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In the Matter of the Estate of Henry Sticknoth.

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would otherwise have gone into the general state fund from escheated estates. That this ought to be the law, I think, is obvi

That it is so, I believe, all the authorities concur. In The State v. Tilghman, 14 Iowa, 474, under constitutional provisions substantially identical with ours, both as to the right of the educational fund and the prohibitions against special legislation, this very question arose and was decided. The court there say: defect of the argument is, that it takes for granted that the estate fell within the law of escheat, whereas this was the very question that was being controverted when the legislature passed the act aforesaid. Neither the title nor the proceeds of the property had as yet vested in the state, and the legislature may have deemed it a doubtful question whether it ever would be held to be escheated property ; and if it should be so held, it would probably work injustice to innocent parties. Hence it was thought proper, as an act of justice *** as well as of prudence in avoiding the hazards of much costs, to make the disposition of the controversy which it did. Concerning its constitutional competency to do so,

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little doubt under the circumstances of this case.' That is, the state might relinquish to the legatee all her interest in the property. And, if she could do this directly, she could attain the same result indirectly, by declining to insist upon or by taking away a technical defense to the probate of the will. This is what our statute has done ; and this the legislature, the state alone having an interest in preventing the probate, might do. 4 Zab., N. J. 575.

In Ohio, by a statute enacted in 1847, it was provided that escheated property should be applied to the benefit of the state agricultural fund. In 1853 a statute was enacted applying such property to the exclusive support of common schools. In January, 1852, a bastard died intestate, leaving personal property, which was claimed on the one hand by legitimate children of his mother, and by the agricultural society of the state on the other hand. The bastard had survived his mother, and therefore, according to the construction theretofore placed upon a statute of 1831, his estate could not pass to the maternal line. The statute of 1853 above mentioned was passed while the estate of the bastard was in course

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In the Matter of the Estate of Henry Sticknoth.

of settlement, and by one of its provisions prevented any escheat to the state, and gave the estate to the children of the bastard's mother. P. C. “ The right to distribution was a vested right, and if it had belonged to a private person, could not have been impaired by subsequent legislation. In such case the distribution must have been made according to the law in force when the right accrued ; but it belonged to the state, and she had unlimited control over her own interests. The whole effect of the statute was to operate the relinquishment of an interest then existing, and to create a capacity in others to take it.” It was further held unnecessary to decide whether the act of 1847 created a vested interest in the agricultural fund, so as to invalidate the subsequent grant to the school fund. On this point the court say: “Before either fund could be replenished, escheated property must exist. Being merely public instrumentalities, it was within the power of the legislature to take it from the one and give it to the other; or to do what we think has been done, take it from both and give it to those better entitled by relinquishing the right of the state to the escheat. When property is found undoubtedly escheated, it will be in time to decide which of these funds can make the best claim to it.” 4 Ohio State, 361 ; See also 8 Ired. Eq. 262; 31 Ill. 68.

The constitution of Maryland provided that the legislature should not use or appropriate certain taxes to any purpose, except one specified. Pending a suit against a collector of such taxes and his sureties, an act was passed releasing the defendants from liability for the failure of the principal to pay over the taxes collected by him. It was objected, as here, that the act was void, because in violation of the provision of the constitution fixing the destination of the sum in litigation. P. C.: “We regard this act of assembly as a mere release of claim on these bonds, and not as an appropriation or use of the taxes levied to pay the public debt of the state within the prohibition of the constitution. That instrument did not, by the clause relied upon, intend to deny to the legislature the power to compromise and release claims of the state against its citizens, and, when exercised, we must suppose there was sufficient reason for it.” 15 Md. 205. By the common law, as held in the Kentucky case above cited, no meritorious or indefeasible right to this property

In the Matter of the Estate of Henry Sticknoth.

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ever vested in the public administrator. He would hold the intestate's property in trust for the state, the ultimate distributee, and not for his own use or benefit. Our statute of distributions affirms this principle of the common law. The public administrator alone has set up the unconstitutionality of this statute. It is well settled that courts will not declare a statute void, as infringing upon vested rights, except at the instance of a party whose rights are violated or impaired. I cannot see how this statute, so far as it has been acted upon, affects any vested right of the public administrator, or that he has any right to insist upon an escheat which the state has seen fit to relinquish.

It is argued that this is a special statute and therefore void, for two reasons : first, as regulating the practice of courts of justice; and second, because a general law could be made applicable. The statute is not a regulation of practice : the practice of the probate court is not altered by it. It primarily affects the rightincidentally, if at all, the remedy. It is a provision as to what shall constitute a valid will, rather than a regulation of the course of procedure by which the probate of the will may be obtained, or the mode in which the rights created are to be administered.

