DECISIONS

RELATING TO

THE PUBLIC LANDS.

HOMESTEAD ENTRY-CITIZENSHIP HEIRS-EQUITABLE ACTION.

ELIZABETH RICHTER.

A homestead entry, under which the entryman who had declared his intention of becoming a citizen but had not been admitted to citizenship at the time of submitting final proof, may be equitably confirmed for the benefit of the heirs, and patent issue in their names, where the entryman dies, with his entry occupying such status, and a naturalized heir thereafter submits final proof.

The case of Joseph Ellis, 21 L. D., 377, cited and distinguished.

Secretary Bliss to the Commissioner of the General Land Office, July 12, (W. V. D.) 1897. (C. W. P.)

I have considered the appeal of Elizabeth Richter from your office decision of February 29, 1896, holding final certificate, No. 334, for cancellation.

The land involved is the W. of the NE. and the E. of the NW. of Sec. 29, T. 26 N., R. 23 E., Waterville land district, Washington. The record shows that William Richter made homestead entry, No. 768, of said tracts August 17, 1887, submitting final proof on July 23, 1894. With his proof he submitted a copy of his declaration of intention to become a citizen of the United States, with the statement that he had appeared with his witnesses on April 25, 1894, at the court house in Waterville, with the intention of taking out final citizenship papers, fully believing that the court would still be in session, but he found that the court had closed and the judge left town. He also stated that but two terms of the court are held in the county, and that he intends to be present at the next term of the court, which will be held on October 22, 1894, and that he will then take out his final papers.

The local officers approved the proof, accepted payment, and issued final certificate July 23, 1894.

December 7, 1894, you directed the local officers to advise the claimant that, upon receipt by your office of record evidence of Richter's naturalization, without unnecessary delay, the case would be referred to the board of equitable adjudication for final action.

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On February 8, 1895, the local officers transmitted the affidavit of a physician, to the effect that Richter was and had been since October, 1894, dangerously ill, and unable to leave his house, also the affidavit of Richter's brother, in which he states that William Richter will, if able, be present at the term of court which will be held in April, 1895. In July, 1895, the local officers transmitted final proof on said homestead entry, No. 768, by Elizabeth Richter, a naturalized citizen of the United States, and the mother of said William Richter, who died in April, 1895, with final certificate, No. 334, issued to the heirs of William Richter, deceased.

February 29, 1896, you decided that the proof made by Elizabeth. Richter can not be accepted, and held final certificate No. 334 for cancellation, but directed that the final certificate No. 240, in the name of William Richter, be then referred to the board of equitable adjudication for the action of that tribunal.

The case turns upon the rights of the heir of an entryman, who has made a declaration of intention to become a citizen, but dies, before final proof has been accepted and final certificate approved, without actual naturalization.

Under the homestead laws, the right of entry is given to a citizen of the United States or one "who has filed his intention to become such, as required by the naturalization laws." But an entryman, although he may have fulfilled all the requirements of the homestead law, is not entitled to patent, unless he is at that time a citizen of the United States. (Section 2291 of the Revised Statutes.)

In the case of Joseph Ellis (21 L. D., 377), on the authority of which case your office decision is founded, Ellis was entitled to patent at the time of his death. And it is held in the case of Henry E. Stich (23 L. D., 457), that section 2448 of the Revised Statutes, which provides:

Where patents for public lands have been or may be issued, in pursuance of any law of the United States, to a person who had died, or who hereafter dies, before the date of such patent, the title to the land designated therein shall inure to and become invested in the heirs, devisees, or assignees of such deceased patentee as if the patent had issued to the deceased person during life.

is applicable only when the right to patent exists in the entryman at the time of his death.

In the case under consideration, Richter, by reason of his not being naturalized at the time of his death, was not entitled to patent. Your office decision is therefore erroneous.

The board of equitable adjudication has no authority in such cases. Its province is confined to entries so far complete in themselves, that, when the defects on which they are submitted have been cured by its favorable action, they pass at once to patent. James H. Taylor, 9 L. D., 230.

By the statutes of the State of Washington an alien may hold, convey and devise land, and if he dies intestate, the same shall descend

to his heirs. (1 Hill's Statutes and Codes of Washington, Title LXX, S. 2955.) And by the rule and order of descent of real property:

If the decedent leaves no issue, the estate goes in equal shares to the surviving husband or wife, and to the decedent's father and mother if both survive. If there be no father nor mother, then one-half goes in equal shares to the brothers and sisters of the decedent, and to the children of any deceased brothers or sisters, by right of representation. If decedent leaves no issue, nor husband nor wife, the estate must go to his father and mother. (Hill's Statutes and Codes, Title XVII, S. 2.)

