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the court went on to say, in the most dis-ity is the technical one as to the vesting of tinct terms: "The treaty itself converted the legal title." "We think it quite clear, if the reserved sections into individual proper- this patent had issued to Besion in his lifety. The Indians as a nation reserved no in time, the title would have inured to his gran terest in the territory ceded; but, as a part tee. The deed to Armstrong recites the resof the consideration for the cession. certain ervation to the grantee of the half section individuals of the nation had conferred on under the treaty, and that it was to be locat them portions of the land, to which the ed by the President after the lands were surUnited States title was either added or pron veyed; and then, for a valuable consideraised to be added, and it matters not which tion, the grantee conveys all his right and for the purposes of this controversy for pos- title to the same with a full covenant of warsession. The United States held the ulti- ranty. The land is sufficiently identified to mate title, charged with the right of undis- which Besion had the equitable title, which turbed occupancy and perpetual possession was the subject of the grant, to give operain the Indian nation, with the exclusive tion and effect to this covenant on the issupower in the government of acquiring the ing of the patent, within the meaning of this right. Although the government alone can act of Congress. [Act of May 20, 1836, purchase lands from an Indian nation, it chap. 76; 5 Stat. at L. 31.] The act declares does not follow that, when the rights of the the land shall inure to, and become vested in, nation are extinguished, an individual of the the assignee, the same as if the patent had nation who takes as private owner cannot issued to the deceased in his lifetime." sell his interest. The Indian title is prop- "Some expressions in the opinion delivered erty, and alienable unless the treaty had pro- in the case of Doe, Mann, v. Wilson, the first hibited its sale. So far from this being the case that came before us arising out of this case in the instance before us, it is manifest treaty, were the subject of observations by that sales of the reserved sections were con- the learned counsel for the appellant in the templated, as the lands ceded were forthwith argument, but which were founded on a misto be surveyed, sold, and inhabited by a apprehension of their scope and purport. It white population, among whom the Indians was supposed that the court had held that could not remain." 23 How. 463, 464, 16 L. the reservee was a tenant in common with ed. 586. the United States after the treaty of cession and until the survey and patent. It will be seen, however, that the tenancy in common there mentioned *referred to the right to oc- [18] cupy, use, and enjoy the land in common with the government, and had no relation to the legal title." 1 Black, 356, 357, 17 L. ed. 92.

In Crews v. Burcham (1861) 1 Black, 352, 17 L. ed. 91, a warranty deed made by Francis Besion, another person named in the third article of that treaty, under like circumstances, to one Armstrong, was accord ingly held to vest the legal title in him; and the scope and effect of the decision in Doe, Mann, v. Wilson were clearly brought out in the opinion delivered by Mr. Justice Nelson, as follows: "It was there held that the reservation created an equitable interest in the land to be selected under the treaty; that it was the subject of sale and conveyance; that Petchico was competent to convey it; and that his deed, upon the selection of the land and the issue of the patent, operated to vest the title in his grantee. It is true that no title to the particular lands in question could vest in the reservee, or in his grantee, [17] until the location by the President, *and, perhaps, the issuing of the patent; but the obligation to make the selection as soon as the lands were surveyed, and to issue the patent, is absolute and imperative, and founded up on a valuable and meritorious consideration. The lands reserved constituted a part of the compensation received by the Pottawatomies for the relinquishment of their right of occupancy to the government. The agreement was one which, if entered into by an individ. ual, a court of chancery would have enforced by compelling the selection of the lands and the conveyance in favor of the reservee, or, in case he had parted with his interest, in favor of his grantees. And the obligation is not the less imperative and binding because entered into by the government. The equitable right, therefore, to the lands, in the grantee of Besion, when selected, was perfect, and the only objection of any plausibil

By those two decisions it was determined that the "reservations," created by the treaty with the Pottawatomies of October 27, 1832, in favor of individual Indians, by the words "the United States agree to grant" to each of them sections of land, "which lands shall be conveyed to them by patent," had the effect of granting a present and alienable interest to each. In both those decisions Chief Justice Taney concurred-which is worthy of special notice in view of the dif ferent opinion, above cited, which he had given, when Attorney General, upon the effect of similar reservations in a treaty made with another band of Pottawatomies seven days earlier, but promulgated by the President at the same time as this treaty. 7 Stat. at L. 378, 399. And the two decisions were cited and approved by this court, speaking by Mr. Justice Matthews, in Prentice v. Stearns (1885) 113 U. S. 435, 446, 447, 28 L. ed. 1059, 1063. See also the opinion de livered by Mr. Justice Miller in the circuit court in Prentice v. Northern P. R. Co (1890) 43 Fed. Rep. 270, 275.

