Opinion by
BREWER, C.
This suit involves the title to a town lot in Muskogee. It was brought as an equitable proceeding in the United States Court for the Western District of Indian Territory on September 19, 1906, by the plaintiffs in error as plaintiffs against the defendant in error as defendant. Hereafter the parties will be referred to as they were known in the trial court. We 'summarize the facts, .as follows: Plaintiffs were the adult children of one Squire Saunders. On June 4, 1900, Squire Saunders was in possession and occupying as a home lot 10, block 248, of the town of Muskogee, Creek Nation, Indian Territory, and was entitled under the acts of Congress relating to town sites to have said lot scheduled to him, and the preference right to purchase same at one-half its appraised value. That on said date June 4, 1900, said lot was so scheduled to him by the town-site commission. That on October 22, 1900, Squire Saunders died intestate, leaving a widow,' Sarah Saunders, and the plaintiffs, his children, him surviving. That a patent to the land was issued in the name of Squire Saunders by. the Principal Chief of the Muskogee (Creek) Nation approved by the Secretary of the Interior June 27, 1904. That on November 16, 1900, after the
■death of Squire Saunders, the United States court, in the exercise of its probate jurisdiction, made an order determining the value of the estate of Squire Saunders to be less than $300, and vesting the sanie in the widow. About a month after this order was made the widow sold the property in controversy to the defendant, who paid the consideration, and went into possession of the property. No deed was executed. The defendant was in possession at the time of suit, and was not disturbed in her possession by the judgment in the case. The defendant after buying and taking possession of the property paid to the proper officers all the purchase price for tire lot due the Creek Nation under the town-site law. The evidence was heard by a master in , chancery, who made findings of fact and conclusions of law, and filed same, together with the evidence taken in the case. The master found in favor of plaintiffs. Exceptions were filed to the report, and after statehood the district court for Muskogee .county, as successor of the United States court, heard the exceptions to the master’s report and sustained same. The court made special findings of fact substantially as stated above, and that there was no equity in plaintiffs’ petition. A decree was rendered in favor of the defendant. This appeal is prosecuted to reverse that decree.
There are .a number of assignments of error in this case, but they all depend in our judgment upon the question of the legal effect of the order made by the United States court on November 16, 1900. It is as follows:
“In the United States Court 'for the Northern District of the Indian Territory, sitting at Muskogee. Probate No. 454. In re Administration of the Estate of Squire Saunders, De- ’ ceased. Sarah Saunders, • Widow. Order of Court. Now on this 16th day of November, A. D. 1900, the same being one of the regular judicial days of the September Term, the above styled cause came on for hearing upon .the report of Z. T. Walrond, probate commissioner, and the court, being advised in the premises, finds that said report should be sustained. Whereupon, it is considered, ordered, and adjudged by the court that, it appearing that the estate of said deceased does not ex-
eeed $300, the said estate do Test absolutely in Sarah Saunders, the widow of said Squire Saunders, deceased. It is further ordered that the improvements on lot 10, block 248, of the town site in Muskogee, and the horse, saddle, and bridle, and the other personal property described in the petition of the said widow, are declared to be the property of the said widow, and that there be no administration granted upon the estate of the said decedent. The costs of this proceeding, including an allowance of $5.00 made to the probate commissioner are taxed against the said Sarah 'Saunders. Approved. John R. Thomas, Judge. [Seal.]”
This order was made in pursuance of the law of Arkansas in force in Indian Territory at the time the rights of the parties to this suit arose. Mansfield’s Dig. Ark. sec. 3, c. 1, is as follows:
“When any one .shall die leaving a widow or children, and it shall be made to appear to the probate court that the estate of the deceased does not exceed three hundred dollars, the court shall make an order that the estate vest absolutely in the widow or children, as the case may be; and in all cases wflien the estate does not exceed eight hundred dollars the widow or children, as the case may be, shall be- entitled to retain the amount of three hundred dollars of the property at cash price.”
