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a return of legacies arising from personalstate, 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,'
The following questions of law which but, if at all, by the law of France, the domarose out of the foregoing facts were cer- icil of his mother at the time of her death. tified to this court:
And $ 125, by requiring the executor or ad“l. 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 The real question, then, is, as said by Mr. situs in the United States for the purpose Justice Gray, whether the act makes the of levying a tax or duty upon the transmis- duty payable when the person possessed of sion or receipt thereof under $$ 29, 30, and such property dies testate, if it would not 31 of the act of Congress entitled 'An Act be payable if such person died intestate, alto Provide Ways and Means to Meet War though the actual question involved in this Expenditures, and for Other Purposes,' ap- cause differs from the one there involved, proved June 13, 1898 ?"
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 8$ 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 Solicitor General Richards for Moore, cited in the preceding case, which is as fol
Nessrs. Alfred E. Hinrichs and Frede- lows: “Except where special provision is ric W. Hinrichs for Ruckgaber.
otherwise made by law, the validity and ef
fect of the testamentary disposition of any Mr. Justice Brown delivered the opinion other [than real] property situated withof the court:
in 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 death.” Now as, if Madame Pinède had preceding case, the testatrix was domiciled died without leaving a will, her property abroad, and bequeathed her personal prop- would have passed under the intestate laws erty in New York to a daughter who was of France and been exempt from this tax, married and also lived abroad.
it follows under the Hunnewell Case that it There can be no doubt whatever that, if is equally exempt though it passed by will. Madame Pinède had died intestate, the per The will of Madame Pinede 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 A question somewhat to the converse of estate of persons domiciled within the this a rose in Re Romaine, 127 N. Y. 80, United States. In delivering the opinion he 12 L. R. A. 401, 27 N. E. 759, which was a observed: “Section 124 (of the similar proceeding to compel payment of an inherit act of 1864] imposes a duty on legacies or ance tax by the administrator of the estate distributive shares arising from personal of Romaine, who had died intestate in Vir. property 'passing from any person possessed ginia, leaving a brother and sister resident of such property, either by will or by the in New York, as his next of kin. The act intestate laws of any state or territory;' of 1887 subjected to an inheritance tax "all it does not make the duty payable when the property which shall pass by will or by the person possessed of such property dies tes. intestate laws of this state, from any person
who may died seised or possessed of the neither made an entry on the land nor per same while a resident of this state, or if
fected a right to do so, has no vested right such decedent was not a resident of this
or interest therein of which he is deprived state at the time of his death, which prop
without due process of law by the act of
Congress of December 29, 1894, enacted dur erty or any part thereof shall be within
ing the pendency of the contest, confirming this state." (N. Y. Laws 1887, chap. 713, the title of the original entryman. $ 1.) The question was whether the property of Romaine, who died in Virginia intes.
(No. 147.) tate, was subject to the tax. After decid. ing that the tax applied to two classes, Submitted January 29, 1902. Decided namely, resident and nonresident decedents,
March 24, 1902. the court observed: “But does it apply to all persons belonging to these two classes ? dent decedents, and to all nonresident tes: cuit to review a decree which affirmed a de It is not denied that it applies to all resi- APPEAL from the United States Circuit tators, but it is contended that it does not cree of the Circuit Court for the District of apply to nonresident intestates, because Nebraska dismissing a bill in equity to property 'which shall pass ::by the intestate laws of this state' is expressly Affirmed.
charge a pre-emption entry with a trust. mentioned to the implied exclusion of property passing by the intestate laws of other Fed. 559.
See same case below, 42 C. C. A. 499, 102 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 southdent testators and to exempt those of non. east quarter of section 22 of township 2, resident intestates, because there is no foun. north of range 48 west, at the land office of dation for such distinction
the United States in the city of Denver, Col. Property of the same kind, situated in the orado; that October 4, 1888, Emblen filed a same place, receiving the same protection contest against this entry on the ground: from the law, and administered upon in the that Weed had not complied with the resame way, would naturally be required to quirements of the law in respect of resicontribute toward the expense of govern.
dence on the premises, and that the entry ment upon the same basis, regardless of was fraudulent, and made for speculative whether its last owner died testate or in- purposes; that Emblen's purpose in making testate.”
