Krogan v. Kinney

• Decision Date: 15 October 1863
• Citation: 15 Iowa 242
• Parties: KROGAN et al. v. KINNEY et al
• Court: Iowa Supreme Court

15 Iowa 242

KROGAN et al. v. KINNEY et al

Supreme Court of Iowa, Des Moines

October 15, 1863

Appeal from Dubuque District Court.

THOMAS KROGAN, a native of Ireland, died intestate and without issue, in Dubuque county, Iowa, in May, 1860, seised of certain real estate described in the petition. The plaintiffs and the defendant, Margaret Kinney, formerly Margaret Krogan were brothers and sister of the deceased; the former, at the time of the death of the said Thomas, were non-resident aliens, natives and residents of Ireland, and subjects of Great Britain; the latter, Margaret Kinney, was a citizen and resident of Dubuque county in this State. The pleadings were so framed as to raise this question: "Can the plaintiffs, who are and were at the time of the death of the intestate, non-resident foreigners, inherit his real estate in this State?"

Affirmed.

Griffith & Knight for the appellant.

Wilson Utley & Doud for the appellee.

Hon CALEB BALDWIN, Chief Justice, Hon. GEORGE G. WRIGHT, Judge, Hon. RALPH P. LOWE, Judge, from December 7 to December 24, 1863. Hon. GEORGE G. WRIGHT, Chief Justice, Hon. RALPH P. LOWE, Judge, from January 1, 1864, to the conclusion of the Term. ^[*]

OPINION

LOWE, J.

At the common law, neither resident nor nonresident aliens could inherit property by descent. The modifications which the Constitution and laws of this State have made upon the common law doctrine, is, that resident aliens may do so, with a still further modification recently made by the Legislature, to the effect, that a non-resident alien may be capable, in law, of inheriting property devised by will to him, provided he will become a resident of the State subsequent to the date of such devise. (§ 2493, Rev.)

In the case of Stemple v. Herminghouser, 3 G. Greene, 408, the law of this State, as it stood at that time, has been justly construed and expounded, which exposition is adverse to the claim of the plaintiffs in this case. In March, 1858 (see Rev., p. 421), the Legislature passed an act respecting aliens, intended, as it is believed, to more fully carry out section 22, article 1 of the Constitution, which reads as follows:

"Foreigners who are or may hereafter become residents of this State, shall enjoy the same rights in respect to the possession, enjoyment and descent of property as native born citizens."

Counsel for the appellants insist, however, that the act of the Legislature just...