Wells v. Bodkin

allowed the application of Florence Bodkin; and this de- ' cisión 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 ac-. quired 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 canceled 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, thirty 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 co-heir. Thé 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 , Florence V. Bodkin, as the successful contestant of the homestead entry of Geiger pending the withdrawal of the land from public entry

under.the Reclamation Act, had thirty days after the land was restored to public entry within which tó 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 § 2 of the Act of May 14, 1880, 21 Stat. 141 , entitled “An Act for the Relief of Settlers on Public Lands,” ás amended by the Act of. July 26, 1892, c. 251, 27 Stat. 270 . The. second section, as amended reads as follows:

“ Sec. 2. In all cases where any person has. contested, paid the land office fees, and procured the cancellation 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 situated of such cancellation, ,and shall be allowed thirty days from date of such notice to enter said lands: Provided, That said register shall be entitled to a fee of one dollar for the giving of such notice, to be paid by the contestant and not to be reported: Provided further, That should any such person who has initiated a contest die before the final termination of the same, said contest shall not abate by reason thereof, but his heirs who are citizens of the United States, may continue the prosecution under such rules and regulations as the Secretary of the Interior may prescribe, and said heirs shall be entitled to the same rights under this act that contestant would have been if his death had not occurred.”

The contention on behalf of the appellant is, that the relinquishment of the Geiger entry, upon which the con-' testant 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 reférence to. that, because the contest here' is hot 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

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:

“ To restrict the term used, £ the final termination of the ’ contest, to the termination thereof as regards the contestee, only, would be contrary to the reason and purpose of the act. No interest of the contestee called for the enactment of such a law. The interest of the contestant, however, based upon a consideration, the payment of the costs of contest on the promise of a prospective right of entry, called for just such an enactment which should secure to such contestant and to his heirs that' for which such consideration had been given by •him, in part if not wholly, as in the present case; and good faith on the part of the United States with such contestant required such an enactment to apply to all cases where the contestant’s death intervenes before the right of entry given him inchoately with his privilege of contest is merged into actual entry or otherwise extinguished in some of the ways indicated.”

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, co-heirs 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 hóme-stead entry in his own right was one between him and the United States, with, which the appellant had no concern.

The decree is affirmed.