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erty of the donee, as was likewise the land which was purchased by means thereof.
It is further contended that the expressions found in Ezra Hatch's will concerning this property make it community property, and estop his devisees from now contending that it was not. The language of the will is:
"I give and bequeath to my daughter Esther Hatch, and to my sons Dexter Hatch, Arthur Hatch, Cyrus Hatch, and Ezra Hatch, all my estate, real and personal, of every name and nature whatsoever, owned by me at the time of my death, after paying all my just debts and the admitting this, my last will, to probate, and the sum of five dollars, hereinafter bequeathed to my wife, Josephine Hatch, said estate being a one-half interest in the community property now owned by me and my said wife."
It may be conceded that Ezra Hatch believed both his pre-emption claim and his homestead claim to be the community property of himself and his wife, and it is possible that, had he known the nature of his estate in the two claims, he might have made a different testamentary disposition thereof. But the specific devise of all his interest and estate to his children cannot be controlled or diverted by the expression of his belief that the estate so devised was the one-half interest in community property. This opinion was not an admission against his interest so as to estop him or his devisees from thereafter asserting the truth. He may have assumed that he owned an undivided one-half of the pre-emption claim and an undivided half of the homestead claim. If so, he was in error as to both claims, for the pre-emption claim was his separate property, and all of the homestead claim was subsequently patented to Josephine, so that the children took no interest therein under the will. The result was that the land was substantially divided between the widow and the children. Nor can it be said that third persons, acting upon the faith of such a representation in the will, are misled. There was no specific statement in the will that the pre-emption claim was community property. A purchaser of said land at a partition sale was necessarily put upon inquiry to ascertain the nature of the estate which the testator possessed, and the facts concerning the same. An examination of the patent would have shown that the land was a gift from the United States. Neither do we find any warrant for holding, as contended by the appellants, that the provision of the will just quoted is in law a devise upon the part of Ezra Hatch to his wife, giving to her a one-half interest in the land. There is nothing in the will to indicate a purpose upon his part to devise to her any portion of his interest in real estate. He bequeathed to her the sum of $5, evidently with the intention that, as to her, he should not be deemed to have died intestate. The reference to the community property tends only to prove that he entertained the erroneous belief that both claims were community property, and that Josephine owned the undivided one-half of each, whereas, in fact, the children took under the will all of the pre-emption claim, and the widow took under the homestead law all of the homestead claim.
We find no error in the decree appealed from, and the same is affirmed, with the costs to the appellees.
GARRETT et al. v. BOEING et al.
(Circuit Court of Appeals, Sixth Circuit. May 13, 1895.)
JUDGMENT-COLLATERAL ATTACK-PROBATE COURT.
When a petition for administration has been presented to a parish court in Louisiana, containing a representation of all facts necessary to confer jurisdiction to grant administration to the public administrator and decree the sale of property to pay debts, and such court, having power to inquire into the facts, and in the regular exercise of its jurisdiction, has made a decree granting administration and directing a sale, such decree cannot be questioned collaterally, either on the ground that the succession was not vacant, but had been assumed by the heirs by a tacit acceptance, or that the decedent died in another parish, or that there were no debts, or that no notice of the proceedings was given to the parties interested. Appeal from the Circuit Court of the United States for the Northern Division of the Western District of Michigan.
This was a suit by Martin Alonzo Garrett and others against Marie M. Boeing and others to impress a trust upon the legal title to certain lands and for an accounting. The circuit court sustained a demurrer to the bill. Complainants appeal. Affirmed.
This case was argued and submitted with Hodge v. Palms (No. 232) 68 Fed. 61; McCants v. Land Co. (No. 233) Id. 66; Morancy v. Palms (No. 234) Id. 64; and Fletcher v. McArthur (No. 235) Id. 65,-cases in many respects of a similar character.
