This is an appeal by the state of Utah from a judgment of the district court of Weber county denying the state's claim to the residue of the estate of one Marienios Apostolopoulos, late of Weber county, deceased. The state's claim to the estate is based upon the constitutional and statutory provisions of this state, to which reference will hereinafter be made.
The facts disclosed by the record, and as stipulated by the parties to this proceeding, briefly stated are:
That Marienios Apostolopoulos, hereinafter called the deceased, died intestate in Weber county, Utah, on the 18th day of October, 1918, leaving an estate in said county; that application for the appointment of an administrator of said estate by a creditor of the deceased was duly made to the district court of Weber county as provided by the statutes of this state; that in said application it was alleged upon "information and belief" that the deceased left no relatives or heirs in this country, but that the "said deceased has relatives and heirs in Greece;" that the statutory notice of said application was duly published and, pursuant to such notice, upon a hearing had, one E.A. Larkin, a creditor of the deceased, was duly appointed administrator; that said Larkin duly qualified and acted as such administrator during all of the time covered by the proceedings here involved; that notice to creditors was duly published as provided by law, and all the claims filed against said estate were duly allowed and paid; that on October 15, 1919, the administrator filed his "final account" showing a balance remaining in his possession *Page 347 amounting to $719.65; that notice of the administrator's application for final settlement and approval of his account was duly published, and thereafter, on the 28th day of November, 1919, an order was duly made and entered by said district court allowing and approving said "final account;" that although diligent inquiry had been made by said administrator during his administration he was, nevertheless, unable to obtain any information concerning any relatives or heirs of the deceased; that after the approval of said final account the estate remained in status quo until in the month of July, 1924, when the administrator received information by means of an affidavit dated January 23, 1924, sworn to by one Costoula Apostolopoulos, wherein she claimed to be the widow of the deceased, and that he left surviving him his said widow and five children, all residents of Greece; that afterwards, in May, 1924, one Theodore A. Bibicos, of Cleveland, Ohio, as the attorney in fact under a power of attorney executed by the widow and the children of said deceased, claimed the estate on their behalf; that said power of attorney, together with other evidence submitted by said widow and heirs, was duly filed in the district court of Weber county in said proceeding; that on the 7th day of November, 1924, the administrator of said estate filed a petition in said court praying for an order or judgment of distribution of the residue of said estate to the widow and children, naming them, as the heirs at law of said deceased; that notice of the application for distribution as aforesaid was duly published, and a time for the hearing thereof was duly fixed by said court; that before the day fixed for the hearing of said application the Attorney General on behalf of the state of Utah made application to said district court wherein he asked that the residue of said estate be distributed to the state of Utah for the benefit of the school fund of said state, for the reason that no claimant of said estate had appeared within the time provided by our statute within which a claimant must appear and claim succession, and for that reason the estate should be distributed to the *Page 348 state of Utah for the benefit of the school fund. In the petition or application filed by the Attorney General he fully stated the facts upon which the state's claim was based.
A hearing upon the application of the state, the petition of the administrator for distribution, and the evidence submitted by the widow and heirs at law of the deceased why the residue of the estate should be distributed to them, was duly, had and, after such hearing, on the 16th day of January, 1925, the district court aforesaid entered its final decree disallowing the application of the state of Utah and ordered the residue of said estate distributed to the widow and children of said deceased in the manner provided by our statute and as claimed by them.
The district court, in its findings, merely recited the facts hereinbefore stated. It, however, also found "that no claimant appeared in the state of Utah until more than five years after the decedent's death * * * to claim succession to said estate or to the proceeds thereof."
Upon the foregoing facts the court made the following conclusion of law:
"That the wife and children of said deceased had no notice of the hearing upon the petition for letters of administration filed in this matter other than the notice published in the Ogden Examiner, a newspaper published in Ogden City, Weber county, Utah, and had no notice of any subsequent proceedings in the progress of the administration of said estate until the filing of the petition for authority to make additional expenditures and for distribution of the estate to the wife and children of said deceased, filed on November 7, 1924."
