Zschernig v. Miller
| Decision Date | 03 June 1966 |
| Citation | 243 Or. 567,412 P.2d 781 |
| Parties | In the Matter of the Estate of Pauline Schrader, Deceased. Oswald ZSCHERNIG, Minna Pabel, Olga Herta Winckler, Alfred Koester, Johanna Blaschke and Hans Fuessel, Appellants, v. William J. MILLER, Administrator of the Estate of Pauline Schrader, Deceased, Mark O. Hatfield, Tom McCall and Robert W. Straub, respectively the Governor, Secretary of State and State Treasurer of Oregon, constituting the State Land Board of Oregon, and all persons unnamed or unknown having or claiming any Interest in the Estate of Pauline Schrader, Deceased, Respondents. |
| Court | Oregon Supreme Court |
Peter A. Schwabe, Sr., Portland, argued the cause and filed the brief for appellants.
Walter L. Barrie, Asst. Atty. Gen., Salem, argued the cause for respondents. With him on the brief was Robert Y. Thornton, Atty. Gen. of Oregon, Salem.
Before McALLISTER, C.J., and SLOAN, DENECKE, HOLMAN, and LUSK, JJ.
Pauline Schrader, a resident of Oregon, died intestate on September 30, 1962. She left an estate comprised of both real and personal property. He next of kin were a brother and sister, two nieces and two nephews, all of whom are nonresident aliens residing in the Soviet-occupied zone of Germany, hereinafter referred to as East Germany. 1 These relatives as plaintiffs, brought a proceeding for a determination of heirship in their favor. This was contested by the State of Oregon, through its State Land Board, which requested that the property be escheated to the state.
ORS 111.070 2 provides that the right of nonresident aliens to take property from Oregon estates is dependent upon (1) the reciprocal right of the citizens of the United States similarly to take property from estates in the country of which the alien is an inhabitant or citizen; (2) the right of citizens of the United States to receive in this country money originating from estates in such foreign country; and (3) proof that such aliens will receive the benefit of money or property from estates in this state without confiscation in whole or in part by such foreign country. The statute further provides that if these three prerequisites are not found to exist and there are no other heirs, the property will escheat to the State of Oregon. State Land Board v. Pekarek, 234 Or. 74, 76--79, 378 P.2d 734, 735 (1963).
The trial court found that the evidence did not establish the existence of reciprocal rights to take property from or to receive the proceeds of East German estates at the date of decedent's death, that ORS 111.070 was valid and controlling, and that the proceeds of the estate escheated to the State of Oregon. Plaintiffs appealed.
Plaintiffs refer this court to Article IX, paragraph 3 of the Treaty of Friendship, Commerce and Navigation with the Federal Republic of Germany, October 29, 1954, 7 U.S.T. & O.I.A. 1839, TIAS No. 3593 (effective July 14, 1956), hereinafter referred to as the 1954 Treaty, which was negotiated by the United States with the government having jurisdiction over that territory known popularly as West Germany. They contend that it extends to them, as East German residents, reciprocal rights of inheritance.
Article IX, paragraph 3, of the 1954 Treaty provides as follows:
'National treatment' is defined by Article XXV, paragraph 1:
'The term 'national treatment' means treatment accorded within the territories of a Party upon terms no less favorable than the treatment accorded therein, in like situations, to nationals, companies, products, vessels or other objects, as the case may be, of such Party.'
This raises the question whether East German residents are entitled to the benefits of the treaty. Plaintiffs contend that all citizens of Germany, East and West, are encompassed by the terms of the treaty because the state of Germany and its nationals continue to exist despite Germany's defeat and occupation by the allied forces. This argument is founded on Art. 116(1) of the Constitution of Germany. 2 Peaslee, Constitutions of Nations, 53 (2d ed., 2d printing 1956). It is also based upon the international law doctrine concerning state succession. 2 Whiteman, Digest of International Law 754--761, 787--799 (1963). The plaintiffs correctly contend that the West German government is the only legally constituted government of the state of Germany recognized by the United States. 2 Whiteman, supra at 794--795. From this line of reasoning they deduce that the 1954 Treaty entered into with the United States by the West German government was for the benefit of all Germans.
Courts of law are required to interpret treaties as any other contract by giving effect to the intent of the parties as manifested by the terms thereof. Sullivan v. Kidd, 254 U.S. 433, 439, 41 S.Ct. 158, 65 L.Ed. 344 (1921); Maximov v. United States, 373 U.S. 49, 54, 83 S.Ct. 1054, 10 L.Ed.2d 184 (1963); Restatement (Second), Foreign Relations § 146 (1965). Article IX, paragraph 3 of the 1954 Treaty accords 'national treatment, within the territories of the other Party.' The 'territories' referred to are delineated by Article XXVI of the treaty, which provides, in part:
This language seems to say that the 1954 Treaty was meant to apply only to that geographic area of Germany over which the government of West Germany exercises its jurisdiction.
In the interpretation of treaties, 'the meaning given them by the departments of government particularly charged with their negotiation and enforcement is given great weight,' Kolovrat v. Oregon, 366 U.S. 187, 194, 81 S.Ct. 922, 926, 6 L.Ed.2d 218 (1961); Sullivan v. Kidd, supra 254 U.S. at 442, 41 S.Ct. 158. This does not mean however, that courts are necessarily bound by the interpretation of the executive branch. Restatement (Second), Foreign Relations § 152 (1965). The State Department of the United States has declared the position of our government with respect to Article XXVI of the 1954 Treaty as follows:
Letter of February 13, 1964, from Ely Maurer, Assistant Legal Adviser for European Affairs, to Attorney General of Oregon Robert Y. Thornton.
To the contrary, however, the position of the West German government, as contained in a Foreign Office certificate issued at Bonn on September 30, 1963, and introduced into evidence, is as follows:
It is the belief of this court that neither German citizenship nor nationality has real bearing on this issue because territorial application of the 1954 Treaty, by the terms of Article XXVI, is governed by sovereignty. The West German government has no sovereign authority over that geographical area known as East Germany. The interpretation of the State Department of the United States seems to us to be the only reasonable interpretation of the language of Article XXVI. We believe it was not the intent of the United States and West Germany, at the time of making the 1954 Treaty, to extend its provisions to residents of East Germany.
The situation here differs from those prevailing in the cases of Estate of Nepogodin, 134 Cal.App.2d 161, 285 P.2d 672 (1955), and In re Estate of Kasendorf, 222 Or. 463, 353 P.2d 531 (1960), relied upon by plaintiffs. In those cases the relevant treaties applied to the country or state as a whole. In this case, however, the 1954 Treaty specifically provides that its geographic application is to an area less than the state of Germany as a whole and excludes the area in which plaintiffs live.
Plaintiffs contend that if the 1954 Treaty is inapplicable Articles IV and XXV of the Treaty of Friendship, Commerce and Consular Rights with Germany, December 8, 1923, 44 Stat. 2132, T.S. No. 725 (effective October 14, 1925) amended June 3, 1935, 49 Stat. 3258, T.S. No. 897, hereinafter referred to as the 1923 Treaty, are applicable.
The state of Oregon contends that the 1923 Treaty has been abrogated by virtue of subsequent events. Article XXVIII of the 1954 Treaty with the West German government provides as follows:
'The present Treaty shall replace and terminate provisions in force in Articles I through V * * * of the treaty of friendship, commerce and consular rights between the United States of America and Germany, signed at Washington December 8, 1923 * * *.'
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