In the treaty of June 3, 1825, between the United States and the Kansas nation of In. dians, it was provided, by article 6, that from the lands thereby ceded to the United States there should be made reservations of 1 mile square for each of the half-breeds named; and, by article 11, that "the said Kansas nation shall never sell, relinquish, or

in any manner dispose of the lands herein | necessary, for the treaty proceeded on the reserved, to any other nation, person, or per theory that a grant is as valid by a treaty sons whatever, without the permission of the as by an act of Congress, and does not need United States for that purpose first had and a patent to perfect it. We conclude, thereobtained." 7 Stat. at L. 245, 247. The act fore, that the treaty conferred the title to of Congress of May 26, 1860, chap. 61, after these reservations, which was complete when reciting that the lands so reserved had been the locations were made to identify them." surveyed and allotted to each of the haif- 18 Wall. 116, 21 L. ed. 807. "The treaty breeds in accordance with article 6 of the granted the land, but the location had to be treaty, enacted that "all the title, interest. fixed before the grant could become operaand estate of the United States is hereby tive. After this was done, the estate became vested in the said reservees, who are now liv-vested and the right to it perfect, as much ing, to the land reserved, set apart, and also as if the grant had been directly executed lotted to them," and in the heirs of those de- to the reservee." 18 Wall. 118, 21 L. ed. ceased, "but nothing herein contained shall 808. In support of that conclusion, this [19] be construed to give any *force, efficacy, or court cited decisions of the highest court of binding effect to any contract, in writing or the state of Mississippi, in which, after otherwise, for the sale or disposition of any quoting the words of article 6 of the treaty, lands named in this act, heretofore made by it was said: "By this language, a title in any of said reservees or their heirs;" and it fee passed to such persons as were above the was further enacted that if any of the reser- age of twenty-one. The term 'reservation' vees, or the heirs of anyone deceased, should was equivalent to an absolute grant. The not desire to occupy the lands to which they title passed as effectually as if a grant had were entitled by the provisions of this act, been executed." "The treaty has not conthe Secretary of the Interior, upon their re-templated a further grant, or other evidence quest, should be authorized to sell the lands of title, showing conclusively that by the for their benefit, and to issue patents to the purchasers. 12 Stat. at L. 21. In Smith v. Stevens (1870) a deed made by one of those half-breeds, shortly after the passage of that act, without the authority or assent of the Secretary of the Interior, was ad judged by this court, speaking by Mr. Jus tice Davis, to be void, upon the single ground "that the statute, having provided the way in which these half-breed lands could be sold, by necessary implication prohibited their sale in any other way." 10 Wall. 321, 326, 19 L. ed. 933, 935.

By the treaty with the Chickasaws of May 24, 1834, it was agreed, in article 5, that "the following reservations be granted in fee: To heads of families, being Indians or having Indian families," a certain number of sections of land; and, by article 6, "also res ervations of a section to each shall be granted to" other members of the tribe, of the age of twenty-one years and upwards, according to a list to be made out by seven chiefs named in the treaty, and filed with the agent, "upon whose certificate of its believed accuracy the register and receiver shall cause said reservations to be located upon lands fit for cultivation." 7 Stat. at L. 451, 452. It may be observed that article 6, differing in these respects from article 5, used the future tense, "shall be granted," and omitted the words "in fee." Yet in Best v. Polk (1873) 18 Wall. 112, 21 I.. ed. 805, this court held that the treaty itself conferred a full title upon an Indian to whom lands were reserved by article 6, and, again speaking by Mr. Justice Davis, said: "Can it be doubted that it was the intention of both parties to the treaty to clothe the reservees with the full title? If it were not so, there would have been some words of limitation indicating a contrary intention. Instead of this, there is nothing to show that a further grant, or any additional evidence [20] of title, were contemplated. Nor was this

was

terms used it was intended that a perfect
title was thereby intended to be secured. The
Indian, then, under whom complainants
claim, had in herself an absolute and un-
conditional title in fee simple. The title
was conferred by the treaty; it was not,
however, perfect until the location
made; location was necessary to give iden-
tity. The location it seems was duly made,
and thus the title to the land in controversy
was consummated by giving identity to that
which was before unlocated." Niles v. An-
derson (1841) 5 How. (Miss.) 365, 383;
Wray v. Doe, Ho-ya-pa-nubby (1848) 10
Smedes & M. 452, 461.

