Meier v. Lee

76 N.W. 712, 106 Iowa 303

Opinion

Given, J.

1 I. 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 Hnited 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-brother, had also died, both being ■citizens of the Hnited 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 non-inheritable blood, than can be expressed in words:

EXHIBIT E.

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 tbe 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 rights of ■.appellees, the Paulson family, to share in the estate. It will 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 non-resident 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 Twenty-second General Assembly, 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 o.f 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, wherein it is said: “Whatever the plaintiff or any other heir of the intestate takes, he takes directly from the intestate, and not otherwise. Nothing, in fact, intervenes between the death of the intestate and the transmission of his estate to his heirs. The survivorship of the parents is a fiction. We suppose it to determine the descent.” In that case there was no question of alienage to intervene, the persons all being citizens. It was held that the will of the intestate’s father, who died before him, did not convey property which belonged to his son, and that such property constituted no part of the father’s' estate; therefore, there was no fact in the case to intervene between the death of the intestate and the transmission of his estate to his heirs. Moore v. Weaver, 53 Iowa, 11, and In re Parker’s Estate, 97 Iowa, 593, also cited, are not in point. The case of Furenes v. Michelson, 86 Iowa, 508, is so nearly like this in its facts, and under the same statute, that we think it controlling in this case. “Thor Olson, the decedent, was a brother of Steine Olson, who is also deceased. Steine Olson was the grandfather of the plaintiff, but his son, the father of the plaintiff, is living, and is, and always has been, a non-resident alien.” From this statement of the facts of that case it will be observed that it only differs from this in that the father of the plaintiff was living; while in this the mother of the appellants died before the intestate. This, however, cannot, under said section 2457, make any difference. In that case, after considering the distinction between mediate and immediate descent, this court said: “The case of the plaintiff must be determined according to his pedigree. The descent from, the decedent to him is not immediate, but mediate, through his father. As the latter had no inheritable blood, the plaintiff has acquired from him no right of inheritance. If chapter 86 of the Acts of the Twenty-Second General Assembly Had not been enacted, the father would have inherited the interest now in controversy. That .act took from him the right of inheritance, but did not confer it upon the son.” In Burrow v. Burrow, 98 Iowa, 400, we said that in Furenes v. Michelson, supra, “we held that a resident whose father was a non-resident alien could not inherit through his father’s brother, who was a resident of the state, since he would derive his title mediately, through his father, and not immediately, through Ms uncle; and that, by reason of the provisions of the act of the Twenty-Second general assembly before quoted, the resident derived no title to the land in dispute.” Counsel on both sides have argued this question with marked care and ability,, and with many citations of authorities; but as the case rests-upon our own statutes, which have been fully construed, we do-not refer to other than Iowa cases. Following Furenes v. Mickelson, supra, we hold that the descent to appellants is mediate, and that they cannot take through their alien mother, as she could not have taken if alive, because of the provisions of said section 1, chapter 85, Acts Twenty-second General Assembly.

2 II. Appellants cite the treaty of 1783, between the-king of Sweden and the United States (page 1042, Treaties and Conventions Between the United States and Other Powers), and insist that, under article 6 thereof, appellants’' mother was not disqualified from inheriting an interest in-this land. Article 6 contains the following: “The-subjects of the contracting parties in the respective states may freely dispose of their goods and effects, either by testament, donation, or otherwise, in favor of such persons as they think proper; and their heirs, in whatever place they shall reside, shall receive the succession even ah iniestato, either in person or by their attorney, without having occasion to take out letters of naturalization.” Conceding that this treaty is still in force, — a matter we do not determine,— we are of the opinion that it does not apply to lands. “Goods:. A valuable possession or piece of property; especially, and almost universally, in the plural, goods, wares, commodities,, chattels.” “Effects: Goods, movables, personal estate.” Webster. “Goods and effects” have never been held to include real estate. The demurrer was properly sustained, and the decree is therefore affirmed.