218 P. 421 | Cal. | 1923
The State of California appeals herein from a decree of distribution rendered in the above-entitled estate. The decedent died intestate June 1, 1906, in San Francisco, being a resident thereof, and leaving an estate therein consisting of personal property. The decree distributes the estate to his heirs at law, who are nonresident aliens, being citizens and residents of the republic of France, and who did not appear to claim the succession within five years after his death. The appellant contends that they are barred by reason thereof from succeeding to the estate, under the provisions *742 of sections 672 and 1404 of the Civil Code, which provide:
[1] "Sec. 672 Aliens inheriting must claim within fiveyears. If a nonresident alien takes by succession, he must appear and claim the property within five years from the time of succession, or be barred. The property in such case is disposed of as provided in title eight, part three, Code of Civil Procedure.
"Sec. 1404 Aliens may inherit; when, and how. Resident aliens may take in all cases by succession as citizens; and no person capable of succeeding under the provisions of this title is precluded from such succession by reason of the alienage of any relative; but no nonresident foreigner can take by succession unless he appears and claims such succession within five years after the death of the decedent to whom he claims succession."
Respondent replies that the provisions of the foregoing sections, invoked by appellant, are suspended and controlled by the treaty of 1853 between France and the United States, Article Seven of which reads as follows:
"In all the states of the Union, whose existing laws permit it, so long and to the same extent as the said laws shall remain in force, Frenchmen shall enjoy the right of possessing personal and real property by the same title and in the same manner as the citizens of the United States. They shall be free to dispose of it as they may please, either gratuitously or for value received, by donation, testament or otherwise, just as those citizens themselves; and in no case shall they be subjected to taxes on transfer, inheritance or any others different from those paid by the hatter, or to taxes which shall not be equally imposed.
"As to the states of the Union by whose existing laws aliens are not permitted to hold real estate, the President engages to recommend to them the passage of such laws as may be necessary for the purpose of conferring this right.
"In like manner, but with the reservation of the ulterior right of establishing reciprocity in regard to possession and inheritance, the government of France accords to the citizens of the "United States the same rights within its territory in respect to real and personal property, and to inheritance, as are enjoyed there by its own citizens." *743
Appellant argues that the state law and the treaty provision do not conflict for the following reasons: (a) Because the treaty does not grant equality in the matter of inheritance. The argument in support of this is that the treaty provides for equality only with respect to the right of possessing
property, and that one possesses property by holding it, but only after it has come to him by inheritance, purchase, gift, or otherwise, and that the treaty therefore does not apply to the situation here obtaining. This precise question was decided adversely to appellant's contention inGeofroy v. Riggs,
[3] Finally, the attorney-general urges that the regulation of inheritance of property by aliens is a subject not within the scope of the powers conferred by the constitution of the United States upon the treaty-making power of the federal government, but is among the powers the reservation of which to the several states was recognized by the tenth amendment to the federal constitution. He concedes the existence of "a long line of adverse decisions," but urges that they are not well-reasoned decisions, and appeals to this *745
court "to examine and consider and determine this proposition for itself, as though the question were for the first time presented to a judicial tribunal." This undertaking would be interesting, but the interest would be purely academic so far as this court is concerned. Upon this question as to the interpretation of the federal constitution the supreme court of the United States is the ultimate authority. There is an unbroken line of decisions by that court upon this question, all to the same effect, covering a period of more than a hundred years, from Ware v. Hylton, 3 Dall. 199, 235, 255, 281, 282 [
The decree is affirmed.
Lawlor, J., Seawell, J., Waste, J., Lennon, J., and Wilbur, C. J., concurred. *746