If this judgment had the effect under the law in force at the time of passing the estate of Squire Saunders in the lot in controversy absolutely, and vesting same in his widow Sarah Saunders, then the judgment of the court in this case is not contrary to the law, or the evidence, the motion for new trial was properly overruled, the report of the master should not have been confirmed, and the judgment for defendant was correct, thus disposing of the main assignments of error urged by plaintiffs. We think it had such effect. The law of Arkansas being in force in Indian Territory .at the time of the transactions shown in this record, the interpretation given the statute involved by the Supreme ‘Court of that state prior to its adoption by Congress as a law in Indian Territory is controlling.
This statute had been fully considered and construed by the Supreme Court of Arkansas before its adoption. In
Har
rison v. Lamar,
33 Ark. 824, it was held that the word “estate” used in the statute means the whole “mass” of decedent’s property, both real and personal, and that, if at the date of his death a decedent’s property is of less than $300 in value, it is given by the law
proprio vigore
to the widow, and that an order of the probate court is not necessary to vest it. This case also holds that a proceeding in the probate court to declare the estate in the widow is
in rem,
and that no notice to heirs is necessary, and that the order need not recite all the jurisdictional facts. We quote from the body of the opinion in the Harrison case,
supra:
“There are - no grounds for drawing a distinction between real and personal property in the construction of these acts. If there were any, the ‘estate’ must be considered as more aptly referring to real property. But under our system of administration, which regards the whole mass of property, real and personal, as assets for some purposes, in the hands of the administrator the word estate has acquired a wider application, in a popular sense, and in this sense, doubtless the Legislature meant to use it. It means the mass of property left by decedent, and if that in the aggregate, should be less, than $300 in value, the intention of the acts, taken together, is. to give it to the widow, if living, or, if there be no widow, to minor children.”
And further:
“It is a proceeding
in rem,
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Opinion by
BREWER, C.
This suit involves the title to a town lot in Muskogee. It was brought as an equitable proceeding in the United States Court for the Western District of Indian Territory on September 19, 1906, by the plaintiffs in error as plaintiffs against the defendant in error as defendant. Hereafter the parties will be referred to as they were known in the trial court. We 'summarize the facts, .as follows: Plaintiffs were the adult children of one Squire Saunders. On June 4, 1900, Squire Saunders was in possession and occupying as a home lot 10, block 248, of the town of Muskogee, Creek Nation, Indian Territory, and was entitled under the acts of Congress relating to town sites to have said lot scheduled to him, and the preference right to purchase same at one-half its appraised value. That on said date June 4, 1900, said lot was so scheduled to him by the town-site commission. That on October 22, 1900, Squire Saunders died intestate, leaving a widow,' Sarah Saunders, and the plaintiffs, his children, him surviving. That a patent to the land was issued in the name of Squire Saunders by. the Principal Chief of the Muskogee (Creek) Nation approved by the Secretary of the Interior June 27, 1904. That on November 16, 1900, after the
■death of Squire Saunders, the United States court, in the exercise of its probate jurisdiction, made an order determining the value of the estate of Squire Saunders to be less than $300, and vesting the sanie in the widow. About a month after this order was made the widow sold the property in controversy to the defendant, who paid the consideration, and went into possession of the property. No deed was executed. The defendant was in possession at the time of suit, and was not disturbed in her possession by the judgment in the case. The defendant after buying and taking possession of the property paid to the proper officers all the purchase price for tire lot due the Creek Nation under the town-site law. The evidence was heard by a master in , chancery, who made findings of fact and conclusions of law, and filed same, together with the evidence taken in the case. The master found in favor of plaintiffs. Exceptions were filed to the report, and after statehood the district court for Muskogee .county, as successor of the United States court, heard the exceptions to the master’s report and sustained same. The court made special findings of fact substantially as stated above, and that there was no equity in plaintiffs’ petition. A decree was rendered in favor of the defendant. This appeal is prosecuted to reverse that decree.
