(concurring) — The decision of the majority is correct, but a part of the argument is wrong and I fear may be confusing to the bar. The reference to the case of Ahern v. Ahern, 31 Wash. 334, 71 Pac. 1023, 96 Am. St. 912, and the attempt to distinguish its facts from the later ■cases decided by this court and the case of McCune v. Essig, *30199 U. S. 382, proceeds upon a misconception of the law. It is true that it was held in the Ahern case that, if the spouses had lived more than six years upon a government homestead and the wife died, the property became community property under the rule that a title earned is equivalent to a title vested. The application of this equitable principle to the facts in that case is what made the judgment of this court wrong. As was most clearly pointed out in the McCune-Essig case, and the later decisions of this court, the equitable principle applying between men in the ordinary affairs of -life, or in the absence of a controlling statute, could have no application, for the obvious reason that the Federal statute fixed' the title in the one who made the proof under it without reference to the time of residence. In Bernier v. Bernier, 147 U. S. 242, it was said that the object of sections 2291 and 2292, Federal Statutes, was “to provide a method of completing the homestead claim and obtaining patent therefor, and not to establish a line of descent or rules of distribution of the deceased entryman’s estate.” Thus, the argument that an equity would arise in the heirs of a deceased spouse, because the ancestor had lived upon the land for the statutory term and might have made proof, is misleading, and may hold out the hope to some that we are prepared to follow the Ahern case under a similar state of facts; whereas, that case has,, in my judgment, been overruled by the later decisions of this court. But, whether it has been expressly overruled or not, it could make no difference, for the question is a Federal question, and we would be bound by the Federal statutes and decisions if called upon to meet a like case. Under the Federal statutes the time of residence cannot be made material. Title is vested by the patent in the beneficiary designated by the statute. The same argument that is made by the writer of the majority opinion was met by the supreme court of the United States in the McCune-Essig case, the court saying r
“But, it is contended, that a beneficial interest having been created by the state law in McCune when the title *31passed 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.”
The time when the laws of the state can affect the title to property acquired under the Federal laws has been fixed ever since the opinion of the court was announced in Wilcox v. McConnel, 13 Pet. 498, 516, wherein it was held:
“We hold the true principle to be this, that whenever the question in any court, state or Federal, is, whether a title to land which had once 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 that property, like all other property in the state, is subject to state legislation; so far as that legislation is consistent with the admission that the title passed and vested according to the laws of the United States.”
In other words, where the title vests according to the Federal statute, the state cannot by any act deprive the donee or patentee of his rights of property, nor can any person assert an equity that would defeat the intent of the Federal law. This case has been frequently followed. See: Kreig v. Lewis, 56 Wash. 196, 105 Pac. 483; De Lacey v. Commercial Trust Co., 51 Wash. 542, 99 Pac. 574; Curry v. Wilson, 57 Wash. 509, 107 Pac. 367.
I concur in the result.
Morris, J., concurs with Chadwick, J.