As to the second objection, whatever might be my individual opinion, I cannot distinguish this case from the case of Hess v. Pegg, ante. Whether any statute which would have been judicially noticed at common law can be regarded as special under our constitution, and whether this statute would be so noticed, we do not decide. Vid. 24 Ind. 34.

By the statute of 1862 it was thoughtlessly enacted, that no will should be valid unless sealed with the seal of the testator. A noncompliance with this useless requirement is urged in this court - no such objection having been made below — as a reason for

a reversing the judgment. The will is not before us, and consequently we do not know that the fact is as alleged. The transcript does not purport to contain a copy of the original will, or a fac simile thereof; but only a translation, as follows: Empire the 4 Feby 69. Sibo shall my money have when I buried am and my coat and my overalls. This write I that it him nobody take can Henrich Sticknoth.” Even if we could infer from this, that the orig

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In the Matier of the Estate of Henry Stickpoth.

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inal, when filed, was without a seal, it may be, nevertheless, that the testator complied with the statute, in this respect. He may have so complied by attaching a wafer, or by affixing a piece of paper with mucilage, or appending a seal to the will with a string or ribbon, or by writing on it any symbol or hieroglyphic which it was his habit to use as a seal.

Such or other compliance may have been proved to the satisfaction of the court below, although prior to the hearing and without the privity of the legatee, all traces thereof had been obliterated from the paper. It was unnecessary to make mention of the seal in the instrument. Even in case of a deed, the omission of the clause : “in cujus rei testimonium,&c., where a seal is affixed, is wholly unimportant; without it the instrument is

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deed. Comyn's Dig., Title “ Fait,” A 2, F 2, note (2). A fortiori, this is true in regard to wills under our statute. If it could be held at this day that the destruction of the seal before issue joined avoids a deed, the same rule would not apply to a will, because by the act of sealing the condition imposed by the statute is performed, and for other and obvious reasons. 2 Grattan, 453; 1 Gallison, 70174; 3 McLean, 334.

The order and judgment appealed from should be affirmed, and it is so ordered.

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By WHITMAN, J., dissenting.

This case, so far as the transcript is concerned, comes up in an unsatisfactory manner. Questions of importance, suggested by brief, cannot be considered, because they are not properly before the court. All that can be reviewed is presented by the petition, objections, and order — substantially, the judgment roll.

It is objected, however, even to such review, that no appeal lies in the case thereby made, but the order admitting the will to probate is a judgment upon the pleadings and issues of fact and law presented, and from such judgment an appeal lies to this court. The petition avers that Henry Sticknoth died upon the tenth day of February, 1869, in Ormsby County, state of Nevada, having made upon

the fourth of said month a will in favor of one Seibo Muntinga. That such will was not made in strict conformity with

In the Matter of the Estate of Henry Stickpotb.

the statute governing such cases, but that the act of the legislature of March 4th, 1871, provided that it should be admitted to probate, “the same as though it was executed in conformity with the general law.” The contestant objects, among other matters which cannot be considered, for the reason before suggested, that the law is unconstitutional, for several grounds specifically assigned. The order of the court admits the will to probate. Thus, by petition and objections, the statute is directly brought in question. That statute is as follows:

“ Sec. 1. The paper purporting to be the last will and testament of Henry Sticknoth, deceased, is hereby declared to be as legal and valid as though the signature of the testator to the same was attested by two subscribing witnesses ; and the claimant, Siebo Muntinga, is hereby authorized to offer said paper for probate before the proper court, and the same shall be considered by the court as if the signature of the testator was attested, as required

by law.

“ SEC. 2. Nothing in this act shall be construed as determining the issue of fact, whether said paper is the last will and testament of said deceased; but said issue shall be submitted to and be determined by the proper court.

“Sec. 3. Nothing in this act shall be so construed as to prevent any heir or heirs of said deceased from contesting the validity of the said paper purporting to be the last will and testament of said deceased, within the time allowed by law, should any such contestant or contestants appear. “ SEC. 4. No claim of Siebo Muntinga, or of any other person,

, to the money or estate of said Henry Sticknoth, deceased, and no action for the recovery of the same by any person, shall be held by any court to be barred by the statute of limitations or otherwise ; provided, such claim shall be set up, or such action shall be commenced within twelve months from the date of the passage of this act.

“SEC. 5. All acts and parts of acts heretofore passed, so far only as they conflict with the provisions of this act, are hereby repealed.” Stats. 1871, 129.

The first section of the statute is fatal to its validity. The con

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