the contest was not only that the laws of * By parity of reasoning, we think it fol- the United States should be complied with lows that no discrimination was intended by Weed, but that by defeating Weed's ento be made between nonresidents who died try he (Emblen) might be enabled to enter testate, even though the will were made in the land under the provisions of $ 2 of chapthis country, and those who died intestate; ter 89 of the laws of the United States, ap. and as we have held in the preceding case proved May 14, 1880.(21 Stat. at L. 140, that the law does not apply to nonresidents chap. 89), which section read as follows: who died intestate, or testate under a will
"Sec. 2. In all cases where any person has executed abroad, we think it follows that it contested, paid the land office fees, and prodoes not apply to deceased persons domiciled cured the cancelation of any pre-emption, abroad who left property by will executed homestead, or timber culture entry, he shall in this country.
be notified by the register of the land office The questions certified must therefore be of the district in which such land is situanswered in the negative.
ated of such cancelation, and shall be al
lowed thirty days from date of such notice Mr. Justice White and Mr. Justice Mc- to enter said lands: Provided, That said Kenna concurred in the result.
register shall be entitled to a fee of one dol.
lar for the giving of such notice, to be paid (184 U. S. 660)
by the contestant, and not to be reported." GEORGE F. EMBLEN, Appt.,
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.
that Emblen appealed to the Commissioner Public lands-pre-emption entry-act con- was sustained; that thereupon Weed moved
of the General Land Office, and his appeal firming title pending contest-due process for a rehearing, and the officials and inhabof laro.
itants of the town of Yuma, which had been A contestant of a pre-emption entry, who has' located on the premises, intervened for the
protection of their rights; the rehearing, Weed entry; and that the passage of the was granted, but before it was had a new act of Congress above cited, and the issue of land district was created at Akron, Col- patent thereunder, deprived complainant of orado, which embraced the land in question; a vested right without due process of law. and the rehearing was ordered to take place It was also averred* that in January, 1886, at Akron on September 16, 1890; that Em- the town of Yuma was located on a part of blen did not appear, but filed objections to the premises, and the town and a large numthe jurisdiction, averring that the receiver ber of other parties were made defendants, at Akron was an interested party. On the it being charged that they had full knowl. rehearing the local officers found in favor edge of the facts regarding the Weed entry. of Weed and dismissed the contest, and The bill prayed that the several defend. thereupon Emblen appealed to the Commis- ants be decreed to hold the title to the propsioner of the General Land Office, and the erty in trust for the use and benefit of comCommissioner affirmed the action of the plainant, and that it be decreed that the local land office, from which ruling Emblen patent issued under the act of Congress to further appealed to Mr. Secretary Noble, Weed conveyed no property in the premises then Secretary of the Interior, who, by a de against the rights of complainant. The cision rendered January 9, 1893, affirmed principal defendants interposed a demurrer the action of the local officers and of the to the bill, which was sustained, and the Commissioner.
bill dismissed with costs. 94 Fed. 710. The The bill then averred that Emblen subse- case was then carried to the circuit court quently moved for at review of the decision of appeals for the eighth circuit, and the before Mr. Secretary Smith, on the ground, decree of the circuit court affirmed. The among other things, of newly discovered evi- opinion of Judge Shiras in the circuit court dence, and that a rehearing of the whole was adopted as the opinion of the circuit contest was ordered by him to be had before court of appeals, 42 C. C. A. 499, 102 Fed. the local officers, in obedience to which the 559. An appeal was then prosecuted to this register and receiver at Akron set the case court. for rehearing on January 2, 1894; at which time Weed and other parties interested ob Messrs. Ed. R. Duffie and T. J. Mahoney tained a continuance; it being charged that for appellant. this continuance was obtained for the pur Messrs. J. W. Deweese and Frank E. pose of procuring the passage of an act of Bishop for appellees. Congress confirming the title of the original entryman, which act was in fact passed and Mr. Chief Justice Fuller delivered the approved December 29, 1894 (28 Stat. at L. opinion of the court: 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 here being the state of the case, it is quite clear by, confirmed; and that patent of the that (even if the act of Congress was unconUnited States issue therefor to said Weed." stitutional, which we do not intimate) the
