CARTER, J. I dissent. In my opinion the provision in the federal statute (38 U.S.C. § 450) providing for the escheat to the United States of funds belonging to the estate of a deceased veteran is in contravention of the Tenth Amend- ' ment to the Constitution of the United States and is therefore invalid. Under this amendment all powers not delegated to the United States nor prohibited to the states are reserved to the states. By this reservation the rights of sovereignty are guaranteed to the states by the Constitution. No act of Congress [713]can subtract an attribute of sovereignty from a state. Citation of authority is not necessary to demonstrate that probate jurisdiction over the property of a resident situated within a state is the exercise of. thé right of a sovereign.
There are many authorities to the effect that the. state has the sole and exclusive power over the disposition of property under its jurisdiction. (United States v. Fox, 94 U.S. 315 [24 L.Ed. 192]; Sunderland v. United States, 266 U.S. 226 [45 S.Ct. 64, 69 L.Ed. 259]; United States v. Perkins, 163 U.S. 625 [16 S.Ct. 1073, .41 L.Ed..287];. Beaver v. Short, 300 F. 113.) In the case of Hamilton v. Brown, 161 US. 256 [16 S. Ct„ 585, 40 L.Ed. 691], the Supreme Court of the United States lays down the rule as follows (at p. 263):
“By the law of England, before the Declaration of Independence, the lands of a man dying intestate' and without lawful heirs reverted by escheat to the King as the sovereign lord; but the King’s title was not complete without an actual entry upon the land, or judicial proceedings to ascertain the want of heirs and devisees. Attorney General of Ontario v. Mercer, L.R. 8 App.Cas. 767, 772, 2 Bl.Com. 245. The usual form of proceeding for this purpose was by an inquisition or inquest of office before a jury, which was had upon a commission out of the Court of Chancery, but was really a proceeding at common law; and, if it resulted in favor of the King, then, by virtue of ancient statutes, any one claiming title in the lands might, by leave of that court, file a traverse, in the nature of a plea or defence to the King’s claim, and not in the nature of an original suit. Lord Somers, in The Bankers’ case, 14 Howell’s State Trials, 1, 83; Ex parte Webster, 6 Ves. 809; Ex parte Gwydir, 4 Maddock, 281; In re Parry, L.R. 2 Eq. 95; People v. Cutting, 3 Johns. 1; Briggs v. Light-Boats, 11 Allen, 157, 172. The inquest of office was a proceeding in rem; when there was a proper office found for the King, that was notice to all persons who had claims to come in and assert them; and, until so traversed, it was conclusive in the King’s favor. Bayley, J., in Doe v. Redfern, 12 East, 96, 103; 16 Vin. Ab. 86, pl. 1.
“In this country, when the title to land fails for want of heirs and devisees, it escheats to the State as part of its common ownership, either by mere operation of law, or upon an inquest of office, according to the law of the particular State. [7144] Kent Com. 424 ; 3 Washb. Real Prop. (4th ed.) 47, 48.” (Italics supplied.)
(See, also, United States v. De Repentigny, 5 Wall. (72 U.S.) 211 [18 L.Ed. 627].) Even money deposited in the United States Treasury when an escheat occurs escheats to the state where it was originally situated. (United States v. Klein, 303 U.S. 276 [58 S.Ct. 536, 82 L.Ed. 840]; American Loan & Trust Co. v. Grand Rivers Co., 159 F. 775.)
Statutes providing for escheat have been held to be part of the intestate laws of a state. (People v. Richardson, 269 Ill. 275 [109 N.E. 1033]; 29 Harv. L. Rev. 455.)
This being the case it is all the more evident that there can be no federal escheat statute. Laws governing the devolution of property have always been the subject of exclusive' state jurisdiction.
There is only one exception to the rule that a state has exclusive control over the devolution of title to property located within its jurisdiction. This exception tends to prove the general rule. The exception is in the case of the property of restricted Indians whose property is held in trust for them by the government. In the case of such property the courts have held that:
“Restricted Indian lands do not become subject to the operation of the laws of the state until all restrictiong-from the right of the allottee to alienate have been removed and relinquished by the Congress.” (Beaver v. Short, 300 F. 113.)
In the instant case, the veteran is not to be treated as a restricted Indian. There are no restrictions on his right to alienate his property and the government does not hold it in trust for him.
