In re Estate of O'Connor
| Decision Date | 16 February 1934 |
| Docket Number | 28640 |
| Citation | 252 N.W. 826,126 Neb. 182 |
| Parties | IN RE ESTATE OF JOHN O'CONNOR. v. STATE OF NEBRASKA, APPELLANT ADAMS COUNTY, APPELLEE, |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Adams county: LEWIS H BLACKLEDGE, JUDGE. Reversed and dismissed.
Judgment of the district court reversed and action dismissed.
Syllabus by the Court.
1. By " escheat" is meant the lapsing or reverting to the state as the original and ultimate proprietor of real estate by reason of a failure of persons legally entitled to hold the same.
2. What is commonly termed ownership of real estate is in fact tenancy, whose continuance is contingent upon legally recognized right of tenure, transfer, and of succession in use and occupancy.
3. When the tenancy of ownership expires or is exhausted by reason of the failure of the law or the state to recognize any person or persons in whom such tenancy can be continued, then the real estate reverts to and falls back upon its original and ultimate proprietor, or, in other words, escheats to the state.
4. When there is a failure of heirs, the title to real estate vests immediately or at once in the state.
5. In the case of failure of heirs, the state does not take as successor under the laws of descent and distribution, but as a reversioner.
6. When the state takes real estate on account of failure of heirs or by " escheat," such estate is not subject to an inheritance tax, since inheritance tax is assessed upon succession and not upon reversion.
Appeal from District Court, Adams County; Blackledge, Judge.
Proceedings in the matter of the estate of John O'Connor, deceased, wherein Adams County sought to have the estate, escheated to the State, subjected to an inheritance tax. From an adverse judgment, the State appeals.
Judgment reversed, and action dismissed.
Paul F. Good, Attorney General and William H. Wright, for appellant.
Herman G. Schroeder, contra.
Heard before GOOD and EBERLY, JJ., and MESSMORE, RAPER and YEAGER, District Judges.
This is an appeal by the state of Nebraska from the judgment of the district court for Adams county, Nebraska, in which county the estate of John O'Connor was probated. The estate escheated to the state of Nebraska for want of heirs. The county of Adams contends that the state is liable for the payment of an inheritance tax. This is the only question in the case. The county of Adams was successful in the action in district court and the state of Nebraska has appealed to this court.
It appears that this case must be determined on the true meaning of the term "escheat." In early England or during the feudal period, escheat meant the falling back or reversion of lands to the lord of the fee upon the failure of heirs capable of inheritance under the original grant. In both England and the United States now, by escheat is meant the lapsing or reverting to the crown or the state as the original and ultimate proprietor of real estate, by reason of a failure of persons legally entitled to hold the same.
Clearly the theory of the law in the United States, then, is that first and originally the state was the proprietor of all real property and last and ultimately will be its proprietor, and what is commonly termed ownership is in fact but tenancy whose continuance is contingent upon legally recognized rights of...
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