Donaldson v. State ex rel. Taylor

• Decision Date: 26 June 1903
• Citation: 67 N.E. 1029
• Parties: DONALDSON et al. v. STATE ex rel. TAYLOR, Atty. Gen., et al.
• Court: Indiana Supreme Court

67 N.E. 1029

DONALDSON et al.

v.STATE ex rel. TAYLOR, Atty. Gen., et al.¹

Supreme Court of Indiana.

June 26, 1903.

Appeal from Circuit Court, Lawrence County; Wm. H. Martin, Judge.

Action by the state of Indiana, on relation of William L. Taylor, Attorney General, and others, against James Donaldson and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Baker & Daniels, for appellants. W. L. Taylor, R. Evans, Brooks & Brooks, C. C. Hadley, Merrill Moores, C. W. Miller, Atty. Gen., W. C. Gedkes, and L. G. Rothschild, for appellees.

MONKS, C. J.

This action was brought by appellees against appellants and others to recover for the use of the common school fund, as escheated property, certain real estate in Lawrence county. The court made a special finding of facts and stated conclusions of law thereon in favor of the state and rendered judgment that said real estate was the property of the state. The only errors assigned call in question the first conclusion of law, which states that “they [appellants] have not, or has either of them, any right, title, or interest in or claim to said real estate”; and the third conclusion of law, which states “that the fee-simple title to all of said real estate has become and remains vested in the state of Indiana by escheat.”

In 1861 George Donaldson, then 50 years of age, a bachelor, who never afterwards married, a native of Scotland, and until his death, on September 17, 1898, a subject of Queen Victoria, emigrated to the United States, and became at once and remained, until his return to Scotland in the year 1896, a bona fide resident of the United States. The tracts of land in controversy were conveyed to him by deeds of general warranty in the years 1865 and 1876. He became and remained a bona fide resident of Lawrence county, Ind., from September, 1865, until in 1883, when he removed to the state of Alabama, of which he was a bona fide resident until he returned to Scotland in the year 1896, where he remained until his death, on September 17, 1898. Whether he went to Scotland with intent to return to the United States is not known. He did not at any time declare his intention to become a citizen of the United States conformably to the act of Congress. He died intestate, leaving, as his next of kin, appellants, who are the descendants of his brother and sisters, all of whom were at the time of said George Donaldson's death, and ever since have been, residents of Scotland and subjects of the monarch of Great Britain and Ireland.

Every state and sovereignty possesses the power of regulating the manner and terms upon which property, real or personal, within its dominion, may be transmitted by inheritance or last will and testament, and of prescribing who shall and who shall not be capable of transmitting or taking it. The power to transmit or take property by descent or devise is a creature of law, and not a natural right. Plummer v. Coler, 178 U. S. 115, 121, 124-126, 129-132, 133, 134, 20 Sup. Ct. 829, 44 L. Ed. 998;Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283, 288-290, 18 Sup. Ct. 594, 42 L. Ed. 1037;United States v. Fox, 94 U. S. 315, 320, 24 L. Ed. 192;Mager v. Grima, 8 How. 490, 493, 12 L. Ed. 1168;Gregley v. Jackson, 38 Ark. 487, 492;Eyre v. Jacob, 55 Va. 422, 430, 431, 73 Am. Dec. 367;Miller v. Comm., 68 Va. 110, 117;Kochersperger v. Drake, 167 Ill. 122, 125, 126, 47 N. E. 321, 41 L. R. A. 446;Sturgis v. Ewing, 18 Ill. 176, 186;Edwards v. Pope, 4 Ill. 465;Matter of Sherman, 153 N. Y. 1, 3, 46 N. E. 1032;State v. Dalyrmple, 70 Md. 294, 298, 299, 17 Atl. 82, 3 L. R. A. 372;Noel v. Ewing, 9 Ind. 37-47, and cases cited; Strong v. Clem, 12 Ind. 37, 39-41, 74 Am. Dec. 200;Duncan v. City of Terre Haute, 85 Ind. 104, 107, 108;State v. Hamlin, 86 Me. 495, 505, 30 Atl. 76, 41 Am. St. Rep. 569, 576, 577, 25 L. R. A. 632, 635, 636; Blackstone's Commentaries (book 2) pp. 10-13; 10 Am. & Eng. Encyc. of Law (2d Ed.) 145.

In Mager v. Grima, 8 How. (U. S.) 490, 12 L. Ed. 1168, the court, by Mr. Chief Justice Taney, said: “The law in question is nothing more than the exercise of the power which every state and sovereignty possesses of regulating the manner and terms upon which property, real and personal, within its dominion, may be transferred by last will or testament or by inheritance, and of prescribing who shall and who shall not be capable of taking it. *** If a state may deny the privilege altogether, it follows that, when it grants it, it may annex to the grant any conditions which it supposes to be required by its interest or policy.”

In United States v. Fox, 94 U. S. 315, 320, 24 L. Ed. 192, Mr. Justice Field, speaking for the court, said: “The power of the state to regulate the tenure of real property within its limits, and the modes of its acquisition and transfer, and the rules of its descent, and the extent to which a testamentary disposition of it may be exercised by its owners, is undoubted. It is an established principle of law, everywhere recognized, arising from the necessity of the case, that the disposition of immovable property, whether by deed, descent, or any other mode, is exclusively subject to the government within whose jurisdiction the property is situated. McCormick v. Sullivant, 10 Wheat. 202, 6 L. Ed. 300. The power of the state in this respect follows from her sovereignty, within her limits, as to all matters over which jurisdiction has not been expressly or by necessary implication transferred to the federal government. The title and modes of disposition of real property within the state, whether inter vivos or testamentary, are not matters placed under the control of federal authority.”

