State v. Smith

McKinstry, J. The constitution (art. 1, sec. 17) prohibits the legislature from depriving resident foreigners of any of the rights enjoyed by native-born citizens with respect to the acquisition, possession, enjoyment, transmission, or inheritance of property.

There is no provision of the constitution which prohibits the legislature from conferring the same rights upon those born in foreign countries who have never been residents of the state.

Section 671 of the Civil Code provides:—

“ Any person, whether citizen or alien, may take, hold, and dispose of property, real or personal, within this state.”

It is suggested that inasmuch as laws can have no extraterritorial operation, the legislature has no power to provide for succession by foreigners who have never been residents. But the section of the code provides a [156]rule with respect to property within the state. It confers a right to be enjoyed within the jurisdiction.

Section 672 of the Civil Code reads:—

“If a non-resident 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, part 3, of the Code of Civil Procedure.”

The words “non-resident alien” are severely criticised by counsel for appellant. We find no difficulty in interpreting them as indicating those who are neither citizens of the United States nor residents of the state.

All aliens take by succession. (Civ. Code, sec. 671.) The failure of a non-resident 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 “non-resident” takes subject to the loss of his right by a failure to make claim within the five years. The clause of section 672 is a limitation, applicable, however, not alone to the commencement of an action in the courts, but to any appearance within the state and the assertion of a claim, whether by such action or otherwise. The claim may be in pais, as by taking possession of the property, or conveying or contracting with respect to it. If he fails tg appear and claim it, the property is escheat at the expiration of the five years. In “ such case ” the property is disposed of as provided in title 8, part 3, of the Code of Civil Procedure.