The opinion of the court was delivered by
Horton, C. J.:
On the 10th day of July, 1871, Robert Titus made a preemption settlement upon the land in controversy, being a quarter-section of land in Reno county, in this state. He died before consummating his claim of preemption. After his death, D. B. Miller, administrator of his estate, filed the necessary papers to complete the preemption, paying [17]*17the price thereof, $400, from his own money to the United States. On the 20th day of April, 1874, a patent to the land was issued by the United States. The patent, among other things, recited that —
“The United States of America, in consideration of the premises and in conformity with the several acts of congress in such cases made and provided, have given and granted, and by these presents do give and grant unto the said heirs of Robert Titus, deceased, and to their heirs, the above tract described, to have and to hold the same, together with all the rights, privileges, immunities and appurtenances of whatsoever nature thereunto belonging, unto the said heirs of Robert Titus, deceased, and to their heirs and assigns forever.”
Robert Titus, who made the preemption settlement, was married to Phoebe Thomas in Vermont, in 1809. The only issue of this marriage was Alden W. Titus, born in October, 1810. After the birth of his son, Robert Titus abandoned both his wife and child. Without having a divorce, he had a marriage ceremony performed between him and Miriam Lee, in the state of New York, on July 14th, 1818. By Miriam Lee he had five children. The youngest was the daughter Lois. Lois married D. B. Miller, one of the defendants. In 1871 D. B. Miller, his wife and Robert Titus came to this state from Illinois, and settled in Reno county. Soon after, Titus preempted the land now claimed by Miller. Miriam Lee died in 1853. Mrs. Phoebe T. Titus died in Vermont, in 1860. Alden W. Titus, the son by Mrs. Phoebe T. Titus, died in 1876, intestate, leaving heirs. D. B. Miller purchased from the heirs of Alden W. Titus, deceased, all their right and title to the land in dispute, and claims the fee-simple title thereof by conveyances from them as the only heirs of Robert Titus, deceased. John Caldwell, the plaintiff, is a son of Delight, a daughter of Robert Titus by Miriam Lee, and claims a portion of the land from her and through conveyances from several of the children and heirs of the children of Miriam Lee.
The pivotal question is the interpretation of § 2269, Revised Statutes of the United States, 1878. This question is [18]*18one which may ultimately be decided by the supreme court of the United States; therefore the final decision does not rest with us. The section reads:
“ Where a party entitled to claim the benefits of the preemption laws dies before consummating his claim, by filing in due time all the papers essential to the establishment of the same, it shall be competent for the executor or administrator 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 preemptor, and a patent thereon shall cause the title to inure to such heirs as if their names had been specially mentioned.”
The plaintiff contends that the words “the heirs of the deceased preemptor” include legitimate and illegitimate children, if the illegitimate children were generally and notoriously recognized by Robert Titus in his lifetime as his own. Under this rule, the heirs of Alden W. Titus, deceased, and the children of Miriam Lee, or their heirs, are all heirs of Robert Titus, deceased. This would give John Caldwell an undivided thirteen twenty-eighths of the land, and damages for its detention.
On the other hand, the defendants claim that the word “heirs” must be determined by the common law of England. Therefore it is contended by them that the heirs of Alden W. Titus, deceased, had the sole right to the land prior to their conveyances to D. B. Miller. This would give all the land to Miller.
In interpreting the United States statutes, the question is not what congress has the power to do, but what congress has actually done. Congress has not defined the term “heirs.” The land is situate in this state. Robert Titus died in this state. Therefore, to determine who are meant by the words in the patent, “heirs of Robert Titus, deceased,” we think we must look to the statutes of this state. “ It seems to us scarcely necessary to say that this is purely a question of statutory law.” (McKinney v. Stewart, 5 Kas. 391.) “An heir is one who by statute is capable of inheriting from another, or one who sue[19]*19ceeds to the estate of a deceased.” (McKinney v. Stewart, supra; Delashmutt v. Parrent, 40 Kas. 641.)
In the act concerning descents and distributions are the following provisions, which are now in force, and were also in force at and before the death of Robert Titus:
“Sec. 22. Illegitimate children inherit from the mother, and the mother from the children.
2 illegitimate ' children, in“Seo. 23. They shall also inherit from the father, when they have been recognized by him as his children j but such recognition must have been general and notorious, or else in writing.” (Gen. Stat. of 1889, ch. 33, pp. 780-787.)
3 illegitimate oihudÍdea¿oñg hens' Under this statute, as the children of Miriam Lee were generally and notoriously recognized by Robert Titus as his own, they inherited from their father with Alden ~W. Titus, the legitimate child. The conclusion of law of the district court in favor of the defendants is therefore erroneous.
