Lehman v. State ex rel. Miller

• Decision Date: 12 May 1909
• Docket Number: No. 6,463.,6,463.
• Citation: Lehman v. State ex rel. Miller, 45 Ind.App. 330, 88 N.E. 365 (Ind. App. 1909)
• Parties: LEHMAN et al. v. STATE ex rel. MILLER, Atty. Gen.
• Court: Indiana Appellate Court

45 Ind.App. 330

88 N.E. 365

LEHMAN et al.

v.STATE ex rel. MILLER, Atty. Gen.

No. 6,463.¹

Appellate Court of Indiana, Division No. 2.

May 12, 1909.

Appeal from Superior Court, Marion County; Vinson Carter, Judge.

Suit by the State, on the relation of Miller, Attorney General, against Catherine Lehman and others to enforce the escheat of property.From a judgment for the state, defendants appeal.Affirmed.Frank T. Edenharter and George F. Mull, for appellants.Charles W. Miller, C. C. Hadley, and Charles Martindale, for appellee.

COMSTOCK, P. J.

On June 7, 1904, the appellee, the state of Indiana, on the relation of Charles W. Miller, its Attorney General, filed its second amended information in the court below to recover, under section 3941, Burns'Ann. St. 1908, of the appellants, and to quiet title to certain real estate in the city of Indianapolis, which was owned at the time of his death by one John Lehman, who died intestate, a naturalized citizen of the United States and a resident of Marion county, Ind., on July 21, 1894, and who left surviving him certain heirs, all of whom were then, and such of them as are still alive and the descendants of those who are dead are still, residents and citizens of the republic of Switzerland.A trial was had by the court, and judgment rendered in favor of the appellee.The errors assigned, and not waived, challenge the correctness of each of the conclusions of law 1, 2, and 3.

Section 3941, Burns'Ann. St. 1908(section 3333, Burns'Ann. St. 1901), or so much thereof as is necessary for the determination of the question here involved, is as follows: “All other aliens [other than those having declared their intention, etc., as provided in section 3940] may take and hold land by devise and descent only, and may convey the same at any time within five years thereafter, and no longer, and all lands so left and remaining unconveyed at the end of five years shall escheat to the state of Indiana. ***” It is claimed by appellants that said section(3941, Burns'Ann. St. 1908;section 3333, Burns'Ann. St. 1901) is in conflict with article 5 of the treaty between the United States and the Swiss Confederation, ratified November 8, 1855(11 Stat. 587), which reads as follows: “Art. 5.The citizens of each one of the contracting parties shall have power to dispose of their personal property within the jurisdiction of the other, by sale, testament, donation, or in any other manner; and their heirs, whether by testament, or ab intestato, or their successors, being citizens of the other party, shall succeed to the said property, or inherit it, and they may take possession thereof, either by themselves, or by parties acting for them; they may dispose of the same as they may think proper, paying no other charges than those to which the inhabitants of the country wherein the said property is situated shall be liable to pay in a similar case.*** The foregoing provisions shall be applicable to real estate situated within the states of the American Union, or within cantons of the Swiss Confederation, in which foreigners shall be entitled to hold or inherit real estate.But in case real estate situated within the territories of one of the contracting parties shall fall to a citizen of the other party, who, on account of his being an alien, could not be permitted to hold such property in the state or canton in which it may be situated, there shall be accorded to the said heir, or other successor, such term as the laws of the state or canton will permit to sell such property; he shall be at liberty at all times to withdraw and export the proceeds thereof without difficulty and without paying to the government any other charges than those which, in a similar case, would be paid by an inhabitant of the country in which the real estate may be situated.”

