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The following questions of law which arose out of the foregoing facts were certified to this court:

a return of legacies arising from personal tate, if it would not be payable if such perproperty of every kind whatsoever, being in son died intestate; and if Madame de la charge or trust of said executor, passing Valette had died intestate, her son would from Louisa Augusta Ripley-Pinède to her not have taken a distributive share 'by the said daughter by her will, as aforesaid. intestate laws of any state or territory,' but, if at all, by the law of France, the domicil of his mother at the time of her death. And § 125, by requiring the executor or ad"1. Can the said personal property of the ministrator to pay the amount of this duty nonresident testatrix, Louisa Augusta Rip-to the collector or deputy collector of the ley-Pinède, actually located within the district of which the deceased person was a United States at the time of her death, resident,' leads to the same conclusion." September 25, 1898, be deemed to have a situs in the United States for the purpose of levying a tax or duty upon the transmission or receipt thereof under §§ 29, 30, and 31 of the act of Congress entitled 'An Act to Provide Ways and Means to Meet War Expenditures, and for Other Purposes,' approved June 13, 1898?"

The real question, then, is, as said by Mr. Justice Gray, whether the act makes the duty payable when the person possessed of such property dies testate, if it would not be payable if such person died intestate, although the actual question involved in this cause differs from the one there involved, in the fact that in the Hunnewell Case the "2. Was the transmission or receipt of will was executed abroad, while in the presthe said personal property of the nonresi-ent case it was executed in this country. dent testatrix, Louisa Augusta Ripley- Bearing in mind the fact that the tax in Pinède, which was actually located in the this case is not upon the property itself, United States at the time of her death, Sep- but upon the transmission or devolution of tember 25, 1898, subject to taxation* under such property, the question again recurs, as §§ 29, 30, and 31 of the act of Congress en- it did in the preceding case, whether the titled 'An Act to Provide Ways and Means succession took effect in France or in New to Meet War Expenditures, and for Other York. We are aided in the solution of this Purposes,' approved June 13, 1898?" problem by the language of § 2694 of the New York Code of Civil Procedure, also cited in the preceding case, which is as fol"Except where special provision is otherwise made by law, the validity and effect of the testamentary disposition of any other [than real] property situated within the state, and the ownership and disposiThis case differs from the one just decided tion of such property where it is not disonly in the fact that the will of the non-posed of by will, are regulated by the laws resident testatrix was executed in New of the state or country of which the deceYork, November 6, 1890, during a tem- dent was a resident at the time of his porary sojourn there, although, as in the preceding case, the testatrix was domiciled abroad, and bequeathed her personal property in New York to a daughter who was married and also lived abroad.

Solicitor General Richards for Moore. Messrs. Alfred E. Hinrichs and Frede-lows: ric W. Hinrichs for Ruckgaber.

Mr. Justice Brown delivered the opinion of the court:

death." Now as, if Madame Pinède had died without leaving a will, her property would have passed under the intestate laws of France and been exempt from this tax, it follows under the Hunnewell Case that it is equally exempt though it passed by will.

There can be no doubt whatever that, if Madame Pinède had died intestate, the per- The will of Madame Pinède is confined to sonal property would not have passed by the her personal property in this country, and law "of any state or territory" (using the the record does not show whether she was words of the act), but by the laws of possessed of other property in France or in France. The question, then, is whether the any foreign country. If she had, that propcondition is changed if the property pass erty would either pass by will executed under a will executed in this country. In there or under the intestate laws of her United States v. Hunnewell, 13 Fed. 617, domicil. For reasons stated in the prior cited in the preceding case, the will was opinion, we do not think Congress contemexecuted in France, but the decision of plated by this act that the estates of deMr. Justice Gray, holding that the tax was ceased persons should be split up for the not payable, was not put upon the ground purposes of distribution or taxation, but that the will was executed in a foreign that, so far as regards personal property, country, but upon the broader ground that the law of the domicil should prevail. the legacy duty was payable only upon the estate of persons domiciled within the United States. In delivering the opinion he observed: "Section 124 [of the similar act of 1864] imposes a duty on legacies or distributive shares arising from personal of Romaine, who had died intestate in Virproperty 'passing from any person possessed of such property, either by will or by the intestate laws of any state or territory;' it does not make the duty payable when the person possessed of such property' dies tes

