Wood v. Sprague , 165 Or. 122 ( 1940 )

I am unable to concur in the reasoning or conclusion reached in this case. The defendants all admit, in their pleadings, that the decedent, Frank Logan, while an inmate of the Eastern Oregon state hospital, died intestate in Pendleton, Oregon, leaving approximately $2,400 on deposit in the Canadian Bank of Commerce in Seattle, King county, Washington, and also some $12.23 in the possession of the officers of said hospital. They further admit that his said estate was administered upon in King county and the court there found that the decedent had died intestate without leaving any known heirs and that, at the close of the administration, an order was made directing the administrator to pay over to the state treasurer of Oregon, as escheat moneys, the residue of decedent's estate, amounting to $1,554.05; that, pursuant to said order, the said administrator paid said sum to the state treasurer and he deposited the same, together with the $12.23, in the common school fund of the state of Oregon as escheat moneys.

The defendants not only admit these facts but they also expressly admit that these moneys so paid over to the state treasurer are escheat moneys which are now on deposit in the common school fund of this state. Moreover, section 10-102, Oregon Code 1930, provides:

"When any person shall die possessed of any personal property or of any right to or interest therein, not having lawfully bequeathed the same, such personal property shall be applied and distributed as follows: * * *

If there be no husband, widow or kindred of the intestate, the whole of such residue shall escheat to the State of Oregon."

So far as disclosed, the decedent had no other moneys or property at the time of his death. Clearly, the decedent as much died possessed of the moneys on deposit in the Seattle bank as if, at the time, he had had these moneys in his actual possession or on his person in Pendleton, Oregon. It is also clear that, in the absence of known heirs, the moneys escheated to the state of Oregon for no one else was competent to take title to the same.

We think it is also clear that an estate of personal property, consisting of money deposited in a bank, like other personal things, follows the person of the owner and is governed by the law of the domicile of the owner and, hence, that, upon decedent's death, he being a citizen of Oregon, these moneys escheated to the state of Oregon, as provided by the statute above quoted. See, also, 12 C.J., subject "Conflict of Laws", p. 470, sec. 64, et seq., and cases cited.

We are not dealing with real property located in another state which, upon the death intestate of the owner, would, in the absence of heirs, escheat to that state, but with personal property which, as stated, follows the person of the owner and is subject to the law of his domicile. But it is contended that, because of certain provisions contained in the escheat law of this state, the moneys could not escheat to the state of Oregon even though they were paid over to the state treasurer as escheat funds and were credited to the common school fund.

Section 11-1201, Oregon Code 1930, provides in part:

"When any person shall die intestate without heirs, leaving any real, personal or mixed property, interest or estate in this state, the same shall escheat to, and become the property of the state and clear proceeds derived therefrom shall be paid into and become a part of the common school fund of this state and be loaned, as provided by law, by the State Land Board."

Following this, the statute directs:

"* * * The county court before whom any probate matter is pending shall determine whether there are any legal heirs to said estate, and if it be determined by said court that there are no legal heirs thereto, said court shall order the administrator of said estate to transmit the clear proceeds thereof to the state treasurer of the state of Oregon, and said administrator shall immediately pay over to said state treasurer, all of such proceeds, and said treasurer shall credit the same to the common school fund as other moneys received from escheats."

There is no provision in the above statute which requires that the money paid over to the state treasurer as escheat funds shall not constitute an escheat merely because the administration has been had in another state. It can make no difference to the state of Oregon or to the parties in this proceeding whether this estate was administered in Washington or Oregon, since it is admitted that it was administered upon and the residue remaining was ordered to be paid over and has been paid over to the state treasurer as escheat funds. In the instant case, by its verdict, the jury found that the plaintiffs are the heirs of the decedent and are entitled to recover these moneys. The record also shows that the action was brought within the time limited by the Code. Hence, plaintiffs ought not to be deprived of that right merely because the moneys were on deposit in another state and were there administered upon.

It is contended, however, that because of the provisions of section 11-1213, Oregon Code 1930, as amended by chapter 217, L. 1937, this personal property could not escheat to the state of Oregon. The first sentence contained in section 11-1213, as amended, seems to be the basis of this contention. It reads:

"Within 10 years after judgment in any proceeding in thecircuit court escheating real property to the state of Oregon, orafter the order of the county court directing the conveyance ofescheated real property to the state, and in all other cases within 10 years after payment of the proceeds of escheated personal property to the state treasurer, a person not a party or privy to such proceeding, nor having actual knowledge of the making of such judgment or order or of such payment to the state treasurer, may file a verified petition in the circuit court of the county where such information was filed, showing his claim or right to the property escheated or the proceeds thereof." Italics ours.

The property not being real property, there could have been no judgment escheating it to the state or directing a conveyance thereof to the state. Hence, so far as this statute is applicable here, it should be read beginning with the words:

"and in all other cases within 10 years after payment of the proceeds of escheated personal property to the state treasurer, etc."

The last clause in the sentence providing that the person seeking to recover the funds "may file a verified petition in the circuit court of the county where such information was filed", has no application here, because no information was filed. The section of the statute which authorizes the filing of an information in escheat cases where escheat funds are not in the hands of a bank is section 11-1205, which provides in part:

"At any time after the death of such person and whenever the State Land Board is informed or has reason to believe that any such property has escheated to the state and has not beendelivered to or the title vested in the state, the board shall direct the district attorney of the judicial district in which such property may be to file an information on behalf of the state, etc." Italics ours.

It is admitted that the moneys in controversy here were delivered to the state treasurer and were by him deposited in and credited to the common school fund. There was, therefore, no necessity or reason to file an information and no information could have been or was filed. Hence, the provision that the persons seeking to recover the funds "may file a verified petition in the circuit court of the county where such information was filed", does not apply in the instant case. Besides, I think those provisions were directory and not mandatory and have nothing to do with the rights of the plaintiffs to recover in this action.

Under the present holding, if a citizen of Oregon dies intestate without heirs, leaving personal property in other states, none of such property, unless it is administered upon in Oregon, will escheat to this state. Such a ruling may result in great detriment to the common school fund.

It has been the legislative policy of this state since October 17, 1862, to provide for the recovery by the heirs of a decedent of escheated property under circumstances similar to those alleged and proved in this case, and I think that any construction which deprives these plaintiffs of the right to recover in this action defeats the very purpose and object of the law and ought not to be adopted.

For these reasons, I dissent to all except in respect to the ruling as to the $12.23.

BELT, J., concurs in this dissent.