*1 ADMINISTRATOR, MILLER, ZSCHERNIG et al. a l. et 7, 1967. Argued November No. 21. January 15, 1968.
Decided appellants. for Sr., the cause argued Schwabe, Peter A. Schwabe, Jr. A. was Peter briefs him on the With Attorney General M. Assistant Wayne Thompson, Land Board appellee for State the cause argued Oregon, Y. Thorn- Robert him on the was brief Oregon. With ton, Attorney General. General filed Solicitor curiae were amici
Briefs of Eardley, General Attorney Marshall, Acting Assistant for the Jr., Alan Rosenthal Martin, S. John S. Mosk for & Rudman. Slaff, Mosk by Edward States, Douglas opinion delivered the Justice Mr. Court. *2 a of of the estate disposition concerns the
This case in 1962. intestate who died there Oregon of resident resi- they are heirs and are decedent’s sole Appellants of include members Germany. Appellees dents East Oregon probate petitioned the Land Board that the State the estate proceeds net for the escheat court (1957),1 111.070 § of Ore. Rev. Stat. provisions under the nonresi- for escheat cases provides where three personal property or unless alien claims real dent are satisfied: requirements right of United reciprocal of a the existence
(1) aas on the same terms property take States citizen to foreign country; of the citizen or inhabitant residing States “(1) right the United of an alien not within personal property or to take either real or or its territories testamentary dispo proceeds in this state succession or thereof sition, upon conditions as inhabitants the same terms and dependent in each case: States, of the citizens United part reciprocal right upon “(a) Upon of a the existence personal property and of the States to take real and citizens proceeds upon as inhabit- the same terms and conditions thereof country is an inhabitant citizens of the of which such alien ants and citizen; or
“(b) Upon rights to receive of citizens of United States by payment the United States or its territories to them within persons dying money originating within such from the estates of foreign country; and Upon proof foreign heirs, distributees, or
“(c) that such devisees money may benefit, prop- legatees use or control of or receive persons dying confiscation, erty in this state without from estates of governments part, by or in such countries. in whole upon “(2) nonresident alien to The burden is such establish rights reciprocal (1) forth in set subsection fact of existence of this section. rights
“(3) reciprocal if no If such are found exist and eligible legatee than such alien is found heir, other devisee disposed property, shall be as escheated take such property.” pay- to receive
(2)
right
of United States citizens
foreign country;
ment here of funds from estates in the
(3)
right
pro-
heirs to receive the
ceeds
estates “without confiscation.”
The Oregon Supreme
the appellants
Court held that
Oregon realty
could take the
present
involved in the
case
by reason of Article
Treaty
IV the 1923
Friendship,
Rights
Commerce and Consular
Germany2
(44
2135)
Stat.
but
reason of
Article,
the same
Allen,
they
construed
Clark v.
S.
could
U.
personalty.
not take the
412 P. 2d
567, 592,
Ore.
