The record-union., 1897-10-23
unnecessary to cite any authorities in

bell Wheadon affected by the fact that
the United States patent for this land
was issued to her for the heirs of Theo.
Wheadon, deceased ?"
Section 2,26o of the Revised Statutes
of the United States reads as follows:
Where a party entitled to claim the
benefit of the pre-enption law dies be-
fore consummating his claim. by filing
, IN due time all the papers essential to
| the tablishment of the same, it shall
be competent for the executor or ad-
ministrator of the estate of such party,
or one of the heirs, to file the necessary
papers to complete the same; but the
entry in such cases shall be made in
favor Of the heirs of the deceased pre-
emptor, and patent thereon shall
cause the title TO inure to such heirs.
as if their names had been specially
mentioned
The patent in the case at bar, was
issued in pursuance of the foregoing
statute, and in order to ascertain the
meaning of the clause in that patent,
viz: For the heirs of Theo. Wheadon,
| deceased" the remaining of the word
heirs as employed in said clause and
in the Statute. must be determined.
Mr.. Webster thus defines the word
heir: "One on whom the law bestows
the title or property of another at the
death Of the latter
The following is the definition given
in the American and English Encyclo-
pedia of Law: "One who, upon the
death of another, acquires or succeeds
to his estate by right of blood, and by
operation of law
The Supreme Court of Illinois defines
! the word heir" to mean "the person
appointed by law to succeed to the es-
| tate of another on the latters death"
| Orchards VS.. Miller, 62 H., 424)
Many other definitions of similar i'm
/ port might be cited, but the foregoing
are deemed sufficient to show that the
meaning of the word heir as en-
ployed in said statute and patent, was
to point out the person or persons upon
| whom the law cast, or in whom the law
vested the title and property of the de-
T ceased pre-emptor We have seen,
from the conclusion hereinbefore reach
ed, that the law of this State, common
| ly, called the Homestead Act, vested
the title to the land in question in Isa-
! bell Wheadon, the surviving widow of
Theo. Wheadon, deceased.
Third-Has Isabel Wheadon, and the
plaintiff as her successor in interest,
been estopped from claiming title to the
| land in question by reason of the pro-
bate proceedings had in the matter of
the estate of Theo. Wheadon, deceased?
| 1t will be remembered that after the
! death of her husband, Isabel Wheadon
| applied to the Probate Court of this
county, for, and obtained letters of ad-
ministration upon the estate of Theo.
Wheadon, deceased. That, thereafter.
the land in question was returned in
the inventory as part of the estate of
said deceased, and was, on November D,
| 1886. distributed, one-half 90 to 1sa-
bell Wheadon, and one-sixth Q-6) to
each of her three children. That the
probate proceedings made no mention
Of said premises having been dedicated
as a homestead during the lifetime OF
| said Theo. Wheadon, or at all.
| Counsel for the defendant has cited
/ in support of his contention that title
to SAID land vested by the decree OF dis
| tribution above recited, in Isabel
Wheadon and her children, and that
she and the plaintiff as her successor
| in interest are estopped from claiming
/ any interest therein, the case OF Ions
vs. HARRISON reported in the liz CAL,
! at page 262. In that case, Ions sued
TO quiet his title to forty acres OF land
in San Diego County. The facts, brief
! ly stated, were as follows: One Bell
being the owner of the land in question
conveyed the same to his wife, Mary,
who thereafter joined with her hus-
band in the execution of mortgage
| thereon to secure their joint note for
| two hundred and fifty $3.50 dollars.
! Subsequent to making said mortgage,
! Mrs Bell filed her declaration of home
! stead and continued to occupy the
property with her husband as a home
/ stead until her death Her husband
was appointed administrator of her es-
| tate and filed an inventory wherein
said homestead property was appraised
at less than $1,000, but no mention was
made in said inventory, or elsewhere in
/ said probate proceedings, of the home
stead character of said forty-acre tract
/ Bell, as administrator. applied for an
/ order to sell said real estate, which
was granted, and in due time the same
was sold to the defendant HARRISON,
/ and the sale confirmed by the court.
! The plaintiff, Ions, who was cognizant
! of all the facts, paid Bell ten ($10) dol
( lars for a quit claim deed for said
homestead tract, and in two days there
after commenced his action.
Commissioner Hayne. who wrote the
| opinion, which was concurred in by
| Department Two of the Supreme Court,
after conceding that under the Home
stead Act the title on the death Of
| Mrs. Bell vested, subject to the mort
gage thereon, absolutely in her sur
| viving husband, says: ''But Section
| 1915 of the Code of Civil Procedure
| provides that, if the homestead select
ed and recorded, prior to the death of
the decedent, be returned in the inven-
| tory appraised at not exceeding five
| thousand ($5,000) dollars in value, or
! was previously appraised as provided
in the Civil Code. and such appraised
| value did not exceed that sum, the Su-
| perior Court must, by order set it off
| to the persons in whom the title is
vested by the preceding section; and
also provides for the payment of ex-
| listing liens thereon. It is therefore
clear that the court has jurisdiction
| over the homestead for some purposes;
and 1t seems to follow that if the court
from ignorance of the fact that it was