In states whose laws permit illegitimate children, recognized by
the father in his lifetime, to inherit from him, such children are
"heirs" within the meaning of Rev.Stat. § 2269, which provides
that when a party entitled to claim the benefits of the preemption
laws of the United States dies before consummating his claim, his
executor or administrator may do so, and the entry in such case
shall be made in favor of his heirs, and the patent, when issued,
inure to them as if their names had been specially mentioned.
This was an action brought by John Caldwell against D. B. Miller
(for whom the Hutchinson Investment Company
Page 152 U. S. 66
was substituted) and L. B. Miller in the District Court for Reno
County, Kansas, to have his title established and recover
possession of the northeast quarter of section 12, township
twenty-three south, range six west, in that county. The case was
submitted to the district court for trial, a jury being waived, and
the court made special findings of fact and gave judgment in favor
of the defendants, whereupon the cause was taken on error to the
Supreme Court of Kansas. The supreme court reversed the judgment of
the court below and remanded the cause with a direction to enter
judgment upon the findings of fact in favor of Caldwell and against
the defendants for an undivided thirteen twenty-eighths of the land
and damages for its detention, and thereupon this writ of error was
brought.
The facts necessary to be stated were, in brief, these: Robert
Titus was married to Phoebe Thomas in Vermont in 1809, and the sole
issue of this marriage was Alden W. Titus, born in October, 1810.
After the birth of this son, Robert Titus, having gone into the War
of 1812, abandoned both wife and child, and, in 1818, without
having obtained a divorce, had a marriage ceremony performed
between him and Miriam Lee in the State of New York. By her he had
five children, of whom the youngest was a daughter, Lois, who
married D. B. Miller. From 1850, Robert Titus lived with Mr. and
Mrs. Miller, and in 1871 the family went to Reno County, Kansas,
and settled there. July 10, 1871, Robert Titus made a preemption
entry upon the land in controversy, but died before consummating
his preemption claim. After his death, D. B. Miller, administrator
of his estate, filed the necessary papers to complete the
preemption, paying the price thereof, four hundred dollars, to the
United States with his own money, and, April 20, 1874, a patent to
the land was issued, to the effect that
"the United States of America, in consideration of the premises
and in conformity with the several acts of Congress in such cases
made and provided, have given and granted, and by these presents do
give and grant, unto the said heirs of Robert Titus, deceased, and
to their heirs, the tract above described, to have and to hold the
same, together
Page 152 U. S. 67
with all the rights, privileges, immunities, and appurtenances
of whatsoever nature belonging, unto the said heirs of Robert
Titus, deceased, and to their heirs and assigns forever."
The children of Robert Titus and Miriam Lee were notoriously
recognized by Robert Titus as his own, and no question was ever
raised as to their legitimacy until in this suit. D. B. Miller
claimed the fee simple title to the land by conveyances from the
heirs of Alden W. Titus, as the only heir of Robert Titus,
deceased, and if the children of Robert Titus and Miriam Lee were
heirs, within the meaning of section 2269 of the Revised Statutes
of the United States, then Caldwell was entitled to recover an
undivided thirteen twenty-eighths of the land, and damages. The
opinion of the Supreme Court of Kansas, by Horton, C.J., is
reported in 44 Kan. 12.
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
By the statutes of Kansas, which was the State of the domicile
of Robert Titus at the time of his death and of the location of the
real estate in controversy, illegitimate children could inherit
from their father when they had been recognized by him, provided
such recognition was general and notorious, or in writing.
Gen.Stat.Kansas 786, c. 33, §§ 22, 23. Under the
circumstances disclosed on this record, therefore, the grantees in
a deed to the heirs of Robert Titus, and to their heirs, would have
embraced the children of Miriam Lee and their heirs, and this would
be so as respects this patent unless section 2269 of the Revised
Statutes, under which it was issued, provided otherwise.
Page 152 U. S. 68
The section reads:
"Where a party entitled to claim the benefits of the preemption
laws dies before consummating his claim, by filing in due time all
the papers essential to the establishment of the same, it shall be
competent for the executor or administrator of the estate of such
party, or one of the heirs, to file the necessary papers to
complete the same; but the entry in such cases shall be made in
favor of the heirs of the deceased preemptor, and a patent thereon
shall cause the title to inure to such heirs as if their names had
been specially mentioned."
We are unable to concur with counsel for plaintiffs in error
that the intention should be ascribed to Congress of limiting the
words "heirs of the deceased preemptor," as used in the section, to
persons who would be heirs at common law, (children not born in
lawful matrimony being therefore excluded), rather than those who
might be such according to the
lex rei sitae, by which,
generally speaking, the question of the descent and heirship of
real estate is exclusively governed. If such had been the
intention, it seems clear that a definition of the word "heirs"
would have been given, so as to withdraw patents issued under this
section from the operation of the settled rule upon the
subject.