The court further found as a conclusion of law that the widow and children of the deceased were entitled to the residue of said estate, and entered judgment or decree to that effect, as before stated.
The state predicates error upon the final judgment or decree of distribution, and also insists that the district court exceeded its authority in distributing the residue of said estate to the widow and children of the deceased. In other *Page 349 words, the Attorney General contends that, in view of the facts and the statutes of this state, the district court had no discretion in the matter, and that it was its duty to order the residue of said estate distributed to the state of Utah for the benefit of the school fund.
Our Constitution, art. 10, § 3, among other things, provides that the "proceeds of all property that may accrue to the state by escheat or forfeiture" shall be paid to the "state school fund." The various sections of our statutes which relate to the subject of escheat and the administration and disposition of estates where the heirs are unknown or where no one appears to claim succession are found in Comp. Laws Utah 1917, as sections 7779 to 7789 inclusive. The provisions of those sections are particularly referred to in the recent case entitled, In re French's Estate, 64 Utah, 66 228 P. 194, and it is not necessary to repeat them here. In addition to the several sections of the statute before referred to, to some of which further reference will herein be made, there are also other statutory provisions that have a bearing on this case to which I shall now refer.
Section 6408, subd. 9, provides that the property of all decedents who leave no heirs shall escheat to the state. Section 7785, on which the Attorney General particularly relies, so far as material here, provides:
"If no claimant appears within five years after the decedent's death to claim succession, the property or the proceeds thereof shall escheat to the state, for the benefit of the state school fund."
Section 7785 has, however, been amended at various times. It was first passed in 1884. Laws Utah 1884, p. 77. It seems, as first enacted, it was copied from the statutes of California. As originally passed, after providing that all aliens could inherit, it, however, also provided that:
"No nonresident foreigner can take by succession unless he appears and claims succession within five years after the death of the decedent to whom he claims succession." *Page 350
It will thus be seen that as originally enacted the 5-year limitation applied to such claimants only as were nonresident foreigners. The statute, in the form it was first enacted, was carried forward into the compilation of 1888. See 2 Comp. Laws Utah 1888, § 2758. The section was then amended and carried forward in the Revised Statutes of Utah 1898, as section 3974, where it is provided:
"If no claimant appears within five years after the decedent's death to claim succession, the property or the proceeds thereof shall escheat to the state for the benefit of the state school fund."
It will be observed that the section as amended, and as it now reads, and as it has been in force at least since 1898, fixes a 5-year limitation upon all claimants, whether residents or nonresidents, citizen or foreigner; whereas, as originally enacted, the 5-year limitation applied only to nonresident foreigners. As before stated, the statute as originally passed was practically a copy of the California statute upon the subject. The question as to when a claim must be made in order to entitle a claimant to succession has on several occasions come before the Supreme Court of California. In State v. Smith,70 Cal. 153, 12 P. 121, it was held that in order for an heir to succeed he must appear and claim succession within the 5-year period, and unless he does so appear within that period his rights to the property have ceased to exist. The holding is to the same effect in People v. Roach, 76 Cal. 294, 18 P. 407, where the Smith Case is followed. It was, however, also held in the latter case that any claim that the state might make to the property before the 5-year period has fully elapsed is premature and of no effect. In Re Estate of Pendergast, 143 Cal. 135,76 P. 962, the two prior California cases just referred to are approved and followed. In the latter case, in referring to the time within which the claimant must appear and the legal effect of his failure to do so, it is said:
"* * * if he [the claimant] fails to appear and claims the same [the estate] within five years his right ceases, and the property then *Page 351 vests in the state, but not strictly by escheat for want of heirs, but by virtue of the effect of the statute" — citing cases.
