This сase presents for consideration the question whether or not the United States of America is competent to take .property by devise in the state of Oregon.
On May 14, 1941, the testatrix's heirs at law, who are her nephews and nieces, petitioned said county court to decree that the devise and bequest to the United States is null and void, on the grounds (a) that the United States has no right, power or authority to accept such devise and bequest, and (b) that the United States has not accepted said devise and bequest, “although a reasonable time to do so has long since elapsеd and expired ”.
On. June 20, 1941, the United States petitioned said court for an order directing the executor of said estate to proceed with the closing of the estate and the distribution of the assets thereof as in said will provided.
On July 11, 1941, the heirs at law answered the petition of the United States, and, for affirmative answer, contеsted the right of the United States to take under the residuary devise and bequest, upon the same grounds as set forth in the petition of said heirs theretofore filed.
On April 9, 1943, the county court on its own motion transferred the matter to the circuit court for'Douglas County. On April 30, 1949, the circuit court entered its decree dismissing the contest of the hеirs at law, and declaring that the residuary devise and bequest in favor of the United States was valid, and that the United States should have a reasonable time thereafter
The heirs contend that § 18, article I of the Oregon constitution, which provides that private property shall not be taken for public use without just compensation, “automatically excludes the granting of property” to the government by will or gift. It should require no argument to show that the cited section has reference only to a “taking” under the power of eminent domain, and has nothing whatever to do with taking of title to real property by devise.
The validity of a devise of lands to the United States is to be determined by the law of the state in which the lands are situated. Clark v. Graham,
By the law of Oregon as it was when this will was executed, every person of lawful age was competent to devise and bequeath his prоperty by last will to whomsoever he pleased. § 18-101, O. C. L. A. This he might do without regard to natural claims upon his bounty. Turner’s Will,
It is fundamental that the right to take property by devise exists only “by grace of the statute”. Leet v. Barr, et al.,
No serious contention is made that the "United Stаtes does not have the capacity to take money or personalty by gift or bequest. The argument is centered apon the proposition that, under the laws of Oregon, the testatrix did not have power to devise real property to the United States. In this connection, it is insisted that the limitation on the power tо ■ devise real property to bodies corporate or politic contained in the English Statute of Wills, 34-35 Henry VIII, c. 5, is a part of the law of Oregon.
There can be no question, of course, but that the United States is a body politic, but that it is such a body “politick” as was prohibited by the English'Statute of Wills from taking by devise may be seriously questioned. The king, it is true, was for some purposes regarded as a corporation sole. 1 Bl. Comm. 469. He was so regarded in order “to prevent in general the possibility of an interregnum or vacancy of the throne, and to preserve the possessions of the crown entire”. Id., 470. But the king, at least in the sixteenth century, was not identified with the state. “He and hi's subjects together were the ‘great corporation or body politick of the kingdom’.” Holdsworth, History of English Law, IV, 203. The king had both a natural and a politic capacity, Id. 202, and we have been unable to' find any suggestion in the books that, in his natural; capacity, he-was forbidden by law to take property.-by gift, bequest or devise: It was held in United States v. Fox, supra (
There are few statutory restrictions in the United States against the taking of real property by public corporations by devise. Rood on Wills, 2d Ed., p. 159, § 200. In the absence of statutоry or constitutional prohibition a sovereign state may be a beneficiary under a will. 68 C. J., Wills, p. 527, § 146; 57 Am. Jur., Wills, p. 142, § 157. In Vestal et al. v. Pickering, et al.,
We have held that by force of our constitution and statutes (§7, Art. XVIII, Oregon Const.; Law of Oregon, 1843-1849, p. 100) the common law of England, modified and amended by English statutes, as it existed at the time of the American Revolution, was adopted and is in force in this state, as far as it was general and not local in its nature, Avas applicable to the conditions of the people, and Avas not incompatible with the nature of our рolitical institutions, or in conflict with the constitution and laws of the United States or of this state. United States F. & G. Co. v. Bramwell,
In Dickson v. United States,
Counsel amici curiae place emphasis upon the recent case of In re Burnison’s Estate, Cal. App.
“A testamentary disposition may be made to the state, to counties, to municipal corporations, to naturаl persons capable by law of taking the property, to unincorporated religious, benevolent or fraternal societies or associations or lodges or branches thereof, and to corporations formed for religious, scientific, literary, or solely educational or hospital or sanatorium purposes, or primarily for the public preservation of forests and natural scenery, or to maintain public libraries, museums or art galleries, or for similar public purposes. No other corporation can take under a will, unless expressly authorized by statute.”
The Supreme Court of California adhered to the gеneral rule that the right to make a testamentary disposition of property is not an inherent right, but one derived entirely from the statute. It was of the opinion
Counsel for the government suggest that the Secretary of the Treasury is the officer whose department has the constitutional authority to represent the government in the present case. We agree. 1 Stat. 65. See also 53 Stat. 753, authorizing the Secretary of the Treasury to accept certain real estate devised to the United States, and 40 U. S. C. A., § 304, authorizing the Secretary of the Treasury “to sell such lands as have been or may be acquirеd by the United States by devise”.
Counsel for the government argue that, the constitution and laws enacted in pursuance thereof being the supreme law of the land, a holding that the United States cannot take property by devise or bequest would unlawfully discriminate against the United States in violation of article VI of the United States Cоnstitution. The same argument was implied on the part of the government in United States v. Fox, supra (
The devise to the United States is not void for non-acceptance by the devisee within a reasonable time. Counsel, contending to the contrary, rely upon an opinion of the Attorney General of the United States, 39 Opin. Att. Gen., 1937-1940, p. 377, in which he ruled as follows:
“Devises to the United States, permitted by local law but coming within no Federal statute, are sometimes made, and in connection therewith this Dеpartment enters appearances in the courts to protect the interests of the Government with the understanding, however, expressly stated when the question is raised, that acceptance or rejection is dependent upon the Congress and that the Congress is entitled to a reasonable time within which to act. ’ ’
In the present case, the will was admitted to probate May 23, 1940, and on June 20, 1941, the United States, through its attorney for the District of Oregon, appeared in the probate proceedings by petition for distribution of the residue of the estate to the United States. This, we hold, was a timely indication of acceptancе, or at least of nonrejection.
Of course, the devise to the United States could, have been renounced or rejected, but, being one which was beneficial to the devisee, and being coupled with no onerous exactions, there is a presumption that it
This court has held that title to all realty passes upon the death of the owner to his devisees in the event that he died testate, otherwise to his heirs, subject only to the right of the executor or administrator to possession thereof for the payment of debts and bequests of the decedent. Blake v. Blake,
The doctrine of laсhes is invoked against the United States for having failed to make timely assertion of its rights in the premises. By the weight of authority, laches is not imputable against the government, state or national, in a proceeding by it to protect a public interest. State v. Vincent,
Counsel for the government suggest that the decree should be modified so as not to require an accept
We find no error on the record. The decree is affirmed. No costs will be allowed to any party.