In the treaty of June 24, 1862, between
the United States and a tribe of Ottawa In-
dians, article 3 provided as follows: "It
being the wish of said tribe of Ottawas to
remunerate several of the chiefs, councilmen,
and headmen of the tribe for their services
to them many years without pay, it is hereby
stipulated that five sections of land is [are]
reserved and set apart for that purpose, to
be apportioned among the said chiefs, coun-
cilmen, and headmen as the members of the
tribes shall in full council determine; and
it shall be the duty of the Secretary of the [21}
Interior to issue patents in fee simple of
said lands, when located and apportioned, to
said Indians." 12 Stat. at L. 1238. In
Libby v. Clark (1886) 118 U. S. 250, 30 L.
ed. 133, 6 Sup. Ct. Rep. 1045, this court, ap-
proving and affirming the judgment of the
supreme court of Kansas, delivered by Mr.
Justice Brewer, in 14 Kan. 435, held that a
deed to a white person from one of those
chiefs, of land patented to him pursuant to
the treaty, but executed before he had be-
come a citizen of the United States, was
void, for the single reason that the treaty
itself, as construed by the court, expressly
provided, in article 7, that no Indian should
alien or encumber the land allotted to him.

from the Indian agent of one sixth of $200, "being my share for two quarters rental on lands leased to Ray W. Jones;" and a lease, executed July 19, 1895, by Moose Dung the younger and the five other descendants of his father to the defendant, for twenty years from July 20, 1894, of the lot described in the lease to the defendant of that date, the defendant paying rent according to the conditions of that lease, as amended and approved by the Secretary of the Interior.

not within the issues in the case, certified | each of the five other descendants of Moose copies, from the records of the Department Dung the elder, acknowledging the receipt of the Interior, of certain documents respect ing the disposition of $100 deposited with the Indian agent at White Earth, Minnesota, by the defendant, as rent due under the lease to him from Moose Dung the younger, as amended and approved by the Secretary of the Interior, which documents were as follows: 1st. A letter, dated February 4, 1895, from the Commissioner of Indian Affairs to the Indian agent, directing the agent "to fully investigate the subject as to who are the legal heirs of old chief Moose Dung, On the coming in of the court on Septemfor the purpose of ascertaining to whom said ber 3, 1895, the defendant's solicitor-pursurent should be paid;" to submit all the evi-ant to a notice given by him to the plaintiffs' dence in the matter in the form of affidavits, solicitor on August 3, 1895, after all the eviwith a full report and recommendation; to dence in the case had been taken-moved the [27] permit *Moose Dung the younger, if he so de- court for leave to file a supplemental answer, sired, to be present in person or by attorney alleging that Moose Dung the younger and at the hearing; to take his affidavit as part the five other descendants of his father, of the evidence; and to hold the money paid above mentioned, were each entitled to one by the defendant in the agent's hands to sixth of the land in controversy; and had, in await the determination of the Commission- accordance with the lease made by Moose er. 2d. The report, dated March 30, 1895, Dung the younger to the defendant in 1894 of the Indian agent to the Commissioner of and its approval by the Secretary of the InIndian Affairs, enclosing an affidavit, taken terior, been paid their shares of the rent proon that day, of Moose Dung the younger, vided for in that lease and approval; and stating that he and the two daughters, and had likewise themselves executed a lease ratithree grandchildren above mentioned were fying and confirming that lease. the only legal heirs of his father, and that they were entitled to share equally with him in the estate, and were all of legal age; af fidavits, taken March 5, 1895, of those daughters and grandchildren respectively. stating their relationship and ages, and that they were entitled to share equally with him The present contention of the defendant in the estate; and an affidavit, of the same that the right of the elder Moose Dung in the date, of chiefs and headmen of the tribe to reservation passed, upon his death, not to his the relationship of the other deponents to eldest son alone, but to the other children Moose Dung the elder, but saying nothing as and grandchildren jointly with the eldest to their rights of inheritance. Each of these son, was clearly inadmissible under the alleaffidavits was signed with the mark of the gations of the original answer. The ques deponent, and taken by a notary public. The tion whether a supplemental answer should agent reported that he considered this evi-be allowed was a matter within the discredence reliable, and had no doubt that these tion of the court, largely depending upon the six descendants of the old chief Moose Dung circumstances of the particular case. Hardin were his only living heirs, and were entitled. Boyd, 113 U. S. 756, 28 L. ed. 1141, 5 to share equally in his estate. 3d. A letter Sup. Ct. Rep. 771; Smith v. Babcock, 3 dated April 9, 1895, from the Commissioner of Indian Affairs to the Secretary of the In terior, recommending that these six persons "be determined to be the heirs of old chief Moose Dung for the purposes of this lease and that the rents arising from leasing the land granted him by said treaty be divided among them equally." 4th. A letter, dated April 23, 1895, from the Secretary of the In terior to the Commissioner of Indian Af fairs, concurring in the recommendation, and returning the papers. 5th. A letter, dated May 4, 1895, from the Commissioner of In dian Affairs to the Indian agent, informing him of the decision of the Secretary of the Interior, and directing him to distribute the proceeds of the lease in his hands in accord ance with that decision.

