Moody v. Hutchinson , 44 Me. 57 ( 1857 )

Cutting, J.

The Judge of Probate decreed, “That an allowance be made to the said Mary E. Moody, out of the personal estate of said deceased, of ten hundred and twenty-four dollars and sixty-three cents, in such articles as she may choose to that amount, according to the appraisement thereof in the inventory.” Prom which an appeal is made to this court, for several reasons. First, because the allowance is insufficient, considering the degree and estate of her husband and the state of her family. Second, because, in estimating the amount of the personal estate, the judge erroneously determined that land warrants, granted by the United States and belonging to the estate, were real and not personal property. And three other causes, embracing in substance the two former. And it appears that the judge at Nisi Prius, before whom the appeal was heard, “ decided that the land warrants are to be considered real estate, and thereupon affirmed the decree appealed from.” To which ruling an exception is taken, and in this mode that question is presented to us.

By R. S., ch. 108, s. 18, the widow would be entitled, “ besides her apparel and ornaments, to so much of the personal estate, as the judge shall determine to bo necessary, according to the degree and estate of her husband, regard being had to the state of the family under her care.” Consequently her allowance must depend in some measure upon the value of the personal estate, since in no event can it exceed That amount. It became important, therefore, (or might if the case was properly presented,) that the judge should discriminate correctly in determining what was personal and what was real estate, which was borne upon the schedule of the ‘intestate’s property.

The act of Congress, of 1812, declares that, “ In all cases in which land has heretofore, or shall hereafter, be given by the United States for military services, warrants shall be granted to the parties entitled to such land, by the Secretary of War, (now, by the act of 1850, by the Secretary of the Interior;) and such warrants shall be recorded in the said land office, in books to be kept for that purpose, and shall be located as is or may be provided by law; and patents shall afterwards be issued accordingly.” And s. 8, that — “All patents issuing from the said office shall be issued in the name of the United States, and under the seal of the said office, and be signed by the President of the United States, and countersigned by the commissioner of said office; and pbfl.11 be recorded in the said office, in books to be kept for the purpose.”

Prom the foregoing provisions it would seem that the warrant conveys no title, but only establishes certain facts, such as, that the beneficiary has performed military services, and proved his claim to the bounty, and will be entitled to a patent for the specified number of acres in the otherwise unappropriated public lands, whenever the same should be located. It is in most respects similar to a bond for a deed. It is transferable, and usually passes from hand to hand like bonds and scrips of corporations, by an assignment, without the formality of registration; and the patent is granted to the person who makes the location, and produces the necessary evidence to the department that he holds the warrant. And by the act of 1852, such warrants are made not only assignable, but receivable in payment of pre-emption rights. Before the patent issues the fee is in the government; after-wards it passes to the grantee. Bagnell v. Broderick, 13 Peters, 450.

If the fe'e does not pass upon the delivery of the warrant, then nothing can pass' except the obligation of the government, which is a chose in action, and although not capable of being enforced by an action at law against the government, the warrant is none the less an executory contract. It is neither “lands, tenements, or hereditaments, or any rights to or interests therein,” but only one of the progressive stages in such an acquisition.

But assuming that land warrants are not evidentia of title to real estate, it is contended, and the case shows, upon a hearing of this appeal, the appellee objected, that the decree and the record of the probate judge and reasons of appeal did not present that question.

It is true that on an appeal from the Probate Court, the whole proceedings are again examinable in the appellate court, so far as they are opened by any of the causes assigned, and new as well as the former testimony may be introduced touching those issues, which are in this case: first, as to the sufficiency or insufficiency of the allowance; and, secondly, as to the right or wrong conclusion in relation to the character of the warrants, which issues are virtually synonymous, since the former is or may be dependent on the latter. And it may be contended by the appellee, that it does not appear from the facts disclosed, otherwise than from the probate decree, that the intestate left any estate, either real or personal, or what was the degree or estate of the intestate, or the state of the family under the appellant’s care; that it would not necessarily follow, because the judge erred in relation to his construction of the warrant, that the allowance was insufficient; that reasons of appeal, which are founded on allegations of fact that do not appear upon the record, and of which no proof has been offered, cannot be maintained — citing Lamb v. Lamb, 11 Pick., 374; that there is no evidence reported, which would exclude the idea, that the ruling excepted to was not based upon an abstract question of law, which heretofore has not been entertained by this court — citing Hopkins v. Fowler, 39 Maine R., 570, and Dyer v. Huff, 43 Maine R.

The foregoing propositions lead to another inquiry, in order to ascertain whether this case has been so defectively presented as to render the exception a nullity; and that inquiry is, as to what the record does disclose. The bill of exceptions states, among other things, that the Judge of Probate allowed the appellant the sum before mentioned, and further finds that it was “ all the personal property.” And further, that the court “ decided that the land warrants are to be considered as real estate.” From which we are authorized to infer, as indeed the bill discloses, that there was on trial a recognition of personal property and the land warrants ; that the judge presiding, in his haste to dispatch the business of the term, in anticipation of the regular progress of the cause, on inquiry of counsel, ascertained the real point in dispute, and for the purpose of presenting the question to •the full court, ruled accordingly. And in the present instance we can readily perceive that such a course might not operate unjustly; for if the warrants were evidential of the realty, the appellant had by the decree received all she was entitled to by statute; and such being the opinion of the presiding judge, whether ascertained by information, anticipation, or otherwise, any evidence as to the number and value of the warrants and condition of the family would have been superfluous. It is sufficient for us to be informed of record, that “ the land warrants ” composed part of the assets of the estate, in order to determine that the ruling was no abstraction. And inasmuch as the exceptions refer to and embrace the land warrants, and in consequence of the ruling “ thereupon the decree appealed from was affirmed,” and the ruling being found to have been erroneous, for the purpose of correcting such error, the appellant is entitled to a new trial.

Exceptions sustained.