Ware v. Wisner

50 F. 310

• Court: U.S. Circuit Court for the District of Iowa
• Decided: February 15, 1883
• Status: Published

Opinion

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 laws of Iowa, where the land is situated. 1 Redf. Wills, p. 398; Lynch v. Miller, 54 Iowa, 516, 6 N. W. Rep. 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 By the law of Iowa, as interpreted by the supreme court of the state, the will was revoked by the birth of an heir after it was executed.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. Rep. 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. § 1994; Kelly v. Owen, 7 Wall. 496; Bish. Mar. Worn. § 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. § 2172. It does not appear that they ever renounced their citizenship, within the rule laid down in Talbot v. Janson, 3 Dali. 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 complainant, Ware, is the owner by purchase and conveyance of the interests of John M. and James D. Gage, he is entitled to a decree confirming and quieting his title to the undivided one-half of said land; and as the respondent, Wisner, is the owner, by purchase and conveyance, of the interest of the said Sarah Cummings and Elizabeth L. Cummings, he is entitled to a decree confirming and quieting his title to the remaining undivided one-half thereof. 1

10. The decree will be to quiet the title to one undivided half of the land in complainant, Ware, and to the other undivided half thereof in respondent, Wisner, and the costs will be equally divided between them.