92 Kan. 819 | Kan. | 1914
The opinion of the court was delivered by
The purpose of this action is the partition of a tract of land in Clay county which had been owned by Olaf Olson, who died intestate, unmar
Whether they can inherit from their deceased uncle depends upon the interpretation of the treaty between the governments of Sweden and the United States and of our statutes of descent and distribution. If the appellants can inherit it must be through their mother, who was a citizen of Sweden when Olaf Olson died and who had never been a citizen of the United States.
Originally aliens and citizens were upon an equality in Kansas so far as the inheritance of property was concerned. The constitution provided that:
“No distinction shall ever be made between citizens and aliens in reference to the purchase,- enjoyment or descent of property.” (Bill of Rights, § 17, Compiled Laws 1885, § 99.)
At the general election in 1888 this provision was stricken from the constitution and in its place a provision was inserted providing, among other things, that:
“The rights of aliens in reference to the purchase, enjoyment or descent of property may be regulated by law.” (Bill of Rights, § 17, Gen. Stat. 1909, § 99.)
Since that time there has been no legislation on the subject except chapter 3 of the Laws of 1891 which provided for the early disposition of real estate then owned by nonresident aliens, and therefore we have' no constitutional or statutory provisions regulating the inheritance of property by aliens. Ih the absence of any regulation or provision on the subject the rule of the common law will control. In 8 Cyc. 377, it is said:
“When a statute abrogating a rule or principle of the common law is repealed, the common-law principle or rule is ipso facto revived, unless there is something to show a contrary intent on the part of the legislature.”
“It is also the well-recognized rule of the common law that an alien can not inherit the lands of a deceased citizen.” (The State v. Ellis, 72 Kan. 285, 288, 83 Pac. 1045.)
The supreme court of Iowa held that the common law controlled in the absence of legislation in regard to the rights of an alien to inherit, upon the theory that statutes as well as constitutional provisions are to be construed in reference to the principles of the common law, and that where they are silent upon the subject the principles of the common law will govern. It was said that:
“The statute regulating the descent of property in Iowa, at the adoption of the constitution, was that of February 13, 1843, and provides that the lands of any person dying intestate, shall descend in equal shares to his children. This evidently means such children as have inheritable blood; for it being an inflexible rule at common law, that aliens, resident or non-resident, are not heirs, can not take by descent, nothing less than a plain and express provision in relation to them will change the rule.” (Stemple v. Herminghouser, 3 G. Greene (Iowa), 408, 410; State v. Rollins, 8 N. H. 550; Nickels v. Kane’s Adm’r, 82 Va. 309; Ins. Co. Valley of Virginia v. Barley’s Adm’r, 16 Grattan (Virginia), 363; 6 A. & E. Encycl. of L. 931.)
This would be the controlling rule in the absence of a treaty regulation, but it is contended that under the terms of a treaty between the United States and Sweden the appellants take a share in the real estate owned by
“The subjects of the contracting parties in the respective states, may freely dispose of their goods and effects either by testament, donation or otherwise, in favour of such persons as they think proper; and their heirs in whatever place they shall reside, shall receive the succession even ab intestato, either in person or by their attorney, without having occasion to take out letters of naturalization. These inheritances, as well as the capitals and effects, which the subjects of the two parties, in changing their dwelling, shall be desirous of removing from the place of their abode, shall be exempted from all duty called ‘droit de detraction,’ on the part of the government of the two states respectively.” (8 U. S. Stat. at Large, p. 64.)
The original treaty is published in the English and French languages as if both were originals, and the dispute is as to the meaning of the clause, “goods and effects,” which is given in the French copy as “fonds et biens.” Do these words refer to personal property only, or do they embrace real estate? It is contended that the French word “biens” means real as well as personal property, ¿nd a note to section 13 of Story on Conflict of Laws, 8th ed., is quoted, as follows:
“The term biens, in the sense of the civilians and continental jurists, comprehends not merely goods and chattels, as in the common law, but real estate.”
