Powell v. Powell

Citations

• 22 Idaho 531
• 126 P. 1058
• 1912 Ida. LEXIS 57

Syllabus

<p>Desert Land Entry — Death of Entryman — Desert Land Patent to Heirs of Entryman — Heirs Take Title by Purchase — Heirs Take Title as Tenants in Common — Heirs Take Title in the Same Proportion as They Would Take by Inheritance — Heirs Defined.</p> <p>(Syllabus by the court.)</p> <p>1. Where an entryman under the desert land laws of the United States dies before completing his improvements and reclaiming the land, and his administratrix thereafter completes the wort required, reclaims the land and pays the balance of the purchase price, and a patent is issued to the heirs of the deceased entryman, the heirs take by purchase and not by inheritance, and land so acquired is not subject to administration by the probate court as a part of the estate of the deceased.</p> <p>2. Where a patent issues from the United States “to the heirs” of a deceased person, and there is no aet of Congress specifying or designating who shall be deemed heirs, in such case resort must be had to the laws of the state where the land is situated for the purpose of determining who were the heirs of the deceased.</p> <p>3. Held, that the heirs meant and intended by such patent from the government are those heirs who would have inherited the separate property of the deceased under the laws of this state, they being the wife and children.</p> <p>4. Under the statutes of this state, secs. 3059 and 3104, the common-law rule of joint tenancy has been abrogated, and every interest in real estate granted or devised to two or more persons, other than executors or trustees, constitutes a tenancy in common, unless expressly declared to the contrary by grant or devise.</p> <p>5. Where the heirs of a deceased entryman upon public land of the United States receive a patent for such land after the death of the entryman, they will take their title under the laws of this state as tenants in common, eaeh heir taking the same interest and share in such property that he would have taken in the separate property o