[267 U.S. 474, 475] Mrs. Susie Wells, in pro. per.
Mr. Patrick H. Loughran, of Washington, D. C., for appellees.
Mr. Chief Justice TAFT delivered the opinion of the Court.
This is an appeal from the United States Circuit Court of Appeals for the Ninth Circuit under Judicial Code, 241 (Comp. St. 1218). It was a bill in equity to have Patrick H. Bodkin and Arabella Bodkin, patentees of a quarter section of public land in the county of Riverside, California, declared trustees for the complainant Charles E. Wells. 1 In May, 1903, one Geiger made a homestead entry of the land in dispute. In September of that year the land was withdrawn from public entry by the Secretary of the Interior under the Reclamation Act. 32 Stat. 388 (Comp. St. 4700 et seq .). Florence V. Bodkin filed a contest against the entry of Geiger on the 30th of January, 1908, pending this withdrawal. In March, 1908, Geiger filed a relinquishment of his entry, and in July, 1908, the contestant was notified by the local land office that she had a preference right of entry for a period of 30 days after the land should be restored to entry. On April 18, 1910, the land was restored to settlement, and to public entry on May 18, 1910. On the latter date Charles E. Wells after having made a settlement and Florence V. Bodkin, the contestant, each made a homestead application for the land. The applications on the same day were suspended for investigation as to the character of the land by the Surveyor General. On May 22, 1912, the suspension was removed and the land again restored to public entry. On June 3, 1912, the local land office rejected the homestead application of Wells and [267 U.S. 474, 476] allowed the application of Florence Bodkin, and this decision was affirmed by the Commissioner of the General Land Office on November 13, 1912. On May 27, 1913, the Secretary of the Interior reversed the decision of the Commissioner, because it appeared that on the 25th of March, 1912, before the suspension for investigation was removed, Florence Bodkin had died, and held that she had acquired no rights by her application to enter that would descend to her heirs. On August 29, 1913, the Secretary on rehearing overruled this decision and held that the contestant might have acquired rights by her application to enter that would have descended to her heirs, but denied a rehearing to her heirs who were her father and mother, Patrick H. Bodkin and Arabella Bodkin, on the ground that Patrick H. Bodkin had made a homestead entry in his own right on other lands, and this precluded him and his wife from perfecting the application for a homestead as heirs of the contestant. Accordingly the entry of Florence V. Bodkin was cancelled and the application of Wells was allowed. But this was changed on January 3, 1914, when the Secretary of the Interior in the exercise of his supervisory authority decided that Patrick H. Bodkin, the father of the deceased contestant, might elect within 30 days to relinquish his own homestead entry on other lands and make a new entry based on the application of the deceased contestant, his daughter, with his wife as coheir. The father thereupon relinquished his own homestead entry, and upon the entry of himself and his wife of the quarter section here in controversy, the patent issued to him. The District Court dismissed the bill, and this ruling was affirmed by the Circuit Court of Appeals.
Under the decision by this court in the case of McLaren v. Fleischer, 256 U.S. 477 , 41 S. Ct. 577, Florence V. Bodkin, as the successful contestant of the homestead entry of Geiger pending the withdrawal of the land from public entry [267 U.S. 474, 477] under the Reclamation Act, had thirty days after the land was restored to public entry within which to exercise her preference right of entry as a homesteader of the land. Had she lived, therefore, no question would have arisen here. The controversy arises on the effect of the proviso of section 2 of the Act of May 14, 1880, 21 Stat. 141, entitled 'An act for the relief of settlers on public lands,' as amended by the Act of July 26, 1892, c. 251, 27 Stat. 270 (Comp. St. 4537). The second section as amended reads as follows:
The contention on behalf of the appellant is that the relinquishment of the Geiger entry, upon which the contestant won the contest, was the final termination of it, and that thereafter the contestant had only a mere right to make an application to enter, and that the statute had made no provision for succession or descent with reference to that, because the contest here is not with Geiger, but is with Wells, who, having made a settlement of the land, filed his application on the same day that the contestant did. We think this a very narrow and [267 U.S. 474, 478] unwarranted construction of the meaning of the section. We concur in the opinion of the Secretary of the Interior when, in discussing this question, he said (42 L. D. 340, 342):
Further objection is made that the circumstance that Patrick H. Bodkin had himself made a homestead entry in his own right deprived him and his wife, coheirs of the contestant, their daughter, of the capacity to inherit. The only objection to the inheritance was that under the homestead laws an entryman can not perfect title to two homesteads. If he chooses to relinquish one, it removes objection to his perfecting the other, certainly when he does this under the permission granted him by the Secretary of the Interior. As the Circuit Court of Appeals said in this case, the question whether the heir should be required or permitted to relinquish a homestead entry in his own right was one between him and the United States, with which the appellant had no concern.
The decree is affirmed.
[ Footnote 1 ] Charles E. Wells, appellant, died while this appeal was pending in this court, and his administratrix was substituted as appellant.