“Where, person holding im- on the death of real or other property or of one movable interests therein within the territories would, High Contracting Party, property such or interests therein by country by testamentary disposition, of the or descend the laws pass High Contracting Party, or to a national of the other whether non-resident, by disqualified or the laws of the resident were he not country property situated, such or or are where interests therein is years be of in which to such national shall allowed term three reasonably prolonged same, if circumstances sell the this term to be necessary, proceeds thereof, and withdraw the without render any succession, probate interference, exempt from restraint or and may charges or other than which or administrative duties those upon country imposed in of from be like cases the nationals proceeds may which be drawn. such High Contracting Party may power of either have full “Nationals dispose personal property every of their kind within the terri- donation, by testament, otherwise, other, or their tories of the and legatees donees, nationality, heirs, and of whatsoever whether resi- non-resident, personal property, shall succeed to such and dent or by by may possession thereof, either or take themselves others them, dispose pleasure acting for and retain or of the same at their only subject payment charges of such duties or as the Contracting Party High of the within whose territories nationals may belong pay property or shall be liable to such like cases.” curiae, as arnicas Justice, appearing Department force, Treaty is although the 1923 still that, submits as it construed be overruled insofar Clark Allen should v. portion of Article IY. That provision personalty rights of either speaks “[nationals Article IV personal of “their Party” dispose Contracting High the territories every kind within property long consistent language its and other.” literal That not cover “does Allen, Clark v. we held in construction, Ameri an country which in this and located personalty nationals.” German to leave to can citizen undertakes S., at 516. U. our invitation to re-examine accept do not We conclude that ruling in Allen. For Clark v. we make clear Oregon statute history operation of this into the field an intrusion State § 111.070 is entrusts to the foreign affairs the Constitution Davidowitz, Congress. See Hines President S.U. of inheritance one of the conditions already noted3 As that such for- requires “proof statute under may or receive distributees, legatees devisees eign heirs, money benefit, use or control in this without confisca- dying state persons estates part, governments or in such in whole tion, burden on the countries,” being nonresident *4 fact. establish that alien to in Oregon’s into law 1951. Prior came provision This Oregon of aliens statute rights that time under general reciprocity,4 in terms of similar to were defined had in Act which we before us Clark v. the California Allen, S., 506, n. U. at general reciprocity Allen that Clark v. held in
We face intrude on on federal domain. did not its clause 3Supra, n. 1. (1940). Comp. L. Ann. Ore. §61-107 noted that the California S., We U. at 516-517. only “some would have enactment, a recent
statute, then Id., foreign countries.” or indirect effect incidental 517.5 present posture appeared Had that case were We have obtained. result would one, different face, a statute on its words of there concerned courts, of application. its State the manner of apply laws read, must course, frequently construe, seriously sug- never been has foreign nations. It perform- from precluded courts are gested that state possibility a remote there is ing function, albeit that nation —whether foreign disturb a any holding may that cases, cases, tort involves commercial the matter At the time Clark controversy. type some other no to involve seemed decided, Allen was case v. It now reading laws. a routine more than under inheritance reciprocity area appears that have courts of various States probate statutes, held 503, had Allen, the District Court v. 331 U. S. In Clark legis because of reciprocity unconstitutional statute the California purpose was to history indicating of the statute that lative preparing reaching hostile nations prevent American assets 850, Crowley Allen, Supp. country. 52 F. on this for war Court, peti Calif.). the case reached this (D. But when N. D. C. invalid, not because the statute was contended tioner constituted on its face the statute motive, but because legislature’s exclusively of control over our Federal field invasion of “an peti applied, discussing was In how the statute foreign relations.” proof accepted as conclusive court had that a California noted tioner reciprocal ambassador reciprocity the of a statement Allen, petitioner in Clark v. Brief for rights in his nation. existed no reason 1946, pp. Thus we had 626, 73-74. Term No. October Allen was to be in Clark v. suspect statute California general reciprocity provision anything than a applied other reviewing the later matching Had we been just of laws. requiring Gogabashvele, App. 195 Cal. 2d of Estate decision California infra, problems we now Rptr. 77, the additional see n. 16 Cal. presented. have been provision would find with *5 governments inquiries type launched into the of foreign nations —whether aliens particular in obtain whether rights, law under their have enforceable merely turning upon “rights” dispensations are so-called government whether caprice officials, whim or of consuls, ambassadors, and other representation or made foreign nations is credible representatives in actual administra- good in whether there is faith, any particular foreign system law element tion in the of confiscation. involving reciprocity provision, a case,
In California following representation: made the United States inex- “The and effect of the statute is operation mat- affairs and tricably enmeshed in international not work foreign policy. The statute does ters ownership of, disinheritance or affect any on the by, group class, in California but exclusively pre- and contrary operates for, fields control empted by, States; namely, the United funds, property, international transmission of enemy capture property. and the credits, an statute, The statute is not inheritance but In re of confiscation retaliation.” statute Estate, (Dist. 161 P. 2d Ct. Bevilacqua’s P. Cal.), superseded by 31 2d App. Cal. 2d curiae, Department
In of Justice its brief amicus government that: not . . . contend states “The does application escheat statute unduly interferes with the circumstances this case conduct of relations.” States’ acquiescence in the of Clark ruling The Government’s certainly extending principle justify Allen does required uphold do here to as we would be case, applied; for it has more than Oregon statute countries,” or indirect “some incidental effect *6 great potential disruption for embarrassment its of a place category diplo- it in the makes us hesitate bagatelle. matic of followed in the wake
As we
the decisions that
read
Allen,
they
Clark
we find that
radiate some
v.
