Wunderle v. Wunderle

Decision Date18 January 1893
PartiesWUNDERLE et al. v. WUNDERLE.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Appeal from circuit court, Jersey county; George W. Herdman, Judge.

Bill by Charles Wunderle and Veronica Schaefer against Catharine Wunderle for partition of land which formerly belonged to Alexander Wunderle, who was the husband of defendant and the brother of the complainants. Defendant pleaded that complainants did not inherit any interest in the land because they were nonresident aliens. A decree was entered sustaining the plea and dismissing the bill. Complainants appeal. Affirmed.J. G. Koester, William Vocke, and Julian W. Mack, for appellants.

D. D. Goodell, for appellee.

MAGRUDER, J.

Alexander Wunderle, the owner of the land in controversy, died intestate and without issue, and left, him surviving, a widow, who is the appellee herein, and one brother and one sister, who are the appellants herein. His death took place in January, 1891, while the act of 1887 hereinafter mentioned was in force. Have appellants become the owners of one undivided half of the land, subject to the widow's dower and homestead rights therein, under the laws of this state in regard to the descent of property? The decision of this question depends upon the decision of the further question whether the fact that the appellants were nonresident aliens at the time of the intestate's decease rendered them incapable of taking real estate in Illinois by inheritance.

By chapter 4 of the Revised Statutes of 1845 it was provided that ‘all aliens residing in this state may take, by deed, will, or otherwise, lands and tenements, and any interest therein, and alienate, sell, assign, and transmit the same to their heirs, or any other persons, whether such heirs or other persons be citizens of the United States or not, in the same manner as natural-born citizens of the United States or of this state might do; and, upon the decease of any alien having title or interest in any lands or tenements, such lands and tenements shall pass and descend in the same manner as if such alien were a citizen of the United States, and 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.’ It will be noticed that the act of 1845 conferred the right to take lands by deed, will, or otherwise, and to alienate, sell, assign, and transmit the same, upon ‘all aliens residing in this state.’ By an act approved February 17, 1851, to foregoing provision of said chapter 4 of the Revised Statutes was amended by leaving out the words ‘residing in this state’ after the words ‘all aliens, ‘so as to confer the right to take lands by deed, will, or otherwise, and to alienate, sell, assign, and transmit the same, upon all aliens, whether residing in Illinois or not. 1 Starr & C. Ann. St. c. 6, p. 264. The act of 1851 remained in force until 1887. On June 16, 1887, the legislature passed an act which went into force on July 1, 1887, entitled ‘An act in regard to aliens, and to restrict their right to acquire and hold real and personal estate, and to provide for the disposition of the lands now owned by nonresident aliens.’ Laws Ill. 1887, p. 5; 3 Starr & C. Ann. St. c. 6, p. 19. By the tenth section of the act of 1887 the act of 1851, ‘and all other acts and parts of acts in conflict with’ the act of 1887, are repealed. The first section of the act of 1887, with the exception of the proviso at the end thereof in reference to ‘minor aliens actually residing in the United States,’ is as follows: ‘Be it enacted * * * that a nonresident alien, firm of aliens, or corporation incorporated 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 so acquiring such lands is of the age of twenty-one years, and, if not twenty-one years of age, then for the term of five years from the time of so acquiring such lands; and if, at the end of the time herein limited, such lands so acquired by such alien heirs have not been sold to bona fide purchasers for value, or 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.’ By the use of the words ‘heirs of aliens who may acquire lands under the provisions of this act,’ reference is evidently made to the case specified in section 8 of the act, where a nonresident alien owning lands in this state at the time the act took effect disposes of the same during his lifetime, and takes security for the purchase money, and afterwards he ‘or his nonresident heirs' again obtain the title, on sale made under a judgment or decree rendered in order to enforce the payment of any part of such purchase money. The appellants do not come within the terms of the exception mentioned in section 1, because they are not the heirs of an alien, but, on the contrary, the deceased intestate, whose heirs they claim to be, was a citizen and resident of the United States at the time of his death. They do, however, come directly within the terms of the principle or enacting clause of section 1. As it is conceded that they are, and always have been, residents of the grand duchy of Baden and subjects of the German empire, each of them is a nonresident alien; and the enacting clause of section 1 expressly and explicitly declares that a ‘nonresident alien * * * shall not be capable of acquiring title to or taking or holding any lands or real estate in this state by descent.’ Manifestly, therefore, the appellants are not entitled to take any portion of the lands in controversy by inheritance from their deceased brother, if the act of 1887, as applied to the facts of this case, is a valid law. The subject presented by the record is the validity of the act of 1887.

First. It is said that the act conflicts with various treaties made by the government of the United States, and particularly with a treaty made in 1871 with the German empire. It is a general rule of the common law that the title to real property must be acquired and passed according to the lex rei sitae. This rule not only applies to alienations and acquisitions made by the acts of the parties, but also to estates and rights acquired by operation of law. The descent and heirship of real estate are governed by the law of the country where it is located. Story, Confl. Laws, §§ 424, 448, 483, 509; Stoltz v. Doering, 112 Ill. 234. This principle, originally applicable as between countries entirely foreign to each other, also prevails as among the states of the American Union. From it results the doctrine that the title of aliens to land within the limits of the several states is matter of stateregulation. Williams, Real Prop. (4th Ed.) p. 64, note 1; Lawrence's Wheat. Int. Law, p. 168u; Story, Confl. Laws, § 430; Wheat. Int. Law, (Boyd, 3d Ed.) p. 132; 2 Whart. Int. Law Dig. bottom pp. 490, 497; Field, Int. Code, (2d Ed.) p. 176. But, while it is true that ‘the right of foreigners to hold title to real estate is entirely dependent on the laws of the state in which the land is situate,’ (2 Whart. Int. Law Dig. p. 490, § 201,) 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. Article 6 of the federal constitution provides that ‘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 laws of any state to the contrary notwithstanding.’ 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. Hauenstein v. Lynham, 100 U. S. 483;Geofroy v. Riggs, 133 U. S. 258, 10 Sup. Ct. Rep. 295;Ware v. Hylton, 3 Dall. 199;Chirac v. Chirac, 2 Wheat. 259;Orr v. Hodgson, 4 Wheat. 453;Fairfax v. Hunter, 7 Cranch, 603;People v. Gerke, 5 Cal. 381. But 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 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. The objection made to the act of 1887 is that it does not allow nonresident aliens, who would be the heirs of citizens under the Illinois statute of descents but for their alienage, to hold real estate, which they might otherwise inherit as heirs, for such a reasonable length of time as would enable them to sell the same and remove the proceeds of sale. In support of this...

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