I am unable to agree with the conclusions reached by Mr. Justice FRICK in the court's opinion in this matter, and shall state, as briefly as I can, my reasons for not agreeing.
We are not here dealing with an estate in which there are no heirs, such as the court was considering in Re Melrose Avenue, reported in 234 N.Y. 48, 136 N.E. 235, 23 A.L.R. 1233. The court there held in the absence of heirs that the title vested in the state immediately upon the death of the intestate. It is stipulated in this case that the deceased left heirs. By the provisions of Comp Laws Utah 1917, § 6405, upon the death of the intestate the title to the property in controversy immediately vested in the heirs subject only *Page 361 to the control of the probate court and the possession by the administrator appointed by the court. Such has been the recognized law in this state since the decision in Snyder v.Murdock, 20 Utah, 407, 59 P. 88, and, as I understand, is not controverted by the Attorney General. The statute relied upon by the state does not, in my judgment, work an escheat or forfeiture of the estate to the state, and that is true whether it is interpreted independently of other provisions of the Code or when construed in connection with the other provisions of the Code relating to succession. The language of the statute is:
"7785. * * * 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."
The foregoing quotation is the concluding sentence of said section 7785. The section is part of the Probate Code, and is also a section of a chapter entitled, "Distribution and Partition." This particular section, and the six immediately preceding sections, relate to nonresident decedents and absent heirs. It is provided in those sections that upon the assignment or distribution by a judgment or decree of court to an heir residing out of and having no agent within the state, the court shall appoint an agent to take charge of such estate. The agent is required to execute a bond for the faithful management of and accounting of the estate. The agent is required to make annual reports showing the condition of the estate. Section 7784, the section immediately preceding the one from which the above quotation is taken, provides that at any time the court may direct a sale of all or a part of the property, and that the proceeds of such sale, after deducting expenses, etc., must be paid into the state treasury and receipts be taken therefor. Section 7785, supra, provides a method by which the state treasurer is required to pay the money so deposited when any person appears and satisfies the court that he is entitled thereto. Those provisions are *Page 362 followed by the sentence relied upon for the property having escheated to the state. It will be observed that section 7785 and the preceding sections are dealing with the property the title to which, by the terms of the statute, has already vested in the heir. The two succeeding sections, 7786 and 7787, parts of the same chapter, deal with estates of intestates leaving no heirs. Section 7786 provides for the appointment of a special administrator by the court to take charge of the property of such estate. Such administrator shall give bond for the faithful performance of the trust, and shall render to the court annually a detailed account of the condition of the estate. In section 7787 it is provided:
"At the expiration of two years after such appointment, if no claimant shall have appeared and established his right to the estate, the same shall be deemed to have escheated to the state, and the court shall direct a sale of all of the property, and shall cause the proceeds thereof, after the payment of debts and expenses, and taxes, to be paid into the state treasury for the benefit of the state school fund."
These two sections are dealing with property the title to which has never vested in heirs for the reason that no heirs exist.
The language of section 7787 furnishes some grounds for claiming that the Legislature by that section intended that an estate where there are no heirs and where no heirs appear within two years after the appointment of the special administrator by operation of the statute had escheated to the state. The language there found is, "shall be deemed to have escheated." The word "deemed" has been construed to mean "adjudged, presumed," and "shall be deemed" is construed to import the same as "shall mean." Words and Phrases, Second Series, p. 1262. The language of section 7785 is not "shall be deemed to have escheated," but "shall escheat." If the intent of the Legislature had been the same in both sections doubtless the compilers would have used the same language in both, or other unmistakable language expressing a like intent. The language of section 7787 denotes a *Page 363 past or present escheat. The language of section 7785 denotes an escheat to take place in the future — that is, an escheat to be determined by judicial decree to be obtained as a result of an action to be instituted by the Attorney General.
Section 5738 of the same compilation under the chapter designated, "Attorney General," and which chapter undertakes to define the duties of the Attorney General, provides:
"It is the duty of the Attorney General to institute investigations for the recovery of all real or personal property which may have escheated or should escheat to the state, and for that purpose he has the power to cite any and all persons before any of the district courts of this state to answer inquiries and render accounts concerning the said property, real or personal, and to examine all books and papers of any and all corporations. When any real or personal property is discovered which should escheat to the state, the Attorney General must institute suit in the district court of the county where said property shall be situated for the recovery, to escheat the same to the state."
It seems clear from the language of that statute that any property not already forfeited by express language of the statute is not escheated until the Attorney General has instituted an action in the district court of the county in which the property is situated and obtained a judgment decreeing the property to the state, or, in other words, decreeing an escheat. It is true, as stated by Mr. Justice FRICK, our Probate Code was taken largely from the California Code. The language of the statute as originally enacted by the Utah Legislature in 1884 is:
"No nonresident foreigner can take by succession unless he appear and claim succession within five years after the death of the decedent to whom he claims succession."
The right of succession granted by that language to a nonresident foreigner was a conditional one, the condition being that the nonresident foreigner claim within five years. In other words, the right of succession to such nonresident foreigner *Page 364 did not exist or come into being until such foreigner claimed the estate. Under our present statute a nonresident alien heir, as well as a resident heir, takes the property of an intestate deceased absolutely and instantly upon the death of an intestate. The fact that our Legislature in amending the act from time to time since its original enactment has deemed it wise to omit from the statute the provisions making the right of inheritance conditional is at least argumentative that that limitation is not now the policy of this state.