A question somewhat to the converse of this arose in Re Romaine, 127 N. Y. 80, 12 L. R. A. 40], 27 N. E. 759, which was a proceeding to compel payment of an inheritance tax by the administrator of the estate

ginia, leaving a brother and sister resident in New York, as his next of kin. The act of 1887 subjected to an inheritance tax “all property which shall pass by will or by the intestate laws of this state, from any person

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*598

who may died seised or possessed of the same while a resident of this state, or if such decedent was not a resident of this state at the time of his death, which property or any part thereof shall be within this state." [N. Y. Laws 1887, chap. 713, 1.] The question was whether the property of Romaine, who died in Virginia intestate, was subject to the tax. After decid

neither made an entry on the land nor per fected a right to do so, has no vested right or interest therein of which he is deprived without due process of law by the act of Congress of December 29, 1894, enacted dur ing the pendency of the contest, confirming the title of the original entryman.

ing that the tax applied to two classes, Submitted
namely, resident and nonresident decedents,
the court observed: "But does it apply to
all persons belonging to these two classes?

[No. 147.]

January 29, 1902. Decided
March 24, 1902.

PPEAL from the United States Circuit

cuit to review a decree which affirmed a de
cree of the Circuit Court for the District of
Nebraska dismissing a bill in equity to
Affirmed.
charge a pre-emption entry with a trust.

See same case below, 42 C. C. A. 499, 102
Fed. 559.

It is not denied that it applies to all resi-A Court of Appeals for the Eighth Cir. dent decedents, and to all nonresident tes tators, but it is contended that it does not apply to nonresident intestates, because property 'which shall pass by the intestate laws of this state' is expressly mentioned to the implied exclusion of property passing by the intestate laws of other states. This is the position of the appellant, whose learned counsel claims that the act in its present form was designed to Statement by Mr. Chief Justice Fuller: meet cases of succession by will, but not of This is an appeal from a decree of the succession by intestacy, unless the intestate circuit court of appeals for the eighth cirwas a resident of this state. It is difficult, cuit, affirming the decree of the circuit court however, to see why the legislature should of the United States for the district of discriminate simply for the purposes of tax- Nebraska, dismissing a bill filed therein by ation between the property of a nonresident George F. Emblen against the Lincoln Land decedent who made a will, and of one who Company, George F. Weed, and others. The did not. It is not probable that there was bill averred that Weed, September 19, 1885, an intention to tax the estates of nonresi- made a cash pre-emption entry of the south. dent testators and to exempt those of non-east quarter of section 22 of township 2, resident intestates, because there is no foundation for such Property of the same kind, situated in the same place, receiving the same protection from the law, and administered upon in the same way, would naturally be required to contribute toward the expense of government upon the same basis, regardless of whether its last owner died testate or intestate."

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distinction

By parity of reasoning, we think it follows that no discrimination was intended to be made between nonresidents who died testate, even though the will were made in this country, and those who died intestate; and as we have held in the preceding case that the law does not apply to nonresidents who died intestate, or testate under a will executed abroad, we think it follows that it does not apply to deceased persons domiciled abroad who left property by will executed in this country.

north of range 48 west, at the land office of the United States in the city of Denver, Col. orado; that October 4, 1888, Emblen filed a contest against this entry on the ground that Weed had not complied with the requirements of the law in respect of residence on the premises, and that the entry was fraudulent, and made for speculative purposes; that Emblen's purpose in making the contest was not only that the laws of the United States should be complied with by Weed, but that by defeating Weed's entry he (Emblen) might be enabled to enter the land under the provisions of § 2 of chapter 89 of the laws of the United States, approved May 14, 1880 (21 Stat. at L. 140, chap. 89), which section read as follows:

"Sec. 2. In all cases where any person has contested, paid the land office fees, and procured the cancelation of any pre-emption, homestead, or timber culture entry, he shall be notified by the register of the land office of the district in which such land is situ ated of such cancelation, and shall be al lowed thirty days from date of such notice Mc-to enter said lands: Provided, That said

The questions certified must therefore be answered in the negative.