Complainant alleged that while the bill for writ of mandamus prayed for should not be that act was pending before both houses of granted. The determination of the contest Congress full information was furnished them between the claimants of conflicting rights of the exact status of the contest over the of pre-emption, as well as the issue of a land; that when the act was passed, the patent to either, was within the general juquestion of the title thereto was pending in risdiction and authority of the Land Dethe Land Department, which, under the Con-partment, and cannot be controlled or restitution and laws of the United States, is strained by mandamus or injunction. After solely charged with the duty of determining the patent has once been issued, the orig. the rights of pre-emptors and contestants inal contest is no longer within the juris. and the right to issue patent therefor to the diction of the Land Department. The patparties entitled thereto; and that Congressent conveys the legal title to the patentee, had no right or power to adjudicate on the and cannot be revoked or set aside, except question of the title to the premises in dis- upon judicial proceedings instituted in bepute; and that, moreover, under the provi- half of the United States. The only remedy sions of section 2 of the act of Congress of of Emblen is by bill in equity to charge May 14, 1880, complainant had a vested Weed with a trust in his favor.” Re Emright to enter the land upon the determinablen, 161 U. S. 52, 40 L. ed. 613, 16 Sup. tion 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
the patent to Weed; and that depends on Messrs. Matthew G. Reynolds, Wil whether Emblen had obtained a vested right liam H. Pope, and Solicitor General Rich. in the land before the passage of the act of ards for appellees. December 29, 1894, as otherwise the power of Congress over its disposition as public Mr. Chief Justice Fuller delivered the land was plenary. Frisbie v. Whitney, 9 opinion of the court: Wall. 187, 19 L. ed. 668; Shepley v. Cowan, This was a petition filed March 1, 1893, 91 U. S. 330, 23 L. ed. 424; Buxton v. Traver, for the confirmation of a grant situated in 130 U. S. 232, 32 L. ed. 920, 9 Sup. Ct. Arizona, containing, according to a survey Rep. 509; Gonzales v. French, 164 U. s. made on petitioner's behalf, 26,508.06 acres. 345, 41 L. ed. 460, 17 Sup. Ct. Rep. 102. February 13, 1899, an amended and supple
The Weed entry had not been canceled mental petition was filed, praying that if when the act of 1894 took effect, so that Em- there were found to be an overplus, petiblen had no right to make entry under the tioner should be allowed to pay for such ex. act of May 14, 1880. The jurisdiction of cess and costs, which it offered to do as soon the Land Department ceased with the issue as the same were ascertained, and it tendered of the patent, and the power of Congress to $300 in* gold as payment for overplus and direct the patent to issue was unaffected by $200 for costs. The court of private land the possibility that Emblen, if he had been claims rejected the grant because there was permitted to prosecute his contest, might such uncertainty as to the land which was have succeeded. As Mr. Justice Miller said intended to be granted that it is impossible in Frisbie v. Whitney, 9 Wall. 187, 19 L. ed. now to identify it." Two justices dissented, 668, the rights of a claimant are to be meas- being of opinion that the claim should be ured by the acts of Congress, and if they confirmed for 2 sitios. show "that he acquired no vested interest in A titulo was introduced in evidence (in the land, then, as his rights are created by the surveyor general's office, produced from the statutes, they must be governed by their private custody), and this shuwed that on provisions, whether they be hard or le- June 2, 1833, Ygnacio and Tomas Ortiz, as. nient."
serting themselves to be sons and heirs of As Emblen never made an entry on the one Augustin Ortiz, petitioned the alcalde land, nor perfected a right to do so, it re- of Tubac, stating that in 1812 their deceased sults that he had no vested right or inter- father paid into the treasury of the capital est which could defeat the operation of the of Arispe $747 and 3 reals, as the highest act of 1894.
bid, for which 2 sitios of land for raising Decree affirmed.
cattle were sold to him at public auction in
the place called Aribac, and that they were (184 U. S. 649)
"ignorant as to who was the surveyor or ARIVACA LAND & CATTLE COMPANY, urements, appraisement, and auctions is
where the expediente containing the meas. Appt.,
now," and asking that the depositions of
three witnesses be taken as to the settlement UNITED STATES et al.
