Stemple v. Herminghouser

3 Greene 408

• Court: Supreme Court of Iowa
• Decided: May 15, 1852
• Status: Published

Opinions

Opinion by

Kinney, J.

Christian William Stemple, a native of Prussia, imigrated to the State of Iowa, and purchased about eleven hundred and seventy-eight acres of land in Lee county. On the 23d day of October, 1849, Stample died intestate, leaving a number of children residents of the United States, and also a number natives of, and residents in Prussia.

.Herman Stemple, one of his said children, residing in Lee county, Iowa, filed a petition in the district court, praying for a partition of the lands of said Christian William Stemple, deceased, and an allotment of the same among his children residing in the United States at the time of his death; and alleging that the other children residing in Prussia at that time, wore not entitled to any interest in the said lands.

Notice of the jiendency of this petition was given to all the children of said Stemple residing in this country, and without any other, or further notice by publication or otherwise to the wra-resident children, application was made for the appointment of commissioners to divide and allot said lands. This application the court refused, on the ground, that notice should have been given to the nonresident children of said Stemple. The bill of exceptions however, shows that a decree was rendered against the petitioner pro' forma, in order to have the question definitively settled by tliis court.

The only question presented for decision is, can nonresident aliens take land by descent in this State. This question is easily answered, unless by constitutional provision, or legislative enactment, the rule at common law has been changed. It is the well settled doctrine of the books, that at common law, an alien cannot acquire a title to real property by descent, or created by other mere operation of law. Calvin’s Case, 7 Co., 25 a., 1 Vt., R., 417; Jackson v. Lunn, 3 John. Cases, 109; Hunt v. Warwike, Hardin’s R. R. 261. The law qucs nihil frustra ¡never casts the freehold upon an alien heir who cannot keep it. Therefore where a person dies, leaving issue who are aliens, the latter are not deemed his heirs at law. They have no inheritable blood, and the estate descends to the next of kin who have inheritable blood, in the same manner, as if no such alien issue were in existence. Orn v. Hodgson, 4 Wheat. 453; Jackson v. Green, 7 Wend. 333; Jackson v. Fitz Simmons, 10 ib, 9.; Orser v. Hoag, 3 Hill, 79; 2 Kent Com., 3d ed. 53.

It is a general rule, that even a natural born subject, cannot take by representation from an alien, because the alien has no inheritable blood through which a title can be deduced. If therefore a person dies intestate, without issue, and leave a brother who had been naturalized, and a nephew who had been naturalized, but whose father died an alien, the brother succeeds to the whole estate, for the nephew is not permitted by the common law to trace his descent through his alien father. Levi v. McCarty, 6 Peters U. S. R. 102; 2 Kent, 54. It has also been held upon good authority, that, though an alien be afterwards naturalized, he cannot secure the estate, and this for the reason, that the fee will not rest in abeyance. The capacity to take must exist at the time the descent happens. Naturalization may confirm a defective title, but will not confer an estate.

It may be assumed as the settled doctrine of the common law, that an alien can never take by the act of the law, as by descent, for he has no inheritable blood. 4 Black Com. 249; Fairfax v. Hunter, 7 Cranch 603, 619; Vanx v. Nesbit, 1 McCord, Ch. R. 352; Orr v. Hodgson, 4 Peter Cond., 506; 2 Black. Com., 149. It is clear then, that at common law those children of Christian William Stemple, who were alien foreigners at the time of his death, were not, nor could they be heirs to the estate in Iowa, and therefore had no interest in the proceeding for partition, and should not have been made parties, or notified by publication. Does our constitution change this rule, andaré they by that instrument endowed with an inheritable capacity? The ordinance of 1181, and statutes of the Territory of Iowa including those of Michigan, and Wisconsin in force in the Territory, did not alter the rule of the common law. Neither by common law, nor by these statutes, could alien residents, or non-residents take land by descent.

The statute regulating the descent of property in Iowa, at tire adoption of the constitution, was that of February 13, 1843, and provides that the lands of any person dying intestate, shall descend in equal shares to his children. This evidently means, such children as have inheritable blood; for it being an inflexible rule at common law, that aliens, resident or non-resident, are not heirs, cannot take-by descent, nothing less than a plain and express provision in relation to them will change this rule. Then at the adoption of the constitution the common law doctrine prevailed.

The 22 §, 1 Art., is as follows: “ Foreigners who are, or who may hereafter become residents of this State, shall enjoy the same rights in respect to the possession, enjoyment and descent of property, as natural born citizens.”

Here is a material change in favor of the foreigner. It being a part of the wise policy of our government to encourage the emigration and settlement of foreigners; to place them as nearly as possible upon an equal footing with native born citizens, to secure to them the possession and inheritance of real property, this wholesome provision was engrafted into the fundamental law of the state. But it will be observed that this applies only to resident foreigners, and those who may become resident. Before the adoption of the constitution none, except native and adopted citizens, could inherit by descent. Since the constitution, resi dents, though aliens, occupy the same position, in this respect, as native born citizens. So far as non-resident aliens are concerned, while they remain such, the common law is unchanged. If they become residents of Iowa, they then enjoy the same rights of property as native born citizens.

But it must not be supposed from this, that the children of Stemple, in Prussia, at the time of his death, could come here and claim a portion of this property. It is necessary that foreigners, claiming to take land by descent, should be resident here at the time of the descent cast. Air estate rests in the heirs at law immediately on the death of the ancestor. It does not remain in abeyance; if it did, it might always so remain. They'certainly cannot share the estate while they remain in Prussia; and can it be conjectured that they may become residents of Iowa, and upon that conjecture suspend the operation of the descent? We think the constitution means no such thing, but it merely places those foreigners who were in the State at the time of its adoption, and those who should afterwards come in as residents, upon the same equity. The right to inherit depends upon the existing state of allegiance at the time of the descent cast, and the capacity to take must then exist. Orser v. Hoag, 3 Hill., 79; People v. Conklin, 2 Hill., 67.

We are of the opinion that the court erred in deciding that the children in Prussia were entitled to notice.

Judgment reversed.