is for the
war,”
attitudes of the “cold
where
search
“democracy
foreign regime
opposed
of a
as
quotient”
theory.6
statute introduces
Marxist
concept
opposed
of
which is of course
“confiscation,”
Compensation
to the Just
of the Fifth Amend-
Clause
inquiries concerning
ment. And this has
into minute
led
foreign
the actual
of
into
credi-
law,
administration
bility
diplomatic statements,
specula-
and into
delivery
tion whether
fact
that some received
preclude
many
funds should “not
wonderment
to how
may
right
have been denied
to receive’....”.
See
‘the
Kolovrat,
448, 461-462,
State Land Board v.
220 Ore.
nom.
255, 262,
Oregon,
349 P. 2d
rev’d sub
Kolovrat v.
grounds.
on
187,
366 U. S.
other
6
Gogabashvele,
App.
503,
Estate
See
Cal.
2d
Cal.
Rptr. 77, disapproved
Larkin,
60,
in Estate
2d
416 P.
Cal.
473,
Chichernea,
83,
2d
and Estate
66 Cal. 2d
“The court nature of in the Soviet system examining rights instead of whether Russian inheritance were granted equally to aliens and residents. The court found Russia had separation powers, no too much control in the hands of the Com- Party, independent judiciary, legislation, unpub- munist no confused statutes, unrepealed stating obsolete lished statutes. Before its holding reciprocity, crimes, of no the court also noted Stalin’s trial, analogy, xenophobia, Beria the doctrine of crime Soviet Embassy in and demonstrations at the American Moscow unhindered police. leading jurist’s The court concluded that a Soviet enacting construction of article 8 of the law the R. S. F. S. R. Humpty Dumpty, said, Code seemed modeled after who Civil ‘When , just I I use a word ... it means what choose it to mean—neither ” Note, 592, 594r-595, (1967). more nor less.’ Calif. L. Rev. n. 10 affairs and involvement of state kind That the Constitu- relations —matters international Government —is not solely Federal entrusts tion state Allen. Yet such forbidden by Clark v. sanctioned provisions of the three each infected activity has by Oregon. applied 111.070, as § 378 P. Pekarek, Board Ore. Land In State against a ruling Court Oregon Supreme 2d prove failed he had claimant because Czech (l)(c) requirement subsection “benefit” *7 statute said: of the evi- deciding, all
“Assuming, without it can admissible, by legatees was offered dence the weight. The statements relatively little given light in be judged officials must of Czechoslovakian of they acquisition in had the of the interest government. Moreover, judging for their funds to witnesses we are entitled credibility of these the of declarations the fact that take consideration into coun- officials in communist-controlled government their existing within state affairs as to the of tries comport with the actual facts.” always do borders Id., 2d, 378 P. at 738. 83, at Schwabe, 82, 240 Ore. Land v. Board Yet in State Ambas- where the the Polish 10, P. 2d certificate 400 claim that inheritance against the the was tendered sador Oregon court, apprais- abroad, the be confiscated C.,D. Washington, attitude toward ing current Id., 84, at accepted certificate true. Warsaw, at 11. 2d, 400 P. Rogers, 233, 219 Ore. Board Land