By the act of cession from France to the United States of the territory of Louisiana, in 1803, it was stipulated that the United States should give protection to the property rights of the citizens of the territory. For the purpose of carrying out this stipulation, congress passed an act providing for the appointment of a board of commissioners to ascertain what land claims covered by the treaty were just and valid. It happened that more claims were allowed and certified than there were lands to which they were applicable. The present suit involves one of such claims as remained unsatisfied, and dates. in its origin as early as 1789. The suit was brought by a bill in equity filed in the Northern division of the circuit court of the United States for theWestern district of Michigan. The complainants, by the averments of their bill, set forth in substance the following state of facts: That in the year 1810. one Joshua Garrett was the owner of an inchoate land claim in the former parish of Opelousas, in the state of Louisiana, comprised within the present. parish of St. Landry, for 1,361 acres of land, which claim was entered by the. commissioners for the Western district of Louisiana in their report of April 6, 1815, and, with other claims embraced in said report, was confirmed by an act of congress approved April 29, 1816. That said Joshua Garrett died possessed of that claim about the year 1812, in the parish of St. Mary's, in Louisiana, his domicile being in that parish, and leaving as his heirs at law two sons and one daughter; and that at the time of his death said Joshua Garrett owned a considerable amount of real estate and personal property situated in the said parish of St. Mary's. That there is no record in that parish of the settlement of his estate, but that by the law of Louisiana the heirs of the decedent were immediately upon his death seised and possessed of all his estate, subject only to their right to renounce the succession or the right of creditors to require an administration. That such renunciation is not presumed, but must be made by a formal act before a notary. Their acceptance, however, may be evidenced by any act of the heirs indicating their intention to exercise ownership over the ancestor's property; and that, after the acceptance by the heirs of the succession of their ancestor, no administrator can lawfully be appointed to administer thereon. That, immediately after the death of the said Joshua Garrett, his heirs took possession of all his real estate and of his other effects capable of being reduced to possession, and thereafter used, controlled, and disposed of the same as owners thereof. The
bill then proposed to deraign title to the land claim from the heirs of the said Joshua Garrett to the complainants in this suit, and goes on to state that for reasons not involving fault on the part of the said Joshua Garrett, or of the persons claiming under him, the said land claim remained unlocated and unsatisfied, and without provision for its satisfaction, until the passage by congress of the act approved June 2, 1858, entitled "An act to provide for the location of certain confirmed private land claims in the state of Missouri and for other purposes," by which act it was provided, in section 3: "That in all cases of confirmation by this act, or where any private land claim has been confirmed by congress, and the same, in whole or in part, has not been located or satisfied, either for want of a specific location prior to such confirmation, or for any reason whatsoever, other than a discovery of fraud in such claim subsequent to such confirmation it shall be the duty of the surveyor general of the district in which such claim was situated, upon satisfactory proof that such claim has been confirmed, and that the same, in whole or in part, remains unsatisfied, to issue to the claimant or his legal representatives, a certificate of location for a quantity of land equal to that so confirmed and unsatisfied; which certificate may be located upon any of the public lands of the United States subject to sale at private entry at a price not exceeding $1.25 per acre: provided, that such location shall conform to legal divisions and subdivisions." And in section 4: "That the register of the proper land office, upon the location of such certificate, shall issue to the person entitled thereto, a certificate of entry upon which, if it shall appear to the satisfaction of the commissioner of the general land office that such certificate has been fairly obtained, according to the true intent and meaning of this act, a patent shall issue as in other cases;" and that no limit of time was fixed for the presentation of claims under said act for such certificates of location. That during the lapse of time between the origin of said inchoate claim, its confirmation, and the provision for its satisfaction in the act of congress above quoted, many of those interested therein had died, and their heirs