and possession of the land from 1812, and
the landmarks and boundary lines. The al. Private land claims—definite location. calde proceeded to take the depositions of A Mexican grant of "2 sitios of land for rais- three witnesses, who deposed in substance
Ing cattle and horses, which comprise the that the Aribac ranch had been settled and place called Arlbac," made in proceedings to occupied by Ortiz and his sons from 1812 perfect a title acquired under a prior sale, to that time, and that the landmarks were the record of which had been lost, is not so "the one towards the north on the high located as to admit of confirmation under pointed hill (devisadero) that rises on this the provision of the Gadsden treaty that side of the Tagito mine and borders on the grants are not to "be respected or be considered as obligatory which have not been Sierra de Buenavista; the one towards the located and duly recorded in the archives of south standing on this side of the LongoMexico," where the landmarks described in rena mine on a low hill next to a cañon covthe depositions taken in the proceedings to ered with trees; the one towards the east secure the grant cannot be identified with standing up the valley from the spring on a adequate certainty, and the location of the mesquite tree that has a cross cut in it, and 2 sitios within the larger area claimed can: borders on the Sierra de las Calaberas; and not be satisfactorily determined because the record contains no original survey or field the one towards the west standing at the Rotes, and there is no certainty as to an Punta de Agua on a pointed hill (devisaInitial point or center.
dero) opposite the Sierra del Babuquivari.”
These depositions were taken ex parte, no [No. 153.)
representative of the government having Argued January 29, 1902. Decided March been notified or participating. 24, 1902.
Ygnacio and Tomas then petitioned the
treasurer general of Sonora to issue them A
PPEAL from the Court of Private Land a grant, "the original expediente con
Claims 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 use
Messrs. Francis J. Heney and Roches-12* sitios of land for raising cattle, which in* ter Ford for appellant.
the year 1812 were sold at public auction to
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.” Beered the testimony in respect of these de sides 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 en It appears that a preliminary survey of 2 try, and the petition to the treasurer gen- sitios was made in 1881 for the surveyor eral, were then referred by the latter to the general of Arizona, but we think from the governor of Sonora for action. The gov- evidence of the surveyor who made it that ernor, reciting that "the possessory right of his location of the tract was essentially ar. citizens Tomas and Ygnacio Ortiz has been bitrary. Indeed, he admitted that his surlegally proved,” ordered that the grant bevey "did not pretend to conform to the natmade in accordance with the law, June 24, ural objects called for,” and testified: "I 1833, Mendoza as treasurer general of So- surveyed the 2 leagues of land. It was left nora directed that the grant for 2 sitios of a good deal to me. They wanted it for catland for raising cattle which comprise the tle raising in that valley. I used my own place called Aribac, be issued, and that the judgment as to where to locate it." grantees pay into the treasury the value of But the court was not called on to specuthe title in conformity with the laws, which late on the subject or to accept the theories 5 was apparent] done; and Mendoza issued of the surveyor' as to the best place for catthe grant "of 2 sitios of land for raising tle raising as controlling. The doctrine of cattle and horses, which comprised the place the Ely Case, 171 U. S. 220, 43 L. ed. 142, 18 called Aribac," and declared that the ex. Sup. Ct. Rep. 840, was not that it was with. pediente should remain in the archives of in the power of the court to locate grants, the office "as a perpetual record.” On the but that if a location had been made, and titulo was indorsed: “This title is recorded there were facts enough to nail it to the on page 15 of the proper book which exists ground, and determine its true boundaries, in this treasury general;” and also the cer- that might be done. The data did not exist tificate of the entry in the manual book of here for the application of that principal. 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 e sitios of land for raising cattle and horses, meaning of the treaty. No question, there
which 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 demasias, but, under circumstances, had the expediente of 1833 was not there; no the preference in acquiring it, if he so de survey was there. The entry of October 10, sired; and claims to overplus, the condi. 1812, stated that the 2 sitios comprised “the tions to acquiring which were unperformed, old and depopulated town or settlement were not open to confirmation by the court. called Aribac." The depositions gave as Decree affirmed. landmarks "the one towards the north on the high pointed hill that rises on this side
(184 U. S. 669) of the Tagito mine and borders on the Sierra
MARY E. H. GWIN et al., Appts., de Buena Vista; the one towards the south standing on this side of the Longorena mine on a low hill next to a casion covered with
UNITED STATES. 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
fornia private land claims. on the Sierra de las Cabaleras; and the one No direct appeal lles to the Supreme Court of