In State heirs had failed Bulgarian court 57, 2d P. held (1) (b) § of what is now requirement prove heirs “right” American statute, reciprocity get Bulgaria funds out of into decedents Bulgarian required of funds Such transmission States. the United Bank, National Bulgarian but a license regularly given licenses were court held the fact they only were issued at the discre- insufficient, because Id., 2d, or “whim” of the bank. at 63.7 tion P. for- Oregon As one seems that decisions, reads freezing thawing or of the “cold eign policy attitudes, they are Yet war,” and the like the real desiderata.8 Rogers prompted case, advised, the Government we are register complaint Department, as Bulgaria a with the State 20, 1967, of November written a State disclosed letter Department Oregon stating: “The Govern adviser to the trial court Bulgaria the matter of ment of has raised with this Government being by Bulgarian reportedly encountered citizens resi difficulties Bulgaria obtaining dent in the transfer to them juris probated country, funds from in this some under the estates Oregon. diction of the . . State Repre Such attitudes are not confined to the courts. samples from other would include statements sentative States money sending courts, court would consider New York such as “This country Hungary putting funds into tantamount out of this of, money grasp Communists,” and “If this were within the authorities, used to kill our it would be turned over Russian Heyman, The boys people Asia. . . .” and innocent in Southeast Right the “Iron Curtain Alien's to Succession Under Nonresident (1957). Pennsylvania, In L. Rev. Rule,” 52 Nw. U. *8 involving that of case a Soviet claimant judge at the trial a stated you when it say prejudiced, can, because you to that I’m “If want And bigoted another I’m anti-Communist.” to a comes Communism money where going to Russia exclaimed, “I am not to send judge day against may used making which one go into bullets can it upon being if he would hear judge, asked my A son.” California money any “No, I won’t send replied, argument law, on the kicks the “judicial Russia judge notice that took Russia.” for the time,” and told counsel all the in the teeth States honor your feel it firm would “I would think claimant Soviet government. No representing the Russian to withdraw as bound in Amer strong.” Berman, Heirs Soviet make it too can American (1962). 257, and n. 3 Courts, L. Rev. 62 Col. ican of by Judge Musmanno made pointed was particularly attack A respect to with Court, where he stated Supreme Pennsylvania the Pennsylvania Act that: it legislation because salutary piece of and “It is a commendable accruing funds even safekeeping these of provides for not for Government, for the Federal matters course are courts. probate local (l)(b) of of 111.070 it is (l)(a) § as true of
This is Schmidt, In Clostermann 55, 215 Ore. (c). (1) and predecessor applying 1036, 2d P. court — of Penn of the Commonwealth interest, vaults in the steelbound sufficiently Iron Curtain lifts or sylvania as the such time until honestly through money pass and be to allow honest cracks wages Otherwise, and persons to them. entitled delivered to enterprise faithfully under a free monetary earned rewards other which are system forces be used Communist could democratic enterprising world very of that free destruction to the committed 2d 506, 508, 192 A. Estate, democracy.” 411 Pa. Belemecich Pennsyl Yugoslavia v. Consul General 741, rev’d, sub nom. 740, Oregon, authority Kolovrat v. 395, vania, S. on 375 U. U. S. 187.