or legal representatives with respect to said land claim, many of whom were minors, as well as the survivors among those originally interested, had become widely scattered, and had, by reason of said delay, lost all hope of satisfaction for their said claims, and that neither the complainants nor any of those interested in said land claim, who were alive June 2, 1858, knew of the existence of said claim or of the passage of the act of 1858, or of their rights under the said act, until within 18 months last past; and that neither the surveyor general for the district of Louisiana in office from June 2, 1858, to February 6, 1861, nor his next successor, appointed August 16, 1869, nor any of his successors, ever took any steps to apprise the said legal representatives of their said rights, it being the practice to issue certificates of location, under said act, only upon application therefor; and that neither these complainants, nor any of the persons from whom they derive title to their interests in said land claim, ever applied for or received any certificate of location under said act of 1858, or other thing in satisfaction of said claim or any part thereof. That in the year 1872 one Daniel J. Wedge induced the public administrator of the parish of La Fayette, in the state of Louisiana, to file his petition in the parish court of that parish, by Wedge, his attorney, alleging that the estate of Joshua Garrett was vacant; that it consisted of the confirmed but unsatisfied land claim above referred to, and that it was less than $500 in value; and praying to be appointed administrator thereof, and for an inventory and sale of the same, under the laws of Louisiana regulating the administration of vacant estates of less than $500 in value; and that such proceedings were had that on the 1st day of August, 1872, the judge of the parish court, in pursuance of said petition, issued an order appointing the said public administrator to be administrator of said estate, and directing an inventory and sale of the property which might be found to belong thereto, to pay debts. That the inventory was returned August 2, 1872, and the property sold on the 29th day of that month in accordance with the order, at which sale Wedge purchased the said land claim for the sum of forty dollars, which was wholly consumed in the payment of the costs and expenses of administration, no other debts being shown to exist. That no notice was given of the application for the appointment of the administrator or of the sale of said property, nor of the order appointing the administrator and directing the
sale. The proceedings thus stated fully appear from a copy thereof which was
"No. 366A. Act of June 2nd, 1858. Acres, 80.
"New Orleans, La., June 2, 1879.
"I hereby certify that by the act of congress approved April 29, 1816, entitled 'An act for the confirmation of certain claims to land in the Western district of the state of Louisiana and in the territory of Missouri,' the claim of Joshua Garrett, entered as No. 44, class B, in the report dated April 6th, 1815, of the commissioners for the Western district, state of Louisiana, is confirmed to Joshua Garrett for 1,361 12/100 acres of land, of which there remains unsatisfied the quantity of 1,361 12/100 acres, which quantity the said claimant is entitled to locate, pursuant to the provisions of the third section of act of congress approved June 2, 1858, entitled 'An act to provide for the location of certain confirmed private land claims in the state of Missouri, and for other purposes.' Now, therefore, be it known that, on surrender of this certificate to the register of any land office of the United States, the said Joshua Garrett, or his personal representative, shall be entitled to locate, in part satisfaction of said claim, the quantity of 80 acres 'upon any of the public lands of the United States subject to sale at private entry, at a price not exceeding one dollar and twenty-five cents per acre, provided that such location shall conform to legal divisions and subdivisions.'
"O. H. Brewster, "Surveyor General, District of Louisiana."
"Surveyor General's Office.
"New Orleans, La., June 2d, 1879.
"It is hereby certified that, in pursuance of evidence on file and of record in this office, D. J. Wedge is the legal representative of Joshua Garrett, the deceased confirmee, and as such is authorized to locate the within certificate. "O. H. Brewster,
"Surveyor General of Louisiana."
Upon the certificates being forwarded by the surveyor general to the commissioner of the general land office, he authenticated the same as follows:
"General Land Office.
"Washington, D. C., June 14, '79. "The foregoing certificate or script, having been lawfully issued by the surveyor general of Louisiana, is receivable, according to its terms, at any land office in the United States for the location, subject to entry at private sale and to which no adverse right exists. J. M. Armstrong, "Acting Commissioner."
