In re Gill's Estate

• Decision Date: 03 February 1890
• Citation: 44 N.W. 553,79 Iowa 296
• Parties: In re ESTATE OF GILL
• Court: Iowa Supreme Court

44 N.W. 553

79 Iowa 296

In re ESTATE OF GILL

Supreme Court of Iowa, Des Moines

February 3, 1890

Decided January, 1890.

Appeal from Polk District Court.--HON. W. F. CONRAD, Judge.

ON petition of the administrator for an order to sell real estate to pay debts.

There is no controversy as to the facts, and those necessary to an understanding of the questions presented are as follows William John Gill, an alien, and subject to Great Britain resided in Iowa up to, and for some years prior to, 1880 after which he resided in other of the United States to the time of his death, in 1887, at which time he was a resident in the state of New Jersey. He left Elizabeth Gill, his widow, but no children, surviving him. Mrs. Gill was also an alien, and subject of Great Britain, and never resided in the United States. During his residence in Iowa, Mr. Gill purchased and took title of certain lots in the city of Des Moines, and afterwards, desiring to mortgage said lots to secure a loan of money, he applied to the circuit court of Polk county for an order, under sections 2216, 2219, Code appointing a guardian to release the interest of his wife in said lots, alleging as reason therefor that she was insane. No notice was given to Elizabeth Gill, nor to any one on her behalf, of said proceeding; but an attorney of the court was appointed by the court to defend her interests. On final hearing, an order was granted appointing said William John Gill as such guardian for said purpose; and thereafter, for himself, and upon the authority of said order, he executed a mortgage to Lederer & Straus, to secure two thousand dollars, which mortgage is now the property of the trustees of Stephen Sibley's estate, and a second mortgage to J. B. Stewart, to secure one thousand dollars. In each of said mortgages he, as such guardian, released as to the interest of appellant in said lots. The appellant having filed her answer and cross-bill, claiming one-third of said property as her distributive share, the administrator replied, alleging the facts to be in substance as above stated. To this reply appellant demurred upon the grounds that the facts stated constitute no defense to her cross-bill; that the proceedings of the circuit court were void for want of notice; and because, if no notice was required by the statute, the statute was unconstitutional. This demurrer was overruled; and, appellant electing to stand thereon, and the trustees of the Sibley estate and said J. B. Stewart having appeared and pleaded, the cause was submitted on the pleadings, and on an admission of the copy of the record entry of said proceeding in the circuit court. An order was made for the sale of the property, and decreeing appellant's rights and interests therein to be junior to said mortgages, and that she is only entitled to receive one-third of the surplus realized from the sale after satisfying said mortgages. From this order and decree said Elizabeth Gill appeals.

AFFIRMED.

Bousquet & Earl, for appellant.

Mitchell & Dudley, Berryhill & Henry and St. John, Stephenson & Whisenand, for appellees.

OPINION

GIVEN, J.

I.

It will be seen by the foregoing statement that both Mr. and Mrs. Gill were aliens; that Mrs. Gill never resided in the United States, and that Mr. Gill had not resided in this state since 1880, and at the time of his death, in 1887, he was a resident of the state of New Jersey. Code, section 2442, is as follows: "The widow of a non-resident alien shall be entitled to the same rights in the property of her husband as a resident, except as against a purchaser from the decedent."

The first question presented is whether the deceased was a non-resident, within the meaning of this section appellant's contention being that "non-resident," as here used, means non-resident of the United States, while appellees contend that it means a non-resident of this state. No question is made but that it is within the power of the state to declare and regulate the property rights of aliens with respect to property within the state. Our legislation on this subject, like that of many other states, has enlarged the...