Donaldson v. State ex rel. Honan

• Decision Date: 13 April 1913
• Docket Number: 22,164
• Parties: Donaldson et al v. State of Indiana, ex rel. Honan, Attorney-General
• Court: Indiana Supreme Court

101 N.E. 485

182 Ind. 615

Donaldson et al v. State of Indiana, ex rel. Honan, Attorney-General

No. 22,164

Supreme Court of Indiana

April 13, 1913

Rehearing Denied January 19, 1915.

From Lawrence Circuit Court; Robert N. Palmer, Special Judge.

Action by the State of Indiana, on the relation of Thomas M. Honan Attorney-General, against James Donaldson and others. From a judgment for relator, certain defendants appeal.

Modified and affirmed.

Baker & Daniels, Martin & Pearson and Whitcomb, Dowden & Stout, for appellants.

Thomas M. Honan, Attorney-General, Miers & Corr, Thomas H. Branaman and James E. McCullough, for appellee.

OPINION

Morris, J.

The State, on the relation of its Attorney-General, in 1900, instituted this action against divers persons, including those of the appellants who were next of kin to one George Donaldson, deceased. The purpose was to recover certain Lawrence County real estate, as escheated property. The case was in this court once before. Donaldson v. State, ex rel. (1906), 167 Ind. 553, 78 N.E. 182.

Appellants assign here, as errors, among other things, the overruling of demurrers to various paragraphs of complaint, and the court's conclusions of law on the facts specially found. The following facts appear in the finding: George Donaldson was born in Scotland in 1811, and died there on September 17, 1898. During his entire life he was a subject of the Sovereign of the United Kingdom of Great Britain and Ireland, and never declared his intention to become a citizen of the United States. In 1860, or 1861, he came to the United States, and, from that time, to the year 1897, he was continuously a bona fide resident of this country. From 1865 to 1883, he was a bona fide resident of Lawrence County, and between September, 1865, and August, 1876, he became the owner, in fee simple, by deeds, of the land in controversy, and continued such ownership until his death. The appellants, James Donaldson and others, are nephews and nieces, and the descendants of deceased nephews and nieces, of said George Donaldson, and, when he died, were his next of kin. They are all residents of Scotland, and subjects of the Sovereign of the United Kingdom of Great Britain and Ireland. These appellants will be hereinafter called the "Scotch Claimants". The decedent also left surviving him James Fraser and others, constituting a group of remote kindred, all of whom are citizens of the United States. These persons were defendants in the court below, but did not appeal. On September 11, 1903, the Scotch Claimants executed a deed for the land in dispute to appellant John T. Stout, a resident citizen of Indiana. The consideration recited in the deed is $ 4,000. No consideration has yet been paid, but, by written contract, it shall be payable when the question of title shall have been determined. The court finds that the value of the lands in 1903 was $ 20,000, and, at the time of the hearing, $ 25,000. It was never cleared, and is covered with virgin forest. In 1901, the trial court appointed a receiver to hold possession of, and care for the land pending the litigation. The receiver held possession until May, 1906, when he made a report and resigned, and was discharged. In 1906 and since, the trustees of Indiana University have kept a university student on the land, who has been pursuing advanced studies on scientific subjects, and, in his studies, making use of the fauna, flora, etc., found on the land. The trustees erected a house there for the student and pay him the sum of $ 500 per annum, in consideration of which, pursuant to the instructions of the trustees, he has been caring for the property, and has constructed fencing, etc. From 1883 to 1897, George Donaldson, decedent, was a bona fide resident of the state of Alabama.

Finding No. 21, is as follows: "At the time of the death of the aforesaid George Donaldson he was a bona fide resident of Scotland and a subject of the Sovereign of the Dominion of the United Kingdom of Great Britain and Ireland." Appellants assail this finding as not sufficiently supported by the evidence. The facts disclosed by the evidence show that while decedent was residing in the United States, between 1860 and 1897, he frequently "visited" Scotland for short periods. From 1883 to 1897, he resided in the vicinity of Mobile, Alabama, with Carolina P. Dawson, Rose Earle Dawson and Hannah Harrison Dawson, daughters of a deceased friend. When he died, he owned real estate in Scotland, Alabama, Wisconsin and Indiana.

Disinterested witnesses testified that when decedent left Mobile, on his last trip to Scotland, in August, 1897, he stated that he was going to Scotland on a visit. Carolina P. Dawson, a beneficiary under his will, testified that when he left Alabama in 1897, he took as baggage only a small trunk and handsatchel, and left there, books, clothes, private business papers, and a lot of curios. Rose E. Dawson, another beneficiary under the will, testified that decedent told her he was going to Scotland for his health; that previously he had told her he wanted to be buried in this country. He had been in Scotland about one year when he was taken ill, and died soon thereafter. He owned quite a quantity of personal property, situate in Scotland.

