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treaty stipulation, he entertained doubts of the correctness of the decision.13 130

§ 241. Rule recognized that treaty may regulate rights.-The rule is definitely announced in California that the rights of aliens to possess and enjoy property in the United States may be regulated by treaty, and that all state legislation to the contrary must yield to a treaty as the supreme law. The right to regulate the tenure of real property within a state is primarily a state right, and a state may permit aliens to take hold and dispose of property, real and personal, to any extent that will not conflict with the provisions of a treaty. While the common-law rule is that an alien does not possess inheritable blood, the state may change this rule, and remove the disability, if there is no paramount law to prevent it. The fact that the treaty between the United States and Great Britain is silent upon the subject matter of the right of citizens of the latter country to inherit property within the United States is not, in effect, a denial of that right, nor can it in any manner affect the power of the state to confer the right. 131

§ 242. In Delaware. That a treaty is paramount to a statute was likewise declared in Delaware. The code of that state provides that it shall be no objection to the kindred, husband or

of an alien's property, then that power resides nowhere (since it is denied to the States), and we must confess our system of government so weak and faulty, as to be incapable of extending to its citizens in foreign lands that protection which is most common amongst a majority of modern civilized nations.'' People v. Gerke & Clark, 5 Cal. 383.

In Forbes v. Scannell, 13 Cal. 242, Mr. Justice Baldwin said (p. 282): "In People v. Gerke (5 Cal. 381), this court in giving effect to the treaty with the kingdom of Prussia, which had direct effect on property in this state in opposition to its laws of descent, went further than is necessary to go to uphold the treaty and

laws in question." People v. Gerke, 5 Cal. 381, was cited in Blythe v. Hinckley, 127 Cal. 435, 59 Pac. 787; approved in Wunderle v. Wunderle, 144 Ill. 54, 33 N. E. 195, 19 L. R. A. 84, Opel v. Shoup, 100 Iowa, 407, 69 N. W. 560, 37 L. R. A. 583, and De Geofroy v. Riggs, 133 U. S. 267, 10 Sup. Ct. Rep. 295, 33 L. ed. 642; and also cited in Hauenstein v. Lynham, 100 U. S. 490, 25 L. ed. 628. 130 Siemssen v. Bofer, 6 Cal. 252.

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widow of any alien, of any citizen deceased, taking lands through the intestate laws, that they are aliens, provided that at the time of the intestate's death they reside within the United States. The code also declares that if any such kindred are aliens and do not reside within the limits of the United States at the time of the death of the intestate, they shall be passed as if they were dead. The treaty with Great Britain, ratified July 28, 1900,132 provided that, if on the death of any person holding real property within the territory of one of the contracting parties, a citizen or subject, were it not for the disqualification by the laws of the country in which such real property is situated, would be entitled to take it, such citizen or subject shall be allowed three years in which to sell the same. The code is in violation of this treaty, which contemplates the removal of the disqualification of alienage, and places the next of kin, though aliens, on the same plane as if they were residents of the state."

12 31 Stats. 1939.

133 Dockstader v. Kershaw, 4 Penne. (Del.) 398, S. C., sub nom. Doe v. Roe, 55 Atl. 341. In that case the defendant contended that the language of the treaty was so obscure, ambiguous and contradictory, as to be incapable of any sensible interpretation, and referring to this, the court said: "It is almost inconceivable that the language of a paper of such grave importance as this treaty between two great nations should be clothed in language at once so loose and careless. It reflects but little credit upon the persons charged with the duty of forming this treaty, and suggests that some degree of competency should hereafter be required in such cases. Still, however, in applying the ordinary rules of interpretation to the plain purposes and scope of the treaty, it seems to us that section 1 of the treaty contemplates the elimination of the disqualification of alienage in the next of kin, so far as it relates to the subject matter of this suit, and puts

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the next of kin on the same footing as if they were all residents of this state at the time of the death of the intestate.'

Article 1 of the treaty referred to reads: "Where, on the death of any person holding real property (or property not personal) within the territories of one of the contracting parties, such real property would, by the laws of the land, pass to a citizen or subject of the other, were he not disqualified by the laws of the country where such real property is situated, such citizen or subject shall be allowed a term of three years in which to sell the same, this term to be reasonably prolonged if circumstances render it necessary, and to withdraw the proceeds thereof, without restraint or interference, and exempt from any succession, probate or administrative duties or charges other than those which may be imposed in like cases upon the citizens or subjects of the country from which such proceeds may be drawn."

§ 243. In Illinois. Under the Revised Statutes of Illinois of 1845 aliens residing in the state were rendered capable of taking and transmitting real estate to the same extent as if the aliens were citizens of the United States, and it was provided that "it shall be no objection to any persons having an interest in such estate that they are not citizens of the United States, but all such persons shall have the same rights and remedies, and in all things be placed on the same footing, as natural-born citizens and actual residents of the United States." In 1851, the statute was amended, by the omission of the words "residing in this state," thus conferring upon all aliens, whether residing in Illinois or not, the right to take and transmit lands by deed, will or otherwise.134 In 1887 an act was passed restricting the right of aliens to acquire and hold real and personal estate, and providing that a "nonresident alien, firm of aliens, or corporation organized under the laws of any foreign country shall not be capable of acquiring title to or taking or holding any lands or real estate in this state by descent, devise, purchase, or otherwise, except that the heirs of aliens who have heretofore acquired lands in this state under the laws thereof, and the heirs of aliens who may acquire lands under the provisions of this act, may take such lands by devise or descent, and hold the same for the space of three years and no longer, if such alien at the time of acquiring such lands is of the age of twentyone years, and if not twenty-one years of age, then for the term of five years from the time of acquiring such lands; and if, at the end of the time herein limited, such lands so acquired by such alien heirs have not become actual residents of this state, the same shall revert and escheat to the state of Illinois the same as the lands of other aliens under the provisions of this act.''135

