55 P. 886 | Idaho | 1898
— This is an action in ejectment, brought by the state, against David 0. Stevenson, C. C. Stevenson, and Henry Earning, to recover the possession of lot 2 and southeast quarter of northwest quarter, section 7, township 4 north, range 1 east, Boise meridian. The defendants David 0. Stevenson and Henry Earning filed disclaimers, and defendant C. C. Stevenson answered, claiming to be the owner of said premises; that he acquired title to said premises under and by virtue of a certain tax deed. The following facts appear from the record: That one Adolph Hempel died on or about the sixteenth day of April, 1887, seised in fee of said tract of land; leaving no known heir surviving him; that letters of administration were duly issued to the public administrator of Ada county upon the estate of said deceased, and said estate duly administered; and on the sixteenth day of January, 1889, said administrator made his final report therein, which was allowed and ■ approved. It appears that, when said final report was approved, said administrator had in his hands $6,093.34 in cash belonging to said estate, the lands above described, and certain certificates of water stock; that said cash was turned into the state treasury, and
The several sections of the Bevised Statutes applicable to this case are as follows:
“See. o'715. Eesident 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.
“Sec. 5716. When succession is not claimed as provided in the preceding section, the district court, on information, must direct the attorney general to reduce the property to his or the possession of the territory, or to cause the same to be sold, and the same, or the proceeds thereof, to be deposited in the territorial treasury for the benefit of such nonresident foreigner, or his legal representative, to be paid to him whenever, within five years after such deposit, proof to the satisfaction of the terri*370 torial controller and treasurer is produced that he is entitled to succeed thereto.
“See. 5717. When so claimed, the evidence and the joint order oí the controller and treasurer must be filed by the treasurer as his voucher, and the property delivered or the proceeds paid to the claimant on filing his receipt therefor. If no one succeeds to the estate or the proceeds, as herein provided, the property of the decedent is placed by the territorial treasurer to the credit of the school fund.”
As Hempel died intestate, on the sixteenth day of April, 1887, the right of any nonresident-foreigner to claim said land under the provisions of said section 5715 expired on the sixteenth day of April, 1892. (See State v. Smith, 70 Cal. 153, 12 Pac. 121; People v. Roach, 76 Cal. 294, 18 Pac. 407.) After the last-mentioned date, no nonresident foreigner could take said real property by succession.
The question arises then, In whom did the title thereto vest after the five year period named in said section 5715? It is contended by counsel for appellant that the title to said real estate must vest somewhere, and could not be held in abeyance, and that it vested in the sister, as heir at law of the deceased. The averment in the answer in regard to deceased having a sister is as follows: “Defendant admits that succession to the ‘estate of said Hemple and the said premises has not been claimed-by any heir of said deceased, and that more than five years have elapsed since the death of said Hempel, but alleges that said Hempel died leaving a sister residing in Vienna, Austria, whose name is unknown to defendant.” It is there admitted that no heir of the deceased had claimed said premises within the five years allowed therefor by the provisions of said section 5715. Said sister was barred from all right of succession to said property at the end of said five years period. If she had title (which we do not concede) during those five years, it ended when that period ended. She could not successfully claim succession thereafter.
Conceding the suggestion of counsel that the title could not remain in abeyance, where did it go when the nonresident foreigner could claim it no longer ? We think it went to the state.