There are .a number of assignments of error in this case, but they all depend in our judgment upon the question of the legal effect of the order made by the United States court on November 16, 1900. It is as follows:
“In the United States Court 'for the Northern District of the Indian Territory, sitting at Muskogee. Probate No. 454. In re Administration of the Estate of Squire Saunders, De- ’ ceased. Sarah Saunders, • Widow. Order of Court. Now on this 16th day of November, A. D. 1900, the same being one of the regular judicial days of the September Term, the above styled cause came on for hearing upon .the report of Z. T. Walrond, probate commissioner, and the court, being advised in the premises, finds that said report should be sustained. Whereupon, it is considered, ordered, and adjudged by the court that, it appearing that the estate of said deceased does not ex-
eeed $300, the said estate do Test absolutely in Sarah Saunders, the widow of said Squire Saunders, deceased. It is further ordered that the improvements on lot 10, block 248, of the town site in Muskogee, and the horse, saddle, and bridle, and the other personal property described in the petition of the said widow, are declared to be the property of the said widow, and that there be no administration granted upon the estate of the said decedent. The costs of this proceeding, including an allowance of $5.00 made to the probate commissioner are taxed against the said Sarah 'Saunders. Approved. John R. Thomas, Judge. [Seal.]”
This order was made in pursuance of the law of Arkansas in force in Indian Territory at the time the rights of the parties to this suit arose. Mansfield’s Dig. Ark. sec. 3, c. 1, is as follows:
“When any one .shall die leaving a widow or children, and it shall be made to appear to the probate court that the estate of the deceased does not exceed three hundred dollars, the court shall make an order that the estate vest absolutely in the widow or children, as the case may be; and in all cases wflien the estate does not exceed eight hundred dollars the widow or children, as the case may be, shall be- entitled to retain the amount of three hundred dollars of the property at cash price.”
If this judgment had the effect under the law in force at the time of passing the estate of Squire Saunders in the lot in controversy absolutely, and vesting same in his widow Sarah Saunders, then the judgment of the court in this case is not contrary to the law, or the evidence, the motion for new trial was properly overruled, the report of the master should not have been confirmed, and the judgment for defendant was correct, thus disposing of the main assignments of error urged by plaintiffs. We think it had such effect. The law of Arkansas being in force in Indian Territory .at the time of the transactions shown in this record, the interpretation given the statute involved by the Supreme ‘Court of that state prior to its adoption by Congress as a law in Indian Territory is controlling.
This statute had been fully considered and construed by the Supreme Court of Arkansas before its adoption. In
Har
rison v. Lamar,
33 Ark. 824, it was held that the word “estate” used in the statute means the whole “mass” of decedent’s property, both real and personal, and that, if at the date of his death a decedent’s property is of less than $300 in value, it is given by the law
proprio vigore
to the widow, and that an order of the probate court is not necessary to vest it. This case also holds that a proceeding in the probate court to declare the estate in the widow is
in rem,
and that no notice to heirs is necessary, and that the order need not recite all the jurisdictional facts. We quote from the body of the opinion in the Harrison case,
supra:
“There are - no grounds for drawing a distinction between real and personal property in the construction of these acts. If there were any, the ‘estate’ must be considered as more aptly referring to real property. But under our system of administration, which regards the whole mass of property, real and personal, as assets for some purposes, in the hands of the administrator the word estate has acquired a wider application, in a popular sense, and in this sense, doubtless the Legislature meant to use it. It means the mass of property left by decedent, and if that in the aggregate, should be less, than $300 in value, the intention of the acts, taken together, is. to give it to the widow, if living, or, if there be no widow, to minor children.”
And further:
“It is a proceeding
in rem,
"fixing the status of the property as to ownership,' and declaring to all the world the course of devolution which, under the circumstances, the law-gave to the property of the deceased. It did not vest the right so much as declare it, and it was not necessary that it should specify the personal property, or describe the lands by metes, bounds, or numbers. It carried the whole property without reserve, leaving nothing to be determined with regard to its identity, but the fact that it was part of the estate left by decedent.”
“The statute does not prescribe any notice to be given to heirs or distributees. As to these small estates, they have no
prima facie
rights; the amount of the estate being, admitted. They are taken out of the course of devolution prescribed to larger ones, and, there being no right to be divested out of
them, there is no other reason for making them parties than that they should have the right to question the amount of the estate.”