The special finding of facts may be summarized as follows: John Lehman, a native of Switzerland, made application on the 19th day of October, 1880, and became a citizen of the United States, and of the state of Indiana, and during all of said period until his death resided in the county of Marion in said state; that said John Lehman became owner of certain properties in the years 1881, 1883, and 1888 by deeds of conveyance; that he, from the dates of said several conveyances continuously remained, and at the time of his death was, the owner in fee simple of said several pieces of real estate; that he died intestate at Indianapolis, Ind., on the 21st day of July, 1894, leaving surviving him as his only heirs at law certain heirs (naming them); that all of the defendants hereto were at the time of the death of said John Lehman, and have continuously thereafter remained, and now are, residents and citizens of Switzerland; that his estate was duly administered, and the administrator discharged; that the defendants are all, and are the sole and only, heirs at law of said John Lehman, deceased, and there are no heirs of John Lehman now or heretofore residents of the state of Indiana, or who are, or at any time have been, citizens of the United States of America.That no part or portion of said real estate above described, or any interest in the same, has ever been conveyed by either or any of the defendants, or any other person, since the death of said John Lehman, but since the death of said John Lehman, his heirs, through an agent in Indianapolis, have been collecting and receiving the rents, income, and profits from said real estate up to the time of the commencement of this action, since which time they have been paid to a receiver heretofore appointed in this cause, and the defendants claim to be the owners of said real estate above described by inheritance from said John Lehman, deceased, as aforesaid.Upon the above finding the court stated its conclusions of law, in substance, as follows: (1) That said section 3941, supra, was not in conflict with any provision of the treaty between the United States and Switzerland, ratified on, to wit, November 8, 1855; (2) that the real estate (described) had escheated to the state of Indiana for the common school fund; (3) that the claims of the defendants are a cloud upon the title of said state of Indiana to the said real estate, and should be forever quieted and confirmed against the claims of the defendants, etc.

Appellant insists that article 5 of said treaty makes provision for two distinct classes of aliens, to wit: Those who are, by the laws of the state or canton, entitled to hold or inherit real estate, and those who on account of being aliens are not permitted to hold real estate; that the treaty recognizes the right of either country to deny to foreigners the right to hold or inherit real estate, but by the provisions of said treaty where they do inherit their rights are governed by the provisions relating to personal property, and not under the last clause thereof, which provides for a limitation such as the state or canton may establish.Treaties are a part of the supreme law of the land.State laws must give way to treaties made by the federal government.Lewis' Sutherland, Stat. Const. § 22, p. 38;Blythe v. Hinckley, 127 Cal. 431, 59 Pac. 787;Adams v. Akerlund, 168 Ill. 632, 48 N. E. 454;Scharpf v. Schmidt, 172 Ill. 255, 50 N. E. 182.Subject to the provisions of the organic law of the state, if any, relating thereto and the Constitution, laws, and treaties of the United States, the state, through its General Assembly, has full power to regulate the law of descent, and to determine whether aliens shall be permitted to hold real estate, and, if so, to what extent and under what circumstances.

The question in this cause is whether the statute in question is in conflict with the treaty of 1850, between the United States and the Swiss Confederation.We think it is firmly settled, except in so far as limitations have been placed on the inherent sovereignty of the states by treaty, that the state may deny aliens the privilege of inheriting lands; and it follows that, when it grants it, it may annex to the grant any conditions which it supposes to be required by its interests or policy.Donaldson v. State ex rel. Taylor(Ind.)67 N. E. 1029;Mager v. Grima, 8 How. 490, 12 L. Ed. 1168;Chirac v. Chirac, 2 Wheat. 259, 4 L. Ed. 234;Hauenstein v. Lynham, 100 U. S. 483, 25 L. Ed. 628;Hanrick v. Patrick, 119 U. S. 156, 7 Sup. Ct. 147, 30 L. Ed. 396;Blythe v. Hinckley, 180 U. S. 333, 21 Sup. Ct. 390, 45 L. Ed. 557;Wunderle v. Wunderle, 144 Ill. 40, 33 N. E. 195, 19 L. R. A. 84.In construing statutes that construction is favored which gives effect to every clause and every part of the statute, thus producing a consistent and harmonious whole.A construction which would leave without effect any part of the language used should be rejected if an interpretation can be found...