§ 351. The rule in Iowa and Nebraska.-There are at least four cases1 in which the Supreme Court of Iowa held

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.

.

Fink

"Appellants cite Frederickson vs. Louisiana, 23 Howard, 445. 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 kingdom 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

nations in treaty relations with this Government; in each case, however, the statute and treaty must be carefully ex

the state and aliens in the same circumstance and sustained the tax as valid. Appellants quote from the opinion as follows: But we concur with the supreme court of Louisiana in the opinion that the treaty does not regulate testamentary disposition of citizens or subjects of the contracting powers with reference to property within the country of their origin or citizenship. The cause of the treaty was that the citizens and subjects of each of the contracting powers were or might be subject to onerous taxes upon property possessed by them within the states of the other by reason of their alienage, and it is, perhaps, to enable such citizens to dispose of their property, paying such duty only as the inhabitants of the country where the property lies pay under like conditions. The case of a citizen or subject of the respective countries residing at home, and disposing of property there in favor of a citizen or subject of the other, was not in contemplation of the contracting powers, and is not embraced in this article of the treaty.' This view of that treaty is applicable to the one before us, but we fail to see wherein it supports the claim that the facts of this case do not bring it within the provisions of this treaty.

"IV. Appellants cite authorities to the effect that the states alone have the right to regulate, by legislation, descents and conveyances of real estate within their borders, and from this it is argued that the federal government has no power, by treaty,' to interfere with the right of the state in regard to the descent of property upon the death of its citizens;' that treaties made without authority are not valid; that this treaty is in conflict with the laws of Iowa, and is, therefore, of no force or effect. It may be conceded that the states alone have such power; that they alone may declare to what kindred the estate of persons dying intestate shall descend. It must also be conceded that the federal government alone has power to treat with other governments as to rights of the citizens of each within the territory of the other. This treaty does not attempt to regulate descents of real property in Iowa. It does not declare that, when a son or daughter dies without issue, the estate shall go to the parents. It is left to the state, and Iowa has so provided. This treaty simply declares that, if that parent is disqualified by alienage, as to the citizens of these two governments, this disqualification is removed. In Article 6 of the Constitution of the United States, it is provided that this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution, or the laws of any state, to the contrary notwithstanding.' Many cases may be found wherein the courts have enforced treaty stipulations, similar to this, in favor of foreign claimants; but the case of People vs. Gerke, 5 Cal. 381, is the first we find wherein the power of the federal government in this respect was questioned. In that case, Deck, a citizen of Prussia, died in

amined, as in several instances the treaty stipulations do not provide for actual inheritance, but only give certain rights

San Francisco, leaving undisposed of a large amount of real property in that state. Article 14 of our treaty with Prussia is the same as Article 3 of this treaty. The attorney general, on behalf of the state, denied the power of the federal government to make such a provision by treaty, and argued, as is done in this case, that to exercise such power would permit the federal government to control the internal policy of the states, and in cases like this to alter materially the statutes of descent. The court, after an able consideration of the subject, concludes as follows: I can see no danger which can result from yielding to the federal government the full extent of powers which it may claim from the plain language, intent, and meaning of the grant under consideration. Upon some subjects the policy of a state government, as shown by her legislation, is dependent upon the policy of foreign governments, and would be readily changed upon the principle of mutual concession. This can only be effected by the action of that branch of the state sovereignty known as the 'General Government;' and, when effected, the state policy must give way to that adopted by the governmental agent of her foreign relations.' The reasoning and conclusion of the opinion are strongly emphasized by what is added by Justice Ryan. While the question of the power of the federal government in this respect was not directly passed upon in the following cases, they show that the courts have uniformly enforced such treaties, without doubting the power of the federal government to make them: Chirac vs. Chirac, 2 Wheaton, 259; Hauenstein vs. Lynham, 100 U. S. 483; Geofroy vs. Riggs, 133 U. S. 258 (10 Sup. Ct. Rep. 295); Fairfax vs. Hunter, 7 Cranch, 603; Carneal vs. Banks, 10 Wheaton, 189; Hughes vs. Edwards, 9 Wheaton, 489. In the recent case of Wunderle vs. Wunderle, 144 Ill. 40 (33 N. E. Rep. 195), the subject of descents and alienage is considered at length and with marked care and ability, as affected by the common law, and by statutes of the states and by treaties with the United States. In considering the effect of conflict between the statute of the state and a treaty with the United States, the court, after citing article 6 of the federal constitution, says: 'In construing this article, it has been held that provisions in regard to the transfer, devise, or inheritance of property are fitting subjects of negotiation and regulation, by the treaty-making power of the United States, and that a treaty will control or suspend the statutes of the individual states whenever it differs from them. Hence, if the citizen or subject of a foreign government is disqualified under the laws of a state from taking, holding, or transferring real property, such disqualification will be removed, if a treaty between the United States and such foreign government confers the right to take, hold, or transfer real property.' If it may be said that chapter 85 of the Acts of the Twenty-second General Assembly is in conflict with said treaty of January 21, 1845, reason and the authorities support the conclusion that the treaty must control.