That is, the court in effect holds that where one dies without heirs, or where no claimant appears to claim succession within the period fixed in the statute, his estate necessarily escheats to the state by operation of law. In Estate of Miner, 143 Cal. 194,76 P. 968, it is held that under the statute unless the estate is claimed "within five years from the time of succession,' the claim is barred and the claimant has lost his right to claim the estate.
Where, therefore, the decedent leaves heirs surviving him, but such heirs fail to claim the right to succession within the 5-year period fixed by the statute, their rights cease, and the estate escheats to the state by operation of law. In Idaho the statute reads the same as the California 1 statute, and it was held by the Supreme Court of that state in State v. Stevenson, 6 Idaho, 367, 55 P. 886, that in view that no claimant had appeared to claim succession with the 5-year period fixed by the statute, no claim could successfully be made thereafter. It was further held that where no claimant appears within the 5-year period the estate or property vests in the state by operation of law without further legal proceedings.
The only other state, so far as I am aware, in which there was in force a statute similar to ours, is Indiana. The statute there provided that "if, after the expiration of two years from the final settlement of the estate no heirs appear to claim the surplus or any part thereof," * * * such estate or surplus shall be paid to the county treasurer, etc. 2 Rev. St. 1876, p. 545, § 143. In Fuhrer v. State, 55 Ind. 150, the court, in the course of the opinion, said:
"In this case, it is admitted that the final settlement of the estate of the appellant's intestate was made on the 12th day of July, 1867. Two years afterwards, or on the 12th day of July, 1869, the state's cause of action, or right to the money, accrued, under section 143, above cited. * * *" *Page 352
It was accordingly held that in view that no heirs had appeared within the time fixed by the statute the courts had no alternative save to order the money paid as directed by the statute. In that case, as in this, the lower court had refused to follow the statute, and therefore the Supreme Court reversed the judgment and ordered the money paid in accordance with the direction of the statute.
In all of the cases, therefore, where statutes fixing a time limit within which succession must be claimed were in force, and where due administration of the estate was had, as in this action, and no claimant had appeared within the time limit fixed by the statute, the courts held that at the end of such period of time the money or property of the estate vested in the state by operation of law, and hence it was the duty of the courts to direct the money or property paid or distributed to the state. In this connection it should not be overlooked that the decisions of the courts relating to the subject of escheats are as diverse and conflicting as the statutes relating to that subject are variant. It will be found, however, that the statutes relating to the subject of escheats, roughly speaking, are divided into three classes: (1) Those that provide for the disposition of decedent's estates who die without heirs; (2) those that provide for the disposition of bank deposits or other property where the owners have departed from the town, city, or state wherein the property is located or the deposits were made, and where the whereabouts of such owners is unknown and it is not known or cannot be ascertained whether they are living or dead; and (3) those where, as in this case, the death of the owner is known and his death has been judicially established and the estate has in due course been administered upon, but no claimant has appeared to claim succession within the period of time fixed by the statute. The principal difficulty arises in those cases falling within the second class, and the principles of law applicable to that class are sometimes confused and considered as applying to the other classes. As a matter of course, there is but little conflict of authority respecting *Page 353 the distribution of property belonging to the first class. Nor is there a great deal with respect to the third class, within which falls the case at bar.
In view of the foregoing classification I have merely cited such cases as deal with estates coming within the third class. If the reader desires to pursue the subject of escheats further, however, the following cases, in addition to those I have cited, will be found very illuminating and instructive, to wit:Christianson v. King County, 239 U.S. 356, 36 S. Ct. 114,60 L. Ed. 327; Commonwealth v. Thomas, Adm'r, 140 Ky. 789,131 S.W. 797; Johnson v. Spicer, 107 N.Y. 185, 13 N.E. 753; Mathews v.Savings, etc., Co., 184 P. 418; In re Melrose Avenue, 234 N.Y. 48,136 N.E. 235, 23 A.L.R. 1233; State v. First Nat. Bank,61 Or. 551, 123 P. 712, Ann. Cas 1914B, 153; Cunnius v. ReadingSchool Dist., 206 Pa. 469, 56 A. 16, 98 Am. St. Rep. 790. In the annotator's note to the case of In re Melrose Avenue, supra, which is a very instructive case, the rule followed by the courts in the more recent decisions is stated in the following language:
"Although the courts formerly held that, on the death of a citizen intestate and without heirs, title to his real property did not vest in the state until there had been an adjudication of escheat, most of the recent decisions are in accord with the reported case (In re Melrose Ave. [234 N.Y. 48, 136 N.E. 235], 23 A.L.R. 1233), in holding that immediately on his death the title vests in the state."