Mr. Justice White and Mr. Justice Kenna concurred in the result.

(184 U. S. 660)

GEORGE F. EMBLEN, Appt.,

v.

register shall be entitled to a fee of one dol. lar for the giving of such notice, to be paid by the contestant, and not to be reported." The bill further averred that on a hearing the register and receiver, on May 21, 1890,

LINCOLN LAND COMPANY, George F. recommended the dismissal of the contest;

Weed, Ida B. Weed, et al.

Public lands pre-emption entry-act confirming title pending contest-due process of law.

▲ contestant of a pre-emption entry, who has

that Emblen appealed to the Commissioner of the General Land Office, and his appeal was sustained; that thereupon Weed moved for a rehearing, and the officials and inhab itants of the town of Yuma, which had been located on the premises, intervened for the

399.

act of Congress above cited, and the issue of patent thereunder, deprived complainant of a vested right without due process of law. It was also averred* that in January, 1886, the town of Yuma was located on a part of the premises, and the town and a large number of other parties were made defendants, it being charged that they had full knowledge of the facts regarding the Weed entry.

protection of their rights; the rehearing Weed entry; and that the passage of the was granted, but before it was had a new land district was created at Akron, Colorado, which embraced the land in question; and the rehearing was ordered to take place at Akron on September 16, 1890; that Emblen did not appear, but filed objections to the jurisdiction, averring that the receiver at Akron was an interested party. On the rehearing the local officers found in favor of Weed and dismissed the contest, and thereupon Emblen appealed to the Commissioner of the General Land Office, and the Commissioner affirmed the action of the local land office, from which ruling Emblen further appealed to Mr. Secretary Noble, then Secretary of the Interior, who, by a decision rendered January 9, 1893, affirmed the action of the local officers and of the Commissioner.

The bill prayed that the several defendants be decreed to hold the title to the property in trust for the use and benefit of complainant, and that it be decreed that the patent issued under the act of Congress to Weed conveyed no property in the premises against the rights of complainant. The principal defendants interposed a demurrer to the bill, which was sustained, and the bill dismissed with costs. 94 Fed. 710. The case was then carried to the circuit court of appeals for the eighth circuit, and the decree of the circuit court affirmed. The opinion of Judge Shiras in the circuit court was adopted as the opinion of the circuit court of appeals, 42 C. C. A. 499, 102 Fed. 559. An appeal was then prosecuted to this court.

Messrs. Ed. R. Duffie and T. J. Mahoney for appellant.

Messrs. J. W. Deweese and Frank E. Bishop for appellees.

Mr. Chief Justice Fuller delivered the opinion of the court:

