Kolbow v. State, 119 P. 791

Kolbow v. State

119 P. 791 | Mont. | 1911

MR. CHIEF JUSTICE BRANTLT

delivered the opinion of the court.

Charles Colbert died intestate in Silver Bow county on February 14, 1901. He left an estate, consisting of real and personal property, of an estimated value of $45,000. Of this total $4,000 was money on deposit. The real estate is described as “about sixteen acres of land, being'portions of survey Nos. 996 A. B. and C, Emery Placer, and Survey No. 1702, Otisko Lode, excepting portions of the surface, which do not belong to the estate.” The estate has been in process of administration by the district court of Silver Bow county, and has not yet been closed. So far as was ascertainable at the time of his death, the deceased left no known heirs, either in the direct or collateral line, and as yet no one has established a right to the succession. On April 27, 1909, Johann Kolbow and thirty-four other persons, residents of the German empire, filed their complaint under the provisions of sections 7670 and 7671, Revised Codes, alleging that the true name of the deceased was Frederick Carl Kolbow; that they are his heirs and entitled to the succession, and praying that the court ascertain and declare their rights. The state of Montana appeared through the attorney general and answered, controverting the alleged rights of the petitioners, upon the assumption thát, the intestate having died without heirs, the property belonging to his estate has escheated to the state of Montana. It is also alleged that the petitioners are and always have been foreigners residing in Germany, and that they are barred from asserting any claim of right to succeed to the estate by the provisions of section 4835, Revised Codes. Jay Cross Busch and other persons also filed an answer. They put in issue all the allegations of the complaint, and allege that the claims of plaintiffs are barred by the provisions of the statute. They then aver that they are the sole surviving heirs of the deceased, and ask that their rights as such be determined, and that the estate be distributed to them. This answer also alleges *265other matters which are not now pertinent. The plaintiffs replied, joining issues on both answers. Thereafter, on April 26, 1910, in order to avoid the expense of producing evidence, counsel representing all the parties entered into a stipulation, by the terms of which they agreed to submit to the court for decision in advance of the trial the question, among others not now important, whether the claims of plaintiffs are barred by the provisions of the statute, supra, each party reserving the right to appeal from the judgment rendered on this decision. The court held in favor of the defendants, aad rendered and entered judgment dismissing the complaint. The plaintiffs have appealed from the judgment and an order denying their motion for a new trial.

It is argued that the court erred in sustaining the contention of defendants, for that the limitation prescribed by the section of the statute supra, is repugnant to section 25, Article III, of the state Constitution. The statute declares: “Sec. 4835. Resident aliens may take in all cases by succession as citizens; and no person capable of succeeding under the provisions of this title is precluded from such succession by reason of the alienage of any relative; but no nonresident foreigner can take by succession, unless he appears and claims such succession within five years after the death of the decedent to whom he claims succession.” The section of the Constitution is as follows: “Aliens and'denizens shall have the same right as citizens to acquire, purchase, possess, enjoy, convey, transmit and inherit mines and mining property, and milling, reduction, concentrating and other works, and real property necessary for or connected with the business of mining and treating ores and minerals: Provided, that nothing herein contained shall be construed to infringe upon the authority of the United States to provide for the sale or disposition of its mineral and other public lands.”

In their brief' counsel for appellants state their position as follows: “Aliens are put upon the same footing as citizens of this state as to the inheritance of mines and mining property. The heirs at law of the deceased intestate became vested with the constitutional right of inheritance immediately upon the *266death of the deceased, and this right is not based upon conditions, and legislative bodies cannot take away this right granted by the Constitution. The alien upon inheriting mines and mining property need not make a residence within the state; he need not sell his estate; he need not take actual possession of it; his right becomes an absolute fee; and he can do with it as he will. ’ ’ They then proceed to argue that, since the right to take the inheritance vests at once upon the death of the intestate, the legislature in enacting section 4835, supra, has in effect destroyed the right, or has imposed a condition which is prohibited by the provision of the Constitution.

That the right of the heir to take vests at once upon the death of the intestate cannot be doubted. This we believe is the rule everywhere. It has been expressly recognized by the legislature; but the property, the subject of the inheritance, in whatever form it may be, goes into the control of the district court and the possession of the administrator for the purposes of administration. (Bev. Codes, sec. 4819.) It becomes the duty of the administrator to take possession as soon as he is appointed, and to make and return to the court an inventory and appraisement of all property which comes into his hands. (Section 7493.) The purpose of these provisions and others found in the Codes touching the administration and distribution of estates is to have judicially determined and discharged the claims of creditors, to which are postponed all other claims, and then to have ascertained those who are entitled to the residue of the estate, if any, and secure distribution to them.