The rule in the foregoing excerpt is held to apply to all cases falling within the class to which the case at bar belongs, the only distinction being that where the decedent dies without heirs his estate vests in the state immediately upon his death, while in those cases where a time limit is fixed by statute within which the claimants must appear to claim the estate after the death of the decedent and such death has been established, as in the case at bar, the right or title to the estate or property vests in the state at the expiration of the time limit fixed by the statute.
That a state may impose such conditions as to it may seem proper upon the right of aliens to take property within the *Page 354 jurisdiction of the state by will or by succession under the statute has been the settled law of this country ever sinceMager v. Grima, 8 How. (U.S.) 490, 12 L. Ed. 1168, was decided by the Supreme Court of the United States. In that case it was made to appear that the state of Louisiana had 2 imposed a tax upon all property claimed by aliens under a will or by virtue of the statute of succession. It was contended that the law violated rights guaranteed by the federal Constitution, Chief Justice Taney, in answer to the contention and in upholding the law, in the course of the opinion said:
"Now the law in question is nothing more than an exercise of the power which every state and sovereignty possesses, of regulating the manner and term upon which property, real or personal within its dominion may be transmitted by last will and testament, or by inheritance; and of prescribing who shall and who shall not be capable of taking it. Every state or nation may unquestionably refuse to allow an alien to take either real or personal property, situated within its limits, either as heir or legatee, and may, if it thinks proper, direct that property so descending or bequeathed shall belong to the state. In many of the states of this Union at this day, real property devised to an alien is liable to escheat. And if a state may deny the privilege altogether, it follows that, when it grants it, it may annex to the grant any conditions which it supposes to be required by its interests or policy."
The decision in that case, and the decisions in other cases involving the same principle, are reviewed and approved in able opinion in Magoun v. Illinois Trust Sav. Bank, 170 U.S. at pages 288 to 295, 18 S. Ct. 594, 42 L. Ed. 1037.
The state of Utah therefore had the absolute right to impose the condition that unless succession is claimed within the period of five years stated in the statute the property would escheat to the state. The district court, as appears from the conclusions of law to which reference has been made, however, held that notice by publication was insufficient, and counsel in opposing the state's contention vigorously insists that the judgment of the district court is right and should be affirmed 3 upon the *Page 355 hypothesis assumed by the district court; that is, that the widow and heirs of the deceased had not been served with due notice or process, and therefore if the state shall succeed in its contention it would obtain the property without due process of law. Only three cases are cited in support of the contention, namely, State v. Bank, 186 Cal. 419, 199 P. 791, Hamilton v.Brown, 161 U.S. 256, 16 S. Ct. 585, 40 L. Ed. 691, and In reFrench's Estate, 64 Utah 66, 228 P. 194. State v. Bank, supra, has no application here, since that was a bank deposit case and comes within the second class to which reference has been made and is based upon a special statute. In re French's Estate has no application for the reason that in that case it was not known whether the deceased was alive or dead until a short time before the estate was claimed by an heir of the deceased. It was held the 5-year period did not begin to run until the death of the deceased was known.