Bouvier, however, defines the word to mean “Property of every description, except estates of freehold and inheritance.” The same definition is given by Black in his Dictionary of Law. It is sometimes said that Lord Coke has defined the word as meaning real property,
“Goods, biens, bona, includes all chattels, as well reall as personall.” (1 Coke on Littleton, 1st Am. ed., § 177, subdiv. 118&.)
Burrill’s Law Dictionary gives the same definition. In 5 Cyc. 686, the word “biens” is defined as “Property of every description, except estates of freehold and inheritance ; goods.” The court of appeals of New York gave the following definition:
“The corresponding Norman French term ‘biens’ is said to include property of every description, except estates of freehold.” (McCaffrey v. Woodin, 65 N. Y. 459, 468, 22 Am. Rep. 644.)
Most of the authorities appear to hold that the word does not mean real estate, but assuming that there is a real difference of opinion in the authorities as to the meaning of the term, we should then examine the treaty as drawn in the English language. The intention of the makers of a treaty is to be construed in the same way and under the same general rules as are used in interpreting contracts between individuals. (38 Cyc. 969.) The treaty must not only be construed as a whole, but where it is executed in two languages both are originals and must be construed together. (United States v. Percheman, 32 U. S. 51, 8 L. Ed. 604.) The terms used were intended to be identical, and if the word “biens” is used in more than one sense and there is doubt as to the meaning in which it was used in the French copy, we can look at the corresponding words used in the English version, and we find these to be words about the meaning of which there can be little, if any, doubt. The corresponding expression of “fonds et biens” is “goods and effects,” and that expression in its natural and ordinary sense means movable personal property and not real estate. Even if the treaty had been only in the French language and the makers of it had translated it into English, using the words “goods
“Their meaning is free from all ambiguity or doubt, whether used in a popular, a lexicographical, or a legal sense. The word ‘goods’ is always used to designate wares, commodities and personal chattels. The word ‘effects’ is the equivalent of the word ‘movables.’ ” (Vandergrift & Forman’s Appeal, 83 Pa. St. 126, 129.)
In Vermont the words “goods, effects and credits” were used in a trustee statute, and the supreme court of that state-held that real estate wa's not embraced within the term “effects,” the court saying:
“That Word, as ordinarily used, is understood to mean goods, moveables, personal estate; and I am not aware, that the word effects has ever been defined by any legal writer, as including real estate.” (Hunter v. Case et al. & Tr., 20 Vt. 195, 197.)
An Alabama statute provided for a landlord’s lien on “goods, furniture and effects,” and in a controversy it was held that “effects,” as there used in connection with “goods,” meant property of the same kind as “goods” and “furniture,” and did not mean real estate. (McKleroy v. Cantey & Randolph, 95 Ala. 295, 11 South. 258; First Nat. Bank of Birmingham v. The Consol. Electric Light Co., 97 Ala. 465, 12 South. 71.)
In Keyes v. The Milwaukee and St. Paul Railway Company, 25 Wis. 691, it was held, under a garnishment statute providing for the attachment of “property and effects” in the hands of another, that the word “effects” meant personal property capable of being seized and sold under execution. In Planters’ Bank v. Sharp et al., 47 U. S. 301, 12 L. Ed. 447, the court, in defining the word “effects,” remarked:
“So, in respect to effects, it has been held, when the word is used alone, or simpliciter, it means all kinds of personal estate. . . . But if there be some word used with it, restraining its meaning, then it is governed by that, or means .something ejusdem generis.” (p. 321.)
In Doe d. Haw v. Earles, 15 M. & W. (Eng.) 450, the court held that:
“The meaning of the word ‘effects’ is, in common parlance, confined to personal things; and it has been judicially decided to bear that meaning, unless the context shows that the testator used it in a more comprehensive sense. This was held by all the Court of King’s Bench; in the cases of Camfield v. Gilbert, 3 East, 510, and of Doe v. Langlands, 14 East, 430.” (p. 456.)