And further: state found, a satellite is Yugoslavia, court below as the “. . . destiny, over their control no individualistic the residents have
where is politico-economic horizon pocketbooks, where their fate or will, or whim a self-made according wish raised lowered 2d, Pa., 192 A. at at dictator.” lead to irresistible state facts a Sovietized “All known money person within the to a sending American conclusion sending country a of food is like basket an Iron Curtain borders of 'grandmother.’ It could Ridinghood of her in care to Little Red government grasp collector gluttonous greedy, be that rapaciously brother con- as his not clutch as Yugoslavia does abundantly no there is assur- clear Russia, but fiscators depend named court can that a upon an American ance beneficiary will have of American dollars Yugoslavian individual paid himself once he has shelter, clothe feed anything left tyranny totalitarian involuntary tribute financial 2d, at 742-743. Id., 511, 192 A. regime.” Doyle concurring opinion Justice example is Another P. 2d 305: Estate, Mont. In re Hosova’s of the Communist 1963, the Central Committee year of “In this following of its to all directive R. issued Party S. S. U. *9 imperialism and fully for the destruction [s], stand ‘We member in inevitable destruction believe only not capitalism. We give law only must (l)(a) not — held body political but rights Americans, to inheritance family “membership law must have making 1041), because 2d, P. at 65, at (id., nations” “an as to serve provision was of the purpose inheritance frame the to so to nations inducement manner which in a countries respective their laws of to opportunities the same Oregonians to would insure they enjoy property abroad personal and take inherit 2d, at Id., 332 P. at Oregon.” 68, in the state 2dP. Krachler, 448, 199 Ore. In In re Estate of right” “reciprocal phrase observed that 769, court is en “that a claim (l)(a) meant part is now in what at 773. 2d, Id., 263 P. 455, at by law.” forceable law Nazi written of the provisions Although certain they inherit, Americans to permit Germany appeared to dictatorial Hitler absolute “right,” no since had created and courts rules to German prescribe could powers and Bequests general law. with at variance procedures ” “ people’ sentiment opposed sound ‘grossly 794.9 2d, at 263 P. Id., at given effect. accomplished everything this to be for doing capitalism, also are but possible.’ soon struggle, and as way class knowingly con- the writer affirming this decision “Hence, in satellite, fanati- monolithic to a Communist tributing aid financial liberty abolishing and of the freedom cally dedicated nation. of this citizens the aims to understand self-hypnosis failure “By reason year conspiracy, Communist international objective of the making cash estop us statutes not have 1946, Montana did nation.” as a free destruction our own ultimate contributions 2d, 85-86, P. at 311. Id., 2d 463, 353 P. Board, 222 Land Ore. State Mullart v. In with reciprocity finding existed difficulty little had the court “moved in 1941 Russia pains observe that it took But Estonia. might. military At the its it [Estonia] in and overwhelmed 60,000 of cruelly deported about hastily and Soviet same time the addition, and, exterminated and Siberia people to Russia its *10 in con- judges Oregon would seem short, In pro- “rights” whether to ascertain 111.070 seek § struing citizens “rights” same law are the by foreign tected al- Rogers in the case, enjoy. If, Oregon of through only may be vindicated “right” leged is no then there agencies, state Communist-controlled seems The same requires. 111.070 type § “right” of aof may require approval if enforcement to be true as con- The statute in dictator, as Krachler. Fascist criticism judicial unavoidable seems make strued than a authoritarian basis on more established nations our own. probate law that type of inescapable that the
It seems per- in a relations international enforces affects in courts practice of state way. The subtle sistent and legatees residing in Commu- withholding remittances assigning them inor them preventing countries nist course, have States, The several tradi- is notorious.10 distribution of estates. descent tionally regulated the and they if way impair give regulations must But those foreign policy. See of the Nation’s exercise effective in the Government Corporation as Private Miller, destroying elderly policy of or decimat- This many its residents. rendering life chaotic continued normal economic ing and families 2d, Id., P. at 534. long afterward.” exposes persons in Estonia “[A]ny to communicate effort It seems that possible or exile to Siberia. death persons to such Estonians correspondence from friends of scrutinize all the Russians suspi- subject recipient prevails freedom where in lands line of . . . relationship to the Soviet. This inimical cion of a we matter support reliable historical testimony has the futility attempting, explaining it as mention We take notice. cogent than hear- more evidence circumstances, to secure under the 2d, at 537-538. 476, 353 P. Id., at say matter.” in the Courts, 62 L. Rev. Col. Heirs in American Berman, Soviet See its Rights of Russia Chaitkin, The Residents (1962); L. Decedents, 25 S. Cal. American to Share Estates Satellites (1952). Rev. 297 L. 1542-1549 Community, 46 Va. Rev.