The case of Hamilton v. Brown, supra, does not only not support the contention, but a mere cursory reading of the opinion will disclose that it is directly to the contrary. Indeed, the Supreme Court of the United States has so often held that in proceedings in rem notice by publication constitutes due process of law that the question is no longer open for discussion. The latest case upon that question was decided by that court on May 11, 1925, namely, North Laramie Land Co. v. Hoffman,268 U.S. 276, 45 S. Ct. 491, 69 L. Ed. 953. The proceeding in that case was a proceeding in condemnation in which a strip of the owner's land was condemned for a public road. No notice was served upon the owner of the land except the notice published in a local newspaper, and it was contended that, inasmuch as the owner resided in the county, notice by publication was insufficient. The Supreme Court of Wyoming, however, held that in view that the notice had been given as provided by statute it was sufficient, and the Supreme Court of the United States affirmed the judgment of the Wyoming Supreme Court. There was at least some basis for the contention of the owner of the land *Page 356 in the Wyoming case, inasmuch as he was a resident of the county in which his land was located and that it was known that he lived there, that he was entitled to actual notice before his land was condemned. Where, however, as in the case at bar, the heir is unknown, there is no basis for such a contention whatever, and to attempt to enforce it would be to attempt the impossible. In this jurisdiction the question as to what constitutes due process of law in probate proceedings has, however, been settled beyond controversy both by our statute and by decisions of this court. The question was directly presented in Barrette v. Whitney,36 Utah, 575, 106 P. 522, 37 L.R.A. (N.S.) 368. That case has been the declared law of this state for upwards of 16 years, and, so far as the writer is aware, has not been questioned. The doctrine applicable to probate proceedings is, however, so well stated by Mr. Justice Sanborn in Wilson v. Hartford Ins. Co., 164 F. at page 819, 90 C.C.A. 595 (19 L.R.A. [N.S.] 553), that I take the liberty of repeating what is there said, although the excerpt is also quoted in Barrette v. Whitney, supra:
"A proceeding in a probate court to administer upon the estate of a deceased person is a proceeding in rem, not in personam. The property within the jurisdiction of the court is the defendant, the executor or administrator is its representative, and all claiming any interest in that property under the deceased are parties to the proceeding."
The probate proceedings in the case at bar were regular in every particular. Not only was the jurisdictional notice as defined in Barrette v. Whitney given, but all other notices provided for by statute were duly published. All this is disclosed by the record of the proceedings before 4 us, but in addition to all that the widow and heirs appeared in court by their attorney in fact and claimed the estate. Is it not an anomaly to contend that although one comes into court to claim the very matter in controversy — in this case the residue of the estate — that he, nevertheless, *Page 357 has not had sufficient notice and that his property is being taken without due process of law? What possible effect could any additional notice have had so far as the widow and heirs are concerned? If authority is needed upon a proposition so clear, however, it is found in Re Malone's Estate, 21 S.C. 435, at page 453, where it is expressly held that where, as in this case, the parties come into court and claim the estate all other notices are immaterial. The record in this case shows, however, that notice that the residue of the estate would be distributed upon the administrator's application was 5 duly published. Upon such notice having been duly published the state appeared in the case and made application in writing to the court that the residue of the estate be ordered distributed as provided by our statute in case no claimant appears to claim succession within the 5-year period after the death of the decedent. All the necessary facts were set forth in the state's application. The state, as is pointed out in some of the cases to which I have referred, appeared as the ultimate heir, or, at least, as claimant of the property as successor under the law. The district court was thus called upon to order the residue remaining to be distributed.
