Krogan v. Kinney

Supreme Court of Iowa

Krogan v. Kinney

15 Iowa 242, 1863 Iowa Sup. LEXIS 77

CourtSupreme Court of Iowa

DecidedOctober 15, 1863

StatusPublished

Cited by8 cases

This text of 15 Iowa 242 (Krogan v. Kinney) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Krogan v. Kinney, 15 Iowa 242, 1863 Iowa Sup. LEXIS 77 (iowa 1863).

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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 [243]*243alien 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 referred to, opens the door to the non-resident foreigner, to all the rights of ownership of property by descent or otherwise, equally with the resident alien. The careful reader will observe at once that this construction of the act is inadmissible, and that it is limited by the very character of its provisions to aliens who reside in the United States and this State, that have not yet become citizens by naturalization; except, perhaps, the last section (to which we have already alluded), where a .non-Tesident may inherit property b,y devise, upon the condition therein specified.

On the trial of this cause below, the Court-held adversely to the right of plaintiffs to have partition with’ the defendant, of the property designated in the petition, upon the ground that, as non-resident foreigners, they cannot inherit real property in this State. This decision reflects the law of the case, and it is

Affirmed.

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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 [243]*243alien 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 referred to, opens the door to the non-resident foreigner, to all the rights of ownership of property by descent or otherwise, equally with the resident alien. The careful reader will observe at once that this construction of the act is inadmissible, and that it is limited by the very character of its provisions to aliens who reside in the United States and this State, that have not yet become citizens by naturalization; except, perhaps, the last section (to which we have already alluded), where a .non-Tesident may inherit property b,y devise, upon the condition therein specified.

On the trial of this cause below, the Court-held adversely to the right of plaintiffs to have partition with’ the defendant, of the property designated in the petition, upon the ground that, as non-resident foreigners, they cannot inherit real property in this State. This decision reflects the law of the case, and it is

Affirmed.

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15 Iowa 242, 1863 Iowa Sup. LEXIS 77, Counsel Stack Legal Research, https://law.counselstack.com/opinion/krogan-v-kinney-iowa-1863.

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