World they treaty, (1960). laws conflict with those Where Kolovrat v. superior policy. bow the federal See must treaty, of a Yet, even absence Oregon, U. S. 187. weAs may disturb relations. policy a State’s “Experience Davidowitz, at 64: supra, Hines v. stated gravest that international controversies has shown *11 from may leading to arise war, sometimes even moment, inflicted, subjects to another’s imagined wrongs or real Certainly a State could government.” or a permitted, Germany East to a traveler from deny admission Cases, Passenger going from there. nor bar its citizens Nevada, 35; Crandall Wall. 283; 7 How. cf. v. such Dulles, If there are be Kent S. 116. U. Federal provided by restraints, they must an gross is not as Oregon law present Government. The might be. others in the federal domain those intrusion foreign impact upon has a direct said, we have Yet, as of the adversely power affect the may well relations and problems. with those government to deal central dangers illustrate Oregon does, indeed, The law through its State, speaking if each are involved to establish its own permitted probate courts, policy.
Reversed. no in the part Marshall took considera- Mr. Justice or decision of this case. tion Stewart, whom Mr. Justice Justice
Mr. concurring. joins, Brennan go I would opinion Court, joining
While a in Oregon case, law involved this further. Under Oregon from an de- property receive cannot foreigner prov- he first meets the burden estate unless cedent’s an that his Oregon court, to the satisfaction ing, “recip- citizens States country grants (1) as its terms on same property right” take rocal “to receive right Americans the citizens; (2) assures own in that from estates originating of funds here payment” use “benefit, own citizens (3) gives its country; and Oregon an estate received or control” East part.” in confiscation, whole “without Oregon did not case show German claimants of these any meet one country could their courts statutory require- all three I criteria. believe that contrary to Constitution face are on their ments States. the United provisions of the my each the three view,
In infirmity. All three fatal from the same suffers law voyage into a domain upon prohibited the State launch Any attempt realistic exclusively competence. federal necessarily three criteria would any of the apply evaluation, in an either Oregon courts involve administration implied, expressed or *12 statements, and credibility foreign diplomatic the law, course state foreign governments. Of policies the the reso- foreign in routinely construe law courts must here but properly them, controversies before lution of only Oregon inquiries are thrust into these the courts of framed its inheritance Oregon Legislature has because the policies disap- of nations whose prejudice laws upon an where the trespassed thus has area proves and only Gov- that the contemplates National Constitution local the several operate. shall “For interests ernment for exist, purposes, but national of the Union States foreign embracing nations, relations we are but with our Exclusion power.” one Chinese people, nation, one one system of Case, government 606. “Our is 581, 130 U. S. states, the interest of the counties and cities, such that people the interest of the whole nation, no than the less requires power that federal the field imperatively affecting foreign entirely free from local relations be left Davidowitz, Hines interference.” U. S. curiae, the says
The Solicitor that General, amicus application Government does “contend not that Oregon of this escheat statute circumstances unduly conduct case interferes with the United States’ foreign point. relations.” But is We not deal the basic allocation of power here with between the and the Nation. Resolution States of so fundamental vary day cannot day a constitutional issue with shifting Department. State we Today, winds Oregon’s not conflict with na- told, are statute does may. Tomorrow it But, tional interest. however that may be, the fact remains the conduct of our affairs is entrusted under Constitution to the Na- probate Government, tional courts Allen, To States. the extent that Clark v. several I views, with S. inconsistent these U. that decision. overrule Harlan, concurring
Mr. Justice result. Although agree I with the result reached in this case, opinion, I am unable subscribe to the Court’s for three First, by resting its decision on the consti- reasons. ground tutional inheritance statute the federal relations infringes power, without whether pausing Treaty to consider the 1923 of Friend- ship, Rights Germany1 Commerce and Consular application vitiates this itself the state statute, deliberately Court has turned its back on a prin- cardinal Second, *13 ciple judicial correctly review. construed my 1923 treaty, opinion, Oregon’s application renders in this instance of its statute impermissible, requir- thus judgment. Third, of the state ing reversal the Court’s 1 8, 1923, 2132, Dec. 44 Stat. T. S. No. 725.
