Adams v. Akerlund

• Decision Date: 08 November 1897
• Citation: 168 Ill. 632,48 N.E. 454
• Parties: ADAMS v. AKERLUND et al.
• Court: Illinois Supreme Court

168 Ill. 632

48 N.E. 454

ADAMS

v.AKERLUND et al.

Supreme Court of Illinois.

Nov. 8, 1897.

Appeal from superior court, Cook county; John B. Payne, Judge.

Bill by Kajsa Greta Akerlund against Baba Brita Norlander, Christina Adams, Henry W. Adams, and another. From a decree in favor of complainant and defendants Norlander, defendants Adams appeal. Affirmed.Adelbert Hamilton and Morton John Stevenson, for appellants.

H. H. C. Miller and W. S. Oppenheim, for appellees.

This is a bill for partition, brought by Kajsa Greta Akerlund, against Baba Brita Norlander and Hans Norlander, her husband, and Christina Adams and Henry W. Adams, her husband. The property sought to be divided is a certain house and lot in Cook county. The bill alleges that the complainant and the defendant Baba Brita Norlander were each the owner of an undivided one-half of said premises; and that defendant Christina Adams has no interest therein, but is in the possession thereof, and unlawfully holding such possession. The bill was answered by Christina Adams and her husband, and by Baba Brita Norlander and her husband. The court below entered a decree finding that the complainant and Baba Brita Norlander were the owners each of an undivided one-half of the premises, by descent from their deceased brother, as hereinafter stated; and that the defendants Christina Adams and Henry W. Adams had no interest in said premises, and held possession thereof unlawfully. Commissioners were appointed to divide the premises, who reported that the same were not susceptible of division. In their report they fixed the value of the premises at $2,400. Thereupon the court entered the usual decree in partition for the sale of the premises. The present appeal is prosecuted from such decree of sale.

John Wilson, a brother of the complainant, Kajsa Greta Akerlund, and of the defendant Baba Brita Norlander, died intestate, on May 18, 1894, leaving no widow, nor children, nor descendants of children, nor any parents living, but leaving, as his two heirs at law, his two sisters, the complainant, and the defendant Baba Brita Norlander. At the time of his death said Wilson was a citizen of the United States; but at that time his two sisters above named were, and ever since have been, and are now, residents and subjects of the kingdom of Sweden. The defendant Christina Adams is a daughter of the complainant below, and a citizen of the United States.

MAGRUDER, J. (after stating the facts).

The appellee Kajsa Greta Akerlund and her sister, Baba Brita Norlander, were, at the time of the death of their brother, and ever since have been, and are now, residents and subjects of the kingdom of Sweden. They are therefore nonresident aliens. Under the act of the legislature of Illinois of July 1, 1887, in regard to aliens (Laws Ill. 1887, p. 5), they cannot inherit said premises, as heirs of their brother, if there is no treaty between the United States and Sweden permitting them to do so. In Wunderle v. Wunderle, 144 Ill. 40, 33 N. E. 195, we held that nonresident aliens, under the act of 1887, are not capable of acquiring title to, or taking or holding, any land or real estate by descent, unless there is some treaty between the government of which they are subjects or citizens and the government of the United States permitting them to do so. The act of 1887 must give way if it conflicts with any existing treaty between the United States and the kingdom of Sweden. The disqualification imposed by the act of 1887 is removed wherever there is a treaty conferring the right to take or hold or transfer real estate. Therefore the question to be considered in this case is whether there is any treaty between the United States and Sweden under which the sisters of the deceased, Wilson, are authorized to inherit said premises as his heirs.

