54 So. 951 | Miss. | 1911
delivered the opinion of the court.'
In this • case we feel safe in saying that the record shows, almost beyond dispute, that Miles P. Bristol, Jr., died some time prior to December, 1865; that at the time of his.death he was the owner, of the land in controversy by inheritance from his father; that when he died he was intestate. Prom 1865 to the present time J. W. Williams and those claiming through him have claimed to be .the owners of this property, have held open, notorious, continuous, adverse possession, exercising all the acts of ownership, and making many and. very valuable improvements on the land. In 1907, some forty-two years after, the death of the owner of the land, the state‘undertakes by this proceeding, to escheat’ this property. ■ .The proceeding is founded upon- sectiori 1878 of .the Code of 1906, and the ground alleged as cause for the escheat is that Miles P. Bristol, Jr., died intestate and owning the property, leaving no heir capable of inheriting from
In this contest for the ownership of this property, it may he well to remark that the state must recover, if at all, on the strength of its own title, and not the weakness of that of appellees. It may further be remarked that it is most unusual, not to say unnatural, that there shall live a person who does not have some heir, living at the time of his death, capable of inheriting his property. For this reason, the presumption of law that a person dying intestate has left heirs capable of inheriting his estate is one of the strongest presumptions known to law, because the presumption itself runs with the usual current of nature. In considering this case let us keep these principles in mind, and let us also keep in view the fact that the state has no purpose to take away from any of its citizens any property to which such citizen may he justly entitled.
What are the main facts on which the state relies in order to have this property declared forfeited as' es-cheated property? The owner died in 1864 or 1865. One of the appellees, J. W. Williams, was the administrator of the estate of the owner, and so continued until his final discharge in 1880. ' In making thé' application for the grant of letters of administration, Williams swore that Miles P. Bristol, Jr., had no relatives so far as he knew. The lands were assessed for taxes to the heirs of Miles P. Bristol until in the year 1883, at which time they were assessed to J. W. Williams. From 1864 or 1865, from the death of Miles P. Bristol, Jr., the owner, down to this time, no one has undertaken to oust appellees from the land in question as heirs of the owner. This puts the case about as it appears on the state’s testimony. In truth, the idea of the state’s counsel seems to he that becáuse the owner died some forty-two years before the suit was begun, and because in all that timé no onehas appeared as an heir undertaking to oust ap
Another important fact to be kept in mind is that for forty-two years the state has not moved in this matter, but has let the time pass when it would have been possible to find living persons who knew the family and its ■history, who knew where they came from, and who were their relatives. During this time the state has allowed appellees to occupy the land as their own, and to make improvements thereon, and to pay the taxes. These things in themselves may not be conclusive against the state; but in this character of proceeding they are to be considered, along with ’the other testimony, as showing that the reason why those in authority at the date of the death of the owner did not proceed to claim the estate for the state at the time was because it was known thát there were heirs. It is also shown that the mother of the owner came from about Baton Rouare. Louisiana.
Before the state can succeed, it was incumbent upon it to make all the inquiries, investigations, and advertisements. In section 2186 of Elliott on Evidence will be found the best statement of the rule on the subject of the legal presumption of heirs. It is that the “presumption of law is that a person dying intestate has left heirs capable of succeeding to his estate. This presumption that the estate of such person is transmitted to others by the law of descent is so strong, that it can only be overcome by positive proof of the want of persons capable of taking the estate under the laws of descent and distribution.....The presumption was held to be so conclusive that it was not overcome by proof of the fact that neighbors and acquaintances of an intestate who had known him for many years, did not know that there were in fact persons capable of taking his estate under the law.” Again the same authority says that “it is held that proqf of the fact of there being-no known heirs might raise a presumption of the failure of the inheritable blood; but such proof should be direct and positive, shown to be founded upon inquiry, advertisement, personal family knowledge, or the declarations of those from whom the property descended.”
When the proof offered by the state is measured by the requirements of the rule quoted above, it fails to measure up to it in almost every particular. In the case of University of North Carolina v. Harrison, 90 N. C. 385, it is said: “The party claiming- must prevail by the strength of his own title, not by the weakness of that of his adversary., What degree of evidence is necessary, then, to make out any presumption of probability whatever, sufficient in the absence of opposing testimony to show the state’s title by reason of defect of
If it be said that the degree of proof required by these authorities is so high that it can rarely be made, the answer is to be found in the statement that the reason for the rule grows out of the fact that a knowledge of human affairs teaches that a case rarely exists in fact where any person dies without near or remote heirs capable of inheriting. In the case of Harvey v. Thornton, 14 Ill. 217, it is stated that “it is difficult to imagine a case, unless it be that, of a bastard, dying intestate and Without' issue, where an intestate doés not leave kindred on whom the law casts his estate.” We thus see that the standard of proof required to show that there are no heirs is fixed high, because such an event is unnatural, improbable, ánd almost impossible. We can conceive of no case where the proof on the part of the state necessary to overcome the legal presumption in favor of heir-
No added weight or force can be given to the contentions in this case because the proceedings are instituted by the state. When the state is a litigant in its own tribunals, it expects and shall receive the same measure of right that it establishes for its humblest citizen. As was said in the case of Warren County v. Lamkin, 93 Miss. 166, 46 South. 513, 22 L. R. A. (N. S.) 920: “By this doctrine of sovereignty, in its application to the rights of owners of land, many worthy and confiding families of poor people have been stripped of house-and home and compelled to begin life anew. We reiterate that this must not be done, unless it is necessitated by the strictest construction of the law in favor of the occupant. ’ ’ ■ Affirmed.