Goos v. Brocks

• Decision Date: 10 January 1929
• Docket Number: No. 26730.,26730.
• Citation: 117 Neb. 750,223 N.W. 13
• Parties: GOOS v. BROCKS ET AL. (SCHOLL ET AL., INTERVENERS).
• Court: Nebraska Supreme Court

117 Neb. 750

223 N.W. 13

GOOS

v.BROCKS ET AL. (SCHOLL ET AL., INTERVENERS).

No. 26730.

Supreme Court of Nebraska.

Jan. 10, 1929.

Syllabus by the Court.

Ordinarily, the provisions of treaties should be given a liberal rather than a narrow construction.

Article 14 of the Treaty with Prussia, concluded May 1, 1828 (8 Stat. 384), and article 7 of the Treaty with Hamburg, concluded December 20, 1827 (8 Stat. 370), when given a liberal interpretation, confer on subjects of the contracting provinces or states the right to inherit real estate situate in the United States from a citizen of this country when such right would be conferred by state statute but for their alienage.

Where the rights of nonresident aliens to an inheritance have vested under provisions of a treaty, such rights will not be affected by the subsequent suspension or abrogation of the treaty.

A state of war between the parties to a treaty will operate to abrogate only such of its provisions as are incompatible with a state of war.

The treaty right of a nonresident alien to inherit lands situated in the United States is not incompatible with, nor abrogated by, a state of war between this country and the other contracting power.

Appeal from District Court, Adams County; Blackledge and James, Judges.

Action by Margaretha Catherine Ohle Goos against Karl Brocks and others, wherein Mathew A. Scholl and another intervened. From a judgment vacating a sale in partition, plaintiffs and defendants appeal, and the State thereafter intervened, claiming title to the real estate by escheat. Reversed and remanded, with directions.

Tibbets, Lambe & Hewitt, of Hastings, and Detjen & Detjen, of St. Louis, Mo., for appellants.

Pierce & Simmons, of Beaver City, for appellees Scholl and others.

O. S. Spillman, Atty. Gen., and Paul E. Boslaugh and E. P. Nuss, both of Hastings, for the State.

Heard before GOSS, C. J., ROSE, GOOD, THOMPSON, and EBERLY, JJ., and REDICK, District Judge.

GOOD, J.

This appeal arises out of an action to partition lands in Adams county and involves the right of nonresident aliens to inherit land in the state of Nebraska. The parties to the original action claim to be the owners of the land as next of kin and heirs at law of Fred Ohle, who died, intestate, October 23, 1917, seised of the lands in controversy, and leaving surviving him, no widow, issue or parent. In the partition action there was an order confirming the shares of the parties, ordering partition, the appointment of a referee, and, upon his report, a sale ordered and had. The purchasers paid one-fourth of the purchase price at the time of the bid. The parties moved for a confirmation of the sale and for a distribution of the proceeds. Thereupon, the purchasers filed a petition in which they asked that the sale be vacated and that they be released from their bid and for a refund of the money paid by them. The ground on which the purchasers sought to vacate the sale and be released from their bid was that the parties to the action were nonresident aliens and were incapable of inheriting the lands in question; that, therefore, they had no title and no title could be given the purchasers.

The trial court found and determined that the parties to the action were nonresident aliens and were incapable of inheriting the lands from Ohle, and vacated the sale and released the purchasers from their bid. All of the parties to the original partition proceeding have appealed. After the appeal was lodged in this court, the state of Nebraska, having first obtained leave, intervened and claims title to the real estate by escheat, upon the ground that Ohle left no kindred capable of inheriting. The facts are not in dispute. The original parties to the action were, at the time of the death of Mr. Ohle, nonresident aliens and citizens of the then empire of Germany. At the time of Ohle's death a state of war existed between the United States and the German Empire.

At common law nonresident aliens were incapable of inheriting land. At the time Mr. Ohle died, section 6273, Rev. St. 1913, was in force. That section provides: “Nonresident aliens * * * are hereby prohibited from acquiring title to or taking or holding any lands or real estate in this state by descent, devise, purchase or otherwise, only as hereinafter provided.”

It will thus be seen that under the common law and statutes nonresident aliens were incapable of inheriting, unless such right was secured to them by a superior power. The Constitution of the United States makes treaties, entered into between the United States and other nations, the supreme law of the land, and such treaties, when made and ratified, will override or render nugatory for the time being any statute of a state to the contrary on matters which may be lawfully the subject of a treaty. That the right of nonresident aliens to inherit lands may be conferred by treaty has been recognized for many years.

In the instant case, the purchasers at the partition sale and the intervener contend that the declaration of war, on the part of the United States, against Germany, occurring April 6, 1917, operated to abrogate any treaty rights of the subjects of Germany, being nonresidents, to inherit lands in the United States, and the intervener further contends that the treaties which existed at the time war was declared did not extend to or cover the right of a subject of Germany to inherit lands from a citizen of the United States. On the other hand, the appellants contend that the existing treaties between the United States and provinces which formed a part of the German Empire were sufficient to guarantee to them the right to inherit from a citizen of the United States, and also that the treaty provisions, respecting the right to inherit, were not abrogated by the fact that a state of war existed between the United States and the German Empire.

The treaty provisions on which the appellants rely are set out as follows: Article 14 of the Treaty with Prussia, concluded in May, 1828, and promulgated March 14, 1829, among other things, provides: “The citizens or subjects of each party shall have power to dispose of their personal goods within the jurisdiction of the other, by testament. * * * And where, on the death of any person holding real estate, within the territories of the one party, such real estate would, by the laws of the land, descend on a citizen or subject of the other, were he not disqualified by alienage, such citizen or subject 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 government of the respective states.” Treaties and Conventions, vol. 2, p. 1500; 8 Stat. 384.

Article 7 of the Treaty with Hamburg, concluded December 20, 1827, and promulgated June 2, 1828, among other things, provides: “The citizens of each of the contracting parties shall have power to dispose of their personal goods, within the jurisdiction of the other, by sale, * * * 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.” Treaties and Conventions, vol. 1, p. 903; 8 Stat. 370.

Article 10 of the treaty with the German Empire, concluded December 11, 1871, and promulgated June 1, 1872, among other things, provides: “In case of the death of any citizen of Germany in the United States, or of any citizen of the United States in the German Empire, without having in the country of his decease any known heirs or testamentary executors by him appointed, the competent local authorities shall at once inform the nearest consular officer of the nation to which the deceased belongs of the circumstance, in order that the necessary information may be immediately forwarded to parties interested. * * * In all successions to inheritances citizens of each of the contracting parties shall pay in the country of the other such duties only as they would be liable to pay, if they were citizens of the country in which the property is situated or the judicial administration of the same may be exercised.” Treaties and Conventions, vol. 1, p. 553; 17 Stat. 926.

The intervener contends that the provisions of the treaties above set out were not intended to control the devolution of title to real estate from a citizen of the country in which it is situated, but only to control the right to inherit real estate from an alien owner residing in the country where the real estate is situated, and cites as supporting this view Petersen v. Iowa, 245 U. S. 170, 38 S. Ct. 109, 62 L. Ed. 225;Duus v. Brown, 245 U. S. 176, 38 S. Ct. 111, 62 L. Ed. 228;Frederickson v. Louisiana, 23 How. 445, 16 L. Ed. 577; and other cases from state jurisdictions. An examination of all of these cases discloses that the opinions deal with the right of the state to impose succession or death...