That rule was thus referred to by this Court in
United
States v. Fox, 94 U. S. 315,
94 U. S.
320:
"It is an established principle of law everywhere recognized,
arising from the necessity of the case, 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,"
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.
But it is contended that the word "heirs" was used in its common
law sense, and it is true that technical legal terms are usually
taken, in the absence of a countervailing intent, in their
established common law signification; but that consideration has no
controlling weight in the construction of this statute. Undoubtedly
the word "heirs" was used as meaning, as at common law, those
capable of inheriting, but
Page 152 U. S. 69
it does not follow that the question as to who possessed that
capability was thereby designed to be determined otherwise than by
the law of the state which was both the situs of the land and the
domicile of the owner.
The object sought to be attained by Congress was that those who
would have taken the land on the death of the preemptor, 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. In other words, Titus intended to acquire
the title, and had complied, or was proceeding to comply, in good
faith with the requirements of the law to perfect his right to it,
and by this statute that right could be perfected after his death
for the benefit of those who would have been entitled if his death
had occurred after patent instead of before. If the provision
admitted of more than one construction, that one should be adopted
which best seems to carry out the purposes of the act.
Bernier
v. Bernier, 147 U. S. 242.
In this view, it was held in
Brown v. Belmarde, 3 Kan.
41, that the words, "heirs of deceased reservees," in the act of
Congress of May 26, 1860, 12 Stat. 21, c. 61, which operated as an
original grant to certain reservees and their heirs, designated the
persons who were capable of inheritance by the law of the state
when the act of Congress took effect.
And see Clark v.
Lord, 20 Kan. 390.
So the usual rule was recognized in
Lamb v. Starr, 1
Deady 350. By the fourth section of the Oregon Donation Act of
September 27, 1850, c. 76, 9 Stat. 496, it was provided that if
either the settler or his wife died before the issue of the patent,
"the survivor and children or heirs of the deceased" should be
entitled to the share or interest of the deceased in equal
proportions, and the late Judge Deady, referring to the disposal of
the share of a deceased wife, said that, at the time of her
death,
"there was no statute in Oregon regulating the descent of real
property or declaring who should be the heirs of an intestate, and
therefore the subject was regulated by the common law. By this
rule, her children were her heirs.
Page 152 U. S. 70
The Donation Act does not prescribe who shall be considered the
heirs of a deceased settler, any more than it prescribes who shall
be considered the wife of a settler. Both these are left to the
local law, the law of Oregon. If the law of Oregon at the time of
Nancy's death had prescribed that brothers and sisters should be
heirs to the intestate, either exclusive or inclusive of the
children, it appears to me that, under the Donation Act, then the
children would take to the exclusion of the brothers and sisters.
Congress seems to have intended to secure the share of the deceased
to her children, if any, whether the law of Oregon made them heirs
or not. Beyond this it left the matter to the local law, by
providing the alternative that, in default of children, such share
should go to her heirs, whoever they might be. Who would be
entitled to claim as heir of the deceased would in all cases depend
upon the law of Oregon at the time of the death, but persons
claiming as children are, by the Donation Act, preferred to those
claiming simply as heirs by the local law."
And in
Davenport v.
Lamb, 13 Wall. 418,
80 U. S. 427,
it was pointed out that the Act of Congress of May 20, 1836, c. 76,
5 Stat. 31, Rev.Stat. § 2448, providing that where patents had
been issued to persons who had died, the title should inure to and
become vested in "the heirs, devisees, and assigns" of the
deceased, made the title inure in a manner different from that
provided by the donation act, upon the death of either owner before
the issue of the patent, because the survivor of the husband or
wife was not his or her heir by any law of Oregon at the time of
the death in that case.
There is nothing to the contrary in
McCool v.
Smith, 1 Black 459, which was a case coming to this
Court from Illinois, in which it was held that the meaning of the
words "next of kin" was to be determined by the common law of
England, because the common law in that regard was then in full
force in that state.
The language of the acts of Congress has not been uniform in the
matter of the disposition of the public domain after the death of
the principal beneficiary. Thus, under section 2443, in respect of
bounty lands granted to officers and soldiers of
Page 152 U. S. 71
the Revolutionary War or soldiers of the War of 1812, the
patent, when applied for by part of the heirs, was to be issued in
the name of the heirs generally, and to inure to the benefit of the
whole in such portions as they were severally entitled to by the
laws of descent in the state or territory of the decedent's
domicile, and other illustrations might be given.
This differences, however, cannot affect our conclusion here,
which, under the circumstances, accords with that of the Supreme
Court of Kansas.
Judgment affirmed.