■ And further:
“The property by the order vested absolutely in fee simple in the widow.”
In
Hampton v. Physick,
24 Ark. 562, the syllabus reads:
“Although the probate court may fail to make an order vesting the entire estate of a deceased husband in the widow when it does not exceed $300, she may, in a proceeding against her to account for the estate, show that it did not exceed that sum, and thus avail herself of the benefit of the statute.”
Other cases more or less in point are
Word, Adm’r, v. West,
38 Ark. 243;
Smith et al. v. Allen,
31 Ark. 268.
It is well settled that possession of land under a contract of purchase where the consideration has been "paid entitles the purchaser to have specific performance of the contract.
Kellums v. Richardson,
21 Ark. 137. Prior to the issuance of patent, the schedulee was the equitable owner of the lot under the doctrine of
de Graffenreid v. Iowa L. & T. Co.,
20 Okla. 687, 95 Pac. 624.
If Squire Saunders, the schedulee, after the lot had been scheduled to him, had conveyed it to another, as was done in thousands of cases in Indian Territory before the payments had been made and patents issued, would any one doubt but that his vendee would have taken all his estate in the lot? We. think not. Then if the law, under the facts, provided a devolution of the property as an exception to the general rule, because of the insignificance of the estate, and by it passed the lot to the widow, she must have succeeded to -his entire interest and estate in the lot.
. “One who sells land for which no patent has been issued by the government will upon issuance to him of the patent hold title as trustee for his vendee.”
(Moore v. Maxwell,
18 Ark. 469;
Peay v. Capps,
27 Ark. 163.)
If the law devolved the entire equitable ownership of this lot upon the widow, Sarah Saunders, and we hold that it did,
and she conveyed it to defendant, and we hold that she did, then it would have been inequitable in a proceeding in equity to decree the possession, rents, and profits and a partition of the lot upon the prayer of those holding, at most, the naked legal title. “Equity regards that as done which ought to be done.” A discussion of this maxim appropriate to the instant case is -found in Pomeroy’s Equity Jurisprudence (2d Ed.) sec. 375, as follows:
.
“The principle is no less truly and .directly the source of the equitable ownership regarded as held by the beneficiary in all trusts which arise by operation of law, resulting, implied, or constructive. Although the fiduciary, relation is not created by the terms of any direct conveyance, devise, assignment, agreement, yet by the settled doctrines of the equity jurisprudence an equity exists between the parties which is treated as worked out; an obligation to convey the subject-matter rests upon the holder of the legal title; which is (treated as though performed. Some modern judges of great learning and ability have said that the relations commonly known as ‘constructive5 or ‘resulting5 trusts are only trusts sub
modo,
are called trusts only by way of analogy, and for want of a better and more distinctive name. Even .if this criticism upon the ordinary nomenclature be well founded, it does not deny, and was not intended' to deny, the existence of the real, beneficial, equitable property in the beneficiary. He is admitted to be the equitable owner, with all the incidents of ownership, although the legal title is vested in another person. The beneficiary may not have anything which ■the law requires as a ‘title,5 he may even be without any written evidence of his right, his proprietorship may rest wholly upon acts and words, but still he is the equitable owner because equity treats that as done which in gobd conscience ought to be .done.”
The remaining assignment of error relates to the action of the court in overruling plaintiffs5 motion to strike from the case-made the order of the United States court,
supra:
this is brought to our attention by a bill of exceptions allowed by the court. Tins order appears in the testimony filed with the report of- the master in chancery, and is followed by this statement of the master: “The foregoing testimony, together with
the exhibits hereto attached, was all the evidence offered in the case. Clark J. Tisdel, Master -in Chancery.” It appears in the body of the testimony, and is not merely exhibited as are certain other documents. There was no proof taken on the question as to this order being the identical one put in the evidence, and counsel has not argued the matter in their brief, nor suggested any good reason why the court should have stricken it from the evidence, and from examining the record we find none; and, the record being against the contention, it 'cannot be sustained.
Upon a review of the whole record, we have no doubt but that the -decree of the court was equitable and just,' and ought to be affirmed.
By the Court: It is so ordered.