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The rule had already been laid down by Judge Van Ness in 1809 that land in New York vested in alien subjects of Great Britain under the provisions of the treaty notwithstanding the anti-alien lays of the State.
In People vs. Warren,' the defendant had been convicted of employing Italians on city work in Buffalo under a statute of the State which made it a crime for any one contracting with a municipal corporation to employ aliens as laborers upon the work done under the contract.
The court held that the act was unconstitutional as to the State and Federal Constitutions and also that it was void because it was repugnant to the treaty between the United States and the King of Italy of 1871, which provides in Article III, in substance, that resident Italians in the United States shall enjoy the same rights and privileges in respect to their persons and property as are secured to our United States citizens. Other decisions of New York courts are cited in the notes to this section.
3 Jackson vs. Wright, Sup. Ct. of the State of New York passed N. Y. 1809, Van Ness, J., 4 John- in 1825 as to the rights of aliens. son, 75.
In closing the opinion the court 4 People vs. Warren, Sup. Ct. says, pp. 660-661: Buffalo, N. Y. 1895, 13 Misc. Rep. " The Court of Appeals held, 615.
that land conveyed to an alien 5 These provisions of the treaty pursuant to the provisions of that are quoted in the notes to $ 356, of act might continue to be held by this chapter, post.
alien heirs and alien devisees of 6 Jackson Decker, N. Y. the grantee, until by inheritance, Sup. Ct. 1814, 11 Johns. N. Y. 418, devise or grant the title came to a SPENCER, J.
citizen. The plaintiff, an alien, Jackson vs. Lunn, N. Y. Sup. Ct. claimed under a will of an alien, 1802, KENT, J. (afterwards Chan- and his title was held valid; and cellor), 3 Johnson's Cases, 109. the word 'assigns,' in the act, was
Orser vs. Hoag, N. Y. Sup. Ct. the only word under which a de1842, NELSON, CH. J., 3 Hill, 79. visee could claim. The opinion of
Watson Donnelly, N. Y. Judge Ruggles is entirely appliSup. Ct. 1859, ALLEN, J., 28 Barb. cable to, and decisive of, the ques653. This was a question involving tion made under this branch of the the right of a British subject to case, as to the right of Mrs. Lynch devise lands and of the devisees to take as devisee and in turn to to dispose of the same.
devise to her daughter. This beThe opinion goes at length into ing the effect of the treaty of 1794, all of the cases in the Supreme and the right of alien owners to deCourt and of the effect of a statute vise to aliens being guaranteed by
$ 350. The rule in Illinois.-In 1897 the Supreme Court of Illinois held" that the State act disqualifying aliens must give way if it conflicts with any existing treaty between the United States and Sweden and that the disqualifications imposed by the State act were removed by Article VI of the treaty of 1783, which, although it had terminated by its own limitation, bad been revived by Article XVII of the it, the act of 1825 could not divest | Gen. Term, 1885, 37 Hun, 476, them of that right, or deprive the DAVIS, J. alien devisee of the right to take Buffalo R. & P. Co. vs. Lavery, and hold the estate. The treaty N. Y. Sup. Ct. 5 Dept. 1894, 75 is the paramount law of the land; Hun, 396, BRADLEY, J. and even if it were abrogated by See also cases in New York the original contracting parties, Surrogate Courts as to right of the vested rights of citizens, under consul to administer on estates of it, would remain. (Const. of U. S. decedents under treaty stipulations art. 6, s. 2. Lessees of Gordon vs. referred to under $ 448 of chapter Kerr, 1 Wash, C. C. R. 322; Ware XV; see pp. 333 and 348, post. vs. Hylton, 3 Dall. 236; Dem vs. $ 350. Fisher, 1 Paine's C. C. R. 54. 8 1 Adams vs. Akerlund, Sup. Ct. Wheat. 494.) It is not necessary Ill. 1897, MAGRUDER, J., 168 Ill. then to consider the effect of the Rep. 632. act of 1825 upon the devise of Dom 2 Treaty of Amity and Cominick Lynch, or determine whether merce, concluded April 3, 1783. it destroys the common-law rule U. S. Treaties and Conventions, by which an alien purchaser or edition 1889, p. 1042; Article VI devisee could hold the estate pur- (pp. 1043-4) is as follows: chased or devised, as against all ** The subjects of the contracting but the government; by which he parties in the respective States could take the estate, although not may freely dispose of their goods for his own use but the use of the and effects, either by testament, state. (Jackson vs. Beach, 1 John. donation, or otherwise, in favour Cas. 389. Jackson vs. Lunn, 3 id. of such persons as they think 109. People vs. Conklin, 2 Hill, 67.) proper; and their heirs, in whatever The motion for a new trial must place they shall reside, shall rebe denied.”
