a fraud upon their rights and deserted, he had the right to so dispose of worked a manifest wrong and injustice to the same as would keep him from becomthem.

ing an inmate of the county poorhouse. Under that state of facts the court held, Adults are not considered dependents on the under the provisions of said sections 2291 father under the homestead laws, and it is and 2292, that the title vested in all the the widow and minors for whom the law is heirs of said Bernier at his death, the adults most solicitous, and for the entryman when as well as the minors. In the Bernier Case he has become old and enfeebled. The youngthere were minor heirs; hence, under the est of said children was of age when Wyatt provisions of said section 2292, the decedent died, and under the law was entitled to enter had no authority to devise land included in a homestead of his own, and under the prosaid homestead entry, nor did he endeavor to visions of said sections 2291 and 2292 the do so. And it appears from the facts in entryman had the right to devise said land that case that one of the adult heirs, on be- to Walton; he having no widow or minor half of all of the 10 heirs, made the required children at the date of his death. Said adult proof for commuting said homestead entry, children had no such right thereto as would paid the minimum price for the land, and re- defeat said devise. In H. C. Dodge, 1 Land ceived the certificate entitling him to a pat- Dec. Dep. Int. 74, it was held that a devisee ent therefor. Said certificate was never of a homestead claimant is entitled to all canceled; no proceeding was ever brought privileges that would descend to the heirs. to cancel it. The property was treated for In the Beckner Case, 6 Land Dec. Dep. years as a part of the estate of the deceased. Int. 134, it was held that, where a homestead One of the adult heirs took charge of the settler died prior to a survey of the land, whole estate, including the land in contro- the right of entry inures to his devisee. See, versy, paid the taxes thereon, and took care also, Instructions, 9 Land Dec. Dep. Int. 452. of the minors, and remained in possession of Neither the heirs nor the devisees under the premises in controversy for years and the statute in question take by virtue of the until that action was brought. Under that law of the state in which the land is lostate of facts, the Supreme Court of the cated. They take their right by being named United States held that the adult and minor in the United States statutes as successors heirs, under the provisions of said sections of of the original entryman; it being left to the the Revised Statutes, were entitled each to local courts to identify them and the extent an equal share in said lands.

of their interests. The homestead entryman in the Bernier In Eberhardt v. Heirs of Selich, 33 Land Case had only lived on the land for a little Dec. Dep. Int. 342, it was held that, where more than a year after the date of his entry an instrument purporting to be the last will and before his death; while in the case at and testament of a deceased homestead enbar the entryman had resided on the land tryman is duly admitted to probate in the from 1885 until 1899; the latter being the proper county, such instrument will be recog. year of his death. It appears that he had nized by the department as legally estabcomplied with the homestead laws in regard lished. The last will and testament of the to residing on the land and the improvement deceased entryman in the case at bar was court of Boise county, and that court held and since the right to a patent once vested that Walton, the grantor of the respondent, is treated by the government when dealing was the devisee under said will.

with the public lands as equivalent to a patThere are various rules governing other ent issued, and he having no widow or minor land entries, but the homestead law is the heirs, and having a devisable interest in only one mentioning a devisee. It is not said land, had full right to devise it as claimed by the respondent that the estate he did. is devised or descends in the ordinary sense If the position taken by counsel for appelunder the laws of this state, but, as held by lant were correct, Congress would certainly various decisions, the estate goes to the not have enacted section 2292 and limited its person named in the statutes of the United operation to infant "children under twentyStates as the grantees of the government. one years of age.” Section 2291 provided in See Demars v. Hickey, 13 Wyo. 371, 80 Pac. unqualified terms that the homestead should 521, 81 Pac. 705.

go to the widow upon the death of the entryIn McCune v. Essig, 122 Fed, 588, 59 C. C. man, if he left a widow surviving him. This A. 429, the court held that a homestead set- was done on the theory that the widow tler had no devisable or descendible interest would then be the head of the family, and until he had completed the term of residence that she would be first entitled to the homerequired to entitle him to make final proof, stead. It further provided that, in case the and, in case of his death before that time, entryman should leave no widow surviving the patent to his widow who completes the him, the homestead should go to his "heirs residence and makes final proof conveys the or devisees.” [6] This left the matter entire land to her absolutely, and no interest there-ly at the option of the entryman, in case he in passes to the children of her deceased hus- left no widow surviving him, as to whether band.

he would leave his homestead to his heirs Some reliance is placed by appellants upon or his devisees. In other words, he could the case of Chapman v. Price, 32 Kan. 446, devise the homestead, and thereby cut off 4 Pac. 807. That was an action in ejectment. the heirs. Congress therefore thought it A patent had been issued to the heirs of necessary to add section 2292, and thereby Applegate, and the court held that in an prevent the entryman from devising the action in ejectment by the executors that as homestead away from the minor heirs in case it appeared they had no legal title, the pat- he left no widow. But Congress said nothing ent having issued to the heirs, that the de- | in this section about protecting heirs who murrer to the complaint was properly sus- are over the age of 21 years. It therefore tained. The will in that case devised the seems clear to us that Congress intended, in property to the executors in trust to sell case of the death of the homesteader, to first the property, pay the debts of the decedent, protect the widow who would be the remainand divide the surplus among the heirs. In ing head of the family, and would be rethat case the court cites section 2296, Revised sponsible for the protection and maintenance Statutes of the United States (U. S. Comp. of the minor children; that, in case he St. 1901, p. 1398), to the effect that no land left no widow surviving him, the homestead acquired under the homestead laws shall be should then be left to those who would be deliable for any debts contracted prior to the pendent upon the patrimony for their protecpatent. Under the will in the Chapman-Price tion and education. Congress was clearly Case, the debts were to be paid before the not legislating, either by section 2291 or 2292, heirs took their shares. Since the devise was for the specific protection of heirs who had to the executors as trustees only, it would attained their majority; those who had arseem that the children were probably minors, rived at their maturity, and were therefore although there is nothing in the case to show supposed in law to be able and capable of their ages. It is not claimed on the part of earning their own livelihood and taking care respondent that Wyatt had, in the ordinary of themselves. After reaching that age, they sense of that term, a devisable estate, but would be in a position to take homesteads simply in accordance with the uniform deci- for themselves. So it appears to us that sions upon the subject he had a right to de-Congress intended to leave it to the option vise the property, and that the devisee takes and pleasure of the homesteader, either to as a grantee from the United States by vir- leave his homestead to his adult heirs withtue of being nominated in the will; the office out making any will, or, if he preferred to of the state statute being only to identify the devise the homestead to some one else, he person and the extent of his interest. [4] might do so, and thereby cut off the adult Wyatt having resided upon the land the full heirs. length of time required by the statute, and The judgment must be affirmed, and it is having performed all acts required by the so ordered, with costs in favor of respondent, statute, was at the time of his death entitled to a patent upon presenting his final proof, AILSHIE, P. J., concurs.

115 P.-2

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