Buffalo R. & P. Co. vs. Lavery, N. Y. Sup. Ct. 5 Dept. 1894, 75 Hun, 396, Bradley, J.

See also cases in New York Surrogate Courts as to right of consul to administer on estates of decedents under treaty stipulations referred to under § 448 of chapter XV; see pp. 333 and 348, post. $ 350.

1 Adams vs. Akerlund, Sup. Ct. Ill. 1897, Magruder, J., 168 Ill. Rep. 632.

§ 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, had 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 and hold the estate. The treaty is the paramount law of the land; and even if it were abrogated by the original contracting parties, the vested rights of citizens, under it, would remain. (Const. of U. S. art. 6, s. 2. Lessees of Gordon vs. Kerr, 1 Wash. C. C. R. 322; Ware vs. Hylton, 3 Dall. 236; Dem vs. Fisher, 1 Paine's C. C. R. 54. S Wheat. 494.) It is not necessary then to consider the effect of the 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 intestato, either in person or by their attorney, without having occasion to take out letters of naturalization. These inheritances, as well as the capitals and effects which the subjects of the two parties, in changing their dwelling, shall be desirous of removing from the place of their abode, shall be exempted from all duty called droit de dé

Bollermann vs. Blake, N. Y. Ct. App. 1883, 94 N. Y. 624, EARL, J.

This case is not reported in full, but it appears that the rights of aliens under the treaty of 1845 with the Grand Duchy of Hesse provided for the reciprocal rights as to inheritance of citizens of one party within the territory of the other party, were sustained.

Kull vs. Kull, N. Y. Sup. Ct. traction' on the part of the Gov

treaty of 1827.3 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.4

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, or 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.

3 Treaty of Commerce and Navigation, concluded July 4, 1827. U. S. Treaties and Conventions, edition 1889, p. 1058; Article XVII (p. 1064) is as follows:

66

4 Schultze vs. Schultze, Sup. Ct. Ill. 1893, 144 Ill. Rep. 290, MAGRUDER, J. The point decided in this case is stated in the syllabus (§ 6, p. 291) 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 articles, signed on the same day by the same Plenipotentiaries, are revived, and made applicable to all the countries under the dominion of the present high contracting parties, and shall have the same force and value as if they were inserted in the context of the present treaty; it being understood that the stipulations contained in the articles above cited shall always be considered as in no manner affecting

The treaty provision referred to is Article VII of the Convention of Friendship, Commerce, and Navigation with the Free Hanseatic Republics of Lübeck, Bremen and Hamburg, concluded December 20, 1827, U. S. Treaties and Conventions, edition 1889, p. 533.

Article VII (p. 535) 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,

351. The rule in Iowa and Nebraska.-There are at least four cases1 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 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, and exempt from all duties of detraction on the part of the Government of the respective States."

Scharpf vs. Schmidt, Sup. Ct. Ill. 1898, 172 Ill. Rep. 255, CARTER, J.

Article II of the Convention with Wurttenberg for abolition of Droit d'Aubaine and taxes on immigration concluded April 10, 1884. (U. S. Treaties and Conventions, edition, 1889, p. 1144) was held to suspend the Illinois Alien Act of 1887, (Laws of Illinois, 1887, p. 5). Article II is as follows:

"Where, on the death of any person holding real property within § 351.

In Wunderle vs. Wunderle, Sup. Ct. Ill. 1893, 144 Ill. Rep. 40, McGRUDER, J., it was held (p. 54) that "if a citizen or subject of a foreign government is disqualified under the laws of the State from taking, holding or transferring real property, such disqualification will be removed, if the treaty between the United States and such foreign government confers the right to take, hold or transfer real property," and after citing a number of authorities, the opinion continues: "But the treaty, which will suspend or override the statute of the 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 imposed by the State law, 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."

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 kinglom 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