That the statute of this state must determine who are “heirs,” is in accord with the prior decisions of this couyt. In Brown v. Belmarde, 3 Kas. 41, the syllabus reads:
“Prior to the treaty of June 3, 1825, with the Kansas Indians, they had the ‘Indian title/ i. e., a life interest in the usufruct, of a body of land in eastern Kansas, including that in controversy, the United States holding the ultimate title, charged with this interest of the Indian Nation, so long as they should remain a nation. This ‘Indian title’ was by the sixth article of that treaty vested in certain individuals — that to the land in question in Lavonture.
i. Thewora patent’ iiow construed. “From the death of Lavonture, in 1847 or 1848, to the passage of the act of congress, May 26, 1860, the whole title to the land in question was in the government, and that act operated as an original grant to certain reservees and the ‘heirs of deceased reservees’ mentioned therein. ‘Heirs of deceased reservees’ used therein is descriptio personco, and is to be construed with reference to, and determined by the law at the time the estate passed, and whoever under the laws of this state would have inherited, had Lavonture died May 26, 1860, (the date of the approval of the act of congress,) are the persons to whose benefit the grant inured.”
[20]*20In Clark v. Lord, 20 Kas. 390, it is said:
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The opinion of the court was delivered by
Horton, C. J.:
On the 10th day of July, 1871, Robert Titus made a preemption settlement upon the land in controversy, being a quarter-section of land in Reno county, in this state. He died before consummating his claim of preemption. After his death, D. B. Miller, administrator of his estate, filed the necessary papers to complete the preemption, paying [17]*17the price thereof, $400, from his own money to the United States. On the 20th day of April, 1874, a patent to the land was issued by the United States. The patent, among other things, recited that —
“The United States of America, in consideration of the premises and in conformity with the several acts of congress in such cases made and provided, have given and granted, and by these presents do give and grant unto the said heirs of Robert Titus, deceased, and to their heirs, the above tract described, to have and to hold the same, together with all the rights, privileges, immunities and appurtenances of whatsoever nature thereunto belonging, unto the said heirs of Robert Titus, deceased, and to their heirs and assigns forever.”
Robert Titus, who made the preemption settlement, was married to Phoebe Thomas in Vermont, in 1809. The only issue of this marriage was Alden W. Titus, born in October, 1810. After the birth of his son, Robert Titus abandoned both his wife and child. Without having a divorce, he had a marriage ceremony performed between him and Miriam Lee, in the state of New York, on July 14th, 1818. By Miriam Lee he had five children. The youngest was the daughter Lois. Lois married D. B. Miller, one of the defendants. In 1871 D. B. Miller, his wife and Robert Titus came to this state from Illinois, and settled in Reno county. Soon after, Titus preempted the land now claimed by Miller. Miriam Lee died in 1853. Mrs. Phoebe T. Titus died in Vermont, in 1860. Alden W. Titus, the son by Mrs. Phoebe T. Titus, died in 1876, intestate, leaving heirs. D. B. Miller purchased from the heirs of Alden W. Titus, deceased, all their right and title to the land in dispute, and claims the fee-simple title thereof by conveyances from them as the only heirs of Robert Titus, deceased. John Caldwell, the plaintiff, is a son of Delight, a daughter of Robert Titus by Miriam Lee, and claims a portion of the land from her and through conveyances from several of the children and heirs of the children of Miriam Lee.
The pivotal question is the interpretation of § 2269, Revised Statutes of the United States, 1878. This question is [18]*18one which may ultimately be decided by the supreme court of the United States; therefore the final decision does not rest with us. The section reads:
“ Where a party entitled to claim the benefits of the preemption laws dies before consummating his claim, by filing in due time all the papers essential to the establishment of the same, it shall be competent for the executor or administrator 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 preemptor, and a patent thereon shall cause the title to inure to such heirs as if their names had been specially mentioned.”
The plaintiff contends that the words “the heirs of the deceased preemptor” include legitimate and illegitimate children, if the illegitimate children were generally and notoriously recognized by Robert Titus in his lifetime as his own. Under this rule, the heirs of Alden W. Titus, deceased, and the children of Miriam Lee, or their heirs, are all heirs of Robert Titus, deceased. This would give John Caldwell an undivided thirteen twenty-eighths of the land, and damages for its detention.
On the other hand, the defendants claim that the word “heirs” must be determined by the common law of England. Therefore it is contended by them that the heirs of Alden W. Titus, deceased, had the sole right to the land prior to their conveyances to D. B. Miller. This would give all the land to Miller.
In interpreting the United States statutes, the question is not what congress has the power to do, but what congress has actually done. Congress has not defined the term “heirs.” The land is situate in this state. Robert Titus died in this state. Therefore, to determine who are meant by the words in the patent, “heirs of Robert Titus, deceased,” we think we must look to the statutes of this state. “ It seems to us scarcely necessary to say that this is purely a question of statutory law.” (McKinney v. Stewart, 5 Kas. 391.) “An heir is one who by statute is capable of inheriting from another, or one who sue[19]*19ceeds to the estate of a deceased.” (McKinney v. Stewart, supra; Delashmutt v. Parrent, 40 Kas. 641.)
In the act concerning descents and distributions are the following provisions, which are now in force, and were also in force at and before the death of Robert Titus:
“Sec. 22. Illegitimate children inherit from the mother, and the mother from the children.