The defendant, at the same time, against the like objection, introduced six receipts, [28] dated May 25, 1895, respectively *signed by the mark of Moose Dung the younger, and of

On September 9, 1895, the court denied the motion for leave to file the supplemental answer; on September 17, 1895, the cause was argued and submitted; and on November 9, 1895, the court entered the final decree for the plaintiffs.

Sumn. 583. The reasons for denying the
motion in this case are not stated in the [29]
record. They may have been the late stage
of the case at which the motion was made,
and a failure to satisfy the court that the
facts now attempted to be set up were not
known, or, at least, easily accessible, to the
defendant or his solicitor long before. But
as this court might, even now, if justice ap-
peared to require it, allow an amendment of
the pleadings, this part of the case may be
more satisfactorily disposed of by consider-
ing what the effect of those facts would have
been, had they been duly pleaded. Liver-
pool & G. W. Steam Co. v. Phenix Ins. Co.
129 U. S. 397, 447, 32 L. ed. 788, 794, 9 Sup.
Ct. Rep. 469; Wiggins Ferry Co. v. Ohio &
M. R. Co. 142 U. S. 396, 413, 414, 35 L. ed.
1055, 1061, 12 Sup. Ct. Rep. 188.

The Department of the Interior appears. to have assumed that, upon the death of Moose Dung the elder, in 1872, the title in

his land descended by law to his heirs gen- | Rep. 52, which concerned the inheritance of eral, and not to his eldest son only.

But the elder Chief Moose Dung being a member of an Indian tribe, whose tribal organization was still recognized by the government of the United States, the right of inheritance in his land, at the time of his death, was controlled by the laws, usages, and customs of the tribe, and not by the law of the state of Minnesota, nor by any action of the Secretary of the Interior.

In United States, Davis, V. Shanks (1870) 15 Minn. 369, it was adjudged by the supreme court of Minnesota that a probate court of the state had no jurisdiction over the estate of a chief of a tribe of Chippewa Indians to whom a section of land, to be loeated by the Secretary of the Interior, had been "granted in fee simple" by the treaty between the United States and that tribe of May 7, 1864 (13 Stat. at L. 693), and had accordingly been located and a patent therefor issued to him. See also Dole v. Irish (1848) 2 Barb. 639; Hastings v. Farmer (1850) 4 N. Y. 293, 294.

land patented by the United States to a
member of the confederated tribes of Kas-
kaskia, Peoria, Pinkeshaw, and Wea Indi-
ans, and in which there was no evidence of
any particular law or custom of those tribes,
it was held that the rightful heirs of the pat-
entee might maintain their title in the cir
cuit court of the United States for the district
of Kansas against one claiming under a deed
from two of those heirs, approved by the
Secretary of the Interior upon a certificate
of two chiefs of the tribe that the two grant-
ors were the sole heirs of the patentee; Mr.
Justice *Brewer, then circuit judge, saying [31]
that the Secretary of the Interior "had no
judicial power to adjudge a forfeiture, to
decide questions of inheritance, or to devest
the owner of his title without his knowledge
or consent."

