We conclude that the Act of 1897, as amended, supplemented the original granting Act of 1866, supra, and that the unperfected rights to select lieu lands were extinguished by the release of 1941.

The appellants also point to the Acts of August 5, 1955, 69 Stat. 534, and August 31, 1964, 78 Stat. 751 (both appearing in notes following 43 U.S.C. § 274 (1970)). They contend that the 1955 statute specifically recognized the validity of their holdings under the proviso for recording "a forest lieu selection right, assertable under the act of March 3, 1905." They remark that the 1964 Act provided for the cash satisfaction of properly recorded forest lieu scrip in the name of the present holder as an assignee and that it is not necessary to apply for cash redemption as an attorney-infact. They also contend that the

settlers along its right of way who without conscious fault found themselves without title. "As I perceive the intent of Congress, from the language of the statutes themselves, the lieu lands, when selected, were to be, so far as humanly possible, a counterpart of, and in substitution for, the original lands granted, and were to be lands granted by Congress in aid of construction, precisely as were the original lands. The Act of 1904, supra, gives the right to select public lands of equal quality and contemplates a substitution of section for section. The Act of 1874, supra, gives the right to select an equal quantity of other lands in lieu thereof from any of the public lands not mineral and within the limits of the grant not otherwise appropriated at the date of selection, to which they [railroad grantees] shall receive title the same as though originally granted.'

"The three Acts are each a part of the same legislative scheme and purpose to grant lands in aid of construction of railroads. The subsequent Acts are not independent granting Acts without relation to any other grant, but are clearly dependent upon, and supplemental to, the grant contained in the Act of 1866, supra, and provide for grants contingent upon

1960 and 1964 Acts revived any prior extinguished forest lieu right which might have been released by the railroad to the end that the scrip rights of the present holders must be recognized.

While the 1964 Act, supra, recognized the rights of assignees of forest lieu rights, it did not revive rights which had previously been extinguished.

The appointment of an attorneyin-fact by the railroad was a contract between the railroad and the appointee. As noted above, the United States accrued no liability when it dealt with the principal even though the principal may have acted in the derogation of the rights of its appointed attorneys-in-fact.' The aggrievement, if there be one, is

the relinquishment of lands granted under such Act. In other words, the Acts of 1904 and 1874, supra, are, respectively, granting Acts in aid of construction when coupled, as they must be, with the Act of 1866, supra.

"The fact, as contended by plaintiff, that it gave a consideration, namely a deed to the lands relinquished, for the right to select others, does not make either of the Acts any less a grant. A railroad land grant is not a gift, but is a transfer of title to lands in return for the construction and operation of a railroad. Nor, as urged by plaintiff, does the fact that plaintiff's rights are contractual remove the applicable statutes from the category of granting statutes.

"Under these circumstances, I am of the opinion that these unperfected rights of plaintiff to select lieu lands are claims to lands granted by Acts of Congress to plaintiff in aid of the construction of its railroad, and are therefore within the scope of, and extinguished by, the release, which was given in pursuance of an apparent Congressional purpose to wipe the slate clean of such claims by any railroad which enjoyed the benefits of the rate concessions made by the Transportation Act of 1940."

In Krug, the railroad had filed a selection list for lands in satisfaction of forest lieu rights. The selection was pending at the date the release was signed.

between the attorney-in-fact (the scrip purchaser) and the railroad; it is not between the attorney-infact and the United States. Battle Mountain, supra; Wheeler, supra. We conclude that Santa Fe's 1897 lieu rights were extinguished when it executed its release under the Transportation Act and that there is no present right under the 1897 Act which the railroad or its attorneys-in-fact may exert against the Government. The alleged scrip rights claimed by appellants as derived from the railroad are without efficacy or validity.

Therefore, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior, 43 CFR 4.1, the decisions appealed from are affirmed.

MARTIN RITVO, Member.

WE CONCUR:
FREDERICK FISHMAN, Member.
JOAN B. THOMPSON, Member.

There is a presumption that a decedent left heirs or next of kin capable of inheriting. Where there is the possibility of an escheat the presumption is even stronger, and the burden shifts to those favoring escheat to prove there are not heirs as escheats are not favored by the law.

