McKeown v. Brown

• Decision Date: 28 November 1914
• Docket Number: 29586
• Citation: 149 N.W. 593,167 Iowa 489
• Parties: MARY ANN MCKEOWN, Appellee, v. W. C. BROWN, State Treasurer et al., Appellants
• Court: Iowa Supreme Court

149 N.W. 593

167 Iowa 489

MARY ANN MCKEOWN, Appellee, v. W. C. BROWN, State Treasurer et al., Appellants

No. 29586

Supreme Court of Iowa, Des Moines

November 28, 1914

Appeal from Franklin District Court.--HON. R. M. WRIGHT, Judge.

Affirmed on defendant's appeal. Modified on plaintiff's appeal.

George Cosson, Attorney General, C. A. Robbins, Assistant Attorney General, and Sherwood A. Clock, for appellants.

John M Hemingway, and John J. Dwyer, for appellee.

WEAVER J. LADD, C. J., and EVANS and PRESTON, JJ., concur.

OPINION

THE opinion sufficiently states the case. Affirmed in part, and modified in part.

WEAVER, J.

One James Murray, a resident of Franklin county, Iowa died intestate March 1, 1908, and S. Y. Eggert became the duly qualified administrator of his estate. After paying all proved claims and charges, there was left in the administrator's hands, for distribution, the sum of $ 7,853.99. No person being found entitled to receive said fund as an heir of the deceased, it was adjudged to be an escheat to the state, and an order was entered by the district court under date of November 22, 1910, directing the administrator to pay over to the treasurer of state the entire unexpended remnant of the estate. Pursuant to said order the administrator did on April 21, 1911, pay to said treasurer the full sum of $ 7,853.99. On October 9, 1911, the plaintiff herein, Mary Ann McKeown, filed a petition in the district court setting up the facts above recited, alleging that she was and is the sole heir of the said James Murray, and as such entitled to have and receive the entire estate left by him, subject only to the proper charges and expenditures necessary to the settlement thereof. To this proceeding she made the treasurer of state and the auditor of state defendants, alleges that she is informed and believes that the treasurer has paid the funds derived from said estate into the hands of said auditor, who has present possession thereof; and upon the showing thus made she asks a decree requiring said defendants to make accounting of the moneys so received, and that they be ordered to pay the same into the office of the clerk of the district court, or to such other person as the court may direct, for her use and benefit, and for such other order or judgment as may be just and equitable in the premises. The treasurer appeared to this proceeding, and after filing a motion to dismiss, which is not shown to have been ruled upon, answered that, acting under authority of law and upon the order of state auditor, he had distributed and delivered the money received from the Murray estate in varying sums to the county auditors of Adair, Ringgold, Howard, and Story counties, and is now without possession or control thereof, and has no moneys or available funds in his hands with which to meet or discharge the plaintiff's demands. He also asks affirmatively that, in case plaintiff is found entitled to the return of the money, an inheritance tax, as provided by law, be assessed thereon. Though the state does not seem to have been made defendant in the action, it enters an appearance by its Attorney General and files an answer in denial to the petition. Upon the issues thus joined, there was a trial to the court. The evidence fairly tends to show that the plaintiff is a nonresident alien and subject of the kingdom of Great Britain, and that she is the cousin and only surviving heir of the said James Murray, deceased. The trial court found that plaintiff had duly established her right and claim to be the sole heir of the said James Murray and entitled to judgment for a return of the money of said estate, as claimed in the petition, but assessed thereon, in the favor of the state of Iowa a collateral inheritance of twenty per cent. And it further appearing that the said fund had, by the joint action of the state treasurer and state auditor, been distributed to the several counties named in the answer, the said officers were authorized and directed to recover and withdraw from said counties the moneys so distributed and pay the same (less the inheritance tax allowed) into the hands of the clerk of the trial court for the benefit of plaintiff, or to make such payment from any other fund properly and lawfully applicable thereto. From this judgment the defendants have appealed. The plaintiff also appeals from so much of said judgment as assesses upon the estate an inheritance tax in excess of five per cent.

The propositions argued upon the behalf of defendants are as follows:

I. That plaintiff does not sufficiently establish her status or right as the only heir of James Murray. We shall not attempt any general recital of the evidentiary facts. The plaintiff is herself a woman of advanced years, and much of that which she shows of her own knowledge and recollection has reference to facts occurring and conditions existing far back in her history, and is involved in some degree of obscurity and uncertainty. This is inevitable in almost every effort to trace family history and genealogy over a period of a half century or more. Such cases, perhaps more frequently than any others, call for an application of the familiar rule that, where evidence of the highest rank or order is not found, resort may be had to the best evidence obtainable. 1 Elliott's Evidence, sections 360, 362, 374, 375.

The story told by plaintiff is to a material extent corroborated by a witness having some personal acquaintance with the family many years ago and various corroborating circumstances of later occurrence. No one appears to dispute her right of inheritance; there is no rival claimant; no witness is called to deny the truth of any statement; and there is nothing inherently incredible or suspicious in her story. We think the conclusion reached on this point by the trial court is amply justified.

II. Next in order of presentation by counsel is the question concerning the assessment of a collateral inheritance tax.

The plaintiff concedes the liability of the estate to a tax of this kind, but insists that the tax properly chargeable is five per cent., and no more, instead of twenty per cent., as allowed by the court. The inheritance tax statute (Code, Supp. 1907, section 1467), after providing generally for a tax upon property passing by will or inheritance to others than the immediate and direct heirs of deceased persons and fixing the rate of such levy at five per cent., adds thereto the following:

Where property or any interest therein shall pass to heirs, devisees or other beneficiaries as contemplated in the foregoing provisions who are alien nonresidents of the United States, the same shall be subject to a tax of twenty per centum of its true value.

Were this all to which we are required to look, we should have no difficulty in affirming the assessment made by the trial court, but plaintiff makes the point that, under the treaty existing between this nation and Great Britain, the provision in our statute discriminating against nonresident aliens has no application, and she is bound to pay no more than would have been required of her had she been a resident of this state. It is elementary that treaty provisions between the United States and a foreign nation have force and effect paramount to acts of state legislation, and, if the treaty which the plaintiff invokes does prohibit the discrimination of which she complains, it is our duty to respect such limitation upon the power of the state and hold that this estate is liable to a charge of five per cent. and no more. The treaty provision to which we must look reads as follows:

When on the death of any person holding real property (or property not personal) within the territories of one of the contracting parties, such real property would, by the law of the land, pass to a citizen or subject of the other, were he not disqualified by the laws of the country where such real property is situated, such citizen or subject shall be allowed a term of three years in which to sell the same, this term to be reasonably prolonged if circumstances render it necessary, and to withdraw the proceeds thereof, without restraint or interference, and exempt from any succession, probate or administrative duties or charges other than those which may be imposed in like cases upon the citizens or subjects of the country from which such proceeds may be drawn.

It is proper in this connection to further...