Semrad v. Semrad
| Decision Date | 29 July 1960 |
| Docket Number | No. 34786,34786 |
| Parties | Antonln SEMRAD and Josef Semrad, Appellees, v. Frantisek SEMARD et al., Appellees, State of Nebraska, Intervener, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. An escheat upon a failure of heirs, under section 76-401, R.R.S.1943, vests the title to the escheated lands in the state on the death of the owner. Action by the state for a judicial determination that such an escheat has vested is not required.
2. The words 'failure of heirs,' contained in such statute, mean an absence of heirs competent to take by descent or devise.
3. The probate court in the settlement of an estate has jurisdiction to find and determine who are the heirs of a decedent, and to make incidental orders with reference thereto necessary to administer the estate. In so doing the court has no jurisdiction to determine the title to real estate, nor adverse claims involving the title to real estate.
4. The Attorney General of this state has no authority to waive the rights of the state in its property or to bind the state by consenting to its alienation.
5. A decree for the partition of real estate in which the owner thereof is not made a party is absolutely void and it may properly be set aside at or after the term at which it was entered.
Clarence S. Beck, Atty. Gen., Richard H. Williams, Asst. Atty. Gen., for intervener-appellant.
John E. Mekota, Dredla & Dredla, Crete, Clarence C. Kunc, Wilber, for appellees.
Gerald J. Hallstead, Crete, referee pro se.
Heard before CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.
This is an appeal by the State from a judgment of the district court for Saline County dismissing its petition in intervention in a partition suit by which it sought an order confirming the escheat of certain lands to the State that were involved in such proceeding.
The record shows that James Semrad died intestate in Saline County, Nebraska, on September 14, 1954. He was a widower at the time of his death and he left no issue or parent surviving. He left surviving a number of heirs all of whom were nonresident aliens residing in Czechoslovakia. The lands in question do not lie within the corporate limits of any city or village, or within 3 miles thereof, and are not therefore within the exception contained in section 76-414, R.R.S.1943.
Section 76-401, R.R.S.1943, provides: 'Upon the failure of heirs, the title shall vest at once in the state, without an inquest or other proceedings in the nature of office found.' It is further provided by section 76-402, R.R.S.1943: 'Aliens and corporations not incorporated under the laws of the State of Nebraska are prohibited from acquiring title to or taking or holding any land, or real estate, or any leasehold interest extending for a period for more than five years or any other greater interest less than fee in any land, or real estate in this state by descent, devise, purchase or otherwise, except as provided in sections 76-403 to 76-405.' This section precludes a nonresident alien from acquiring or taking any title or interest in lands in this state by descent, devise, purchase, or otherwise, except as to such lands as are within the exceptions provided in the act. State v. Toop, 107 Neb. 391, 186 N.W. 371; Metzger v. Metzger, 108 Neb. 613, 188 N.W. 229. We point out that there is no evidence in the record of a treaty between the United States and Czechoslovakia affecting the rights of the parties.
By escheat is meant a reversion or forfeiture of property to the state upon the happening of a designated chance event or default. It is one of the incidents of state sovereignty and it cannot be surrendered unless the intention to do so is clearly and unequivocally expressed. A failure of heirs is ordinarily the event which brings about an escheat to the state, but others may be provided by statute. The law of escheat must be complied with strictly, otherwise it will not be enforced. It seems clear, under the provisions of section 76-401, R.R.S.1943, that, on the death of a citizen who leaves only alien kindred, his real property that is not within any of the exceptions specified by statute reverts to and vests in the state at the death of such citizen without the necessity of affirmative legal action as evidenced by the words 'without an inquest or other proceedings in the nature of office found.'
After the death of James Semrad a petition for the appointment of an administrator of his estate was filed on October 28, 1954. An administrator was duly appointed and, on August 7, 1958, a decree of final settlement was entered by the county court of Saline County. By this decree the heirs of James Semrad were determined and the residence of each shown to be in Czechoslovakia. The decree further provided that said lands should be assigned subject to the laws of the state requiring that such lands be sold by such alien heirs within 5 years from September 14, 1954, the date of the death of James Semrad.
The record further shows that the Attorney General of Nebraska was served with notice of the probate proceeding. On June 28, 1955, the State by the Attorney General intervened, asserting a reversion to the State by escheat. On July 10, 1958, the Attorney General withdraw the State's petition in intervention. The contention is advanced that the State lost any rights it may have had because of the filing and subsequent withdrawal of the State's petition in intervention.
There are at least three reasons why this position cannot be sustained: (1) Because the Attorney General has no authority to waive the rights of the State or to consent to the alienation of the vested interest of the State which it acquired on the death of James Semrad. State v. Lancaster County Bank, 8 Neb. 218; Chicago, B. & Q. R. R. Co. v. Hitchcock County, 60 Neb. 722, 84 N.W. 97; Custer County v. Chicago, B. & Q. R. R. Co., 62 Neb. 657, 87 N.W. 341; Anstine v. State, 137 Neb 148, 288 N.W. 525; State ex rel. Goodsell v. Tunnicliff, 169 Neb. 128, 98 N.W.2d 710. (2) Because the real estate escheated and reverted to the State by operation of law on the death of James Semrad. State ex rel. Roberts v. Reeder, 5 Neb. 203; In re Estate of O'Connor, 126 Neb. 182, 252 N.W. 826. (3) Because that while the decree of heirship may properly adjudicate who are the children or next of kin of the deceased, it does not determine the title to real estate, and adverse claims involving the title to real estate cannot be litigated in the proceeding. Fischer v. Sklenar, 101 Neb. 553, 163 N.W. 861; In re Heirship of Robinson, 119 Neb. 285, 228 N.W. 852; Edington v. Paulsen, 131 Neb. 198, 267 N.W. 422; Lutcavish v. Eaton, 166 Neb. 268, 89 N.W.2d 44.
The record further shows that two of the alien heirs of James Semrad, on June 29, 1959, filed a partition suit in the district court for Saline County to procure an apportionment of the land among the foreign heirs according to their respective interests therein and, in case an apportionment could not be had without prejudice to the rights of such heirs, then for the sale thereof and a division of the proceeds in accordance with their respective interests. The proceeding resulted in a sale of the property to Warren H. Cerny and Joseph F. Belohlavy for $20,500. The sale was confirmed on August 4, 1959. The referee closed the transaction with the purchasers on September 2, 1959, at which time the purchase price was paid and deeds delivered. On September 11, 1959, the State by its Attorney General, with leave of court, filed its petition in intervention asserting that the lands escheated to the State and praying that the title thereto be quieted in the State. On September 9, 1959, the purchasers moved for an order vacating the order of distribution in favor of the alien heirs, which the court sustained on September 22, 1959. The proceeds of the sale still remain in the hands of the referee pursuant to such order awaiting the final determination of the litigation.
Under the authorities hereinbefore cited, the lands in question escheated to and vested in the State on the death of James Semrad. The State has not been made a party to any action having the effect of divesting the State's interest therein. We necessarily conclude that the State is the owner of the lands involved and that the trial court erred in dismissing its petition...
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