The right to inherit, resting as it does in public policy, is dependent entirely upon the will of the legislature, except in so far [1] as its power is restricted by constitutional provisions. Therefore no one has the natural right to be the future heir of a living person. (14 Cyc. 25.) So an alien or foreigner may not inherit lands or take by law, except by grace of the state where the land is situated. (Blight’s Lessee v. Rochester, 7 Wheat. 535, 5 L. Ed. 516; Orr v. Hodgson, 4 Wheat. 453, 4 L. Ed. 613; Jackson v. Fitz Simmons, 10 Wend. (N. Y.) 9, 24 Am. Dec. 198; Norris v. Hoyt, 18 Cal. 217; McClenaghan v. McClen *267aghan, 1 Strob. Eq. (S. C.) 295, 47 Am. Dec. 532; Yeaker’s Heirs v. Yeaker’s Heirs, 4 Met. (Ky.) 30, 81 Am. Dec. 530; Furenes v. Mickelson, 86 Iowa, 508, 53 N. W. 416; King v. Ware, 53 Iowa, 97, 4 N. W. 858; Andrews v. Spear, 48 Tex. 567.) The legislature may, therefore, in conferring the right upon nonresident foreigners, which it has done by conferring the right [2] uipon citizens to take by inheritance, impose any condition or burden it pleases, even after the right has vested and before the subject of the inheritance has actually reached the hands of the heir, so long as it does not deny due process of law. (Gelsthorpe v. Furnell, 20 Mont. 299, 51 Pac. 267, 39 L. R. A. 170.)

The provision of the Constitution, supra, goes no further than to put aliens and denizens on the same footing as citizens in granting the right to inherit. In other words, since citizens have the right, aliens and denizens also have it. -The provision is not a limitation upon the power of the legislature to impose upon it the condition prescribed in section 4835 of the statute, supra, or any other condition which it may deem necessary to prescribe in order that estates may be properly administered and [3] distributed. This provision is a statute of limitations which does not affect in any way the right conferred. It deals with the remedy only, and, being remedial in its nature, is not in any wise repugnant to the provision of the Constitution.

The Constitution of California contains a provision granting to foreigners of the white race eligible to become citizens of the United States under the naturalization laws the same right to inherit as native-born citizens possess. Section 672 of the Civil Code provides: “If the nonresident alien takes by succession he must appear and claim the. property within five years from the time of succession or be barred.” In considering these provisions, the supreme court of that state, in Estate of Billings, 65 Cal. 593, 4 Pac. 639, said: “It is contended that under the section of the Constitution above quoted [Const., Art. I, sec. 17] the whole of the estate of the deceased vested in the heirs who were residents of the state at the time of his death, to the exclusion of those who were not then residing in the state. It is true that such would have been the effect of the constitutional *268provision had there been no legislation, operative at the time of the death of the intestate, extending the right of succession or inheritance to nonresident alien heirs. The Constitution did not inhibit such legislation. It was so held in State v. Rogers, 13 Cal. 160, under the Constitution of 1849, in which was a section (sec. 17, Art. I) similar, as far as this question is concerned, to the one referred to and quoted above from the present Constitution. We see no violation of the Constitution in the sections of the Civil Code above quoted, extending the right of inheritance to nonresident aliens.”

Statutes of limitations are statutes of repose. Their object is to suppress fraudulent and stale claims which it is sought to [4] enforce after the lapse of time, during which witnesses have died or removed and the evidence touching the transaction has faded from memory or has been destroyed. That it is within the power of the legislature to enact them cannot now be questioned, and they are in all cases to which they apply honorable and legitimate defenses. (Anaconda Min. Co. v. Saile, 16 Mont. 8, 50 Am. St. Rep. 472, 39 Pac. 909; 1 Wood on Limitations, sec. 4.) The legislature may make them applicable even to vested rights, provided only it accords to the citizen a reasonable time in which his right may be enforced. (1 Wood on Limitations, sec. 12; Guiterman v. Wishon, 21 Mont. 456, 54 Pac. 566; De Moss v. Newton, 31 Ind. 219.)

But it is said that the statute discriminates between resident foreigners and citizens, and is therefore class legislation. By this we understand that counsel mean that it is repugnant to section 2 of Article IY of the Constitution of the United States, [5] which provides that “the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states.” This contention is.without merit. Assuming that it may be invoked by foreigners residing in other states of the Union, it has no reference to foreigners who have never been residents of any one of the states.

Furthermore, the legislature in the enactment of such statutes [6] may lawfully discriminate between citizens of the different states. Such a discrimination is made by section 6458 of the *269‘Revised Codes, which provides that, when a cause of action accrues against a person who is at that time a nonresident of the state, the action to enforce it may be commenced against him within the term provided by the section applicable to that character of case, after he returns to the state, and that if, after the cause of action accrues, he departs from the state, the time of his absence is not to be computed as a part of the time limited for the commencement of the action. Similar provisions are found in the statutes of other states, yet they are held not repugnant to this provision. (Chemung Canal Bank v. Lowery, 93 U. S. 72, 23 L. Ed. 806; Meek v. Meek, 45 Iowa, 294; Hawse v. Burgmire, 4 Colo. 313.)

The judgment and order are affirmed.

Affirmed.

Me. Justice Smith and Mr. Justice Holloway concur.