Upon the evidence contained in this record, it is quite clear that, by the laws, usages, and customs of the Chippewa Indians, old Moose Dung's eldest son and successor as chief inherited the land of his father, to the In one of the cases reported under the exclusion of other descendants. Both the name of The Kansas Indians (1866) 5 Wall. half-breed Morrison and the younger Moose 737, Blue Jacket v. Johnson County Comrs. Dung, being fully examined on this point, 18 L. ed. 667, this court, reversing the judg- so testified; and there was no direct testiment of the supreme court of Kansas in mony to the contrary. Morrison had lived Blue Jacket v. Johnson County Comrs. 3 with the Red Lake band of Chippewas all his Kan. 299, held that lands which, pursuant life, spoke their language, and knew thei to the treaty of May 10, 1854, between the laws, customs, and usages; and there is (30) United States *and the Shawnee nation of In- nothing whatever in the case that throws dians (10 Stat. at L. 1053), had been patent- any doubt on the trustworthiness of his tes ed to a chief of that nation, were not subject timony. The only matters that can be supto taxation by the state of Kansas so long posed to lessen the weight of Moose Dung's as the tribal organization remained and was testimony are an affidavit, a receipt, and a recognized by the political department of the lease, each signed with his mark in 1895, government; and Mr. Justice Davis, in de- more than three years after the lease to the livering judgment, said: "This people have plaintiffs, and wholly incompetent as indetheir own customs and laws by which they pendent evidence against them. That affiare governed. Because some of those cus- davit, in which he stated that the two daughtoms have been abandoned, owing to the ters and the three grandchildren were the proximity of their white neighbors, may be only legal heirs of his father beside himself an evidence of the superior influence of our and were entitled to share with him in the race, but does not tend to prove that their estate, was procured from him by the Indian tribal organization is not preserved. There agent under direction of the Secretary of the is no evidence in the record to show that the Interior, and, as well as the receipt, was eviIndians with separate estates have not the dently considered by him as mere matter of same rights in the tribe as those whose es- form with which he was obliged to comply tates are held in common." "As long as the in order to get any part of the rent under the United States recognize their national char- lease of 1894. That it made little impresacter, they are under the protection of treat sion on his mind is evident from the fact ies and the laws of Congress, and their prop- that, when afterwards examined as a witness erty is withdrawn from the operation of in this case, in the presence of the counsel state laws." 5 Wall. 756, 757, 18 L. ed. 673. for both parties, he testified that no one had See also the opinion delivered by Judge ever said anything to him about the daughWoods, with the concurrence of Mr. Justice ters and grandchildren having some interest Harlan, in the circuit court, in Wau-pe-man-in the land. And it is not without signifiqua v. Aldrich (1886) 28 Fed. Rep. 489, 495. Following that decision of this court, it was held by the supreme court of Kansas, in an opinion delivered by Mr. Justice Brewer, that land patented to an Indian woman of the Shawnee tribe under the treaty of 1854 descended, upon her death, according to the law of her tribe, and not according to the Kansas statute of descents. Brown v. Steele (1880) 23 Kan. 672.

In Richardville v. Thorp (1886) 28 Fed.

cance that the other chiefs and headmen of
the tribe, from whom, under the direction of
the Secretary of the Interior, affidavits were
likewise obtained to the relationship between
old Mcose Dung and his six descendants,
said nothing, and do not appear to have been
asked anything, as to the right of inherit-
ance, or as to the laws, customs, and usages [32]
of the Indians upon that subject.

The title to the strip of land in contro versy, having been granted by the United

States to the elder chief Moose Dung by the treaty itself, and having descended, upon his death, by the laws, customs, and usages of the tribe, to his eldest son and successor as chief, Moose Dung the younger, passed by the lease executed by the latter in 1891 to the plaintiffs for the term of that lease; and their rights under that lease could not be devested by any subsequent action of the lessor, or by Congress, or of the executive departments. The construction of treaties is the peculiar province of the judiciary; and, except in cases purely political, Congress has no constitutional power to settle the rights under a treaty, or to affect titles already granted by the treaty itself. Wilson v. Wall, 6 Wall. 83, 89, 18 L. ed. 727, 729; Reichart v. Felps, 6 Wall. 160, 18 L. ed. 849; Smith v. Stevens, 10 Wall. 321, 327, 19 L. ed. 933, 935; Holden v. Joy, 17 Wail. 211, 247, 21 L. ed. 523, 535.

termination without deciding such question,
the fact that it was not specially set up and
claimed is not conclusive against a review of
the question here.

