Techt v. Hughes

• Decision Date: 08 June 1920
• Citation: 128 N.E. 185,229 N.Y. 222
• Parties: TECHT v. HUGHES et al.
• Court: New York Court of Appeals Court of Appeals

229 N.Y. 222

128 N.E. 185

TECHT

v.HUGHES et al. ^*

Court of Appeals of New York.

June 8, 1920.

Action by Sara E. Techt against Elizabeth L. Hughes, impleaded with others. From an interlocutory judgment of partition and sale (106 Misc. Rep. 524,176 N. Y. Supp. 356), defendant appealed to the Appellate Division of the Supreme Court, which affirmed (188 App. Div. 743,177 N. Y. Supp. 420), and defendant appeals by permission; the Appellate Division certifying a question.

Judgment affirmed, and question certified answered in the affirmative.

The Appellate Division certified the following question:

‘Has the plaintiff herein an estate of inheritance in the property sought to be partitioned in this action?’

Appeal from Supreme Court, Appellate Division, First department.

Joseph Day Lee, of New York City, for appellant.

Joseph Rosenzweig, of New York City, for respondent.

CARDOZO, J.

James J. Hannigan, a citizen of the United States, died intestate on December 27, 1917, seized in fee simple of real estate in the city of New York. Two daughters, the plaintiff, Sara E. Techt, and the defendant, Elizabeth L. Hughes, survived him. In November, 1911, the plaintiff became the wife of Frederick E. Techt, a resident of the United States, but a citizen of Austria-Hungary. On December 7, 1917, 20 days before the death of plaintiff's father, war was declared between Austria-Hungary and the United States. The record contains a concession that neither the plaintiff nor her husband has been interned, nor has the loyalty of either been questioned by the government of state or nation, and that both, remaining residents of the United States, have kept the peace and obeyed the laws. The plaintiff's capacity on December 27, 1917, to acquire title by descent is the question to be determined.

[1] The rule at common law was that aliens might take lands by purchase, and hold until office found, but could take nothing by descent. Martin v. Hunter's Lessee, 1 Wheat. 304, 4 L. Ed. 97;Hauenstein v. Lynham, 100 U. S. 483, 25 L. Ed. 628;Haley v. Sheridan, 190 N. Y. 331, 83 N. E. 296; 2 Kent's Comm. 54.

‘If an alien could acquire a permanent property in lands, he must owe an allegiance equally permanent with that property to the king of England, which would probably be inconsistent with that which he owes to his own natural liege lord, besides that thereby the realm might in time be subject to foreign influence, and feel many other inconveniences.’ 1 Blackstone, Comm. 372.

Blackstone was repeating the explanation which was already traditional in his day. Inheritance by aliens, says Coke (Calvin's Case, 4 Co. Rep. 1, 19), would ‘tend to the destruction of the realm.’ And if it be demanded ‘wherein doth that destruction consist,’ his answer is: ‘First, it tends to destruction tempore belli; for then strangers might fortify themselves in the heart of the realm and be ready to set fire on the commonwealth,’ for all which he finds example and warning in the legend of the Trojan horse. Artificial and far-fetched may seem to-day this defense of the policy of the rule. We may even doubt whether it is sound in history. 1 Pollock & Maitland's History of English Law, 445. That is little to the point. The rule, whatever its origin, is inveterate and undoubted. It survives to-day, except as statute or treaty may have abrogated or changed it.

[2] The plaintiff is undisputably an alien. Congress has enacted that--

‘Any American woman who marries a foreigner shall take the nationality of her husband.’ Act March 2, 1907, c. 2534, § 3, 34 Stat. 1228 (U. S. Comp. St. § 3960).

That statute was considered in Mackenzie v. Hare, 239 U. S. 299, 36 Sup. Ct. 106, 60 L. Ed. 297, Ann. Cas. 1916E, 645, where an American-born woman, married to a British subject and residing in California, was held, by force of her marriage, to have lost the right to vote. (Compare the reciprocal rights of alien women who marry citizens of the United States. R. S. U. S. § 1994, 10 Stat. 604 [U. S. Comp. St. § 3948]; Kelly v. Owen, 7 Wall. 496, 19 L. Ed. 283.) Marriage to an alien is voluntary expatriation. The plaintiff is in the same position as if letters of naturalization had been issued to her in Austria. She is in the same position as her husband. She is without capacity to inherit unless statute or treaty has removed the disability.

Both statute and treaty are invoked in her behalf. The statute says that:

‘A citizen of the United States is capable of holding real property within this state, and of taking the same by descent, devise or purchase,’ and that ‘alien friends are empowered to take, hold, transmit and dispose of real property within this state in the same manner as native-born citizens, and their heirs and devisees take in the same manner as citizens.’ Real Prop. Law, § 10, as amended by Laws 1913, c. 152; Consol. Laws, c. 50.