The bill then averred that Emblen subsequently moved for a review of the decision before Mr. Secretary Smith, on the ground, among other things, of newly discovered evidence, and that a rehearing of the whole contest was ordered by him to be had before the local officers, in obedience to which the register and receiver at Akron set the case for rehearing on January 2, 1894; at which time Weed and other parties interested obtained a continuance; it being charged that this continuance was obtained for the purpose of procuring the passage of an act of Congress confirming the title of the original entryman, which act was in fact passed and approved December 29, 1894 (28 Stat. at L. 599, chap. 15), and was in these words: At October term, 1895, appellant filed his "That the pre-emption cash entry numbered petition in this court for a writ of mandaforty-nine hundred and ninety, of George F. mus to the Secretary of the Interior to hear Weed, made at the district land office at and decide the contest between himself and Denver, Colorado, on the nineteenth of Sep- George F. Weed as to the quarter section of tember, eighteen hundred and eighty-five, land in Colorado in question. The petition for the southeast quarter of section twenty-alleged in substance the same matters set two, township two north, of range forty-up in the bill in this case. The writ of eight west, which tract embraces the town mandamus was denied, and Mr. Justice of Yuma, Colorado, the county seat of Yuma Gray, speaking for the court, said: "Such county, Colorado, be, and the same is hereby, confirmed; and that patent of the United States issue therefor to said Weed." Complainant alleged that while the bill for that act was pending before both houses of Congress full information was furnished them of the exact status of the contest over the land; that when the act was passed, the question of the title thereto was pending in the Land Department, which, under the Constitution and laws of the United States, is solely charged with the duty of determining the rights of pre-emptors and contestants and the right to issue patent therefor to the parties entitled thereto; and that Congress had no right or power to adjudicate on the question of the title to the premises in dispute; and that, moreover, under the provisions of section 2 of the act of Congress of May 14, 1880, complainant had a vested right to enter the land upon the determination of the contest then pending between Ct. Rep. 487. himself and Weed; and that if complainant The bill before us is such a bill, and the had been permitted to continue the contest question arises whether it was within the to final determination he would have suc- power of Congress to exercise control over ceeded in securing the cancelation of the' the land, and direct, as it did, the issue of

being the state of the case, it is quite clear that (even if the act of Congress was unconstitutional, which we do not intimate) the writ of mandamus prayed for should not be granted. The determination of the contest between the claimants of conflicting rights of pre-emption, as well as the issue of a patent to either, was within the general jurisdiction and authority of the Land Department, and cannot be controlled or restrained by mandamus or injunction. After the patent has once been issued, the original contest is no longer within the jurisdiction of the Land Department. The patent conveys the legal title to the patentee, and cannot be revoked or set aside, except upon judicial proceedings instituted in behalf of the United States. The only remedy of Emblen is by bill in equity to charge Weed with a trust in his favor." Re Emblen, 161 U. S. 52, 40 L. ed. 613, 16 Sup.

*664

the patent to Weed; and that depends on whether Emblen had obtained a vested right in the land before the passage of the act of December 29, 1894, as otherwise the power of Congress over its disposition as public land was plenary. Frisbie v. Whitney, 9 Wall. 187, 19 L. ed. 668; Shepley v. Cowan, 91 U. S. 330, 23 L. ed. 424; Buxton v. Traver, 130 U. S. 232, 32 L. ed. 920, 9 Sup. Ct. Rep. 509; Gonzales v. French, 164 U. S. 345, 41 L. ed. 460, 17 Sup. Ct. Rep. 102.

The Weed entry had not been canceled when the act of 1894 took effect, so that Emblen had no right to make entry under the act of May 14, 1880. The jurisdiction of the Land Department ceased with the issue of the patent, and the power of Congress to direct the patent to issue was unaffected by the possibility that Emblen, if he had been permitted to prosecute his contest, might have succeeded. As Mr. Justice Miller said in Frisbie v. Whitney, 9 Wall. 187, 19 L. ed. 668, the rights of a claimant are to be measured by the acts of Congress, and if they show "that he acquired no vested interest in the land, then, as his rights are created by the statutes, they must be governed by their provisions, whether they be hard or le

nient."

As Emblen never made an entry on the land, nor perfected a right to do so, it results that he had no vested right or interest which could defeat the operation of the act of 1894.

Decree affirmed.

(184 U. S. 649)

Messrs. Matthew G. Reynolds, Wil liam H. Pope, and Solicitor General Rich ards for appellees.

Mr. Chief Justice Fuller delivered the opinion of the court:

This was a petition filed March 1, 1893, for the confirmation of a grant situated in Arizona, containing, according to a survey made on petitioner's behalf, 26,508.06 acres. February 13, 1899, an amended and supplemental petition was filed, praying that if there were found to be an overplus, petitioner should be allowed to pay for such excess and costs, which it offered to do as soon as the same were ascertained, and it tendered $300 in* gold as payment for overplus and $200 for costs. The court of private land claims rejected the grant because there was "such uncertainty as to the land which was intended to be granted that it is impossible now to identify it." Two justices dissented, being of opinion that the claim should be confirmed for 2 sitios.

