Johnson v. Olson

• Decision Date: 07 July 1914
• Docket Number: 18,913
• Citation: 92 Kan. 819,142 P. 256
• Parties: CARRIE JOHNSON, Appellee, v. ERICK OLSON et al., Appellees, and ANNA K. JACOBSON et al., Appellants
• Court: Kansas Supreme Court

142 P. 256

92 Kan. 819

CARRIE JOHNSON, Appellee, v. ERICK OLSON et al., Appellees, and ANNA K. JACOBSON et al., Appellants

No. 18,913

Supreme Court of Kansas

July 7, 1914

Decided July, 1914.

Appeal from Clay district court; SAM KIMBLE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. INHERITANCE--Descents and Distributions--Rights of Aliens to Inherit. In the absence of a governing treaty the repeal of the constitutional provision that no distinction shall be made between citizens and aliens in the inheritance, enjoyment and descent of property and the adoption in its place of the provision that the rights of aliens in reference to the inheritance, enjoyment and descent of property shall be regulated by law without enacting a statute regulating the inheritance of property by aliens revives and reinstates the common-law rule that an alien can not inherit from a deceased citizen.

2. SAME--Treaty between United States and Sweden. Article 6 of the treaty between the United States and Sweden, originally negotiated in 1783 and revived in article 17 of the treaty of 1827, relating to the disposition of "goods and effects," does not refer to or embrace real estate.

3. SAME--Alien Can Not Inherit Lands of a Deceased Citizen. The intestate, who was the owner of land in Kansas, died without wife or issue, his father and mother having previously died. Among his surviving brothers and sisters some were aliens and some citizens of the United States. One of his sisters who was an alien and alive when he died had two children who were citizens of the United States. Held, that the sister, being an alien, could not inherit a share of the estate, and that after her death her children, although citizens, were incapable of inheriting through her.

George L. Davis, of Clay Center, for the appellants.

F. B. Dawes, R. C. Miller, F. L. Williams, and J. L. Hogin, all of Clay Center, for the appellees.

OPINION

JOHNSTON, C. J.

The purpose of this action is the partition of a tract of land in Clay county which had been owned by Olaf Olson, who died intestate, unmarried and without children on January 3, 1911. His parents, who died prior to the time of his death, were citizens of Sweden and never had been citizens of the United States. They had seven children besides Olaf, and their names were Lizzie Person, Anna Anderson, Brita Olson and Carrie Johnson, sisters of Olaf, and Erick Olson, Zackarias Olson and Lars Olson, his brothers. Only three of these were citizens of the United States, Carrie Johnson, Erick Olson and Zackarias Olson, but Erick died without wife or children prior to the death of Olaf. The brother Lars Olson, deceased, was a citizen of Sweden and his only children and heirs were citizens of Sweden and never were citizens of the United States. The sister Lizzie Person was a citizen and resident of Sweden at the death of Olaf and had never been a citizen of the United States. Before the death of Olaf his sister Brita Olson died a citizen of Sweden, and she never had been a citizen of the United States, but she left four children, two of whom were and always had been citizens of Sweden and two of them, Betty Jerner and Olaf Olson, were residents and citizens of the United States when their uncle, Olaf, died. Another sister, Anna Anderson, was living at the time Olaf died and had always been a citizen of Sweden. She died in 1912, some time after this action was commenced, leaving four children, two of whom were citizens of Sweden and never citizens of the United States, and two of them, Anna K. Jacobson and Mary Burge, were citizens of the United States at the time that Olaf died. The trial court held that those who were aliens when Olaf died were not entitled to inherit any share in the land; that his sister Carrie Johnson, and his brother Zackarias Olson, citizens of the United States, were each entitled to an undivided one-third of the land; that Betty Jerner and Olaf Olson, citizens of the United States and children of an alien mother who was not living when Olaf died, were each entitled to one-sixth of the land; but that Anna K. Jacobson and Mary Burge, although citizens of the United States, did not inherit any share as their alien mother was living when Olaf died. Anna K. Jacobson and Mary Burge are the only relatives of the deceased who claimed a part of his estate other than those to whom it was awarded, and they are appealing from the decision holding that they were not entitled to inherit.