The fact that the money in the estate was derived from the United States- does not change the general rule, that the state escheat statutes control property situated within the state. (Etheridge v. Doe, 18 Ala. 565.)
It has been held by the Supreme Court of the United States and by the courts of several states that when money is paid to a veteran pursuant to a pension, title vests in the recipient and the United States has no right or interest in said money. (Spicer v. Smith, 288 U.S. 430 [53 S.Ct. 415, 77 L.Ed. 875, 84 A.L.R. 1525]; Carrier v. Bryant, 306 U.S. 545 [59 S.Ct. 707, 83 L.Ed. 976]; United States Fidelity & Guaranty Co. v. Montgomery, 226 Ala. 298 [146 So. 528]; State ex [715]rel. Smith v. Board of Commissioners, 132 Kan. 233 [294 P. 915] (certiorari denied, 283 U.S. 855 [51 S.Ct. 648, 75 L.Ed. 1462]).)
In Spicer v. Smith, supra, the Supreme Court of the United States speaking through Mr. Justice Butler stated that the very escheat provision of the federal statute was evidence that title to the money had passed to the veteran.
The fact that the money was paid to a guardian does not alter the situation. The intervention of a guardian does not leave the pension funds in the hands of the government but, when paid to the guardian, the title and possession have both passed from the government. (State ex rel. Smith v. Board of Commissioners, 132 Kan. 233 [294 P. 915] (certiorari denied, 283 U.S. 855 [51 S.Ct. 648, 75 L.Ed. 1462]).)
This rule is best expressed by the Supreme Judicial Court of Massachusetts, in the case of Kellogg v. Waite, 12 Allen (Mass.) 529. The pertinent portion of this decision reads as follows:
“It is undoubtedly competent for the United States to attach such conditions as they may see fit to the grant of a pension, and to fix by law the time and manner in which the property shall finally pass to the pensioner. But when this money was paid to the agent of the principal defendant, by her consent, and in conformity with the existing provisions of law, it became her property, and created a debt from the agent to her, over which the United States government had no longer any control or jurisdiction. It was no longer, in the language of the statute of 1866, ‘a sum of money due or to become due to any pensioner under the laws of the United States/ It had been paid, and was received by her in the manner she had chosen. It could not be recalled by the government, nor could its disposal be qualified or in any manner limited or abridged.” (Italics supplied.)
The pension money in the estate of the deceased had been his money. He had both title and possession and the money itself was within the jurisdiction of the California courts and subject to its statutes.
In support of its conclusion that the federal escheat statute will prevail over the state escheat statute, the majority opinion relies in part on the case of Tax Commission of Ohio v. Rife, 119 Ohio St. 83 [162 N.E. 390]. This case involved the proceeds of a war risk insurance policy. Under the law and the [716]contract, payments under the contract of insurance were not subject to inheritance taxes. The court held that the beneficiaries named in the policy took under the contract and not by reason of the statutes of descent and distribution, and therefore the inheritance tax did not attach. In the instant case, however, the State of California is taking under its statutes of distribution and the United States is attempting to take the funds involved not by reason of any contractual relationship between the deceased and the government, or by virtue of any trust impressed upon the money, but by • virtue of a statute of distribution which the Congress was powerless to enact. The Ohio ease points out this provision in the following language :
“ This right to take this property is by virtue of a contract between the United States government and the soldier, and does not arise by reason of the statutes of descent and distribution of this state, even though the government has seen fit to distribute such fund through the agency óf an administrator acting under the statutes of descent and distribution of the State of Ohio.” (Tax Commission of Ohio v. Rife, supra.)
Reliance is also placed upon the case of Abbott v. Morgenthau, 93 F.2d 242. (Certiorari denied 303 U.S. 638 [58 S.Ct. 526, 82 L.Ed. 1098].) This is another case involving a contract between the government and the veteran. The veteran entered a soldiers’ home. Upon entering the home the veteran agreed that “ ‘The balance due the pensioner at the ' date of his death shall be disposed of as directed by Act of Congress approved July 1, 1902. ’ ” The statute was amended ' in 1910. The court held that the 1910 amendment did not affect the contract and that as the claimant was not entitled to take under the 1902 statute, the balance of the pension money on deposit with the home should be paid into the federal treasury in accordance with the 1902 statute and the contract. There is dicta in the cited case to the effect that there is “no vested legal right to a pension at all, for, as has ' been said time and time again, pensions are bounties which Congress has the right to give, to withhold, to distribute, or ‘ to recall, at its discretion. ’ ’ I am disposed to agree with this dicta. “To recall” a pension means to repeal the act so that the pension does not continue. I know of no case in which, in the absence of fraud, an attempt is made to recover title [717]to pension money once the pensioner has. taken title and pos-, session of the same.
