Meier v. Lee

• Decision Date: 12 October 1898
• Citation: 106 Iowa 303,76 N.W. 712
• Parties: MEIER v. LEE ET AL.
• Court: Iowa Supreme Court

106 Iowa 303

76 N.W. 712

MEIER

v.LEE ET AL.

Supreme Court of Iowa.

Oct. 12, 1898.

Appeal from district court, Mitchell county; J. C. Sherwin, Judge.

Plaintiff, widow of Paul E. Meier, who died, a citizen of Mitchell county, Iowa, on the 24th day of May, 1892, intestate and without issue, brought this action to partition certain land in said county he owned at the time of his death. of which she claims one-half. Paul H. Paulson and the other defendant appellees answered, admitting that plaintiff was entitled to one-half of said land, and by cross bill alleged that they are the sole and only heirs at law of said deceased, other than the plaintiff, competent to inherit said real estate, and claiming the one-half thereof. The defendants Else A. Lee and Helge Hogfoss were served by publication, and, not appearing, decree was rendered giving to plaintiff one-half of the land, and to said defendant appellees the other half. Thereafter, and in due time, the appellants, Else A. Lee and Helge Hogfoss, filed their motion to set aside the default and decree, and their answer and cross petition, claiming that, as heirs at law of said deceased, they are entitled to three-eighths of said land. The defendants appellees demurred to said answer and cross petition on the ground that the facts stated do not entitled said cross petitioners, or any of them, to any part of said land. This demurrer was sustained, and, said cross petitioners electing to stand upon their petition, the former judgment and decree were confirmed, and the defendants Else A. Lee and Helge Hogfoss appeal. Affirmed.W. L. Eaton, for appellants.

Sweney & Lovejoy, for appellees.

GIVEN, J.

1. The claim of the plaintiff to one-half of the land is not disputed. The contention is between Paul H. Paulson and the other defendant appellees on the one side, and the defendant appellants on the other side. The facts as shown in appellants' cross petition necessary to be noticed are these: The deceased left neither parent, brother, sister, grandparent, uncle, nor aunt surviving him, and the parties to this appeal were his nearest living relatives. Appellees were the decedent's cousins of half blood, having with him a common grandfather, but a different grandmother. Appellants were decedent's cousins of full blood, having with him a common grandfather and grandmother. All parties to this action are citizens of the United States. Prior to the death of Paul E. Meier, the common grandfather and grandmother and the mother of appellants had died, nonresident aliens; and the decedent's father and the father of appellees, who were half-brothers, had also died, both being citizens of the United States at the time they died.

The following diagram presented by appellees' counsel will better show the relation of the different persons, and the lines of inheritable and noninheritable blood, than can be expressed in words:

IMAGE

From this it will be seen that appellees inherit through their father, Anders Meier, brother of Elling Meier, father of decedent, all citizens of the United States. Now, although Elling and Anders died before the intestate, Paul E. Meier, yet, under section 2457 of the Code of 1873, the estate passes the same as if they had survived Paul E. Meier. Such being the law and the facts, no question is made as to the right of appellees the Paulson family to share in the estate. It will also be seen that appellants, Hogfoss and Lee, are children of Ingeborg Hogfoss, sister of Elling Meier, the father of the intestate. If Ingeborg Hogfoss had been a citizen of the United States at the time of her death, there would be no question of appellants' right to share in this estate; but she was a nonresident alien, and the question is whether that fact cuts off appellants' right to inherit. It is conceded that this case comes under chapter 85, Acts 22d Gen. Assem., approved April 9, 1888, the first section of which, so far as applicable, is as follows. “Non-resident aliens * * * are hereby prohibited from acquiring title to or taking or holding any lands or real estate in this state by descent, devise, purchase or otherwise.” It is clear that, because of her alienage, Ingeborg Hogfoss would not have been entitled to share in this estate even if she had survived the intestate, and that the estate cannot be transmitted through a nonresident alien.

Appellants' contention is not that they take mediately through their mother, Ingeborg Hogfoss, but that, under said section 2457 of the Code of 1873, they take immediately from the decedent. Said section is as follows: “If both parents be dead, the portion which would have fallen to their share by the above rules, shall be disposed of in the same manner as if they had outlived the intestate and died in the possession and ownership of the portion thus falling to their share, and so on through ascending ancestors and their issue.” Appellants cite Lash v. Lash, 57 Iowa, 88, 10 N. W. 302, wherein it is said: “Whatever the plaintiff or any other heir of the intestate takes, he takes...