Opel v. Shoup
| Decision Date | 12 December 1896 |
| Citation | 69 N.W. 560,100 Iowa 407 |
| Parties | FRED OPEL v. ANNA SHOUP, et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Johnson District Court.--HON. M. J. WADE. Judge.
ACTION in equity to determine the interest of the several parties in lots 1, 2, and 3, block 51, in Iowa City, belonging to the estate of John C. Hormel, a resident of Iowa who died at Iowa City, testate, April 13, 1892. All the defendants except the wife and children of F. C. Hormel, deceased, appeal from the decree rendered.
Affirmed.
Robinson & Patterson for Anna Shoup, appellant.
The court erred in holding that said Anna Shoup took nothing under said will, but was only entitled to one-tenth of said estate as heir of John C. Hormel, deceased.
The intent of the testator is the first great subject of inquiry.
Murphy v. Black, 44 Iowa 177; 1 Redfield Wills, pages 434, 435, Rule 21; Clarke v. Johnston, 85 U.S. 18 Wall. 493, 21 L.Ed. 904; Schouler, Wills, section 466; 1 Redfield, Wills 3d Ed. page 432, cl. 17.
In drafting the will, Mr. Hormel had the estate in his mind's eye, divided into two equal parts, one being his wife's portion, the "other half" being the portion to be given to Anna Shoup on division provided for in the will. In case of said sister's death, before division, then he calls it "the one-half my estate," meaning thereby his own part of the estate that had failed to have passed to the sister, by her death before division, which, in that event, was to go to his heirs by blood kinship.
The condition of re-marriage of Mrs. Hormel did not in the least affect Mrs. Shoup's interest, it only affected the interest of Mrs. Hormel in this, that in such event, she was to lose the interest earned by half the estate, the payment of which was then to cease.
Remley & Ney for appellants Schultze, et al.
This will provides that the entire estate shall be placed in the hands of a trustee. It is not, and does not purport to be a disposition of only one-half of his estate, the other half of which he recognizes by law would go to his widow without a will, but it is a disposition of all the property of which he died seized.
Snyder v. Miller, 67 Iowa 261; Severson v. Severson, 68 Iowa 656.
The appellants are the heirs of John C. Hormel, and no heirs having been found under the rules of descent laid down in sections 3657-3661 of McClain's Code, inclusive, the property of the said Elizabeth Hormel, deceased, goes to the heirs of her deceased husband, under section 3662 of McClain's Code.
The treaty simply provides, when a citizen of one of the contracting parties holding property in the territory of the other contracting nation dies, and such property, by the law of the land, descends to the citizen or subject of the nation of which the decedent was a citizen, then such heir shall be allowed two years to withdraw the proceeds, and that no duty shall be imposed by reason of such withdrawal. In other words, the term "any person" relates to a citizen of one country holding property in the territory of another.
Frederickson v. Louisiana, 64 U.S. 23 Howard 445, 16 L.Ed. 577.
The interpretation of the treaty sought to be placed by the appellee, would make it possible for the President, with the approval of the Senate, to rob the states of one of their inherent powers as sovereign states.
A treaty cannot change the Constitution of the United States.
207 1/2 lbs. Papers Smoking Tobacco v. United States ("The Cherokee Tobacco"), 78 U.S. 11 Wall, 616, 20 L.Ed. 227.
The regulation of descent is not a matter given to the United States government by the Constitution; hence, it is reserved to the states.
Watkins v. Holman, 41 U.S. 16 Pet. 63, 10 L.Ed. 888; Wilcox v Jackson, McConnel, 38 U.S. 13 Pet. 498, 516, 10 L.Ed 264, 273; Kerr v. Moon, 22 U.S. 9 Wheaton, 565, 570 6 L.Ed. 161, 163; United States v. Crosby, 11 U.S. 7 Cranch, 115, 3 L.Ed. 287; Robinson v. Campbell, 16 U.S. 3 Wheaton 212, 4 L.Ed. 372.
The descent and heirship of real property are governed by the laws of the country where it is located.
Story, Confl, L. sections 424, 428.
Elizabeth Hormel having died, her mother, who was a non-resident alien, could not, under the provisions of section 1, inherit property from the deceased. One could not inherit land through an alien ancester.