At common law an alien could take real estate by deed or other act of purchase and hold the same against all except the state, and against it until it instituted a proceeding and obtained a judgment by inquest of office or office found, or an act equivalent thereto. Before office found or its equivalent, he could convey the same and confer title upon the purchaser. Blackstone's Commentaries, book 1, p. 372; Id., book 2, pp. 274, 293; Greenleaf's Cruise, Real Prop. *p. 320; 1 Bacon's Abridg. pp. 201-208, tit. “c”; 1 Coke, Litt. 2a, b; 2 Kent's Comm. *p. 61; 1 Jones on Law of Real Prop. in Conveyancing, §§ 163, 166; 2 Amer. & Eng. Ency. of Law (2d Ed.) pp. 70-72, and cases cited; 2 Cyc. of Law & Proc. pp. 90-96, and cases cited; 1 Washburn on Real Prop. *p. 48, § 22; 1 Washburn on Real Prop. (6th Ed.) § 131; Fox v. Southack, 12 Mass. 143;Fairfax v. Hunter, 7 Cranch, 602, 619, 3 L. Ed. 453;Orr v. Hodgson, 4 Wheat. 453, 462, 4 L. Ed. 613;Halstead v. Board, etc., 56 Ind. 363, 377;Wunderle v. Wunderle, 144 Ill. 40, 66, 33 N. E. 195, 19 L. R. A. 84, 88, 89;Oregon, etc., Co. v. Carstens, 16 Wash. 165, 47 Pac. 421, 35 L. R. A. 841, 843, and cases cited. But he could neither take nor transmit title to real property by descent. He had no inheritable blood. 1 Comyn's Digest, “Alien” (c); Blackstone's Commentaries, book 1, p. 372; Id., book 2, pp. 249, 274, 293; 2 Amer. & Eng. Encyc. of Law (2d Ed.) pp. 73, 74; 2 Cyc. of Law & Proc. pp. 94-96; 1 Washburn on Real Property, p. 49, § 23; Id. (6th Ed.) § 131; 1 Jones, Law of Real Property in Conveyancing, § 166; Eldon v. Doe, 6 Blackf. 341;Doe v. Lazenby, 1 Ind. 234;Murray v. Kelly, 27 Ind. 43, 46;Orr v. Hodgson, 4 Wheat. 453, 4 L. Ed. 613;Mooers v. White, 6 Johns. Ch. 361, 365; Colgan v. McKeon, 24 N. J. Law, 566. If, however, an alien died without having made a conveyance of land acquired by deed or devise, the same vested immediately by escheat in the state, without any inquest of office found. 2 Amer. & Eng. Ency. of Law (2d Ed.) p. 74; 2 Cyc. of Law & Proc. pp. 94-96; Jones on Law of Real Property in Conveyancing, § 166; 4 Kent's Comm. *p. 423; Coke, Litt. 2b; Comyn's Digest, “Alien,” C. 2, C. 4; Crane v. Reeder, 21 Mich. 24, 80, 4 Am. Rep. 430, 447, 448;Montgomery v. Dorion, 7 N. H. 475;Sands v. Lynham, 27 Grat. 291, 21 Am. Rep. 348, 351;Mooers v. White, 6 Johns. Ch. 360, 366;Wilbur v. Tobey, 16 Pick. 177, 180;Wunderle v. Wunderle, 144 Ill. 40, 66, 33 N. E. 195, 19 L. R. A. 84, 88, 89;American Mortg. Co. v. Tennille (Ga.) 13 S. E. 158, 12 L. R. A. 531, note. It follows that, under the common law, citizens may “pass by descent” to, or “take by descent” from, citizens. Aliens can do neither without statutory authority. 2 Cyc. of Law & Proc. pp. 94-96. The citizen having, and the alien not having, inheritable blood, to enable the citizen to transmit land by descent to an alien, it is only necessary to confer upon the alien by statute the power to take by descent, and, to enable the alien to transmit lands by descent to the citizen, that power need only be conferred by statute upon the alien. Colgan v. McKeon, 24 N. J. Law, 566, 572-574; Spratt v. Spratt, 1 Pet. (U. S.) 343, 349, 7 L. Ed. 171;Spratt v. Spratt, 4 Pet. (U. S.) 392, 407, 408, 7 L. Ed. 897. Where, however, both the ancestor and descendant are aliens, there is a want of capacity in each. In such case the statute must confer upon the alien ancestor the power to transmit by descent, and the alien descendant the power to take by descent, before such descendant can take from such ancestor real estate by descent. Eldon v. Doe, 6 Blackf. 341, 343, 344. When, therefore, the Legislature confers upon aliens the power to take by descent, without granting to aliens the power to transmit by descent, such aliens can only take by descent from ancestors who have the capacity to transmit by descent, namely, citizens.

Having stated the common-law rules in force in this state and how the same may be modified, it is necessary to determine in what respect, if any, the same have been changed by statute.

Appellants contend that three acts on this subject, being the acts of 1861, 1881, and 1885, were in force at the death of the said Donaldson in 1898, and should be construed in pari materia.

Section 1 of said act of 1861 (Acts 1861, p. 153, c....