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 had been alienated, except as provided in section twenty-two hundred and eighty-eight, 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. .

"SEC. 2292. In case of the death of both father and mother, leaving an infant child or children under twentyone years of age, the right and fee shall inure to the benefit of such infant child or children.

It requires an exercise of ingenuity to establish uncertainty in these provisions. They say who shall enter and what he shall do to complete title to the right thus acquired. He may reside upon and cultivate the land, and by doing so is entitled to a patent. If he die his widow is given the right of residence and cultivation, and "shall be entitled to a patent as in other cases." He can make no devolution of the land against her. The statute which gives him a right gives her a right. She is as much a beneficiary of the statute as he. The words of the statute are clear, and express who in turn shall be its beneficiaries. The contention of appellant reverses the order of the statute and gives the children an interest paramount to that of the widow through the laws of the State.

The law of the State is not competent to do this. As was observed by Circuit Judge Gilbert: "The law of the State of Washington governs the descent of land lying within the State, but the question here is whether there had been any

descent of land." And, against application of the state law, the learned judge cited Wilcox v. Jackson, 13 Pet. 498, 517, and Bernier v. Bernier, supra. In the former it was said that whenever the question is whether title to land which had been the property of the United States has passed, that question must be resolved by the laws of the United States, but that whenever, according to those laws, the title shall have passed, then, like all other property in the State, it is subject to state legislation. In Bernier v. Bernier it was said that the object of sections 2291 and 2292 was "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 entryman's estate." See Hall v. Russell, 101 U. S. 503. And hence it was decided that Mrs. Donahue took the title free from any interest or right in the appellant under the laws of the State.

Against the effect of the patent conveying title to Mrs. Donahue, appellant invokes the doctrine of relation. It is admitted "that the title to the real estate in the case at bar passed and vested according to the laws of the United States by patent." But, it is contended, that a beneficial interest having been created by the state law in McCune when the title passed out of the United States by the patent, it "instantly dropped back in time to the inception or initiation of the equitable right of William McCune, and that the laws of the State intercepted and prevented the widow from having a complete title without first complying with the probate laws of the State." This, however, is but another way of asserting the law of the State against the law of the United States, and imposing a limitation upon the title of the widow which section 2291 of the Revised Statutes does not impose. It may be that appellant's contention has support in some expressions in the state decisions. If, however, they may be construed as going to the extent contended for, we are unable to accept them as controlling.

Decree affirmed.

199 U.S.

Argument for Appellant.

ESTES v. TIMMONS.

APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF

OKLAHOMA.

No. 74. Submitted November 10, 1905.-Decided November 27, 1905.

The decision of the proper officers of the Land Department on questions of fact in a contest is conclusive on the courts and, in the absence of fraud in preventing a party from presenting his case, the decision is not subjected to review by the courts by a charge of perjury against the wit

nesses.

THE facts are stated in the opinion.

Mr. S. D. Luckett for appellant:

In a case like this the courts will look into the record of proceedings in the Land Department, not for the purpose of ascertaining whether that Department came to a correct conclusion of fact from conflicting evidence, but to determine whether or not the judgment of the Department was right and just as between the parties and not the result of: 1. Error of law committed by the Department officials; 2. Fraud committed by the prevailing party; 3. Or imposition upon the Department officials by the prevailing party without which the decision would have been the other way. Garland v. Wynn, 20 How. 5.

In many cases the court has examined the entire proceeding in the Land Department, including the testimony taken in a contest case, to determine whether a patent issued and involved in the suit had been obtained rightfully or not. Barnard v. Ashley, 18 How. 43; Lytle v. Arkansas, 22 How. 7; Lindsey v. Hawes, 2 Black, 554; Carr v. Fife, 156 U. S. 494; Johnson v. Townsley, 13 Wall. 72; De Cambra v. Rogers, 189 U. S. 119; United States v. Throckmorton, 98 U. S. 61; Baldwin v. Stark, 107 U. S. 463, distinguished.

Opinion of the Court.

Mr. J. H. Everest for appellee.

199 U. S.

MR. JUSTICE MCKENNA delivered the opinion of the court.

Bill in equity to declare appellee trustee of appellant of the south half of the southeast quarter of section 18, T. 10 N., R. 4 E., in the county of Pottawatomie, Oklahoma. Appellee holds patent of the United States. The charge is that he obtained the patent by imposition and fraud practiced upon the Land Department. The trial court sustained a demurrer to the bill and entered a judgment dismissing it. The judgment was affirmed by the Supreme Court of the Territory. 12 Oklahoma, 537.

The essential averments of the bill are that the land is a part of Sac and Fox reservation in the Territory of Oklahoma, which was thrown open to settlement and homestead entry under the homestead laws of the United States, September 22, 1891, under the proclamation of the President of the United States, issued September 18, 1891. 27 Stat. 989. The appellant was qualified to make settlement and entry of said land, and immediately after 12 o'clock noon of September 22, and before any other qualified person, settled upon the land. Immediately thereafter he commenced to erect a dwelling house and established his residence thereon, and cultivated and improved the same in compliance with the homestead laws. On the twentyfifth of September he made a homestead entry thereon at the land office at Oklahoma City. Appellee filed an affidavit contesting the entry, in which he falsely and fraudulently alleged that he made settlement on the land immediately after 12 o'clock noon of September 22, 1891, and prior to appellant. The contest came on for hearing on the fifth of July, 1892, and after hearing the register and receiver of the local land office held. that appellee was the prior settler, and appellant's entry was canceled and appellee was allowed to enter the land May 21, 1894. On the twenty-sixth of September, 1894, appellant filed an affidavit of contest against appellee and his entry,

alleging that appellee was not qualified to make entry for the reason that he entered upon and occupied the land and other parts of the reservation prior to noon of the twenty-second day of September, 1891, and after September 18, 1891. The contest was heard and the land officers found adversely to the contention. This ruling was affirmed successively by the Commissioner of the General Land Office and the Secretary of the Interior, and patent issued to the appellee. The appellant alleges that, upon the hearing and trial before the register and receiver, appellee "wilfully, intentionally and fraudulently, intending to deceive and mislead and misinform said register and receiver, procured and introduced the testimony of witnesses, W. L. Hartman, Clarence Hartman, Sam Cole, David L. Timmons, John Eaton and H. W. Darrow, who, at the instigation and procurement of the said defendant (appellee) testified before said register and receiver, in substance and effect, that the said defendant did not enter upon or occupy any of said lands so opened to settlement as aforesaid before 12 o'clock noon of September 22, A. D. 1891, and subsequent to September 18, A. D. 1891, and to the effect that they were with said defendant during said period and all of the time; which said testimony was false, and known by said defendant to be false when he procured and introduced the same." The appellant also alleges that the Commissioner and Secretary of the Interior were deceived and misled as to the facts in the case by said false and fraudulent testimony.

An amendment to the bill, filed by permission of the trial court, alleges that after testimony was taken in the contest, and before any decision had been rendered by the register and receiver, appellant filed a motion to reopen the hearing in said contest, and that he be allowed to introduce further testimony. The motion was overruled, and a motion was then made for a new trial. Both motions were supported by affidavits, and it is alleged that the register and receiver were influenced to overrule the motions and were deceived by the false and fraudulent testimony of appellee and his witnesses, and that