The statute relied on by appellant in the instant case does not attempt to distribute or recall the pension. What it does is to attempt to engraft an escheat statute on the substantive law of the .State of California contrary to the state law and in violation of the Tenth Amendment to the Constitution.
Beaver v. Short, 300 P. 113, is likewise relied upon by the majority opinion. This case provides the only exception to the rule that a state has exclusive control of the devolution of title to property located within its.jurisdiction. This exception tends to prove the general rule. The cited case concerned the property of restricted Indians whose property was held in trust for them by the government. In case of such property'the court held that:
. “Restricted Indian lands do not become subject to the operation of the laws of the state until all restrictions from the right of the allottee to alienate have been removed and relinquished by the Congress.” (Beaver v. Short, supra.)
In the instant case the veteran is not.to be treated as a restricted Indian. The Congress has impressed no restrictions ,on his. right to alienate his pension award and the government does not hold the same in trust for him. He can do as he pleases with the money—spend it,, give it away, or throw it away.
The fact that the money in the estate was derived from the United States does not change the general rule, that the state escheat statutes control property situated within the state., (Etheridge v. Doe, 18 Ala. 565.)
The majority opinion, however, relies principally on the case of United States v. Stevens (1938), 302 U.S. 623 [58 S.Ct. 388, 82 L.Ed. 484].
The cited ease is analogous to the case at bar. The rationale of the decision, however, supports the position of the respondents in this case. In the Stevens case the veteran died an inmate of a federal veterans’ home. By statute (24 U.S.C. § 136) and as a prerequisite to admission to the home, inmates were required to turn over to the home all property which the inmate did not dispose of by will, and upon death the property was to vest in the board of managers of the home. The inmates were required to execute a written contract [718]which embodied the statutory requirements. In the Stevens case such a contract was executed. Upon the death of a veteran inmate, the United States sited his administratrix for the proceeds of the estate. The Circuit Court of Appeal (89 F.2d 151) held that the statute and contract were in violation of the Tenth Amendment to the Constitution as an interference with the reserved rights of the state.
The Supreme Court in reversing the Circuit Court of Appeal stated:
“This contract, however, is valid under the applicable state law. . . .
“During the life of the veteran, his property was his own to dispose of as he desired; . . .
“In passing the Act of June, 1910, Congress merely directed the terms and conditions under which veterans, consistently with state law, can obtain admittance to Homes built, maintained and operated by the government for the benefit of veterans. Homes for the aged, needy, or infirm, in return for the benefits bestowed by them, generally receive some benefit from any property or estates of their members.” (Italics supplied.) (United States v. Stevens, supra.)
The decision just cited is based upon the proposition that the veteran’s property is his own, to be dealt with as he sees fit. If he chooses to become an inmate of a veterans’ home, he does so by contract and the home succeeds to the veteran’s property by virtue of a contract with the veteran made and enforced in accordance with the laws of the state.
All of the important cases relied upon by the majority opinion in arriving at its determination are cases based upon contracts between the veteran and the government, either insurance contracts or domiciliary contracts. In each of these cases the government took, not by virtue of an escheat law, but by reason of a contract with the veteran.
In the instant case the government attempts to take under an escheat statute. If the government is entitled to the money in question under a contract, it would have established its right in a plenary action by the filing of a claim and the institution of a suit. However, recognizing that its right is not based upon contract, it appeared in the probate proceeding and asked for distribution of the estate under the federal escheat law.
In my opinion the federal government cannot prevail be[719]cause escheat statutes are part of the laws providing for the devolution of title to property located within the jurisdiction of a state. Such laws are part of the sovereign powers of a state, reserved to the state under the Tenth Amendment to the Constitution of the United States.
In my opinion the decree should be affirmed.