In re Moynihan's Estate
| Decision Date | 16 March 1915 |
| Docket Number | 29541 |
| Citation | 151 N.W. 504,172 Iowa 571 |
| Parties | IN RE ESTATE OF ALEXANDER MOYNIHAN, DECEASED |
| Court | Iowa Supreme Court |
REHEARING DENIED WEDNESDAY, NOVEMBER 24, 1915.
Appeal from Polk District Court.--HON. HUGH BRENNAN, Judge.
APPEAL by the state from certain orders entered in the above entitled probate case, relating to the collateral inheritance tax. The orders appealed from will be indicated in the opinion.
Affirmed.
George Cosson, Attorney General, C. A. Robbins, Assistant Attorney General, and E. J. Kelly, for appellant.
Parsons & Mills and Dudley & Coffin, for appellees.
Alexander Moynihan died intestate, leaving a number of collateral heirs, all of whom are parties hereto. He left an estate consisting of personal property, amounting to something more than $ 3,000. Whether he left any real estate is one of the points in controversy. The administrator listed 160 acres of land located in Iowa County, as property of the decedent. This land, however, was in the actual possession of Michael Moynihan, the brother, and had been in his actual possession for 35 years, and he claimed to be the owner of the same. Suit was begun in Iowa County against Michael by some of the collateral heirs for the recovery of such real estate. Michael appeared to such suit with a cross-bill, claiming title and asking that his title be quieted. A decree was entered in his favor on the cross-bill. Later, he filed an application in this probate case pending in Polk County, asking a formal order eliminating this real property from the list of assets of the decedent. This involved its elimination from the consideration of the appraisers for collateral inheritance tax purposes. Such application was granted. From this order, the state appealed.
I. The appeal has been submitted to us with a motion on behalf of Michael for an affirmance of the case or a dismissal of the appeal, because the appellant has failed to serve upon Michael or upon his attorney any abstract or argument. This motion is resisted on the alleged ground that Michael was represented in the trial below by more than one attorney, and that service was made upon one of such attorneys. The record and showing furnish no fair support for the ground of alleged resistance. Michael appeared below by Mr. Kirby as his sole attorney. This fact appears both by appropriate affidavits in support of the motion and in the record itself. There were other attorneys who appeared for other collateral heirs. As to these, their clients were specifically named in the record. The same record shows Mr. Kirby as appearing for Michael. No other attorney was authorized to appear for him or purported to appear for him, nor did Mr. Kirby appear for any other party. The notice of appeal expressly recognized Mr. Kirby as sole attorney for Michael. The appellant, therefore, was clearly in default in failing to serve abstract and argument upon Mr. Kirby or upon his client. No excuse is offered for such default other than the resistance above indicated. The motion to affirm as to Michael must, therefore, be sustained.
II. There is a second branch of the appeal which involves the interests of certain alien collateral heirs. Such alien heirs are subjects of Great Britain. As collateral heirs, they are entitled to a share of the personal property above referred to. Because they are alien, the state contends that their succession is subject to a tax of 20%, under our statute. Because of the terms of our treaty with Great Britain, it is contended for these alien heirs that they cannot be subjected to any greater tax than the resident heirs. This was the view adopted by the trial court, and the rate of tax against each succession was fixed at 5%.
We had occasion, in McKeown v. Brown, 167 Iowa 489, 149 N.W. 593, to consider the effect of the terms of our treaty with Great Britain, as bearing upon the rate of collateral inheritance tax chargeable against subjects of Great Britain. The cited case, however, dealt with real property only. We have now to consider the effect of the same upon the succession to...
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