It is true that in interpreting wills the courts, to prevent intestacy, have sometimes expanded the meaning of the term “effects” so as to include real property, but as the word is ordinarily used in contracts and statutes the courts uniformly hold that the term is not sufficiently comprehensive to include real estate and when coupled with “goods” or other like terms, descriptive of personal property, it includes nothing except movable personal property. This is illustrated in a case note in 12 L. R. A., n. s., 661.
“ ‘Goods: A valuable possession or piece of property; especially, and almost universally, in the plural, goods, wares, commodities, chattels.’ ‘Effects: Goods, movables, personal estate.’ . . . ‘Goods and effects’ have never been held to include real estate.” (p. 308.)
The supreme court of Illinois interpreted the same provision of the treaty between -the United States and Sweden and made a contrary decision. (Adams v. Akerlund, 168 Ill. 632, 48 N. E. 454.) The court proceeded on the theory that the words “fonds et Mens” had the same meaning as the expression “goods and effects,” and while it was conceded that the word “effects” when used in connection with the word “goods,” as a general thing, means personal and not real property, it nevertheless held that the context of the article in which the expression occurs indicated an intention to include real estate. It was said that the words “heirs,” “succession,” and “inheritances,” as there used, “are very significant words in determining the meaning to be given to the word ‘effects.’ ” (p. 638.) After defining these terms and showing that they apply to real property the court came to the conclusion that:
“The terms of the treaty were intended to include real estate as well as personalty, and that the word, ‘effects,’ was intended to have a broader meaning which includes both land and personalty.” (p. 640.)
In holding that the words “heirs,” “succession” and “inheritances” gave the term “effects” an unusual meaning that court apparently overlooked the fact that those words are stereotyped ones which are commonly employed in articles or provisions of treaties which deal expressly and unquestionably with personal property
We are inclined to agree with the supreme court of Iowa and hold that the words “goods and effects” as used in the article in question do not mean or embrace real estate. It appears to us that the context in which the words “heirs,” “succession” and “inheritance” were used strongly tends to support that view and to
“These inheritances, as well as the capitals and effects, which the subjects of the two parties, in changing their dwelling, shall be desirous of removing from the place of their abode, shall be exempted from all duty called ‘droit de detraction,’ on the part of the government of the two- states respectively.” (8 U. S. Stat. at Large, p. 64.)
The expression “these inheritances” refers to “goods and effects,” the property which the parties are to receive by inheritance or succession, and is such property as can be removed from the place of their abode when they change their dwelling. It thus appears that the “goods and effects” which they are to inherit and to receive by succession is movable property and not real estate.
As the treaty does not apply to real estate and as an alien is not allowed to inherit real property under the law as it .exists in Kansas, it follows that Anna Anderson, who was still alive and an alien when her brother died, was not entitled to inherit a share of the land owned by her brother. Can her children, the appellants, inherit? The rule of descent is fixed by the statute. As Olaf Olson left no wife or issue his estate would descend to his father and mother if they were alive and capable of taking by descent. (Gen. Stat. 1909, § 2953.) The rule of the statute, in effect, is that if one of the parents be dead the estate goes to the surviving parent, and if both be dead it descends as if they had outlived the intestate and died in the ownership and possession of the property. (Gen. Stat. 1909, § 2954.) Neither of the parents of Olaf Olson was living at the time of his death and so the
“It is impossible for the children of a parent still alive to derive an inheritance, when the mother was herself incapable of acquiring that inheritance on account of alienage.” (p. 442.)
See, also, Meier v. Lee et al., 106 Iowa, 303, 76 N. W. 712; The People v. Irvin, 21 Wendell (N. Y. Supr. Ct.), 128; Renner, v. Muller, 44 N. Y. Superior Ct. Rep. 535; Note, 31 L. R. A. 177.
The court therefore ruled correctly in holding that the appellants were not entitled to a share in the land of the intestate, and they are the only ones who complain of the ruling of the court.
The judgment will be affirmed.