Herriott v. Potter
| Decision Date | 10 February 1902 |
| Citation | 89 N.W. 91,115 Iowa 648 |
| Parties | JOHN HERRIOTT, Treasurer of the State of Iowa, Appellant, v. L. F. POTTER, Administrator, et al |
| Court | Iowa Supreme Court |
Appeal from Pottawattamie District Court.--HON. WALTER I. SMITH Judge.
ACTION for the collection of collateral inheritance tax. Petition dismissed, and plaintiff appeals.
Affirmed.
Chas W. Mullan, Attorney General, and Chas. A. Van Vleck Assistant Attorney General, for appellant.
Saunders & Stuart for appellees.
John Lawson died intestate September 7, 1896, seised of 280 acres of land in Pottawattamie county. The defendant was duly appointed administrator of the estate November 11, 1896, and then being without knowledge of the heirs, took possession of the real estate. In the spring of 1897 he ascertained that one sister, a minor, resided in Sweden, where she still remains, and that two others lived in the northern part of Minnesota. He immediately notified them of the death of their brother, and of their interest in the estate. The last two were in Pottawattamie county at the time of the trial, and able to take charge of the land; but the same was, under the direction of the court, retained by the administrator, with the view of collecting therefrom rents and profits sufficient to meet the expenses of administration. No personal property then passed to these collateral heirs, and we have only to determine the liability for the inheritance tax on the succession to the real estate.
It will be noted that Lawson died after chapter 28 of the Acts of the 26th General Assembly became effective, and before the adoption of an amendment thereto providing for the notice of the appraisement. Chapter 37, Acts 27th General Assembly. It was held in Ferry v. Campbell, 110 Iowa 290, 81 N.W 604, that the first of the above acts was unconstitutional, because authorizing the taking of property without due process of law, and the defect therein cured by the last in providing for notice to those interested of the assessment of value, and that, regardless of the time of decease, the personal assets not distributed were subject to the payment of the tax. While the right to the distributive share of personal property vests in the heirs at the time of the decedent's death, title to specific property and the amount to be received is not determined until distribution through the probate court is effected. This merely ascertains and segregates the particular portion to which each heir is entitled, and his title immediately attaches, and relates back to that of decedent of whom he takes. Sections 3362, 3364, Code; Moore v. Gordon, 24 Iowa 158; Weaver's Estate v. State, 110 Iowa 328, 81 N.W. 603. See Foss v. Cobler, 105 Iowa 728, 75 N.W. 516. But at decedent's death it passes to the possession and control of the executor or administrator, subject to his disposal, and only after the payment of the debts and costs of administration is it to be distributed. On the other hand, the title to real estate descends to the heirs eo instante upon the death of the ancestor, with the quantity of each definitely ascertained. From that instant, subject to the right of the administrator to resort thereto for the payment of the debts of the deceased, they may dispose of the particular property as the owners, by sale, devise, or gift, and are entitled to possession and the rents and profits. Section 3378 et seq., Code; Laverty v. Woodward, 16 Iowa 1; Toerring v. Lamp, 77 Iowa 488, 42 N.W. 378; 3 Washburn, Real Property, 18; 1 American Law Administration, sections 15, 16. The sections of the statute authorizing the administrator, in certain contingencies, to take possession of real estate, merely directs that he exercise existing authority over a class of property with which he formerly had no concern. Virtually he is but the agent of the owners to care for the estate, collect rent, and do other acts for their benefit under the direction of the court. Valley National Bank v. Crosby, 108 Iowa 651, 79 N.W. 383. The devolution of the title is in no way interrupted or affected thereby, nor by his right to sell or mortgage for the payment of debts, as each may transfer a definite portion subject thereto. See 2 American Law Administration, section 337. The distinction between the descent of personalty and realty is clearly recognized by our statutes. Chattels continue in the control of the administrator, subject to the direction of the probate court, and pass to the heirs only upon distribution. The title to the respective shares in land vests absolutely and immediately in the heirs or devisees upon the death of the owner. This depends not on an order of the court, and none is essential to the vesting of the title to the particular share in each heir. True, the land may be seized for the payment of the debts of the deceased by the administrator, or on certain contingencies the administrator may take possession. But in either event title is not suspended nor distribution delayed thereby. The title acquired by each heir or devisee upon the death of the owner is complete, and subject to these contingencies alone. It follows, then, that title to this land had vested absolutely in the three sisters of the deceased prior to the enactment of chapter 37 of the Acts of the...
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