Ware v. Wisner

• Decision Date: 01 February 1883
• Citation: 50 F. 310
• Parties: WARE v. WISNER.
• Court: United States Circuit Court, District of Iowa

50 F. 310

WARE v. WISNER.

United States Circuit Court, D. Iowa.

February, 1883

McKenzie & Hemingway, for complainant.

John Porter and William Phillips, for respondent.

MCCRARY Circuit Judge.

My conclusions in this case are as follows: 1. The validity of the will under which the respondent claims title must be determined according to the law of Iowa, where the land is situated. 1 Redf.Wills, p. 398; Lynch v. Miller, 54 Iowa, 516, 6 N.W. 740.

2. By the law of Iowa, as interpreted by the supreme court of the state, the will was revoked by the birth of an heir after it was executed. McCullum v. McKenzie, 26 Iowa, 510; Negus v. Negus, 46 Iowa, 487; Fallon v. Chidester Id. 588; Carey v. Baughn, 36 Iowa, 540.

3. The probate of the will in Iowa, while it settles the question of its due execution, does not conclusively establish its validity, or determine its force and effect, when title to real estate is claimed under it. Fallon v. Chidester, supra and authorities cited.

4. I am furthermore of the opinion (1) that the will does not cover the land in controversy, and (2) that by a fair construction of section 2493, Revision 1860, an alien non-resident could take nothing by will unless such alien, subsequently to the making of the bequest, became a resident. Krogan v Kinney, 15 Iowa, 242.

5. It follows that as to the land in controversy there is no valid will, and the same is to be disposed of according to the Iowa law of descent.

6. It is the settled law of Iowa that non-resident aliens could not inherit under the statute in force at the time of the death of Asahel Gage. Krogan v. Kinney, supra; Rheim v. Robbins, 20 Iowa, 45; Brown v. Pearson, 41 Iowa, 481; King v. Ware, 53 Iowa, 97, 4 N.W. 858.

7. I find that Sarah Cummings and Elizabeth L. Cummings, daughters of said Asahel Cummings, were capable of inheriting by reason of the citizenship of their husbands, which determines their own. Rev. St. U.S. Sec. 1994; Kelly v. Owen, 7 Wall. 496; Bish. Mar. Wom. Sec. 505. It appears that the husbands were both born of parents who were citizens of the United States. They were therefore citizens of the United States by birth. Rev. St. U.S. Sec. 2172. It does not appear that they ever renounced their citizenship, within the rule laid down in Talbot v. Janson, 3 Dall. 133. Neither the father nor the sons ever ceased to be citizens of the United States, within the doctrine of expatriation as laid down in that case.

8. It follows from the foregoing conclusions that the title to the land in controversy at the death of Asahel Gage vested in John M. Gage, James D. Gage, Sarah Cummings, and Elizabeth L. Cummings, each being entitled to the undivided one-fourth thereof.

9. As complaint, Ware, is the owner by purchase and conveyance of the...