Connolly v. Reed

• Decision Date: 23 May 1912
• Citation: 22 Idaho 29,125 P. 213
• Parties: LAWRENCE F. CONNOLLY and JOHN J. CONNOLLY, Plaintiffs, v. BERT A. REED, as Probate Judge of Kootenai County, Defendant
• Court: Idaho Supreme Court

125 P. 213

22 Idaho 29

LAWRENCE F. CONNOLLY and JOHN J. CONNOLLY, Plaintiffs, v. BERT A. REED, as Probate Judge of Kootenai County, Defendant

Supreme Court of Idaho

May 23, 1912

SETTLEMENT OF ESTATES-SUCCESSION-SUCCESSION BY NONRESIDENT ALIENS-LIMITATION OF SUCCESSION-APPEARANCE AND CLAIM OF SUCCESSION.

(Syllabus by the court.)

1. Under the provisions of sec. 5715 of the Rev. Codes of this state, "Aliens may take in all cases by succession as citizens," provided, however, that "no nonresident foreigner can take by succession, unless he appears and claims such succession within five years after the death of the decedent to whom he claims succession."

2. Under the statute of this state (sec. 18, Rev. Codes) the common law of England, so far as it is not repugnant to or inconsistent with the constitution or laws of the United States, is the law of this state in all cases not provided by statute.

3. At common law an alien had no inheritable blood and could not succeed to real property by descent or inheritance, and could not therefore claim through an intestate.

4. The statute of this state (sec. 5715) is not a recognition or an extension of any previously existing right which a nonresident alien had of succeeding by inheritance to the estate of a deceased person, but is rather the grant of a right which did not previously exist.

5. In order for a nonresident alien to succeed to the estate of an intestate decedent in this state, he must appear and claim such succession within five years after the date of the death of the decedent.

6. Where C. died intestate, leaving an estate within the state of Idaho, and a cousin of the decedent made application for letters of administration and represented that he and three other cousins were the next of kin and entitled to succeed to the estate, and letters of administration were granted, and the estate was administered upon and final account was rendered and approved and distribution ordered and made to the four cousins who claimed to be the next of kin and the right to succession, and thereafter and more than five years subsequent to the death of the decedent M., a citizen and resident of Galway, Ireland, of the kingdom of Great Britain, filed a petition in the probate court alleging that she was the half-sister of the decedent and entitled to the estate; held, that her failure to appear and claim her right to succession within the five-year period granted by statute bars her right and claim, and the court had no jurisdiction to grant her any relief.

7. A demand made through an attorney or agent upon an administrator for possession of the property of the estate which he represents, or a request made by an attorney of the judge of the probate court that he be notified if any further proceedings are to be taken in the estate, is not an appearance or claim within the purview and meaning of sec 5715 of the Rev. Codes sufficient to stop the running of the statute limiting the time within which such claim of the right of succession shall be made by a nonresident alien.

8. The commencement of an action by a nonresident alien in the federal court in and for the district of Idaho, which action is subsequently dismissed by the court, does not stop the running of the statute in the state courts.

9. An allegation by a nonresident alien, who seeks to establish her right of succession to the estate of a decedent within this state, alleging that C., by fraudulent misrepresentation procured the distribution of the estate to himself and others, is not a sufficient allegation to show any wrong or injury to the alien claimant who failed and neglected to appear and claim the right of succession within the five-year period granted to such claimants, where it is not alleged and does not appear that the fraud had anything to do with or resulted in preventing or depriving the nonresident alien claimant from setting up or asserting her claim to the property within the statutory time.

Original action for a writ of prohibition. Writ ordered.

Writ issued.

C. W Beale, C. L. Heitman, and R. T. Morgan, for Applicants.

A nonresident foreigner cannot take by succession under the provisions of sec. 5715, unless he appears and claims succession within five years after the death of a decedent. (State v. Stevenson, 6 Idaho 367, 55 P. 886. See, also, State v. Lyon, 67 Cal. 380, 7 P. 763, construing sec. 1404 of the Civil Code of California, which is just the same as our section 5715.)

Appearance in the federal court without jurisdiction never stops the running of the statutes of limitation. (Finney v. American Bonding Co., 13 Idaho 534, 90 P. 859, 91 P. 318; Mills v. American Bonding Co., 13 Idaho 556, 91 P. 381; Morbeck v. Bradford-Kennedy Co., 19 Idaho 83, 113 P. 89.)