That the evidence referred to in said indorsement consists solely in the record of said succession proceedings. Thereupon the said certificates were delivered to Wedge. That one Wilhelm Boeing, on July 17, 1880, offered the said certificates of location at the United States land office at Marquette, Mich., for location upon the lands involved in this suit, and the said certificates were received by the register of the said land office in payment for said lands. That patents were issued by the United States on the 30th day of December, 1881, conveying the said lands to said Boeing, which patents recited the provisions of the act of congress of June 2, 1858, and set forth that they were issued in conformity with said act, in full satisfaction of the unlocated and unsatisfied claim of Joshua Garrett, and stated that the locator
was the assignee of the legal representative of the said Garrett. The bill then shows conveyances of part of said lands to some of the defendants in the case, and the inheritance of other parts thereof by the other defendants, upon the death of said Wilhelm Boeing, on January 10, 1890. That the defendants, claiming title to the lands under said locator, now hold possession, or have at some other time entered upon and held possession, of some part of the lands hereinbefore described, and that each of them, in person or by their agents, has removed, or authorized to be removed, the timber or other valuable products from the lands of which they now have possession, or have sold and have received large sums of money from the sale thereof, and from the rents and profits arising from said lands. That the value of the timber or other products so cut and removed largely exceeds the sum of $2,500. That all the aforesaid transactions, from the beginning of the succession proceedings in the parish court of La Fayette parish to the cutting and disposal of the timber and the reception of the rents and profits from the lands, were carried on without the knowledge of the complainants, or any person from whom they claim title. That complainants were wholly ignorant of the same, and of their rights in the premises, until the fall of the year 1889, when some of them, learning that certificates of location had been issued in satisfaction of said claim, made investigations respecting the claim and their rights thereunder. That the persons through whom they derive their title were widely scattered, and their residences unknown to complainants. Whereupon the facts were ascertained, the residences of the several complainants discovered, and their co-operation secured, and thereupon they filed their bill of complaint. They allege that the pretended succession proceedings in said parish of La Fayette and the sale therein made of the said land claim of Joshua Garrett are void, of no effect, and vested no title in said Wedge, for the following reasons: (1) Because said claim was not assets of the estate of the said Joshua Garrett, but the property of his descendants, whose estate the complainants now have; (2) because the parish court of the said parish of La Fayette was without jurisdiction to appoint an administrator upon the estate of the said Joshua Garrett; (3) because the said pretended appointment and sale were not preceded by the orders and publications required by law; and (4) because said Daniel J. Wedge could not lawfully purchase at said pretended sale. And they further charge that the said Wedge, by virtue of the said proceedings, became a constructive trustee for the legal representatives of said Joshua Garrett in respect to said claim, and that the several respective and successive assignees, down to and including the defendants, had notice of the said trust, and are chargeable by reason thereof. They pray that they may be adjudged to be the true legal representatives of the said Joshua Garrett. That the several defendants may be adjudged to hold the lands now respectively held by them in trust for the complainants, and to convey the said lands. That the several defendants may be restrained and enjoined from selling or making any claim of title to said lands, and from entering thereon and from in any manner intermeddling therewith. That an account may be taken of the timber and other products removed from said lands, and of the value thereof, and of the amounts received from rents and profits, and that the defendants may be decreed to pay the complainants such value and amounts, with interest. The specific character of the proceedings in the parish court of La Fayette parish, as shown by the exhibits attached to the bill, is more fully stated in the opinion of the court. To this bill the defendants demurred, and assigned as special grounds for their demurrer, among others, the reasons discussed in the opinion. The bill was amended during its pendency in the court below, but those amendments did not make any change in the statement of the facts material to be stated. in the view which the court takes of the case upon this appeal. The circuit court sustained the demurrer, and ordered the bill to be dismissed, upon the ground, as appears from the memorandum of its opinion sent up with the record, that, although the bill avers that Joshua Garrett died in St. Mary's parish, and that was the parish of his domicile, while the proceedings were in the parish of La Fayette, yet that said parish court of La Fayette parish found that said Garrett died in La Fayette parish, and upon the further ground that the claim of the complainants is a stale claim, and barred by laches. From the decree dismissing the bill the complainants appeal.