Cooper

Action to quiet title to forty acres of land in San Diego county. The land was entered as a timber-culture claim in November, 1879, by David *193 Cooper, plaintiff's father. David Cooper died testate in July, 1881, leaving his widow sole beneficiary of his will and expressly excluding plaintiff from any share of his estate. The property was duly distributed to the widow. In 1892 a patent was issued by the United States conveying the land in terms to the heirs of David Cooper, deceased. In 1891, before the issuance of the patent, the widow, who was the sole devisee of David Cooper and the sole distributee of the estate, mortgaged the land to the defendant, who subsequently foreclosed and purchased the property at the foreclosure sale, and in due time received a deed therefor. Defendant at the trial proved his deraignment of title from the widow of David Cooper, deceased.

The question is, In whom did the title vest? Appellant claims it as heir. The defendant that it passed by the will and the decree of distribution to the widow of David Cooper. Or, if it did not vest under the will and decree, then the widow and son of David Cooper took equally.

The applicant for the government…