Neither the petition nor amended petition, when tested by the rule of this court in the case of Abrams v. White, 11 Idaho 497 (83 P. 602), as announced at pages 502 and 503, contain any allegations or statements sufficient to constitute fraud.

In the absence of any affidavit and showing of merits and mistake, inadvertence, surprise or excusable neglect, the judgment of dismissal should not and could not be set aside. (Holzeman v. Henneberry, 11 Idaho 428, 83 P. 497.)

Elder & Elder, for Defendant.

"No statutory machinery is provided in accordance with which the alien must appear and give notice of his claim. The provisions of sec. 672 of the Civil Code, requiring the alien to 'appear and claim the property,' relates to an appearance and claim to be proved by acts within the state, indicating that the alien asserts a right to it, or the provisions mean nothing." (State v. Smith, Jr., 70 Cal. 153, 12 P. 121; Billings v. Hauver, 65 Cal. 593, 4 P. 639.)

As this construction had been placed upon this statute by the supreme court of California prior to the adoption of said statute by our legislature, under the rule adopted by this court in the case of Stein v. Morrison, 9 Idaho 426, 75 P. 246, to the effect that when a statutory provision is adopted from another state where the courts of that state have placed a construction upon the language of such statute, it is to be presumed that it was taken in view of such judicial interpretation and for the purpose of adopting the language as the same had been interpreted and construed by the courts of the state from which it was taken. The decision of the supreme court of California and its interpretation of the phrase "appear and claim" is binding upon this court.

A motion to set aside a judgment on account of fraud need not set out an affidavit of merit. (Crescent Canal Co. v. Montgomery, 124 Cal. 134, 56 P. 797.)

AILSHIE, J. Stewart, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

This is an application for a writ of prohibition against the judge of the probate court of Kootenai county. Plaintiffs pray that a writ issue prohibiting any further action or proceedings by the probate court on the petition of Bridget Madden heretofore filed in that court. It was agreed on the hearing that the names of Wm. C. Connolly and Ellen Udell should be added as parties to the action and be bound by the decision herein. The facts necessary to an understanding of this case and on which the decision must turn are as follows:

John Corbett, a resident of Kootenai county, died intestate on the 30th day of January, 1907, leaving an estate variously estimated at from twenty thousand to seventy-five thousand dollars. Thereafter and on February 20, 1907, Lawrence F Connolly procured letters of administration of the Corbett estate. Upon securing his appointment as administrator, Connolly represented to the court that he and one John J. Connolly, residing at Harrison, Idaho, and William C. Connolly and Ellen Udell, residing at Greeley, Nebraska, were the surviving heirs of John Corbett, deceased. The estate was thereafter appraised, and on March 7, 1907, an inventory and appraisement was filed with the probate court. Such proceedings were had in conformity with the statute, that thereafter and on August 23, 1909, a decree of settlement of final account and distribution was made and entered. The estate was accordingly distributed to the Connollys and their sister, Ellen Udell. On February 28, 1912, Bridget Madden, a nonresident alien and a resident of Galway, Ireland, filed her petition in the probate court of Kootenai county, alleging her residence and citizenship in the county of Galway, Ireland, kingdom of Great Britain, and alleging that she was a half-sister of John Corbett, deceased, and as such was entitled to succeed to his estate under the laws of the state of Idaho. After due and regular notice was given, a hearing was had on the petition of Bridget Madden, and the court sustained a demurrer thereto on the ground that under the provisions of sec. 5715, Rev. Codes, "no nonresident foreigner can take by succession, unless he appears and claims such succession within five years after the death of the decedent to whom he claims succession," and that accordingly the petitioner had failed to appear and claim succession within five years of the death of the intestate, and was therefore barred by the statute. The latter order and decree was entered on the 23d day of March, 1912. The matter remained in that condition without further proceeding being taken until April 6, 1912, when Bridget Madden filed a motion in the probate court to set aside and vacate the judgment and decree of March 23d dismissing her petition, upon the ground that the order of March 23d did not allow her the right to file an amended petition, and she prayed that the order and decree might be vacated and that she be permitted to file an amended petition. The motion was subsequently heard, and on April 18, 1912, the court...