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Real versus personal property

You have to love it when the legal question involved in a case is this one:

Is gold dust personal property?

As The Legal Genealogist is off at sea on the Federation of Genealogical Society cruise to Alaska, this is one of those questions that had to have an answer in the language of the law.

a nice mound of gold nuggets.Because gold mining was one of the things that brought people to Alaska in the past.

And in discovering the answer to this question, you also come across the answers to genealogical questions.

At least if you descend from the McCarty family of Alaska.

The case was In re McCarty’s Estate,1 and it was decided by one of the first federal judges ever to sit in Alaska. James Wickersham was an Illinois native who came to Washington Territory as a young lawyer and ended up as an Alaska district court judge, appointed by President McKinley.2

And reading Wickersham’s opinion in the case, we learn that Daniel and Sarah McCarty were husband and wife, and that Daniel had located a placer mining claim on Fairbanks creek in 1902.3 In 1904, Daniel had quitclaimed the upper half of the claim to Sarah.4

We learn that Sarah then entered into a contract for the extraction of placer gold from her claim, with 60% going to a contract miner and 40% to Sarah, and that the contract miner worked the claim in 1904 and 1905. From the start of the contract until 23 September 1905, Sarah’s 40% of the claim produced more than $65,500 worth of gold dust.5

We also learn that Sarah had four children — two by Daniel (Daniel G. McCarty and Florence McCarty Wobber) and two by an earlier husband (Thomas A. (Evans) McCarty and Mrs. Jessie Schmitz) — and that she died, without leaving a will, on 9 February 1905.6

Daniel was named administrator of Sarah’s estate. After expenses, some $59,585.93 was left for distribution to her heirs.7 He paid out $7,474.49 to each of the four children and kept $29,647.97 for himself. The contract miner abandoned Sarah’s claim in October 1905, and Daniel gave his interest in that claim to the four children in November 1905.8

Three of the four children signed off… but the fourth — Jessie Schmitz — didn’t like the deal. She sued to make her stepfather give up the gold dust he had kept for himself, arguing that the children were the only legal heirs to Sarah’s estate. The probate court agreed with Jessie, and Wickersham was then called on to decide the appeal.9

Now the probate law in effect at the time gave half of the personal property of an intestate decedent — a person who died without a will — to the surviving spouse. It also distinguished between personal property and real property by defining real property as “all lands, tenements, and hereditaments, and rights thereto, and all interests therein,” and personal property as “all goods and chattels, moneys, credits, and effects of whatever nature not included in the term ‘real property.’”10

The law was clear that “(l)and included within a placer mining location, the mining claim, is real property. … (and) (g)old dust extracted therefrom and reduced to possession is personal property.”11

So the issue in the case came down to this:

Was the whole of the gold dust so received by the administrator “personal property”? It is conceded that, if it was, the surviving husband was entitled to receive one-half thereof … It is urged, however, that the status of the property was fixed, at the moment of the death of Sarah J. McCarty, as real estate, and continued to have that character for the purpose of distribution, because the gold dust was separated from the real estate after her death. Being real estate at her death, it continued of that character for purposes of distribution.12

Wickersham came down on Daniel’s side. He concluded that, as administrator, all Daniel got was the proceeds of Sarah’s contract with the miner, not any interest in the land. So what he got was gold dust, not land. “The surviving husband was entitled to receive and retain one-half the gold dust extracted from the upper half of Discovery claim, … after the expenses of administration had first been paid, and the order of the probate court to the contrary was error.”13

And Jessie? Well, the court said, “There is nothing to show that Jessie Schmitz was induced to change her position, to surrender her rights, or to lose an advantage by any act of the administrator or any one else interested in the estate.”14

And, Judge Wickersham added, in a comment that deserves prominent play in any history of this family: “She has taken all she could get, and at all times demanded more.”15


  1. In re McCarty’s Estate, 3 Alaska Rep. (Wickersham) 242 (3d Div. Fairbanks 1907); digital images, Google Books ( : accessed 26 Aug 2015).
  2. James Wickersham,” Tanana-Yukonm Historical Society ( : accessed 26 Aug 2015).
  3. “In the United States, a placer claim grants to the discoverer of valuable minerals contained in loose material such as sand or gravel the right to mine on public land.” Wikipedia (, “Gold placer claim,” rev. 3 Aug 2015.
  4. In re McCarty’s Estate, 3 Alaska Rep. (Wickersham) at 243.
  5. Ibid. at 244.
  6. Ibid.
  7. Ibid.
  8. Ibid. at 245.
  9. Ibid. at 246-247.
  10. Ibid. at 251.
  11. Ibid.
  12. Ibid.
  13. Ibid. at 254.
  14. Ibid. at 253.
  15. Ibid.
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