ceive the succession even ab intesBollermann vs. Blake, N. Y. Ct. tato, either in person or by their App. 1883, 94 N. Y. 624, EARL, J. attorney, without having occasion
This case is not reported in full, to take out letters of naturalizabut it appears that the rights of tion. These inheritances, as well aliens under the treaty of 1845 with as the capitals and effects which the Grand Duchy of Hesse provided the subjects of the two parties, in for the reciprocal rights as to in-changing their dwelling, shall be heritance of citizens of one party desirous of removing from the place within the territory of the other of their abode, shall be exempted party, were sustained.
from all duty called “ droit de déKull vs. Kull, N. Y. Sup. Ct. Itraction on the part of the Gov
treaty of 1827. Since that time there have been other decisions to the effect that treaty stipulations are superior to State statutes affecting descent and disposal of property. ernment of the two States, respec- the conventions concluded by tively. But it is at the same time either party with other nations, agreed that nothing contained in during the interval between the exthis article shall in any manner piration of the said treaty of one derogate from the ordinances pub- thousand seven hundred eightylished in Sweden against emigra- three and the revival of said artitions, or which may hereafter be cles by the treaty of commerce and published, which shall remain in navigation conclued at Stockholm full force and vigor. The United by the present high contracting States, on their part, of any of parties, on the fourth of September, them, shall be at liberty to make, one thousand eight hundred and respecting this matter, such laws sixteen." as they think proper.
4 Schultze vs. Schultze, Sup. Ct. 3 Treaty of Commerce and Navi- Ill. 1893, 144 Ill. Rep. 290, MAgation, concluded July 4, 1827. GRUDER, J. The point decided in U. S. Treaties and Conventions, this case is stated in the syllabus edition 1889, p. 1058; Article XVII($ 6, p. 291) as follows: (p. 1064) is as follows:
" The effect of the treaty of the “ The second, fifth, sixth, seventh, United States with Bremen is to eighth, ninth, tenth, eleventh, suspend, during the period of three twelfth, thirteenth, fourteenth, fif- years, the operation of the alien teenth, sixteenth, seventeenth, law of this state, which makes noneighteenth, nineteenth, twenty- resident aliens incapable of taking first, twenty-second, twenty-third, lands by descent; and the right of and twenty-fifth articles of the the resident heir or of the heirs treaty of amity and commerce capable of taking under the State concluded at Paris on the third of law, and the right of the State or April, one thousand seven hundred county to take the land by escheat eighty-three, by the Plenipotentia- in default of heirs capable of holdries of the United States of Amer-ing the same, are also suspended ica, and of His Majesty the King during the term of three years of Sweden, together with the first, named in the treaty.” second, fourth, and fifth separate The treaty provision referred to articles, signed on the same day by is Article VII of the Convention of the same Plenipotentiaries, are re- Friendship, Commerce, and Navivived, and made applicable to all gation with the Free Hanseatic Rethe countries under the dominion publics of Lübeck, Bremen and of the present high contracting par- Hamburg, concluded December 20, ties, and shall have the same force 1827, U. S. Treaties and Convenand value as if they were inserted tions, edition 1889, p. 533. in the context of the present treaty; Article VII (p. 535) is as follows: it being understood that the stipu " The citizens of each of the conlations contained in the articles tracting parties shall have power above cited shall always be con- to dispose of their personal goods sidered as in no manner affecting within the jurisdiction of the other,
$ 351. The rule in Iowa and Nebraska.—There are at least four cases' in which the Supreme Court of Iowa held
by sale, donation, testament, or the territories of one party, such otherwise; and their representa- real property would by the laws of tives, being citizens of the other the land descend on a citizen or subparty, shall succeed to their said ject of the other, were he not dispersonal goods, whether by testa- qualified by alienage, such citizen ment or ab intestato, and they may or subject shall be allowed a term take possession thereof, either by of two years to sell the same, which themselves or others acting for term may be reasonably prolonged them, and dispose of the same at according to circumstances, and to their will, paying such dues only withdraw the proceeds thereof as the inhabitants of the country without molestation, and exempt wherein said goods are shall be from all duties of detraction." subject to pay in like cases; and if, In Wunderle vs. Wunderle, Sup. in the case of real estate, the said Ct. Ill. 1893, 144 Ill. Rep. 40, MCheirs would be prevented from en- GRUDER, J., it was held (p. 54) that tering into the possession of the “if a citizen or subject of a foreign inheritance on account of their government is disqualified under character of aliens, there shall be the laws of the State from taking, granted to them the term of three holding or transferring real propyears to dispose of the same, as erty, such disqualification will be they may think proper, and to with- removed, if the treaty between the draw the proceeds without moles- United States and such foreign tation, and exempt from all duties government confers the right to of detraction on the part of the take, hold or transfer real propGovernment of the respective erty,” and after citing a numStates."