Comp. Laws Utah, 1917, § 7764, so far as material here, provides:
"Upon the final settlement of the accounts of the executor or administrator, * * * upon the petition of the executor or administrator or of any heir, legatee, or devisee, and upon notice, the court must proceed to distribute the residue of the estate in the hands of the executor or administrator, if any, among the persons who by law are entitled thereto. * * *"
Under a similar statute in force in the state of Washington the probate court distributed the estate to King county as provided by the statute in case of escheats. Some of the heirs, some years after the distribution had been made, appeared, and claimed the property. The case finally reached the Supreme Court of the United States. Christenson v. King *Page 358 County, 239 U.S. 356, 36 S. Ct. 114, 60 L. Ed. 327. It appeared in that case, as it does here, that in due course of the probate proceedings in the Washington probate court the point had been reached where the court was called upon to order that distribution be made to King county. In the case coming to the United States Supreme Court it was contended that distribution should not have been made to King county, etc. In view, however, that the probate proceedings in the Washington court had proceeded to the point where distribution under the statute was called for, the Supreme Court of the United, in the case just referred to, said:
"It does not seem to be disputed, that under this act, if proceedings in a probate court were properly initiated, that court would have jurisdiction to enter a decree determining the interests of heirs and distributing the real estate to those of the kindred, if any, who were found to be entitled to take as provided in this section."
Now, in the case at bar it is contended that the court, upon the application of the administrator, did not have the power to determine who was entitled to the residue of the estate. Indeed, it is contended that the court was required to determine that the widow and the children were entitled to the estate. Our statute, however, provides that the court shall determine "who by law are entitled" to the estate. The Supreme Court of the United States, under a similar statute, held that if the court had jurisdiction to make distribution to the heirs, if there were any that were entitled to the estate, it also had the power to determine who, if some one else, was entitled to the estate. In the case at bar, therefore, the proceedings being regular in every particular, the district court, upon the notice of the administrator that distribution should be made, was required to order distribution to be made according to law. The law in explicit terms provides that unless a claimant appeared to claim the estate within five years after the death of the decedent, the proprety must be distributed to the state for the benefit of the state school fund. As held by the Supreme Court of Indiana *Page 359 in Fuhrer v. State. supra, the court was therefore bound to order the estate distributed to the state of Utah for the benefit of the state school fund. The court had no discretion in the matter, and this court has none.
It is certainly within the legislative power to fix some reasonable time within which succession must be claimed, and, further, to determine what shall become of unclaimed estates or property and the conditions upon which it shall pass to the sovereign state. In this case the time within which succession had to be claimed had fully elapsed before any claim was made, and hence, under the decisions to which I have hereinbefore referred, which are based on statutes in which a limit of time was fixed within which a claimant was required 6-8 to appear, there is but one conclusion permissible, and that is that the district court clearly committed fatal error in distributing the property in direct conflict with the provisions of our statute. The district court entirely overlooked both the power of the state and the manifest intent of our statute. The state has plenary power to impose any condition upon an alien's right to take property within the jurisdiction of the state by succession that it sees fit to impose. It therefore imposed the condition that succession must be claimed within five years if claimed at all. The right to take by succession, therefore, is not an absolute but a qualified or conditional right. If no claim is made within the 5-year period the right terminates. No action in court is necessary to determine the right, but it terminates automatically by the lapse of time. All that is required in such cases is to judicially establish the time of the death of the owner of the property. When that event is judicially established the time fixed in the statute automatically begins to run, and the only further fact that is required to be judicially determined is that succession was not claimed within the 5-year period which is set in motion by the death of the owner of the property.
In this connection it may not be improper to state that if our statute is deemed to be unjust the matter should be *Page 360 brought to the attention of the Legislature, which alone has the power to change it. Viewing it from a practical standpoint, however, the writer can discover no serious objection to the statute. It has now been in force in its present form for more than a quarter of a century, and, so far as appears from the judicial records of the state, this is the first case where a claimant has failed to appear within the time fixed by the statute. This is not surprising in view of the modern methods of communication and the dissemination of knowledge respecting the whereabouts of individuals and their standing in the communities where they live.
In view of what has been said, it follows that the judgment of the district court of Weber county should be and it accordingly is reversed, and the cause is remanded to that court, with directions to set aside its conclusions of law and to substitute others therefor in conformity with the views herein expressed, and to enter an order directing the residue of the estate to be distributed to the state of Utah for the benefit of the state school fund as provided by our statute.
Costs of this appeal will be paid out of the funds of the estate.
THURMAN and CHERRY, JJ., concur.