Furenes v. Mickleson
| Decision Date | 20 October 1892 |
| Citation | 53 N.W. 416,86 Iowa 508 |
| Parties | FURENES v. MICKLESON. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Story county; D. R. HINDMAN, Judge.
Action in equity to set aside a conveyance of real estate. From an order sustaining a motion of defendant to dismiss the action, plaintiff appeals.E. H. Addison and W. G. Harrison, for appellant.
F. D. Thompson and D. J. Vinge, for appellee.
On the 23d day of July, 1889, Thor Olsen, a naturalized citizen of Story county, died testate, leaving a widow, but no children. His will was probated, and the consent of his widow to accept its provisions was entered in the proper court record. The will gave to the widow a life estate in all the property, both personal and real, of decedent, and provided that at her death one half of the estate should be distributed among his heirs, and the remainder among her heirs. It was executed about one year before his death. A day or two before his death he and his wife executed to defendant a deed, which purported to convey to her 40 acres of land situated in Story county. The plaintiff claims to be sole heir of one half of the estate of decedent, and alleges that the conveyance described was procured by force and undue influence for the purpose of preventing the distribution of the estate as intended by the testator, and that it was executed and delivered on Sunday. The defendant filed an answer to the petition, and the cause was set down for trial on depositions. After they had been taken, the defendant moved to dismiss the action on the ground that the evidence showed that plaintiff was not entitled to maintain it. The motion was sustained, and plaintiff, electing to stand upon the record, refused to plead further. The facts upon which the motion was based and sustained are as follows: Thor Olsen, the decedent, was a brother of Steine Olsen, who is also deceased. Steine Olsen was the grandfather of plaintiff, but his son, the father of plaintiff, is living, and is, and always has been, a nonresident alien. The plaintiff was at the time of the death of the testator, and is now, a resident of Story county. The question presented for determination is whether the plaintiff can inherit from decedent under the facts stated. The district court found that he could not, on the ground that a line of inheritance cannot be traced through nonresident aliens. The appellant concedes that under the common law an alien cannot purchase or inherit real estate, and therefore that he cannot transmit title thereto by descent, but it is insisted that the conditions upon which that law is founded do not exist here, and that the law is contrary to the policy of the state. Before the year 1868 the law did not permit nonresident aliens to inherit land situated in this state. Stemple v. Herminghouser, 3 G. Green, 408, Krogan v. Kinney, 15 Iowa, 242;Rheim v. Robbins, 20 Iowa, 46;Brown v. Pearson, 41 Iowa, 481;King v. Ware, 53 Iowa, 100, 4 N. W. Rep. 858. Chapters 56 and 193 of the Acts of the 12th General Assembly abolished most of the distinction between citizens and nonresident aliens so far as it related to the acquiring and transferring of property. Portions of these chapters appeared in a revised form in sections 1908, 1909, of the Code. They provided, in effect, that aliens, whether they resided in the United States or any foreign country, might acquire, hold, convey, devise, and incumber property situated within the state in like manner as a citizen of the state might do and with the same effect. This continued to be the law until chapter 85 of the Acts of the 22d General Assembly took effect, on the 4th day of July, 1888. That contains the following provisions: * * *” Section 2 permits nonresident aliens to acquire by purchase, and hold for a limited time, real property to the extent of 320 acres, or city property to the amount of $10,000 in value, but has no application to the acquiring of...
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