James Donaldson, appellant, of Glasgow, Scotland, nephew of decedent, deposed as follows: Saw decedent's will and codicil, and heard them read, by a member of a firm of solicitors, in Glasgow. The instruments were in the handwriting of decedent, but were not witnessed. They were admitted to probate, in Scotland, because they were held sufficient to carry decedent's estate, so far as situated in Scotland, to the beneficiaries therein named. "He (decedent) came from America in the beginning of 1896 (1897?) and resided in the village of Maidens, Ayrshire, until his death, in September, 1898. I carried out the funeral arrangements and brought the body from Maidens to Glasgow, and buried it beside the remains of his wife, Janet Dick, in my father's burial place, in the Glasgow necropolis."

Henry A. Rannie, age 75, of Glasgow, gave his deposition, in behalf of appellants, as follows: Knew decedent since 1852. In 1853, married a Miss Hamilton, an adopted daughter of decedent. The latter lived with deponent and his wife from 1853 to 1859. He was of "sporting tastes" and "fond of shooting". In 1890, in company with Carolina P. Dawson, of Alabama, he visited Scotland for a few months, and while there, lived with deponent at Glasgow. "George Donaldson again visited Scotland about the year 1896 (1897?). He took very ill, and resided with, and was nursed to convalescence, by my daughter, Mrs. Henry Ker, 2 Park Circus, Ayr. who is also mentioned in his will. George Donaldson afterward, visited the village of Maidens, Ayrshire, and died there on 17th September 1898, aged 87." Deponent was present at the reading of the will. "It was read immediately after the funeral in the office of his solicitors, Messrs. Mitchells, Johnston & Company, 160 West George Street, Glasgow, in the presence of the family relatives, and others interested." Mary Ann Walker, niece of decedent, and appellant here, of Kilmalcolm, Scotland, deposed: "I occasionally saw my uncle after he went to America during his three or four visits to this country. On the occasion of his visit to Scotland in 1890, he came to visit me at my house and brought along with him Miss Lena Dawson, who is a beneficiary under his will. * * * I was present at his solicitors' office in Glasgow when his will was read immediately after the funeral."

Copies of the will and codicil, of decedent, and probate thereof, as shown by the public records, of Scotland, were in evidence. The will, among other things, recites: "Know all men by this, my last will and testament, that I, George Donaldson, formerly merchant in Glasgow, being aware of the uncertainty of life, I do hereby, of my own free will and accord, dispose of the whole of my heritable and personal property", etc. The will concludes as follows: "Signed by me (signed) George Donaldson, on 23d day of December 1897, at Ardrossan, Aryshire, Scotland. My titles, securities, and other papers are in possession of my friends, Messrs. Turnbull, Parnie and Adam, 27 Union St., Glasgow, and others in the hands of Miss Lina Dawson, Mobile, Springhill, Alabama."

By the terms of the will he gave to the said Dawson women, of Alabama, the Wisconsin and Alabama real estate, and to each of them, a legacy of one thousand pounds sterling. The Indiana land was directed to be sold by the executors. Certain real estate in Glasgow was devised to George A Rannie, son of deponent Henry A. Rannie, who married decedent's adopted daughter; other real estate in Glasgow was directed sold. By the terms of the codicil, executed at Maidens, Scotland, May 27, 1898, decedent gave to said Hannah H. Dawson "all my silver plate, and tea service, part of which is in possession of Mrs. Henry Ker, No. 2 Park Circus, Ayr., for safe keeping": this provision follows: "and all the residue of my estate, both real and personal, I hereby convey * * * to * * * Carolina Priolmean Dawson, Rose Earle Dawson and Hanna Harrison Dawson". After the signature to the codicil, appears the following: "A valuable oil painting titled the 'Price of Blood' by Thomas Noble, and signed by him, is for safe keeping in possession of Mrs. Henry Ker, Ayr, and forms part of my residuary estate". The codicil recites "I hereby nominate and appoint the following executors, Mr. Thomas Adam, accountant 27 Union St. Glasgow, and Mr. Ernest D. Ker, son of Colonel Henry Ker, shoe manufacturer, Ayr, and also Miss Carolina P. Dawson as my executrix, living at Springhill, Mobile county Alabama, America, conjointly with Mr. Richard...