Columbia Water Power Co. v. Columbia
Electric Street R. Light & P. Co. 172 U. S.
475, 43 L. ed. 521, 19 Sup. Ct. Rep. 247.

Raising the question of jurisdiction over a citizen of another state, or over property located in another state, for the purpose of taxation, necessarily involves a Federal question.

Dobbins v. Erie County Comrs. 16 Pet. 435, 10 L. ed. 1022; Murray v. Charleston, 96 U. S. 432, 24 L. ed. 760.

Mr. Emmet R. Olcott argued the cause and filed a brief for defendant in error:

The Federal question sought to be raised here, not having been presented in the state court, the case should be dismissed for want of jurisdiction.

Murdock v. Memphis, 20 Wall. 590, 22 L

The congressional resolution of 1894, and the subsequent proceedings in the Departed. 429; Moore v. Mississippi, 21 Wall. 638, ment of the Interior, must therefore be held 22 L. ed. 653; Winona & St. P. Land Co. v. to be of no effect upon the rights previously Minnesota, 150 U. S. 540, 40 L. ed. 252, 16 acquired by the plaintiffs by the lease to Sup. Ct. Rep. 88; Rutland R. Co. v. Central them from the younger chief; and the decree Vermont R. Co. 159 U. S. 630, 40 L. ed. 284, is affirmed. 16 Sup. Ct. Rep. 113; Union Nat. Bank v. Louisville, N. A. & C. R. Co. 163 U. S. 325, 41 L. ed. 177, 16 Sup. Ct. Rep. 1039; Levy v. San Francisco Super. Ct. 167 U. S. 175, 42 L. ed. 126, 17 Sup. Ct. Rep. 769; Miller v. Cornwall R. Co. 168 U. S. 131, 42 L. ed. 409, 18 Sup. Ct. Rep. 34; Muse v. Arlington Ho

JOHN H. SCUDDER, Administrator of the
Estate of John F. Houdayer, Deceased,
Piff. in Err.,

v.

BIRD S. COLER, Comptroller of the City te Co. 168 U. S. 430, 42 L. ed. 531, 18 Sup.

and County of New York.

(See S. C. Reporter's ed. 32-36.) Writ of error to state court-failure to raise

Federal question.

[blocks in formation]

risdiction.

See same case below, 150 N. Y. 37, 34 L. R. A. 235, 44 N. E. 718.

The facts are stated in the opinion. Mr. J. Culbert Palmer argued the cause and filed a brief for plaintiff in error:

A Federal question being necessarily involved, and the case being incapable of de

NOTE.-48 to jurisdiction of Federal over state courts; necessity of Federal question,-see notes to Kipley v. Illinois ex rel. Akin, 42 L. ed. U. S. 998; Hamblin v. Western Land Co. 37 L.

ed U. S. 267.

Ct Rep 109; Kipley v. Illinois, 170 U. 8. 186, 42 L. ed. 1001, 18 Sup. Ct. Rep. 550.

*Mr. Justice Gray delivered the opinion [33] of the court:

This was a proceeding commenced September 27, 1895, in the surrogate's court, by the comptroller of the city and county of New York, for the taxation of property of John F. Houdayer, deceased, under the statute of New York of 1892, chap. 399, entitled "An Act in Relation to Taxable Transfers of Property," the material provisions of which were as follows:

"Sec. 1. A tax shall be and is hereby imposed upon the transfer of any property, real or personal, of the value of $500 or over, or of any interest therein or income there from, in trust or otherwise, to persons or corporations not exempt by law from taxation on real or personal property in the following

cases:

intestate laws of this state from any person "1. When the transfer is by will or by the dying seised or possessed of the property

while a resident of the state.

"2. When the transfer is by will or intestate law, of property within the state, and the decedent was a nonresident of the state

at the time of his death."

"Sec. 22. The words 'estate' and 'property,' as used in this act, shall be taken to mean the property or interest therein of the testator, intestate, grantor, bargainor, or vendor, passing or transferred to those not herein specifically exempted from the provisions

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