# Bernier v. Bernier/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
147 U.S. 242
Bernier v. Bernier
It would seem that the patent to the minor heirs was issued without the knowledge or consent of any of the heirs, and that their attention was first brought to it when the defendant Goff obtained the interest of one of the defendants, in 1886. The property was always treated as a part of the estate of Edward Bernier, deceased. It was assessed as such from his death until 1885; and George E. Bernier, one of the heirs, took charge of the whole estate, including the land in controversy, paid taxes thereon, and took care of the minors. He remained in possession of the premises in controversy until this suit was brought. All the parties, of course, claim through a common source; and the question for decision is whether all the heirs of the deceased took this land jointly, and are equally entitled to it, or whether the whole of the land went to the minor heirs of the deceased. And this question depends for its solution upon the construction given to the provisions of the homestead act, contained in sections 2291 and 2292 of the Revised Statutes of the United States, which embody the provisions of the act of congress, on that subject, of May 20, 1862, and of subsequent acts which have any bearing upon the question. After providing for the entry of lands, which, under other provisions of law, might be afterwards commuted into a homestead, section 2291 declares that 'no certificate, however, shall be given, or patent issued therefor, until the expiration of five years from the date of such entry; and if at the expiration of such time, or at any time within two years thereafter, the person making such entry; or, if he be dead, his widow; or, in case of her death, his heirs or devisee; or, in case of a widow making such entry, her heirs or devisee, in case of her death,-proves by two credible witnesses that he, she, or they have resided upon or cultivated the same for the term of five years immediately succeeding the time of filing the affidavit, and makes affidavit that no part of such land has been alienated, except as provided in section 2288, and that he, she, or they will bear true allegiance to the government of the United States, then, in such case, he, she, or they, if at that time citizens of the United States, shall be entitled to a patent, as in other cases provided by law.' Section 2292 provides that 'in case of the death of both father and mother, leaving an infant child or children under twenty-one years of age, the right and fee shall inure to the benefit of such infant child or children; and the executor, administrator, or guardian may, at any time within two years after the death of the surviving parent, and in accordance with the laws of the state in which such children, for the time being, have their domicile, sell the land for the benefit of such infants, but for no other purpose; and the purchaser shall acquire the absolute title by the purchase, and be entitled to a patent from the United States on the payment of the office fees and sum of money above specified.'
The contention of the complainants is that under section 2291 the whole premises which the deceased, Edward Bernier, died claiming as his homestead, upon the completion of the proofs required, passed equally to the 10 children, as his heirs. On the other hand, it is insisted by the defendants that, under section 2292, when the father and mother both died, the fee of the land inured to the minor children, to the exclusion of those who had attained their majority, and that they alone were entitled to the certificate and patent.
We are of opinion that the construction claimed by the complainants is the true one. Section 2291 provides that the certificate and patent, in case of the death of father and mother, shall, upon the proofs required being made, be issued to the heirs of the deceased party making the entry,-a provision which embraces children that are minors, as well as adults. Section 2292, in providing only for minor heirs, must be construed, not as repealing the provisions of section 2291, but as in harmony with them, and as only intended to give the fee of the land to the minor children exclusively when there are no other heirs. This construction will give effect to both sections; and it is a general rule, without exception, in construing statutes, that effect must be given to all their provisions, if such a construction is consistent with the general purposes of the act, and the provisions are not necessarily conflicting. All acts of the legislature should be so construed, if practicable, that one section will not defeat or destroy another, but explain and support it. When a provision admits of more than one construction, that one will be adopted which best serves to carry out the purposes of the act. The object of the sections in question was, as well observed by counsel, to provide the method of completing the homestead claim, and obtaining a patent therefor, and not to establish a line of descent or rules of distribution of the deceased entry man's estate. They point out the conditions on which the homestead claim may be perfected and a patent obtained, and these conditions differ with the different positions in which the family of the deceased entry man is left upon his death. If there are adults as well as minor heirs, the conditions under which such claim will be perfected and patent issued are different from the conditions required where there are only minor heirs, and both parents are deceased. In the one case the proof is to extend to that of residence upon the property, or its cultivation for the term of five years, and show that no part of the land has been alienated except in the instances specified, and the applicant's citizenship and loyalty to the government of the United States; but in the other case, where there are no adult heirs, and only minor heirs, and both parents are deceased, the requirements exacted in the first case are omitted, and a sale of the land within two years after the death of the surviving parent is authorized for the benefit of the infants. The fact of their being infant children, and the death of their parents, is all that is required to establish their right and title to the premises, and to a patent.
Section 2292 was, in our judgment, only intended to give to infant children the benefit of the homestead entry, and to relieve them, because of their infancy, from the necessity of proving the conditions required when there are only adults, or adults and minors, mentioned in the previous section, and to allow a sale of the land within a prescribed period for their benefit.
We are of opinion, therefore, that the right to the premises in controversy, covered by the homestead entry, vested in all the heirs of Edward Bernier at his death,-the adult as well as the minor heirs,-and that the subsequent patent issued to the latter should have been issued to them all jointly, or a separate patent should have been issued for an undivided tenth to each heir. The minor heirs holding under the patent issued, and the defendant Goff, who received a quitclaim for an interest from one of them, should, therefore, be required to execute proper conveyances to the complainants, so as to transfer to them an undivided half interest in the whole, or to each complainant an undivided tenth interest in such lands. This is in conformity with the well-settled law that where a patent for land is issued, by mistake, inadvertence, or other cause, to parties not entitled to it, they will be declared trustees of the true owner, and decreed to convey the title to him. Stark v. Starrs, 6 Wall. 402, 419.
The decree of the supreme court of Michigan must therefore be reversed, and the cause remanded to that court for further proceedings not inconsistent with this opinion.

## Notes

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