Whether they can inherit from their deceased uncle depends upon the interpretation of the treaty between the governments of Sweden and the United States and of our statutes of descent and distribution. If the appellants can inherit it must be through their mother, who was a citizen of Sweden when Olaf Olson died and who had never been a citizen of the United States.

Originally aliens and citizens were upon an equality in Kansas so far as the inheritance of property was concerned. The constitution provided that:

"No distinction shall ever be made between citizens and aliens in reference to the purchase, enjoyment or descent of property." (Bill of Rights, § 17, Compiled Laws 1885, § 99.)

At the general election in 1888 this provision was stricken from the constitution and in its place a provision was inserted providing, among other things, that:

"The rights of aliens in reference to the purchase, enjoyment or descent of property may be regulated by law." (Bill of Rights, § 17, Gen. Stat. 1909, § 99.)

Since that time there has been no legislation on the subject except chapter 3 of the Laws of 1891 which provided for the early disposition of real estate then owned by nonresident aliens, and therefore we have no constitutional or statutory provisions regulating the inheritance of property by aliens. In the absence of any regulation or provision on the subject the rule of the common law will control. In 8 Cyc. 377, it is said:

"When a statute abrogating a rule or principle of the common law is repealed, the common-law principle or rule is ipso facto revived, unless there is something to show a contrary intent on the part of the legislature."

The common law was in force when the original provision of the constitution permitting aliens to inherit was adopted, and when it was abrogated without the substitution of a regulation or statute on the subject of inheritance the common law was revived. It is a settled principle of the common law that there can be no inheritance by, through or from an alien, and this principle has been applied in Kansas, where it was declared that:

"It is also the well-recognized rule of the common law that an alien can not inherit the lands of a deceased citizen." (The State v. Ellis, 72 Kan. 285, 288, 83 P. 1045.)

The supreme court of Iowa held that the common law controlled in the absence of legislation in regard to the rights of an alien to inherit, upon the theory that statutes as well as constitutional provisions are to be construed in reference to the principles of the common law, and that where they are silent upon the subject the principles of the common law will govern. It was said that:

"The statute regulating the descent of property in Iowa, at the adoption of the constitution, was that of February 13, 1843, and provides that the lands of any person dying intestate, shall descend in equal shares to his children. This evidently means such children as have inheritable blood; for it being an inflexible rule at common law, that aliens, resident or non-resident, are not heirs, can not take by descent, nothing less than a plain and express provision in relation to them will change the rule." (Stemple v. Herminghouser, 3 G. Greene (Iowa), 408, 410; State v. Rollins, 8 N.H. 550; Nickels v. Kane's Adm'r, 82 Va. 309; Ins. Co. Valley of Virginia v. Barley's Adm'r, 57 Va. 363, 16 Gratt. 363; 6 A. & E. Encycl. of L. 931.)

This would be the controlling rule in the absence of a treaty regulation, but it is contended that under the terms of a treaty between the United States and Sweden the appellants take a share in the real estate owned by their uncle at the time of his death. A treaty between these governments was made on April 3, 1783, and in article 6 there was a stipulation regulating the property rights of the citizens of the contracting parties. The article was revived and inserted without change in the treaty of 1827. (8 U.S. Stat. at Large, pp. 60, 346, 354.) In the article it was agreed that:

"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 favour 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." (8 U.S. Stat. at Large, p. 64.)

The original treaty is published in the English and French languages as if both were originals, and the dispute is as to the meaning of the clause, "goods and effects," which is given in the French copy as "fonds et biens." Do these words refer to personal property only, or do they embrace real estate? It is contended that the French word "biens" means real as well as personal property, and a note to section 13 of Story on Conflict of Laws, 8th ed., is quoted, as follows:

"The term biens, in the sense of the civilians and continental...