In re Nossen's Estate
| Decision Date | 02 October 1945 |
| Docket Number | 8561. |
| Citation | 162 P.2d 216,118 Mont. 40 |
| Parties | In re NOSSEN'S ESTATE Appeal of STATE. |
| Court | Montana Supreme Court |
Appeal from District Court, Second District, Silver Bow County; T E. Downey, Judge.
Proceeding in the matter of the estate of Johanna Nossen, deceased. From a decree of final distribution, distributing five-sixths of the residue of the estate to the Alien Property Custodian the State appeals.
Affirmed.
R. V. Bottomly, Atty. Gen., and Myles J. Thomas and Fred Lay, Asst. Attys. Gen., for appellant.
John B Tansil, U.S. Dist. Atty., of Billings, R. Lewis Brown, Asst U.S. Dist. Atty., and Harlow Pease, Asst. U.S. Dist. Atty., both of Butte, and Wallace H. Walker, War Division of the Department of Justice, of Washington, D. C., for Alien Property Custodian.
S. O. Meyer, of Butte, for respondent William Meyer.
The State appeals from a decree of final distribution which distributed to the Alien Property Custodian five-sixths of the residue of the estate of Johanna Nossen, deceased, consisting entirely of money. Upon her death in 1935 Mrs. Nossen left six heirs at law, five of whom then were, and thereafter continued to be, residents and citizens of Germany. After the inception of war between the United States and Germany, the Alien Property Custodian assumed control of the five non-resident aliens' interests by vesting order issued pursuant to the Trading with the Enemy Act, 50 U.S.C.A.Appendix § 5(b), and Executive Order No. 9193, 50 U.S.C.A.Appendix § 6 note.
No question is raised as to the Alien Property Custodian's right to receive the shares of enemy alien heirs. The appellant's only contention is that before the vesting order was made the non-resident aliens' interests became the property of the State of Montana under Chapter 104, Session Laws of 1939. Section 2 of that Act provides, so far as here material, that 'no person shall receive money or property * * * as an heir, devisee and/or legatee of a deceased person leaving an estate * * * in the State of Montana, if such heir * * * at the time of the death of said deceased person, is not a citizen of the United States and is a resident of a foreign country at the time of the death of said intestate or testator, unless, reciprocally, the foreign country in question would permit the transfer to an heir, devisee and/or legatee residing in the United States, or property left by a deceased person in said foreign country.'
Sections 3 and 4 of Chapter 104 provided for the escheat to the county of such money or property as would have vested in any person but for the provisions of section 2 () and prescribed the procedure to be followed. In Bottomly v. Meagher County, 114 Mont. 220, 133 P.2d 770, the provision for escheat to the county was held void as in violation of the Constitution of Montana, Article XI, section 2, which places in the public school fund of the state 'all estates, or distributive shares of estates that may escheat to the state.
By the same decision this court held the provisions of section 2 of Chapter 104 valid as to the estate of an intestate who died after its passage and approval. The question here is whether it can have application to the estate of one who died before its passage and approval. If not, the state has no valid claim and the judgment must be affirmed.
The statute constitutes an amendment of our laws concerning the vesting of property, section 6816, Rev.Codes, by will, section 6977, Rev.Codes, and by succession, sections 7071 to 7092, Rev.Codes, and thus affects substantive rights. Under its terms, in spite of the provisions of other statutes or of wills, no non-resident alien 'shall receive * * * as an heir, devisee and/or legatee' of a deceased person leaving property in Montana unless the country of his residence permits like reciprocal rights to citizens of the United States, with respect to property left by deceased persons in that jurisdiction.
That it was the intent of the legislature to change the conditions under which rights might vest under the...
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