285.4 Indian Probate: Inheriting: Moiety

A moiety is defined as a one-half interest in an estate.

285.4 Indian Probate: Inheriting: Moiety

Where there are no descendants of the paternal grandparents the paternal moiety passes to the heirs of the maternal grandparents.

APPEARANCES: Lindsay Brew, Esquire, for appellants Maria Dolores

Rios and Theresa Pancho Orosco.

OPINION BY MR. SABAGH INTERIOR BOARD OF INDIAN APPEALS

This matter comes before the Board on appeal from the Administrative Law Judge's decision and order after rehearing, escheating the moiety of the paternal grandparents to the Papago Indian Tribe for want of a lawful heir.

Mariano Eusebio died intestate at the age of 69 years leaving land interests in Arizona. He was survived neither by spouse, children, issue, mother, father, sisters nor brothers. Hearings were held by Administrative Law Judge, Indian Probate, William J. Truswell, on June 24 and August 31, 1971, and certain

Generally

parents were determined to be the

lawful heirs of the decedent. Upon rehearing on December 8, 1971, certain half-blood descendants were also determined to be lawful heirs and entitled to share in the moiety of the maternal grandparents. The Administrative Law Judge further determined that no heirs could be found for that moiety belonging to the paternal grandparents. Accordingly, he decreed that this moiety, one-half of the estate of the decedent, would escheat to the Papago Indian Tribe.

An appeal was filed by heirs of the maternal grandparents wherein it was contended in substance that where no heirs to one moiety could be traced, that moiety and the entire estate passed to the side having heirs and did not escheat to the Tribe.

It is elementary, to say the least, that the law frowns on nor does it favor escheat. It is presumed that a decedent left heirs or next of kin capable of inheriting property. In re Wallin's Estate, 490 P.2d. 863, 16 Ariz. App. 34 (1971).

When an individual dies intestate the law devolves the title to his estate upon those who by virtue of the law of the place where the land lies are his heirs. The right of inheritance is purely a matter of legislative discretion. The descent of real property is governed by the law in force at the time of the death of an intestate. In re Rattray's Estate, 82 P.2d. 625 (Cal. App. 1938).

Arizona Revised Statute pertaining to intestate succession § 14-202 subsec. 4, provides that:

When a person having an estate of inheritance, real, personal or mixed, dies intestate as to the estate, and was not survived by spouse, children, issue, mother, father, brothers, or sisters, *** then the estate shall be divided into moieties, one of which shall go to the paternal grandparents and their descendants, and the other to the maternal grandparents and their descendants, who shall take their moiety as parents of the intestate would have taken if liv

ing, and so on without end.

A moiety is defined as a one-half interest in an estate. Young V. Smithers, 205 S.W. 949, 181 Ky. 847 (1918). This variation (moiety) ultimately found acceptance in a dozen states throughout the country.

Arizona statutes make no reference to paternal or maternal kindred further removed than grandparents nor do they provide for devolution of a moiety once the grandparents on the one side die leaving no descendants. The Arizona Court of Appeals, however, concluded that descendants of the maternal great-grandparents were entitled to share the moiety where the maternal grandparents died leaving no descendants. The court said in part:

"*** and so on without end" indicate that there was no intent to cut off the rights of heirs who were descendants of ancestors of the grandparents.

State of Arizona v. Tullar, 462 P.2d. 409, 412, 11 Ariz. App. 112 (1969).

A.R.S. § 14-202, subsec. 4 originally appeared in the Arizona statutes as § 2116, R.S. (1901), and was taken from article 1688 (4), Texas Revised Statutes (1895). The two statutes are identical. The part

§ 2116, R.S. (1901) pertinent to our case reads as follows:

*If there be no surviving grandfather or grandmother, then the whole of such estate shall go to their descendants, and so on without end, passing in like manner to the nearest lineal ancestors and their descendants. (Italics supplied.)

In contrast to Tullar, supra, there were no descendants of the greatgrandparents in this case.

In revising and codifying the laws of the State of Arizona the code commissioner was authorized in the interest of brevity to delete the words underscored immediately above, ch. 35 § 3 (1925) Ariz. Sess. See also, State v. Tullar, supra.