Alien enemies, therefore, have such rights, and such only, as were theirs at common law. The treaty says that--

‘Where, on the death of any person holding real property, or property not personal, within the territories of one party, such real property would, by the laws of the land, descend on a citizen or subject of the other, were he not disqualified by the laws of the country where such real property is situated, such citizen or subject shall be allowed a term of two years to sell the same; which term may be reasonably prolonged, according to circumstances; and to withdraw the proceeds thereof, without molestation, and exempt from any other charges than those which may be imposed in like cases upon the inhabitants of the country from which such proceeds may be withdrawn.’ Article 2 of Convention between United States and Austria, concluded May 8, 1848, and proclaimed October 25, 1850; 9 Stat. 944, extending the stipulations of the treaty of commerce and navigation, concluded August 27, 1829, and proclaimed February 10, 1831, 8 Stat. 398.

Statute and treaty will be separately considered.

[3] (1) If the plaintiff's capacity to inherit depended solely on the statute, I should feel constrained to hold against her. I cannot follow the Appellate Division in its view that she is in law an ‘alien friend.’ The wisdom or fairness of the statute I make no attempt to vindicate. Our duty is done when we enforce the law as it is written. In the primary meaning of the words, an alien friend is the subject of a foreign state at peace with the United States; an alien enemy is the subject of a foreign state at war with the United States. 1 Kent, Comm. p. 55; 2 Halleck, Int. L. (Rev. 1908) p. 1; Hall, Int. Law (7th Ed.) p. 403, § 126; Baty & Morgan, ‘War: Its Conduct and Legal Results,’ p. 247; 1 Halsbury, Laws of England, p. 310; Sylvester's Case, 7 Mod. 150; The Roumania, [1915] p. 26, affirmed, [1916] A. C. 124; Griswold v. Waddington, 16 Johns. 437, 448;White v. Burnley, 20 How. 235, 249, 15 L. Ed. 886; The Benito Estenger, 176 U. S. 568, 571, 20 Sup. Ct. 489, 44 L. Ed. 592;Kershaw v. Kelsey, 100 Mass. 561, 97 Am. Dec. 124, 1 Am. Rep. 142. So all the lexicographers, as, e. g., Webster, Murray, Abbott, Black, Bouvier. This primary meaning must be taken to be the true one, unless evidence is at hand that some other meaning was intended.

There are times, indeed, when alien enemiesare relieved of disabilities, and treated in the same way, or nearly the same way, as friends. Porter v. Freudenberg, [1915] 1 K. B. 857; Clarke v. Morey, 10 Johns. 69; Hall, Int. Law. (7th Ed.) p. 410; Scrutton, The Law and the War, 34 Law Quarterly Rev. 120, 121; McNair, Alien Enemy Litigants, Id. 134; Picciotto, Alien Enemies in English Law, 27 Yale Law Journal, 167, 168; The Right of Alien Enemies to Sue, Id. 104, 105; 1 Blackstone, Comm. 372, 373. Unless they are present in the hostile territory, or are found adhering to the enemy, they retain, by express or implied license of the sovereign, many of the privileges that belong to them in peace. Sometimes, though loosely, we speak of them as friends, for the purpose of characterizing their status when they are brought within the range of exemption, tacit or proclaimed. The truth is that they are enemies, who, within the limits placed by the sovereign upon a revocable license, enjoy the privileges of friends. Their identification with friends is never complete. Baty & Morgan, ‘War: Its Conduct and Legal Results,’ [229 N.Y. 230]p. 252. They are subject to one restriction or another betokening their enemy character. No doubt there is a growing tendency to narrow the field of disability. The day may come when the movement will have spread so far that the subject of a hostile power residing within our territory and yielding obedience to our laws will be ranked as a friend, not for some purposes, but for all. But in construing a statute we assume that the Legislature has spoken in the light of the law as it is, and not as it may hereafter be. The law as declared in New York, when this statute was enacted, held fast to the old moorings. Its history, briefly followed, may make the solution of the problem clearer.

In the beginnings of English law, the bodies of alien enemies found within the realm were seized and their goods were forfeit to the crown. Pollock & Maitland History of Eng. Law, supra; Hall, Int. Law, 461, 462; 2 Westlake, Int. Law, p. 44; East India Co. v. Sandys (1684) 10 State Tr. at page 487. The first relaxation was in favor of the merchant class. 2 Westlake, Int. L. p. 44. We read in Magna Charta that--

‘If in time of war merchants of the country at war with us shall be found in our country at the outbreak of the war, they shall be attached without damage to their bodies, or their goods, until it is known to us or to our Chief Justice how merchants of our country who are then found in the country at war with us are treated; and if ours are safe there, the others shall be safe in our country.’ 2 Westlake, supra.

Cf. the Statute of Staples, 27 Edw. III, 1354; also 2 Holdsworth's History of English Law, p. 393.

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