It seems to me that on the principles of equity and justice this entry should be passed to patent, and I can see no objection to submitting final homestead certificate No. 334, on the proof made by Elizabeth Richter, to the board of equitable adjudication, under rule 33 of rules and regulations of the board.

You will therefore refer final homestead certificate No. 334 to the board of equitable adjudication, and, if confirmed, patent will issue in the name of the heirs of William Richter. Agnew v. Morton, 13 L. D., 228.

The decision of your office is modified accordingly.

TIMBER CULTURE APPLICATION-ACT OF MARCH 3, 1891.

GALLUP v. WELCH.

An application to make timber culture entry of land embraced within a prior prima facie valid railroad indemnity selection is properly rejected, and an appeal from such action secures no right that is protected by section 1, act of March 3, 1891, repealing the timber culture law.

Secretary Bliss to the Commissioner of the General Land Office, July 12, (W. V. D.) 1897. (F. W. C.)

On May 7, 1896, J. F. Gallup filed a motion for the review of departmental decision of February 11, 1896 (not reported), in the case of said Gallup v. Wesley C. Welch, involving the W. of the NE. 1, the NW. of the SE. 4, and the NE. 4 of the SW. of Sec. 36, T. 85 N., R. 30 W., Des Moines land district, Iowa.

On October 6, 1896, said motion was entertained and forwarded to your office to be returned to Gallup for service within thirty days from receipt thereof.

Said motion has again been filed with evidence of service after the expiration of the thirty days allowed for that purpose, and for that reason motion is made to revoke the order entertaining the motion for review.

At the time the motion for review was entertained it was found that an error had been committed in the previous decision of this Department in the recognition of Welch's timber culture application after the repeal of the timber culture law, and for that reason it is deemed unnecessary to consider the motion to dismiss.

To a proper understanding of the matter, a brief history of the previous transactions had in relation to this tract is necessary.

As early as 1859 the land was selected by the State on account of the swamp land grant. On June 10, 1864, in a letter from your office addressed to the register and receiver at Des Moines, it was stated that the tract in question had been selected and patented to the State as swamp land under the act of 1850, and the local officers were directed to note the fact upon their tract books; which they did; and the same was duly noted upon the county records.

This tract is within Greene county, and as the State had conferred the swamp land grant upon the county, and the said county had contracted with the American Emigrant Company, said last mentioned company conveyed this land to James Callanan and James C. Savery. They in turn conveyed it to Gallup by quit claim deed April 4, 1890.

This tract is also within the limits of the grant for the Cedar Rapids and Missouri River Railroad Company, now known as the Iowa Central Air Line Railroad Company, which company, on June 30, 1885, filed a contest against the swamp land claims embracing the tracts here in controversy, together with other lands, and at the same time filed an application to select this tract as indemnity, the same being accompanied by a tender of fees.

The statement contained in your office letter of June 10, 1864, to the effect that this land had been patented to the State as swamp land, was erroneous. So that, upon the company's contest, hearing was duly ordered, and upon the testimony taken the swamp claim was rejected, as to the tract in question, by your office letter of November 16, 1886. On November 24, 1886, the local officers approved the railroad company's application to select, and permitted the same to go of record.

On January 22, 1889, Welch applied to make timber culture entry of the land; his application being rejected by the local officers because the land herein, as appears from the records of this office, appears to have been selected by the Cedar Rapids and Missouri River Railroad Company and approved at this office November 26, 1886; and because it is also shown by the tract book of this office that the within land was patented to the State of Iowa under the act of September 28, 1850.

From said decision Welch appealed.

By your office letter of April 11, 1892, the selection by the railroad company was canceled, because of the fact that the company had, in a suit brought by the American Emigrant Company against the railroad company, in 1882, to settle the question of conflicting rights between the two companies to certain tracts, disclaimed any right to the tracts in question, in consideration of which the Emigrant Company relinquished its claim to other lands involved in said grant.

In your said decision it is stated that on April 8, 1890, Gallup filed an application to select these tracts under the agricultural act of July 2, 1862; which application is rejected by said decision. It is further