Dutton v. Donahue, 1729

Citation44 Wyo. 52,8 P.2d 90
Decision Date23 February 1932
Docket Number1729
PartiesDUTTON v. DONAHUE
CourtUnited States State Supreme Court of Wyoming

APPEAL from District Court, Laramie County; SAM M. THOMPSON, Judge.

Action by Isabel Alice Dutton and others, against Clinton C. Donahue and another, in which the State by William O. Wilson Attorney General, for whom James A. Greenwood was afterward substituted, filed a petition of intervention, and plaintiffs filed a petition for extension of time to sell realty. From a judgment granting plaintiff's petition, and dismissing petition of intervention, the state appeals.

Affirmed.

For the intervener and appellant there was a brief by James A Greenwood, Attorney General, Richard J. Jackson, Deputy Attorney General, and George W. Ferguson, Asst. Attorney General, all of Cheyenne, Wyoming, and oral argument by Mr Jackson.

At common law, an alien cannot acquire title to real property by descent. 2 C. J. 1057 and cases cited; Dawson v. Godfrey, 2 L.Ed. 634. Plaintiffs have admitted that there is no exception in their favor. Orr v. Hodgson, 4 L.Ed. 613. The Wyoming constitution and laws have modified the rule of descent as to resident aliens, but not as to nonresident aliens. Art. I, Sec. 29, Const. 7005 C. S. A descendant does not include collaterals or ascendants. 2 C. J. 827, Sec. 35 and cases cited. Bouvier Vol. 1, p. 852; Brawford v. Wolfe, 15 S.W. 426; Bates v. Gillet, 24 N.E. 611; In re Tinker's Estate, (Okla.) 214 P. 779; 3 Words and Phrases 2016; In re Cupple's Estate, (Mo.) 199 S.W. 556. The common law rule applies in Wyoming, unless repealed or qualified by constitution or statute. 4547 C. S., 18 C. J. 808; Fidler v. Higgins, 21 N. J. 138; Tannis v. Doe, 21 Ala. 449; In re Clark's Estate, 28 P. 238; Whitehead v. Syndicate, (Va.) 54 S.E. 306. This court has ruled upon the question in Bamforth v. Ihmsen, Admr., 28 Wyo. 282. The original and legitimate right of property is in the people. 3910-3911 C. S. Decedent died intestate leaving only collateral heirs, including ascendants. His property escheats to the State for want of legal heirs. 3911 C. S., 4 Words and Phrases, 3241; 9 R. C. L. 17, 28 R. C. L. 249. Where an alien holding land, dies, or a citizen dies, leaving only alien heirs, the land in question escheats and vests in the State. 2 C. J. 1058, and cases cited. 16 Cyc. 552. The treaty between the United States and Great Britain (31 Stat. 1939) holds the escheat in abeyance for three years, within which the alien may sell the land. In this case the suspension period had expired by more than six years beyond the three year limitation and no effort had been made to secure an extension of time for the disposal of the land in accordance with the treaty. The case is analogous to that of Ahrens v. Ahrens, 123 N.W. 164, cited in Bamforth v. Ihmsen, supra. The right of the state is not barred by laches. 21 C. J. 855. It is a disputed question whether a proceeding is necessary to vest title in the State on escheat. (3911-3912 C. S.). 21 C. J. 855; State v. O'Day, 69 P. 542. Appellants request that in the event that intervention is not the proper method of perfecting the escheat here involved, that it be permitted without prejudice, to file an independent action. Intervener contends that the circumstances in the present case are not such as to create a necessity for prolonging a right of alien heirs, to sell the land for a period of over nine years. Schultze v. Schultze, 19 L. R. A. 90; Wunderle v. Wunderle, 19 L. R. A. 84; Yeaker's Heirs v. Heirs, 81 Am. Dec. 530. The question is one for the judiciary. Peirson v. Lawler, et al., 161 N.W. 419; Schrapf v. Schmidt, et al., 50 N.E. 182.

For the defendant and respondent Donahue, there was a brief and oral argument by Thomas Hunter, of Cheyenne, Wyoming.

An alien heir, direct or collateral, has the right of inheritance under Wyoming laws. 2 C. J. 1069, 1070. The common law, distinction, governing the right of aliens to inherit real and personal property, was founded upon the theory that it was unwise, to permit the soil of the country to be in the hands of subjects of a foreign power, and its revenues to be enjoyed by them. Hubbard v. Goodwin, 3 Leigh (Va.) 492; Bacon's New Abridgement, Vol. 1, Page 201; Chitty's Blackstone, Vol. 1, p. 624. Notwithstanding the dictum in Bamforth v. Ihmsen, 26 Wyo. 282, we contend that the common law rule has been removed by statute in this State. 7005 C. S. As to the definition of the word ascendants, for purposes of consideration, some absurdities or unjust rules are to be found. State v. Buck Merc. Co., 38 Wyo. 47; Houghton Bros. v. Yocum, 40 Wyo. 57. To construe the word "descendants" as "lineal descendants" results in an absurdity and an unjust rule. Dungan v. Kline, 90 N.E. 938; In re Peterson's Estate, 151 N.W. 66; Brown v. Peterson, 170 N.W. 444; In re Stixrud, 109 P. 343. We contend that the territorial legislature of 1869 in the enactment of what are now known as Secs. 7002, 7003, 7004 and 7005 C. S. intended to enact a new and complete code on the subject of the devolution and succession of real and personal property, in cases of intestacy, and to reject the common law rules, as inconsistent with the laws of this State. The reason for the old rule disappeared with the Feudal system. Appellant neglected to cite Article 5 of the treaty, between the United States and Great Britain, relating to the citizens or subjects of the most favored nations. The English statute has removed the restriction as to inheritance by aliens, therefore Sec. 5 of the treaty should be held to apply. Sullivan v. Kidd, 41 S.Ct. 159, 254 U.S. 256. This "most favored nation" clause has been construed to require a comparison of provisions of treaties. In re Fattosine's Estate, 57 N.Y.S. 1119. See also Brown v. Daly's Estate, 154 N.W. 602; Todox v. Bank, 281 U.S. 449.

