Mr. Burgess W. Marshall, of Washington, D. C., for appellant.
Mr. Justice SUTHERLAND delivered the opinion of the Court.
In 1872, A. K. Johnson, an honorably discharged soldier of the Civil War, made a homestead entry of 80 acres. He died in 1875 leaving a widow, who died in 1917, neither having disposed of the husband's additional homestead right. Johnson also left four children, all over the age of 21 years at the date of the death of the widow; and they, together with the widow of a deceased son, sold and as [269 U.S. 140, 141] signed the right to one Mason who sold and assigned it to the extent of 20. 49 acres to Clune. By virtue of the latter assignment, Clune entered a tract of public lands in the United States Land Office in California; but the entry was rejected by the General Land Office on the ground that 'the assignment of the soldier's additional homestead right had not been made by the soldier or his widow or his heirs prior to the administrative ruling of the Department, of the Interior terior February 15, 1917 (46 L. D. 32), and rulings and decisions of the Land Office, which construed sections 2306 and 2307 of the Revised Statutes (Comp. St. 4594, 4602), as limiting a soldier's additional homestead right to the exercise thereof ( 1) by the soldier himself entering the land, or indirectly by conveying his right to entry to an assignee during his lifetime; (2) by the widow while her status as widow of the soldier continued; (3) in the absence of appropriation by the soldier or his widow, then by the minor orphan children during their minority acting through their guardian.' In October, 1923, Anderson entered the lands in controversy under an assignment of the additional soldier's homestead right of one Dunn, and patent issued to him therefor. Anderson's entry was made with full knowledge that Clune had made prior entry thereof, under which he was claiming the land. Alleging these facts, suit was brought by Clune against Anderson to have it adjudged that the latter held the lands in trust for the former. The trial court overruled a motion to dismiss the bill and rendered a decree in favor of Clune. An appeal followed to the Circuit Court of Appeals, and that court has certified (Judicial Code, 239 (Comp. St. 1216)) the following question upon which instruction is desired:
By section 2304, R. S. (Comp. St. 4592), Johnson was given the right to enter and receive patent for 160 acres of public lands subject to homestead entry. Having entered only 80 acres, he became entitled to the benefits conferred by section 2306, R. S., which provides that every person entitled under the provisions of section 2304 to enter a homestead, who may have entered a quantity of land less than 160 acres, 'shall be permitted to enter so much land as, when added to the quantity previously entered, shall not exceed one hundred and sixty acres.' Section 2307, R. S ., provides:
It was held in Webster v. Luther, 163 U.S. 331 , 16 S. Ct. 963, that Congress intended by section 2306, R. S., to vest a property right in the donee as a sort of compensation for his failure under section 2304 to obtain the full quota of 160 acres; that residence on or cultivation of the lands to be taken was not required as in the case of the original homestead entry; and that it was immaterial to the government whether the original donee should exercise the right or should transfer it to another; and the property right thus vested was held to be assignable. The rulings of the Land Office prior to this decision had been that the right was essentially personal and nonassignable, to be exercised only by the original donee or his widow or his minor orphan children [269 U.S. 140, 143] through a guardian. After the decisions, the rulings of the department were uniformly to the effect that the right not only was assignable, but inheritable; that, in case a soldier entitled to the right died without exercising it, leaving no widow or minor orphan children, the right to entry vested in his personal representatives (Williford Jenkins, 29 L. D. 510; Fidelo C. Sharp, 35 L. D. 164, and other cases); but, if the right passed to the minor children, it became absolute in them, in no way conditioned upon an appropriation by the guardian during their minority ( John H. Mason, 41 L. D. 361).
This view was adhered to until 1917, when Secretary of the Interior by an administrative ruling held that the right must be used by the soldier in his lifetime, either by entering the land or assigning the right, or by the widow while her status as such continued, or by the minor orphan children during their minority, acting through their lawful guardian, and that, if not exercised as thus indicated, the right lapsed and ceased to exist. The officers of the Land Department were expressly instructed that no soldier's additional right assigned by the heirs or administrator of the estate of a deceased soldier or of his widow, or of his minor orphan children, or directly by such 'minor children,' after they had reached majority, should be recognized as a basis for the entry of public land. 46 L. D. 32. In a subsequent letter reviewing these instructions (46 L. D. 274, 275), the Secretary of the Interior said:
This is plainly in the face of the decision of this Court in Webster v. Luther, supra. See, also, Mullen v. Wine (C. C.) 26 F. 206; Barnes v. Poirier, 64 F. 14, 18, 12 C. C. A. 9. The grant of [269 U.S. 140, 144] the statute (section 2306), ipso jure, vests a property right in the donee which he may exercise or sell and transfer. A property right, the ownership of which may be conveyed to and vested in a purchaser, must be accorded the quality of inheritability, which usually attaches as an incident of ownership, in the absence of some provision of law to the contrary; and we therefore hold that the soldier's additional homestead right, if not exercised or transferred by the donee, passes to his estate as other property, subject only to the exercise of the rights given by section 2307 to the widow and minor orphan children.
The question certified is answered in the negative.