A titulo was introduced in evidence (in the surveyor general's office, produced from private custody), and this showed that on June 2, 1833, Ygnacio and Tomas Ortiz, asserting themselves to be sons and heirs of one Augustin Ortiz, petitioned the alcalde of Tubac, stating that in 1812 their deceased father paid into the treasury of the capital of Arispe $747 and 3 reals, as the highest bid, for which 2 sitios of land for raising cattle were sold to him at public auction in the place called Aribac, and that they were "ignorant as to who was the surveyor or where the expediente containing the meas

ARIVACA LAND & CATTLE COMPANY, urements, appraisement, and auctions is

Appt.,

บ.

UNITED STATES et al.

Private land claims-definite location. A Mexican grant of "2 sitios of land for rais. Ing cattle and horses, which comprise the place called Aribac," made in proceedings to perfect a title acquired under a prior sale, the record of which had been lost, is not so located as to admit of confirmation under the provision of the Gadsden treaty that grants are not to "be respected or be considered as obligatory which have not been located and duly recorded in the archives of Mexico," where the landmarks described in the depositions taken in the proceedings to secure the grant cannot be identified with adequate certainty, and the location of the 2 sitios within the larger area claimed cannot be satisfactorily determined because the record contains no original survey or field notes, and there is no certainty as to an Initial point or center.

[No. 153.]

now," and asking that the depositions of three witnesses be taken as to the settlement and possession of the land from 1812, and the landmarks and boundary lines. The alcalde proceeded to take the depositions of three witnesses, who deposed in substance that the Aribac ranch had been settled and occupied by Ortiz and his sons from 1812 to that time, and that the landmarks were "the one towards the north on the high pointed hill (devisadero) that rises on this side of the Tagito mine and borders on the Sierra de Buenavista; the one towards the south standing on this side of the Longorena mine on a low hill next to a cañon cov. ered with trees; the one towards the east standing up the valley from the spring on a mesquite tree that has a cross cut in it, and borders on the Sierra de las Calaberas; and the one towards the west standing at the Punta de Agua on a pointed hill (devisadero) opposite the Sierra del Babuquivari." These depositions were taken ex parte, no representative of the government having

Argued January 29, 1902. Decided March been notified or participating.

A

24, 1902.

Ygnacio and Tomas then petitioned the treasurer general of Sonora to issue them PPEAL from the Court of Private Land a grant, "the original expediente conClaims to review a decree refusing con- taining the measurements having perhaps firmation of a Mexican grant. Affirmed. been lost," transmitting "the documents by The facts are stated in the opinion. which they show their right of property to! Messrs. Francis J. Heney and Roches-2*sitios of land for raising cattle, which in ter Ford for appellant.

the year 1812 were sold at public auction to

*652

It appears that a preliminary survey of 2 sitios was made in 1881 for the surveyor general of Arizona, but we think from the evidence of the surveyor who made it that his location of the tract was essentially arbitrary. Indeed, he admitted that his sur vey "did not pretend to conform to the natural objects called for," and testified: "I surveyed the 2 leagues of land. It was left a good deal to me. They wanted it for cattle raising in that valley. I used my own judgment as to where to locate it."

