167 Iowa 489 | Iowa | 1914
One James Murray, a resident .of Franklin county, Iowa, died intestate March 1, 1908, and S. Y. Eggert became the duly qualified administrator of his estate. After paying all proved claims and .charges, there was left in the administrator’s hands, for distribution, the sum of $7,853.99. No person being found entitled to receive said fund as an heir of the deceased, it was adjudged to be an escheat to the state, and an order was entered by the district court, under date of November 22, 1910, directing the administrator to pay over to the treasurer of state the entire unexpended remnant of the estate. Pursuant to said order the administrator did on April 21,1911, pay to said treasurer the full sum of $7,853.99. On October 9, 1911, the plaintiff herein, Mary Ann McKeown, filed a petition in the district court setting up the facts above recited, alleging that she was and is the sole heir of the said James Murray, and as such entitled to have and receive the entire estate left by him, subject only to the proper charges and expenditures necessary to the settlement thereof. To this proceeding she made the treasurer of state and the auditor of state defendants, alleges that she is informed and believes that the treasurer has paid the funds derived from said estate into the hands of said auditor, who has present possession thereof; and upon the showing thus made she asks a decree requiring said defendants to make accounting of the moneys so received, and that they be ordered to pay the same into the office of the clerk of the district court, or to such other person as the court may direct, for her use and benefit, and for such other order or judgment as may be just and equitable in the premises. The treasurer appeared to this proceeding, and after filing a motion to dismiss, which is not shown to have been ruled upon, answered that, acting under authority of
The propositions argued upon the behalf of defendants are as follows:
The story told by plaintiff is' to a material extent corroborated by a witness having some personal acquaintance with the family many years ago and various corroborating circumstances of later occurrence. No one appears to dispute her right of inheritance; there is no rival claimant; no witness is called to deny the truth of any statement; and there is nothing inherently incredible or suspicious in her story. We think the conclusion reached on this point by the trial court is amply justified.
II. Next in order of presentation by counsel is the question concerning the assessment of a collateral inheritance tax.
Were this all to which we are required to look, we should have no difficulty in affirming the assessment made by the trial court, but plaintiff makes the point that, under the treaty existing between this nation and Great Britain, the provision in our statute discriminating against nonresident aliens has no application, and she is bound to pay no more than would have been required of her had she been a resident of this state. It is elementary that treaty provisions between the United States and a foreign nation have force and effect paramount to acts of state legislation, and, if the treaty which the plaintiff invokes does prohibit the discrimination, of which she complains, it is our duty to respect such limitation upon the power of the state and hold that this estate is liable to a charge of five per cent, and no more. The treaty provision to which we must look reads as follows:
When on the death of any person holding real property (or property not personal) within the territories of one of the contracting parties, such real property would, by the law of the land, pass to a citizen or subject of the other, were he not disqualified by the laws of the country where such real property is situated, such citizen or subject shall be allowed a term of three years in which to sell the same, this term to be reasonably prolonged if circumstances render it necessary, and to withdraw the proceeds thereof, without restraint or interference, and exempt from any succession, probate or administrative duties or charges other than those which may be imposed in like cases tvpon the citizens or subjects of the country from which such proceeds may be drawn.
This estate escheated. While under other circumstances the title to real property passes instanter from deceased, at the
We think the argument unsound, and that the failure of the plaintiff to discover and assert her right as heir until after the fund arising from the sale of the land had been ordered paid over to the state treasurer could not have the effect to change the elementary rule that, upon death of its owner intestate, the title to his lands vests at once in the heir, assuming, of course, there be an heir in existence. In the final sense of the word there was no escheat. It is true a judgment or order of escheat was entered, but, as we may use that expression, the escheat was tentative only, and the right of the heir to appear and have such order set aside and his own right and title confirmed would not be foreclosed or lost. Under our statute, only property ‘ ‘ remaining uninherited ’ ’ escheats to the state. Code, section 3387. If, after due notice given, no one appears within six months to claim the estate, the property may be ordered sold, and the proceeds, under the direction of the state auditor, paid over by the administrator for the benefit of the school fund. Code, sections 3389, 3390. Such money is to be surrendered and paid over “to any one showing himself entitled thereto” at any time within ten years and not afterwards. Code, section 3391. It will be noticed that the
The conclusions announced herein are in no manner inconsistent with the views expressed by us in Anderson’s case, 147 N. W. (Iowa) 1098. ¥e had there to consider a provision of the treaty with Denmark, by which discrimination in taxes upon property and property rights was forbidden. We held that our collateral inheritance tax is not a tax on property or property rights, but is rather a charge or tax or duty upon the succession or transmission of property occasioned by death of the owner, or “ a tax upon the passing of legacies or distributive shares,” and that a discrimination therein between citizens and non-resident aliens was not prohibited by that treaty. But the treaty with Great Britain, with which we now have to deal, expressly enumerates succession duties as one of the charges upon which no discrimination can be allowed.
It is further to be said that the act of the state in entering a voluntary appearance in the suit and in filing answer to plaintiff’s claim upon its merit is a clear waiver of its right to deny its consent to the jurisdiction of the court.
It follows, from what we have said, that the judgment of the district court will be affirmed on the defendant’s appeal, and upon the plaintiff’s appeal it will be modified by reducing the allowance of inheritance tax from 20 per cent, the sum placed in the school fund to 5 per cent, thereof. Costs of this appeal will be taxed to the defendants.
Affirmed on defendant’s appeal. Modified on plaintiff’s appeal.