Ripley v. Von Zedtwitz

• Citation: 201 Ky. 513,256 S.W. 1106
• Parties: RIPLEY ET AL. v. VON ZEDTWITZ ET AL.
• Decision Date: 04 December 1923
• Court: Court of Appeals of Kentucky

256 S.W. 1106

201 Ky. 513

RIPLEY ET AL. v. VON ZEDTWITZ ET AL.

Court of Appeals of Kentucky.

December 4, 1923

Rehearing Denied Jan. 29, 1924.

Appeal from Circuit Court, Jefferson County Chancery Branch, First Division.

Suit by Garnett D. Ripley and others against Waldemar Conrad Von Zedtwitz and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Matt O'Doherty, Morton K. Yonts, and James P. Gregory, all of Louisville, and C. C. Calhoun and Carlin, Hall & Carlin, all of Washington, D. C., for appellants.

Humphrey Crawford & Middleton, of Louisville, and Stewart & Shearer of New York City, for appellees.

CLAY J.

In the year 1895, Mary E. B. Caldwell, an American citizen, married Baron Von Zedtwitz, a citizen and resident of Prussia. They had only one child, Waldemar Conrad Von Zedtwitz, who was born in Berlin on May 8, 1896. At the time of his birth, and for a short time thereafter, his father lived in Prussia. In the year 1908, and after the death of his father, Waldemar and his mother, it is alleged, became naturalized citizens of Switzerland. His mother, Mary Caldwell Von Zedtwitz, died in the year 1910, the owner of some very valuable real estate located in Jefferson county, Ky. By her will, which was probated in Jefferson county, she devised the foregoing real estate to the United States Trust Company of New York and Henry Cachard to be held in trust for her son, Waldemar, upon certain terms and conditions not material to this controversy. During the World War Waldemar was a soldier in the German army, and was engaged in carrying on war against the United States.

In the month of February, 1922, this suit was brought by Garnett D Ripley and others to recover the property. The right of recovery is based on the assumption that the title to the property had vested in plaintiffs as the next of kin of the testatrix for the reason that Waldemar, being a nonresident alien, could not take real property, or taking could not hold for a longer period than eight years next after the final settlement of the estate of the testatrix, and that that period had long since expired.

The common-law principles governing the taking and holding of real property by aliens may be summarized as follows:

1. (a) An alien cannot take by descent. (b) If all the heirs of the intestate are aliens, the title escheats to the state without office found. (c) If there are other heirs capable of inheriting, the title vests in them.

2. (a) A nonresident alien may take by act of the parties, that is, by grant, deed, or will. (b) He may hold against all the world except the state. (c) He may hold even as against the state until office found or other equivalent act. (d) In this regard no distinction is made between alien friends and alien enemies.

See Fairfax v. Hunter, 7 Cranch, 606, 3 L.Ed. 453; Yeaker v. Yeaker, 4 Metc. 33, 81 Am.Dec. 530; White v. White, 2 Metc. 185; Trimbles v. Harrison, 1 B. Mon. 140; Fry v. Smith, 2 Dana, 38; Stevenson v. Dunlap, 7 T. B. Mon. 134; Elmondorff v. Carmichael, 3 Litt. 472, 14 Am.Dec. 86; Louisville v. Gray, 1 Litt. 146; Hunt v. Warnicke, Hard. 66; Crutcher v. Hord, 4 Bush, 360; 2 Bl. Com. 249; 2 Kent, Com. 560; Jackson v. Green, 7 Wend. (N. Y.) 335; Orr v. Hodgson, 4 Wheat. 453, 4 L.Ed. 613.

Particularly pertinent is the following excerpt from the opinion in Vaux v. Nesbit, 1 McCord Eq. (S. C.) 352, 381:

"It is contended, however, that whatever may be the English law upon the subject, it is incompatible with the principles of our government that an alien devisee should take by purchase, when there is a more remote relation who can take as heir. If that question were now for the first time to be considered in this country, the argument might perhaps have been entitled to great consideration. But in the case of Sheafe v. O'Neal, 1 Mass. Rep. 256, it is held that an alien cannot only take and hold, but that he may convey. In the case of Fairfax's Devisee v. Hunter's Lessee, 7 Cranch [U. S.] 603, 3 L.Ed. 453, it is held that an alien devisee may take and hold until office found, although there was a nephew who might have taken as heir. That is a case of high authority, for it is supported by the unanimous opinion of all the judges of the Supreme Court of the United States who were then present. Judge Johnson differed in opinion with the court on another ground. But, with regard to that question, he expresses his unequivocal approbation of the opinion of his brethren. There are other cases in which the same principle has been recognized. This court therefore does not feel authorized to introduce the innovation which has been contended for."

But it is insisted that the common-law rule that a nonresident alien may take and hold real estate against every one except the state has been changed by the act of April 29, 1892, now chapter 19 and embracing sections 332 to 339, inclusive, of the Kentucky Statutes. Section 332 declares who shall be citizens of the commonwealth. Section 333 declares how expatriation may be effected. The remaining sections seal with the rights of aliens, and are as follows:

"Sec. 334. An alien, not being an enemy, shall, after he has declared his intention to become a citizen of the United States, according to the forms required by law, be enabled to recover, inherit, hold, and pass by descent, devise or otherwise, any interest in real or personal property, in the same manner as if he were a citizen of this commonwealth.

Sec. 335. Any alien who shall have purchased, or contracted to purchase, any real estate, or who shall hold or have title thereto, and who shall become a citizen of the United States before the same is escheated by a proper procedure, which may be done at any time after the expiration of eight years from the time the title is acquired; and any purchaser, lessee, heir, or devisee, from him, if a citizen of the United States, who shall, before the property is escheated, become the owner thereof by purchase or inheritance, shall take and hold the same free and released from any right or claim of the commonwealth by reason of such person's having been an alien.

Sec. 336. Any woman whose husband is or shall be a citizen of the United States, and any person whose father or mother, at the time of his birth, was or shall be a citizen thereof, although born out of the United States, may take and hold real or personal estate by devise, purchase, descent, or distribution.

Sec. 337. An alien, the subject or citizen of a friendly state, may take and hold any personal property, except chattels real; and any such alien, if he resides within this state, may take and hold any lands for the purpose of residence, or of occupation by him or his servants, or for the purpose of any business, trade or manufacture, for a term not exceeding twenty-one years. An alien so taking and holding shall have like rights, remedies and exemptions touching such property as if he were a citizen of the United States.

Sec 338. If real estate within this commonwealth shall pass to a non-resident alien by descent or devise, the same may, for the period of eight years next after the final settlement of the estate of the decedent from whom it was acquired,...