2 illegitimate ' children, in“Seo. 23. They shall also inherit from the father, when they have been recognized by him as his children j but such recognition must have been general and notorious, or else in writing.” (Gen. Stat. of 1889, ch. 33, pp. 780-787.)
3 illegitimate oihudÍdea¿oñg hens' Under this statute, as the children of Miriam Lee were generally and notoriously recognized by Robert Titus as his own, they inherited from their father with Alden ~W. Titus, the legitimate child. The conclusion of law of the district court in favor of the defendants is therefore erroneous.
That the statute of this state must determine who are “heirs,” is in accord with the prior decisions of this couyt. In Brown v. Belmarde, 3 Kas. 41, the syllabus reads:
“Prior to the treaty of June 3, 1825, with the Kansas Indians, they had the ‘Indian title/ i. e., a life interest in the usufruct, of a body of land in eastern Kansas, including that in controversy, the United States holding the ultimate title, charged with this interest of the Indian Nation, so long as they should remain a nation. This ‘Indian title’ was by the sixth article of that treaty vested in certain individuals — that to the land in question in Lavonture.
i. Thewora patent’ iiow construed. “From the death of Lavonture, in 1847 or 1848, to the passage of the act of congress, May 26, 1860, the whole title to the land in question was in the government, and that act operated as an original grant to certain reservees and the ‘heirs of deceased reservees’ mentioned therein. ‘Heirs of deceased reservees’ used therein is descriptio personco, and is to be construed with reference to, and determined by the law at the time the estate passed, and whoever under the laws of this state would have inherited, had Lavonture died May 26, 1860, (the date of the approval of the act of congress,) are the persons to whose benefit the grant inured.”
[20]*20In Clark v. Lord, 20 Kas. 390, it is said:
“The patent was not issued to Eleanor Eichardson, but to ‘the heirs of Eliza Eichardson/ and said Eleanor Eichardson obtained her interest, not as an allottee, not as the patentee, but by virtue of the laws of the state of Kansas, which authorized her, as an heir of Eliza Eichardson, to inherit the estate of her sister. If Eliza had lived, the lands would have been allotted and patented to her. After her death they were patented to her heirs, without naming them; and the law of the state determined who these were. Eleanor simply inherited the lands granted to Eliza during her life; and the patent is evidence of the partition of the lands, and the division made in pursuance of the treaty. The death of Eliza Eichardson did not change the terms and conditions of the treaty, nor annul the grant to her; but as the patent could not issue to a dead person, it was necessarily issued to the heirs of Eliza; but such heirs were not controlled by the restrictions applicable to the allottees and patentees. If the patent had issued to Eliza in her lifetime her death would have abrogated the restrictions on the alienation of the land; and having issued after her decease, it placed the heirs in the same condition, as to their rights in the property, as if issued before.”
See also Cutting v. Cutting, 6 Sawyer, 396-406; 21 Myers’s Federal Decisions, 370, 371-399; Lamb v. Starr, 1 Deady, 358.
Defendants cite McCool v. Smith, 1 Black, 459, but we do not think that decision is authority for them. “Next of kin” is construed in that case by the common-law definition, for the reason that the common law of England was in force by express statute in the state of Illinois at the death of the party referred to in the opinion. If we were required to go outside of the statutes of this state and to the common law of England to determine what is meant by the term “heirs,” we should have insuperable difficulties to encounter. If we are not to construe “heirs” in this case by the statute of this state, it is impossible to determine, as congress has not adopted the common law of England, what part or portion of the common law of that country is applicable.
Among the canons of descent, as enumerated by Blackstone, [21]*21are two which are wholly inapplicable to this country, and which could never have been within the intention of congress to apply in this state, or any other state of the Union. One of these common-law canons is, “that where there are two or more males in equal degree, the eldest only shall inherit; but the females all together. As, if a man has two sons, Matthew and Gilbert, and two daughters, Margaret and Charlotte, and dies, Matthew, his eldest son, shall alone succeed to his estate, in exclusion of Gilbert, the second son, and both the daughters ; but if both the sons die without issue before the father, the daughters, Margaret and Charlotte, shall both inherit the estate as co-parceners.” The other canon is, “that the male issue shall be admitted before the female. Thus, sons shall be admitted before daughters; or, as our male lawgivers have somewhat uncomplaisantly expressed it, the worthiest of blood shall be preferred. As, if John Stiles hath two sons, Matthew and Gilbert, and two daughters, Margaret and Charlotte, and dies; first Matthew and (in case of his death without issue) then Gilbert, shall be admitted to the succession, in preference to both the daughters.” (2 Bl. Com. [Wendell], pp. 212, 213.)
We do not think it necessary to comment upon the attempted removal of this case to the United States circuit court. After the application for removal was denied by the district court, the parties filed new pleadings and entered into various stipulations and wholly disregarded any attempted removal.
The judgment of the district court must be reversed, and the cause remanded, with direction to the court below to enter judgment upon the findings of fact in favor of John Caldwell and against the defendants for the undivided |-| of the land and damages for its detention from March 4, 1885, at the rate of $41.67 per year.
All the Justices concurring.