The provisions of the California statute considered by the court in State v. Smith, 70 Cal. 153, 12 P. 121, are not the same as the section of our Code quoted above. The court in that case was considering the claim of a nonresident alien heir and the section of the Code thereto applicable. The language of the California statute, quoting from the decision, at page 156 (12 P. 123), is:
"If a nonresident alien takes by succession, he must appear and claim the property within five years from the time of succession, or be barred. The property in such case is disposed of as provided in title 8, pt. 3, of the Code of Civil Procedure."
Title 8, referred to in that section, is substantially the same as section 5738 of our Code. In State v. Smith, supra, the court, in construing that section, says:
"The failure of a nonresident alien to `appear and claim' within five years after descent cast operates a bar of his right to assert any title in the property as against the state. And this not on the idea that the property has escheated to the state, as of the date of the death of the ancestor, but because by the law the `nonresident' takes subject to the loss of his right by a failure to make claim within the five years."
In other words, the court there was giving effect to the limitations fixed by the statute on the time after which a nonresident alien would be barred. Not that the property had actually escheated to the state, but that by the terms of the statute the heir's right to appear and claim it was *Page 365 cut off and defeated. Our statute does not state that the heir is barred to claim the property, but simply provides that it shall escheat. Section 5738, supra, clearly, in my judgment, determines the means by which the escheat shall take place. Until such action has been taken by the Attorney General and a judgment of the court obtained escheating the property it is still the property of the heir or heirs, and at any time a claim is made by such heir or heirs before a judgment of escheat has been rendered it is clearly the duty of the court to distribute the property to the rightful heirs. See State ex rel. Atty. Gen. v. World, etc.,Co., 40 Wash. 104, 89 P. 471.
The first headnote to Wilbur v. Tobey, 16 Pick. (Mass.) 177, is:
"The commonwealth does not become seized of the real estate of a citizen dying intestate and without heirs, until the rendition of judgment in its favor upon an inquest of office; for until then the presumption of law is that he had heirs. It cannot therefore convey such estate, before such a judgment has been rendered."
The statute the court was considering in that case is:
"Where there shall be no kindred, the same shall escheat to the commonwealth for want of heirs."
The opinion of the Supreme Court of California in Estate ofMiner, 143 Cal. 194, 76 P. 968, as I understand that opinion, lends support to the contention that our statute does not, by failure of heirs to appear within five years, in and of itself, amount to or constitute an escheat to the state. The first headnote to that opinion, which reflects the opinion of the court, is as follows:
"The deposit in the state treasury, by order of the court, of money comprising the residue of the estate of a deceased person administered by the public administrator, and for the distribution of which no heirs have appeared, does not of itself work an escheat to the state, nor constitute a decree of distribution to the state. The state does not come in by way of succession; and an action of escheat is necessary to vest title in the state, whether the property is real or personal." *Page 366
The statute relied upon by the Attorney General in this case clearly, in my opinion, does not work an escheat of the property to the state. If it does anything it defeats the heir's right to claim the estate. The statute does not seem to require that construction. It nowhere says his right to claim the estate is barred or that he is cut off from the right to make claim to the property. It simply says it shall escheat. Escheats not being favored in the law, and the title being by operation of the statute vested in the heir, until some proceeding is taken as provided by the Code and a decree of court obtained adjudging an escheat, it would and must logically follow that when a rightful heir does appear and claims the estate before the escheat is decreed, the probate court must of necessity decree the property to such heir.
If I understand the majority opinion in this case, it is to the effect that if at the end of five years after the death of the deceased no claimant of the estate has appeared, the title to the property thereof by operation of law vests in the state. It must necessarily follow from that, even if the district court had made an order adjudging this property to the heirs, the state could at any time thereafter have instituted action against the heirs receiving the property to recover it. No court, so far as I have been able to ascertain, has ever gone to that extent.
The opinion cited from the Indiana Supreme Court, Fuhrer,Adm'r, v. State, etc., 55 Ind. 153, is not authority for holding that the estate in this case has escheated. The court was not there considering whether property had escheated to the state. Section 143 of the Code of that state at that time provided that after the expiration of two years from the final settlement of the estate, if no heir had appeared, the court should direct the proceeds of the estate to be paid to the county treasurer to be by that officer paid over to the state treasurer. The facts in that case seem to have been that an administrator had been appointed, final settlement of the estate made, no heir appeared for a period of more than two years, and the administrator refused to pay the *Page 367 money over to the county treasurer. Suit was then instituted by the Attorney General to compel the administrator to pay the money to the county treasurer. The provisions of the statute were plain, and the court enforced the judgment against the administrator compelling him to pay money in his hands belonging to the estate to the county treasurer. The case does not discuss the question of escheat or forfeiture of the estate.
The section of the statute considered by the Supreme Court of Idaho in State v. Stevenson, 6 Idaho, 367, 55 P. 886, relates to alien heirs. The section, as quoted in the opinion, is:
"* * * 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 court held in that case that a nonresident foreigner cannot take by succession unless he appears and claims succession within five years after the death of the decedant. We have no such statute as the Idaho court was considering in that case.
The facts are stipulated. It appears conclusively from the stipulation that before the state had taken any action to escheat this estate the rightful heirs appeared and claimed by succession. The court, in my judgment, was right in decreeing the property to them. I am of the opinion the judgment should be affirmed.