On April 3, 1783, a treaty of amity and commerce was negotiated between the United States, represented by Benjamin Franklin, and the king of Sweden, represented by Gustav Philip, Comte de Creuts. This treaty was terminated, by the limitation contained in the first separate article thereof, 15 years from the day of its ratification; but on July 4, 1827, another treaty was negotiated between the king of Sweden and Norway and the United States. By article 17 of the treaty of 1827, certain articles of the previous treaty of 1783, including article 6 of the latter treaty, were revived, and made to have the same force and value as if they had been inserted in the context of the treaty of 1827. These treaties are published in volume 8 of the United States Statutes at Large, in both the French and English languages.[168 Ill. 635]8 Stat. 60, 346. Whether the original treaty of 1783 was written in the French language alone, or whether the English and French copies thereof, as so published, were both original treaties, does not appear from this record. Both parties to this litigation refer to the treaty as set forth in volume 8 of the United States Statutes at Large, and in that volume it is printed in both languages.

Article 6 of the treaty of 1783, as revived by the treaty of 1827, contains the following words: ‘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 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 detraction,’ on the part of the government of the two states respectively.' The French words, appearing in the French copies of the treaty, which correspond to the words ‘goods and effects,’ are ‘fonds et biens.’

Appellees claim that the French word ‘biens' means real as well as personal property. They introduced a witness upon the stand, who was a native of France, and educated in that country, to prove that such was the meaning of the word. This testimony, if it was not actually improper, was not material. U. S. v. Turner, 11 How. 663. Bouvier, in his Law Dictionary, defines the French word ‘biens' to mean: ‘Property of every description, except estates of freehold and inheritance.’ But this is evidently the strict meaning which it has as it is defined in the common-law writers, because immediately after this definition he adds these words: ‘In the French law this term includes all kinds of property, real and personal. Biens are divided into biens muebles, movable property, and biens immuebles, immovable property.’ It would thus appear that the word, as used in the original treaty, in the French language, has a meaning in the civil law, which includes both real and personal property. In a note to section 13 of Story on Conflict of Laws (8th Ed.) it is said: ‘The term ‘biens,’ in the sense of civilians and continental jurists, comprehends not merely goods and chattels, as in the common law, but real estate.' It is also said, in a note to section 146 of the same work: ‘Foreign jurists, commonly, in the term ‘biens,’ include all sorts of property, movable and immovable, in their discussions on this subject.' If, therefore, we look to the treaty as published in the French language, the term there used includes real estate as well as personal property.

Counsel for appellants contend that the French expression ‘fonds et biens' is correctly translated as ‘goods and effects.’ It is insisted that the English copy of the treaty (whether the treaty was originally negotiated in English as well as French, or whether an English translation was made of it after its original negotiation) is an official promulgation of the treaty in the English language, in view of the fact that it appears in publications and editions of the United States Statutes at Large, as authorized by congress. Whether this view is correct or not, it may be admitted for the purposes of this case that the words ‘goods and effects' are a correct translation of the French expression ‘fonds et biens.’ The question then arises as to the meaning of the word ‘effects.’ It cannot be doubted that in certain connections the word ‘effects' sometimes refers to both real and personal property. It is true that as a general thing the word ‘effects,’ when used in connection with the word ‘goods,’ means personal property, and not real property. But this is not its correct meaning where a contrary intention appears from the terms of the instrument in which the word occurs. The word ‘effects' is ‘a very general term, used to denote whatever a man has that can effect, produce, or bring forth money by sale.’ 6 Am. & Eng. Enc. Law, p. 174. Bouvier defines the word ‘effects' as follows: ‘Property or worldly substance. As thus used, it denotes property in a more extensive sense than goods. 2 Bl. Comm. 284. Indeed, the word may be used to embrace every kind of property, real and personal, including things in action.’ If the expression here, instead of being ‘goods and effects,’ was ‘goods and other effects,’ we should be inclined to apply the rule of construction that general and specific words, which are capable of an analogous meaning, being associated together, take color from each other, so that the general words are restricted to a sense analogous to the less general. Misch v. Russell, 136 Ill. 22, 26 N. E. 528;Bank v. Adam, 138 Ill. 483, 28 N. E. 955. Thus, in the case of Bank v. Adam, supra, where the words used were ‘all goods, chattels, or other property,’ it was held that the general words ‘or other property’ would be restricted to a meaning analogous to the meaning of the words ‘goods and chattels,’ and consequently would not embrace such property as fixtures or...