of conversion into money, or of tenure for a limited period; the statute in such cases is only superseded to the extent

"It follows from the conclusions we have reached that an undivided one-half of the property in question vested in Mrs. Opel upon the death of her daughter, and upon her death it passed to her children, subject to the conditions imposed by said treaty, and that the other undivided one-half passed to the heirs of John C. Hormel, deceased. The decree of the district court being in harmony with these conclusions, it is affirmed."

Doeherel vs. Hillmer, Sup. Ct. Iowa, 1897, 102 Iowa, 169, LADD, J. The treaty with Prussia of 1828 provides that on the death of any person holding real estate within the territory of the one party, where such real estate would, by the law of the land descend on a citizen or subject of the other were he not disqualified by alienage, such citizen shall be allowed a reasonable time to sell the same and to withdraw the proceeds without molestation and exempt from all duties of detraction on the part of the governments of the respective States.

The court held, relying upon Opel vs. Shoup, 100 Iowa, 407; Wilcke vs. Wilcke, 102 Iowa, 173; Schultze vs. Schultze, 33 N. E. Rep. 201; Hauenstein vs. Lynham, 100 U. S. 463, that the provisions in this treaty controled, and that the claimants who were residents of Hanover, Germany, claiming the property as heirs of their mother, who had inherited under a will of an Iowa citizen, took an absolute fee although by an act of the Legislature of Iowa a non-resident alien could only acquire and hold real property of limited value providing that within five years from the date of purchase the property is placed in the actual possession of a relative and that such occupant become a citizen within ten years. The opinion says: "Clearly under the terms of the treaty with the king of Prussia, alienage does not affect the right of inheritance, when the heir or devisee is a citizen or subject of the country of the decedent, and this is not limited to one step in transmission."

Meier vs. Lee, 106 Iowa Rep. 303, Sup. Ct. Iowa, 1898, Given, J.

In this case certain persons claimed real estate in Iowa. They were not entitled to inherit under the laws of Iowa, but they invoked the provisions of the treaty with Sweden of 1783, but the court held that they did not apply.

That part of the opinion relating to the treaty point is as follows: "II. Appellants cite the treaty of 1783, between the king of Sweden and the United States (page 1042, Treaties and Conventions between the United States and Other Powers), and insist that, under article 6 thereof, appellants' mother was not disqualified from inheriting an interest in this land. Article 6 contains the following: The subjects of the contracting parties in the respective states may freely dispose of their goods and effects, either by testament, donation, or otherwise, in favor of such persons as they think proper; and their heirs, in whatever place they shall reside, shall receive the succession ab intestato, either in person or by their attorney, without having occasion to take out letlers of naturalization.' Conceding that this treaty is still in force,—a