ber of authorities, the opinion conScharpf vs. Schmidt, Sup. Ct. tinues: But the treaty, which Ill. 1898, 172 Ill. Rep. 255, CAR- will suspend or override the stat
ute of the State, must be a treaty Article II of the Convention between the United States and the with Wurttenberg for abolition of government of the particular counDroit d'Aubaine and taxes on im- try, of which the alien, claiming to migration concluded April 10, 1884. be relieved of the disability im(U. S. Treaties and Conventions, posed by the State law, is a citizen edition, 1889, p. 1144) was held to or subject. A treaty with some suspend the Illinois Alien Act of other country, of which such alien 1887, (Laws of Illinois, 1887, p. 5). is not a citizen or subject, cannot Article II is as follows:
have the effect of removing the “Where, on the death of any per disability complained of." son holding real property within $ 351.
1 IOWA CASES. Opel vs. Shoup, 100 Iowa, 420, Sup. Ct. Iowa, 1896, GIVEN, J.
In this case the question involved was the right of an alien to inherit property in the State of Iowa which he could not have inherited except under the provisions of the treaty with Bavaria of 1845.
that non-resident aliens could inherit in Iowa where treaties of the United States removed disabilities of the citizens of
That part of the opinion which relates to the treaty rights involved is as follows, at pp. 420 to 425:
“ This treaty abolishes, as between these governments and the subjects thereof, every kind of droit d'aubaine, droit de retraite, and droit de detraction or tax on emigration.'
"Black's Law Dictionary defines droit' as equivalent to the English word 'right;' and · droit d'aubaine' as, 'in French law, a rule by which all the property of a deceased foreigner, whether movable, or immovable, was confiscated to the use of the state, to the exclusion of his heirs, whether claiming ab intestato, or under a will of the deceased.' It is this provision of the treaty that we are called upon to consider. Appellants insist that the provisions of the treaty are not applicable to this case; that confiscation was never applied by any government to property of its own deceased citizens; and that the treaty only contemplates the protection of the citizens of either government, who may die having property in the other. The fault of this argument is in assuming that the protection is for the dead, and that the property remains in the deceased. It is conceded that this property vested in some living person immediately upon the death of Mrs. Hormel. If, under the common law, that person was disqualified by alienage from inheriting it, then this treaty applies and removes that disqualification.
“In the absence of this treaty, Mrs. Opel was disqualified, by alienage, from inheriting this property; but by it the disqualification was removed, and therefore the property descended to her. Our inquiry, then, is as to property in Iowa belonging to a resident and subject of Bavaria.
“Appellants cite Frederickson vs. Louisiana, 23 Howard, 445. 'Fink was a naturalized citizen of the United States at the time of his death, and residing in the city of New Orleans; also, that the legatees resided in the kingdom of Wurtemberg, and are subjects of the King of Wurtemberg.' We had a treaty with that kingilom similar to that under consideration. Louisiana had a statute providing that each and every person, not being domiciled in this state, and not being a citizen of any other state or territory in the Union, who shall be entitled, whether as heirs, legatee, or donee, to the whole or any part of the succession of a person deceased, whether such person shall have died in this State, or elsewhere, shall pay a tax of ten per cent. on all sums, or on the value of all property which he may have actually received from said succession, or so much thereof as is situated in this state, after deducting all debts due by the succession.' Rev. St. 1876, section 3683. The claim of the state to this tax was resisted, on the ground that it was contrary to the third article of the treaty, and that article alone, and not the second, as in this case, was under consideration. The third article of that treaty relates solely to personal property, and is different in its language from the second, which is identical with the second in this. The court held that the act does not make any discrimination between citizens of