For the defendants and respondents there was a brief by Kinkead & Pearson and oral argument by Mr. W. C. Kinkead.

We believe the case of Bamforth v. Ihmsen, 28 Wyo. 122, controls the controversy here. The "most favored nation" clause appearing in the 5th Article of the treaty between the United States and Great Britain, operates in favor of these plaintiffs. De Geofroy v. Riggs, 133 U.S. 258, 33 L.Ed. 642, 646. That case involved a treaty with France and the same principle was involved. The order of December 17, 1930, extending plaintiff's time within which to sell the land, was an appealable order, which disposed of the case, no appeal having been taken therefrom. Scharpf v. Schmidt, (Ill.) 50 N.E. 182; Doehrel v. Hillmer, (Ia.) 71 N.W. 204. Pleadings are to be liberally construed. Shanks v. DuPont, 3rd Pet. 242; Hauenstein v. Lynham, 100 U.S. 483, 25 L.Ed. 628. The State cannot complain of an order made by a court of competent jurisdiction, granting an extension of time, within which to dispose of lands claimed to have escheated, especially where the State has invoked the power and jurisdiction of such court. Under the treaty of 1899, a title although defeasible, can only be defeated by office found, prior to the disposition of the land. 3911 C. S. The rule in some states that escheat and forfeiture occurs immediately upon the expiration of the three year period, is inapplicable to the facts in the present case, and is rejected by many courts. Re Melrose Ave., 234 N.Y. 48, 23 A. L. R. 1233. In the present case the title has never been suspended as it descended directly to these heirs and must remain there at least until office found. It is good until annuled. Fairfax v. Hunter, 7 Cranch 603, 3 L.Ed. 453; Phillips v. Moore, 100 U.S. 208, 24 L.Ed. 603; Maynard v. Maynard, 38 Hun. 227. The land was effectually disposed of by these plaintiffs by contract of sale, which they entered into with the defendant. The non-resident alien plaintiffs having sold the land to the defendant, before the action of escheat was brought, said action cannot be maintained. Wilson v. Co., 19 Utah 66, 56 P. 300; School Board v. King, (Ky.) 107 S.W. 247. Sec. 7005 C. S. removed the disability of non-resident alienage with respect to acquiring real estate by descent. Art. I, Sec. 29, Wyo. Const. 2 C. J. 1061; State v. Smith, (Calif.) 12 P. 121. Forfeiture is not to be inferred from language capable of a milder construction. Robinson v. Huff, (Ky.) 3 Lit. 38; Rosenbaugh v. Saffin, 10 Ohio 36; Griffin v. Mixon, 38 Miss. 445; Bennett v. Hunter, 9 Wal. 336, 19 L.Ed. 676. The tendency of modern legislation has been to enable aliens to take, hold and purchase real estate in the same manner as citizens. Cook v. Doran, (Pa.) 60 A. 595, 7 L. R. A. (N. S.) 659. The term "descendants" is not used in connection with an intestate. If Sec. 7005 C. S. operates to limit and define the inheritable blood of deceased children, and brothers and sisters of deceased, his kindred male and female, are his descendants, whether they be in the ascending or descending line. Turley v. Turley, 11 O. S. 173; Dungan v. Kline, 90 N.E. 938, 940. The question of a construction of Sec. 7005, C. S. was not involved in the case of Bamforth v. Ihmsen, supra. The case there turned upon a construction of the treaty between this country and England.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

On January 5, 1919, one Charles Clement Bell, a naturalized citizen of the United States, died intestate, seized of certain real estate in Laramie County, Wyoming, in controversy in this case. He was unmarried, and left as his only heirs his father, mother, and some brothers and sisters all of whom were non-resident aliens, living in Great Britain. They, or their representatives, are plaintiffs in this case, and will hereafter be referred to as the alien heirs or as plaintiffs. The estate of Bell was administered, and closed by order of the court. The...

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    ...(1844) existed, cannot so freely indulge in such an undertaking. The principal decisions to which I refer are: Dutton v. Donahue, 1932, 44 Wyo. 52, 8 P.2d 90, 79 A.L.R. 1355; Abrams v. State, 1907, 45 Wash. 327, 88 P. 327, 331, 9 L.R.A., N.S., 186, 122 Am.St.Rep. 914, 13 Ann.Cas. 527; State......
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