DocketNumber: No. 4,677
Citation Numbers: 62 Mont. 477, 205 P. 664
Judges: Being, Brantly, Cooper, Galen, Holloway, Reynolds, Takes
Filed Date: 3/6/1922
Status: Precedential
Modified Date: 9/9/2022
delivered the opinion of the court.
In this ease it appears that on June 2, 1910, one Hannah Mork made homestead entry under the laws of the United States for a tract of land now located in Hill county and that subsequently she married the defendant Cyrus Mellett. Later she died intestate, and left no heirs or next of kin other than her husband, the defendant Cyrus Mellett, her mother, the plaintiff, Anna Mork, and her sister, the intervener, Annette Mattie Hoyt. After her death the defendant Cyrus Mellett, on or about March 25, 1913, made final proof on the homestead, paid all the expenses necessary and incident thereto,
There is but one question involved in this appeal, namely: Was the plaintiff, an alien, entitled as an heir to succeed to an interest in the homestead, and. if not, what are the rights of the surviving sister?
In this case the final certificate issued by the United States
In Caldwell v. Miller, 44 Kan. 12, 23 Pac. 946, the court said: “Congress has not defined the term ‘heirs.’ * * . * Therefore, to determine who are meant by the words in the patent, ‘heirs of Robert Titus, deceased,’ we think, we must look to the statutes of this state. ‘It seems scarcely necessary to say that this is purely a question of statutory law.’ (McKinney v. Stewart, 5 Kan. 291.)”
In Hutchinson Invest. Co. v. Caldwell, 152 U. S. 65, 38 L. Ed. 356, 14 Sup. Ct. Rep. 504, sustaining and affirming the decision in the last cited case,- the court said: “ ‘It is an established principle of law' everywhere recognized, arising from the necessity of the ease, that the disposition of immovable property, whether by deed, descent, or any other mode, is exclusively subject to the government within whose jurisdiction the property is situated’ [United States v. Fox, 94 U. S. 315, 320, 24 L. Ed. 192]; and although Congress might have designated particular grantees to whom the land should go in the first instance, it did not do so, nor make use of words indicative of any intent that the law of the state should not be followed. * * * The object sought to be obtained by Congress was that those who would have taken the land on the death of the pre-emptor, if the patent had issued to him, should still obtain it notwithstanding his death, an object which would be in part defeated by the exclusion of any who would have so taken by the local law if the title had vested in him.”
The right to inherit is dependent upon the will of the legislature, except in so far as its power in this regard is restricted by constitutional provision; hence an alien or foreigner may inherit lands or take by law only by grace of the state within the boundaries of which they are situated. (In re Colbert’s Estate, 44 Mont. 259, 119 Pac. 791.)
Section 7088, Revised Codes of 1921, provides in part as follows: “Resident aliens may take in all eases by succession as citizens; and no person capable of succeeding under the provisions of this chapter is precluded from such succession by reason of the alienage of any relative. * * * ”
If, in this case, our general law of succession is applicable, then there is no question as to the mother’s rights as an heir. Section 2291 of the Revised Statutes of the United States (U. S. Comp. Stats., sec. 4532) provides in part as follows: “No certificate, however, shall be given or patent issued therefor until the expiration of three years from the date of such entry; and if- at the expiration of such time, or at any time within two years thereafter, the person making such entry, or if he be dead his widow, or in case of her death his heirs or devisee, or in case of a widow making such entry her heirs or devisee, in case of her death, proves by himself and by two credible witnesses, * * ■ * that he, she, or they will bear true allegiance to the government of the United States, then in such case he, she, or they, if at that time citizens of the United States, shall be entitled to a patent, as in other cases provided by law. * * # ”
Our statutes of succession must in this instance be applied with reference to the specific limitations contained in the Homestead Act. (Section 2291, Rev. Stats.) The government, being the donor, may place such limitations or restrictions on
“The heirs succeed to the rights of the homesteader not as heirs who have inherited his title, but because the law gives them preference as new homesteaders, allowing to them the benefit of the residence of their ancestor upon the lands. ” (32 Cyc. 834.)
In the case of Towner v. Rodegeb, 33 Wash. 153, 99 Am. St. Rep. 936, 74 Pac. 50, the supreme court of Washington said: “The homestead law vests the rights in the land in the claimant himself, for his exclusive benefit, and if he die before patent issues, leaving no widow, then in his heirs or devisees, if they be at the time citizens of the United States.”
Alien heirs have no right to perfect the entry of a deceased homesteader j and this is the rule even though, under the local state statute, where the land is situated, they might inherit had the deceased entryman left an estate. (22 R. C. L. 331; Bergstrom v. Svenson, 20 N. D. 55, Ann. Cas. 1912C, 694, 126 N. W. 497.) The case last cited presents a state of facts almost identical with those here involved. There it appears that one Axel Bergstrom made a homestead entry on certain government land in the state of North Dakota, and before final proof died intestate, leaving surviving him the plaintiff, his brother, a citizen of the United States, and resident of North Dakota, and also the defendant, his mother, an alien, who was a citizen and resident of Sweden. In an action between the surviving brother as plaintiff against the mother, to have de
In applying to a like case the provisions of section 2291, Revised Statutes, the Land Department in -the ease above (Agnew v. Morton, 13 Land Dec. 228) said: “It is manifest that the father and mother, while citizens of Great Britain, cannot make proof and obtain patent for the land. Being thus incompetent, their right to make final proof and receive patent for the land while subjects of a foreign country is the same as if they had no existence.”
We think the district court was correct in holding that the plaintiff, Anna Mork, being an alien, is without right or interest in the lands in question, and that the defendant, Cyrus Mellett, and the intervener, Annette Mattie Hoyt, are each entitled to an undivided one-half interest ‘therein. The judgment is affirmed.
Affirmed.