§ 244. Existence of treaty.-An owner of land in Illinois died intestate, leaving among other heirs a brother and a sister, who were, and always had been, residents of the grand duchy of Baden, and subjects of the German Empire. They were not entitled to take any portion of the land by inheritance from their deceased brother if the act last mentioned was a valid law. The court stated that it is a general rule of the common law that

124

1 Starr & Curtis' Ann. Stats., c.

6, p. 264.

135 Ill. Laws, p. 5; 3 Starr & Curtis' Ann. Stats., c. 6, p. 19.

the title to real property must be acquired and transmitted according to the lex rei sitae, and that the right of aliens to hold land within the limits of the several states is a matter of state regulation, but "it is also true that the state law must give way if it conflicts with any existing treaty between the government of the United States and the Government of the country of which such foreigner is a subject or citizen." 136 While the court recognized this rule, it declared that "the treaty which will suspend or override the statute of a state must be a treaty between the United States and the government of the particular country of which the alien claiming to be relieved of the disability is a citizen or subject. A treaty with some other country, of which such alien is not a citizen or subject, cannot have the effect of removing the disability complained of." The court then went into the question whether a treaty actually existed, giving aliens the right to inherit. It appeared that several treaties referred to by the nonresident heirs contained a clause allowing nonresident heirs a reasonable time to sell real estate and withdraw the proceeds, but there was no treaty with Baden containing a similar clause. It was also contended that the treaty concluded on December 11, 1871, between the United States and the German Empire, into which Baden had been incorporated, contained a stipulation which should be construed so as to remove the disability imposed upon the nonresident heirs. The court held, however, that this last-named treaty could not be so construed, and on the ground, solely, that there was no treaty in existence between the United States and the grand duchy of Baden or the German Empire, decided that the disabilities imposed by the statute upon the nonresident aliens were not removed by any treaty stipulations. 137

§ 245. Statute not unconstitutional as special law.-It may be observed, in passing, that the statute in question was held not to be in violation of any constitutional provision against local or special laws changing descent.138 While in the case just cited

136 Wunderle v. Wunderle, 144 Ill. 40, 33 N. E. 195, 19 L. R. A. 84.

137 Wunderle v. Wunderle, 144 Ill. 40, 33 N. E. 195, 19 L. R. A. 84. The absorption of Bavaria into the German Empire did not abrogate the

convention concluded between Bavaria and the United States on September 12, 1853. In re Thomas, 12 Blatchf. 370, Fed. Cas. No. 13,887.

138 Wunderle v. Wunderle, 144 Ill. 40, 33 N. E. 195, 19 L. R. A. 84.

nonresident aliens claiming to take lands by descent in Illinois were held to be incapable of inheriting under the statute, because there was no treaty between their country and ours allowing them to acquire or hold lands, yet in another case the question was presented, where a treaty existed between the United States and the Hanseatic Republic of Bremen, of which the claimants were citizens. In this case the court held that the treaty superseded the statute, and that in accordance with its provisions the nonresident alien heirs were entitled to sell the lands in Illinois which they would inherit except for alienage, and to withdraw the proceeds at any time within three years from the death of the ancestor. The interest in the land that vested in the alien heirs by the grant of the right during a term of years to sell the land and withdraw the proceeds is a fee which may be terminated by a failure to exercise the power within the time specified, and such ownership of a terminable fee carries with it the right to a partition, 139

§ 246. Construction of words.—In a case in this state the court was called upon to construe the word "biens" in a treaty written in French, which in the English version appeared as "effects." Article 6 of the treaty of April 3, 1783, between the United States and Sweden, as revised in article 17 of the treaty of July 4, 1827, provided that the subjects of the two contracting parties might "dispose of their goods and effects" by donation or other

Schultze v. Schultze, 144 Ill. 290, 36 Am. St. Rep. 432, 33 N. E. 201, 19 L. R. A. 20. Article 7 of the treaty which was concluded between the United States and the Hanseatic Republic of Bremen on December 20, 1827, is as follows: "The citizens of each of the contracting parties shall have power to dispose of their personal goods within the jurisdiction of the other by sale, donation, testament, or otherwise; and their representatives, being citizens of the other party, shall succeed to their said personal goods, whether by testament

or ab intestato, and they may take possession thereof, either by them

selves or others acting for them, and dispose of the same at their will, paying such dues only as the inhabitants of the country wherein such goods are shall be subject to pay in like cases; and if, in the case of real estate, the said heirs would be prevented from entering into the possession of the inheritance on account of their character of aliens, there shall be granted to them the term of three years to dispose of the same as they may think proper, and to withdraw the proceeds without molestation on the part of the government of the respective states."

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