Billings v. Hauver

Thornton, J. E. L. Billings was a resident of the county of Sacramento, and died therein intestate, leaving real and personal property. The decedent left surviving him no wife, no descendants, and no father or mother. He left brothers and sisters, of whom, at the time of his death, Lewis N. Billings and Martha V. Clark were bona fide residents of this State, Daniel D. Billings, Nancy Victoria Martin, Elmira Tittemore, and Sylvina Hauver were residents of the Dominion of Canada, and Miranda R. Tryon, Lucinda Smith, and Elsie Irish were residents of the State of Kansas. The estate being in such condition as to allow a partial distribution, all the sisters, except Martha V. Clark, and Daniel D. Billings, petitioned for such distribution, in the view that the estate descended to all the brothers and sisters (nine in number) share and share alike. Lewis N. Billings and the assignees of Martha V. Clark appeared, and the former claimed that he and his sister Martha V. Clark were each entitled to one half of the estate of the deceased to the exclusion of the other claimants.

It appears that all the above-named brothers and sisters were natives of Canada, and as it nowhere appears that they were naturalized, they must be held to have been aliens at the time of the death of the decedent. The case was thus argued.

[594]The court below held that each of the claimants was entitled to one ninth of the estate. From this decree Lewis hi. Billings appeals.

The contention on the part of appellant is that the estate descended, under the Constitution and law of this State, to himself and his sister Martha V. Clark, each taking one half, as they were, at the time of the death of deceased, though aliens, bona fide residents of the State of California; that the other claimants were aliens, who never, prior to the death of E. L. Billings, were residents of this State, and therefore took no part of his estate.

The Constitution of this State, by the seventeenth section of the first article, provides that foreigners of the white race “ eligible to become citizens of the United States under the naturalization laws thereof, while bona fide residents of this State, shall have the same rights in respect to the acquisition, possession, enjoyment, transmission, and inheritance of property as native-born citizens.

The Civil Code contains the following provisions, which were in force when E. L. Billings died.