their deceased father, Don Augustin Ortiz, | towards the west boundary standing at the from whom they inherited the same, which Punta de Agua on a pointed hill opposite land is situated in the place called Aribac, the Sierra del Babuquivari." and that the price at which it was sold and We have carefully examined and considother imposts thereon have been paid." Be- ered the testimony in respect of these desides the depositions, the titulo set forth a scriptive calls given on the trial, and concur certificate by the treasurer of Arispe, dated in the judgment of the court below that the June 18, 1833, to the effect that "on page 85 land cannot be so identified as to admit of of the manual book corresponding to the confirmation. We are constrained to conyear 1812," an entry was found, under date clude that adequate certainty is lacking, of October 10, signed by Bustamente, Romo not only so in respect of the outboundaries, and José Carrillo, that Don Augustin Ortiz but this was a grant by quantity, a grant by Carrillo, as his attorney, had paid into of 2 sitios only, and where situated in the the royal treasury $799, 5 reals, and 9 larger area claimed cannot be satisfactorily grains, for 2 sitios of land for raising cattle determined. The record contains no origrecently sold to him at auction. The peti-inal survey or field notes; and there is no tion of the alcalde, his order to take testi- certainty as to an initial point or center. mony, the three depositions, the certified entry, and the petition to the treasurer general, were then referred by the latter to the governor of Sonora for action. The governor, reciting that "the possessory right of citizens Tomas and Ygnacio Ortiz has been legally proved," ordered that the grant be made in accordance with the law. June 24, 1833, Mendoza as treasurer general of Sonora directed that the grant for 2 sitios of land for raising cattle which comprise the place called Aribac, be issued, and that the grantees pay into the treasury the value of the title in conformity with the laws, which was apparently done; and Mendoza issued the grant "of 2 sitios of land for raising cattle and horses, which comprised the place called Aribac," and declared that the expediente should remain in the archives of the office "as a perpetual record." On the titulo was indorsed: "This title is recorded on page 15 of the proper book which exists in this treasury general;" and also the certificate of the entry in the manual book of July 12, of the receipt of $30 as the value of The Gadsden treaty provided that grants the land title for 2 sitios of land. The pe- made previously to September 25, 1853, titioner also introduced the following entry were not to "be respected or be considered as in the book of Toma de Razon in the office obligatory, which have not been located and at Hermosillo, Sonora: "On the 12th of duly recorded in the archives of Mexico." July there was issued to Captain Don We are of opinion that this grant of 2 sitios Ygnacio Gonzales the title granted on the is not shown, and cannot be presumed, to 2d of July, of the corresponding year, to 2 have been located within the intent and sitios of land for raising cattle and horses, meaning of the treaty. No question, therewhich comprise the place named Aribac, sit- fore, could be raised in respect of demasias, uated in the jurisdiction of Pimeria Alta, and, moreover, as just held in Reloj Cattle in favor of the citizens Tomas and Ygnacio Co. v. United States, 184 U. S. 624, ante, p. Ortiz, residents of the presidio of Tubac." 499, 22 Sup. Ct. Rep. 499, under the laws on The expediente of 1812 was not in the ar- that subject, the owner of the cabida legal chives; the alleged entry of October 10, did not have a vested property interest in 1812, copied in the titulo, was not there; the expediente of 1833 was not there; no survey was there. The entry of October 10, 1812, stated that the 2 sitios comprised "the old and depopulated town or settlement called Aribac." The depositions gave as landmarks "the one towards the north on the high pointed hill that rises on this side of the Tagito mine and borders on the Sierra de Buena Vista; the one towards the south standing on this side of the Longorena mine on a low hill next to a cañon covered with

But the court was not called on to specu late on the subject or to accept the theories of the surveyor as to the best place for cattle raising as controlling. The doctrine of the Ely Case, 171 U. S. 220, 43 L. ed. 142, 18 Sup. Ct. Rep. 840, was not that it was within the power of the court to locate grants, but that if a location had been made, and there were facts enough to nail it to the ground, and determine its true boundaries, that might be done. The data did not exist here for the application of that principal.

the demasias, but, under circumstances, had the preference in acquiring it, if he so desired; and claims to overplus, the condi tions to acquiring which were unperformed, were not open to confirmation by the court. Decree affirmed.

(184 U. S. 669) MARY E. H. GWIN et al., Appts.,

บ.

UNITED STATES.

fornia private land claims.

trees; the one towards the east standing up Direct appeal from district court-Calithe valley from the spring on a mesquite tree that has a cross cut in it, and borders on the Sierra de las Cabaleras; and the one

No direct appeal lies to the Supreme Court of

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