When a statute is adopted from another state, it is presumed that it is taken with the construction placed on it by the courts of the state of origin prior to its adoption. State v. Tullar, supra.

The court in England v. Ally Ong Hing, 459 P.2d 498, 105 Ariz. 65 (1969) said:

"Although we are not bound by the construction given a statute by the courts of the state from which it was adopted, we consider such construction to be persuasive."

In construing Arizona Revised Statute § 14-202 subsec. 4 pertaining to intestate succession, the court in State v. Tullar, supra, said:

*** we look to A.R.S. § 1-211 which states that statutes should be construed liberally to effect their object and promote justice. ***

The court in Hartley v. Langdon, 347 S.W. 2d. 749, 758 (C.C.A. Tex. 1961) said in part:

*** If there are kindred on only the one side, then there could be no object in dividing the estate because there would be none to take on the other side. * * *

The intent of the legislators to avoid escheat is illustrated by several state statutes relating to intestate succession which expressly provide that where there is no kindred on one part, that moiety is to go to the other part. Fla. Stat. 1955, § 731.23; Ky. Rev. Stat. § 391.010; W. Va. Code 1955, § 4080; District of Columbia Code 1951, § 18-101.

The Court of Appeals of Kentucky in Young v. Smithers, supra, in pertinent part held that "where there is no kindred on the one side then the whole estate will pass to the kindred on the side which survives ***"

To recapitulate, the decedent died intestate survived neither by spouse, children, issue, mother, father, sisters, nor brothers. Pursuant to Arizona statute and revised statute, the decedent's estate divides into two moieties, one going to the paternal grandparents and their descendants and the other to the maternal grandparents and their descendants. There were no paternal grandparents or descendants thereof. No mention is made in the Arizona statutes as to what happens to a moiety where there are no kindred on the one side, i.e., whether the moiety passes to heirs of the maternal grandparents or escheats to the state. However, the State frowns on escheat. The Arizona statutory

provisions relating to moieties was adopted from the State of Texas statute relating thereto. It is presumed that it was adopted with the construction placed on it by the courts of the state of origin prior to adoption, see State v. Tullar, supra, or such construction is considered to be persuasive, see England v. Ally Ong Hing, supra. The Texas Court of Appeals in Hartley v. Langdon, supra, at 758, said that, *** If there are kindred on only

one side that there could be no object in dividing the estate because there would be none to take on the other side. ***" This is reiterated in several state statutes. In addition, the Court of Appeals in Young v. Smithers, supra, unequivocally held that "Where there is no kindred on the one side then the whole estate will pass to the kindred on the side which survives." Finally, in State v. Tullar, supra, referring to A.R.S. § 1-211 we are reminded that "statutes shall be construed liberally to effect their object and to promote justice."

From the foregoing, the conclusion is inevitable that the Legislature intended the moiety of the paternal grandparents to pass to the already determined heirs of the maternal grandparents, and we so hold.

Therefore, pursuant to the authority delegated to the Board of Indian Appeals, by the Secretary of the Interior, 43 CFR 4.1, that part of the decision of the Administrative Law Judge escheating the paternal moiety to the Tribe for want of an heir is reversed, and it is ORDERED:

[80 I.D.

That the moiety of the paternal grandparents pass and be distributed to the named heirs of the maternal grandparents as previously determined by the Administrative Law Judge.

This decision is final for the Department.

MITCHELL J. SABAGH, Member.

I CONCUR:

DAVID J. MCKEE, Chairman.

STATE OF MONTANA

11 IBLA 3

Decided May 17, 1973

Appeal by the State of Montana from decision M 19544 by the Montana State Director, Bureau of Land Management, holding a lake to be nonnavigable, and asserting title in the United States to the bed of the lake.

Affirmed.

Navigable Waters

A lake is navigable in fact when it is used, or is susceptible of being used, in its ordinary condition, as a highway for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. A meandered lake in Montana, containing 125 acres and which is not over waist deep, is nonnavigable where it is located in a remote region and there is no evidence to show that it has been used in the past or is susceptible of being used as a highway for commerce in the future.

Navigable Waters

Title to the underlying bed of a meandered lake which is held to be non