Furenes v. Mickelson, 86 Iowa 508; Bennett v. Hibbert, 88 Iowa 154; Re Gill, 79 Iowa 296, 9 L. R. A. 126.
Treaties made under authority of the United States are the supreme law of the land (Article 6, Constitution of the United States), but a treaty not authorized by the Constitution is not the supreme law.
Article 1 of the treaty between the United States of America and Bavaria, is as follows: "Every kind of droit d'aubaine, droit d're traite, and droit detraction, or taxes on emigration, is hereby and shall forever remain abolished between the two contracting parties, their citizens and subjects respectively."
Article 2. "Where on the death of any person holding real property within the territory of one party, such real property would, by the law of the land, descend to a citizen, or subject, of the other were he not disqualified by alienage, such citizen, or subject, shall be allowed a term of two years to sell the same, which may be reasonably prolonged according to circumstances, and withdraw the proceeds thereof without molestation, and exempt from all duties of detraction."
Article 3 provides that the citizen, or subject, of each of the contracting parties shall have the power to dispose of their real and personal property within the states of either by testament, donation, or otherwise, etc.
Our contention is, that the term, "any person," in Article 2, relates to a citizen of one country holding property in the territory of the other. This construction is that adopted by the department of state. Opposite the section is the following note: "Death of citizens of one nation in territory of the other."
D'aubaine, in the French law, is a rule by which all property of the deceased foreigner, whether movable, or immovable, is confiscated to the state to the exclusion of his heirs, whether claiming ab in testato, or under a will of the deceased. Black's Law Dictionary and Bouvier's Law Dictionary.
Article 1 of the treaty abolishes the right to confiscate property, etc., but does not fix the time for removal, nor does it prohibit a duty upon removal, and for this purpose alone was the second section enacted.
The three rights claimed by sovereign states, referred to in article 1 of the treaty, related alone to cases where a foreigner died within the state. There was no application, and could be none, of the rights therein named which were formerly claimed by the state, except where a foreigner died having property within the territory of the state, which claimed the right to escheat the property to the state. Hence, the terms become meaningless when applied to a citizen of the United States, and the property situated therein, of which he died seized. The term, droit d'aubaine, means the right to confiscate the property within the territory of a state or power, belonging to a citizen of some other state or power, upon the death of the owner thereof. This central idea runs through the whole treaty.
In construing a treaty with Wurtemberg, which is identical with the Bavarian treaty, the supreme court of the United States, in Frederickson, et al., v. State of Louisiana, 23 Howard, 445, holds that the treaty does not regulate the testamentary disposition of citizens or subjects of the contracting powers, with reference to property within the country or origin of their citizenship; the case of a citizen or subject of the respective countries residing at home, and disposing of property there in favor of a citizen or subject of the other, was not in contemplation of the contracting powers, and is not embraced in this article of the treaty.
It will not be contended that the federal government has had the power to prescribe rules of descent for the citizens of the state, granted to it. A treaty made outside the powers conferred by the constitution, is not the supreme law of the land.
A treaty cannot change the Constitution of the United States. The Cherokee Tobacco Case, 11 Wall. 616.
An act of congress may supersede a former treaty. Ibid.
The Watkins v. Holman, 16 Peters, page 63.
"The state has an undoubted right to legislate as she may please in regard to the remedies to be prescribed in her courts, and to regulate the disposition of the property of her citizens by descent, devise or alienation."
Wilcox v. Jackson, 13 Peters, 498, on page 516.
Again, on page 517: "We hold the true principle to be this: That whenever the question in any court, state or federal, is whether the title to land which has once been the property of the United States has passed, that question must be resolved by the laws of the United States; but whenever, according to these laws, the title shall have passed, then the property, like other property in the state, is subject to state legislation."
It is an unquestionable principle of law that the title to and disposition of real estate must be exclusively subject to the laws of the country where it is situated.
Robinson v. Campbell, 3 Wheaton, 212.
United States v. Crosby, 7 Cranch, 115.
Wunderle v. Wunderle, 33 N.E. 195, in construing article 6 of the constitution, states a rule too broad, and is not sustained by the authorities which it cites.
Chapter 85, of the acts of the Twenty-second General...
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