444 only because I reach which holding,
constitutional my view untenable. is in so, done has majority field, in this power holding on state today’s impact well, justifies law as areas in other perhaps case. upon the my views statement a full I. change, constitutional rapid age this Even in prin- adherence proclaim has continued Court be issues should of constitutional decision ciple concur- celebrated In his possible.2 wherever avoided 297 S. Authority, Valley U. Ashwander v. ring opinion self-imposed listed Brandéis Justice 341, Mr. 288, unnecessary avoided has Court by which rules rule fourth In his questions. constitutional decision de- case, presented the situation dealt with he that: claring a constitutional upon pass will Court
“The record, presented although properly question upon other ground some present also is if there if a Thus, . . of. . disposed may be the case one two grounds, on either be decided case can other question, involving a constitutional general law, statutory construction question v. latter. Siler only the decide will the Court Co., 191; 175, S. R. U. & Louisville Nashville Id., at States, 538.” S.U. Light v. United 347.3 of this disposition control the should rule
The above within regarded, I must what think for there case, 80-81; Hamm v. 386 U. S. Maryland, See, Giles v. g., e. Maryland, S. 306, 316; Bell v. U. S. 379 U. Hill, City Rock 389, 392; 367 U. S. Catherwood, v. Party 226, 237; Communist S. Street, 497, 503; Machinists v. U. S. 367 U. Ullman, Poe 740, 749. 129, 136-137. 329 U. Co., Motor Co. v. Timken S. also Alma See *14 Ashwander, ground as a nonconstitutional meaning Although the be founded. decision could on which the ques- constitutional argue only chose to appellants curiae, forcefully, as amicus States, tion, the United sought full relief contended that correctly, I believe overruling the by should be afforded appellants by the consti- rather than treaty, of the 1923 construction Allen, 503. Clark v. 331 U. S. holding, in tutional invita- accept the do not states that simply Court “[w]e Allen.” See ruling in Clark v. our to re-examine tion avoiding ante, principle I that believe obliges us adjudication unnecessary constitutional treaty whether inquire invitation and to accept for afford- ground alternative adequate an might provide due.4 their ing appellants
II. Germany provides: treaty with IV of the Article holding real any person on the death “Where, immovable or interests therein property or other Contracting High one Party, territories of within the laws therein or interests property would, such testamentary disposition, a country or Con- High of the other pass to national descend or non-resident, resident or tracting Party, whether country by the laws disqualified he not were is or are or interests therein such where national shall be allowed term such situated, this term to same, in which to sell the years three treaty displace true, course, would It Supremacy only by the Consti virtue of the Clause statute .of inappli plain not render I this fact does Yet think tution. Disposition pursuant of Ashwander. teachings of the case cable the Constitution, interpretation treaty involve no bring the Ashwander rules seek to about. Cf. and this is what Swift Wickham, Co., Inc. & 382 U. S. 126-127. render it if circumstances reasonably prolonged thereof, with- proceeds and withdraw necessary, any exempt interference, out restraint *15 or duties or administrative probate succession, may imposed be those which charges other than country from the nationals upon like cases may be drawn. proceeds such may Contracting Party High of either “Nationals dispose personal property of their power full to have by every other, within the territories of the kind their donation, otherwise, heirs, or and testament, nationality, of whatsoever legatees donees, and non-resident, or shall succeed to whether resident property, may possession and take personal such by by acting either themselves or others for thereof, dispose and retain or of the same at their them, subject payment of such duties or pleasure only High nationals of charges as the the Contract- Party property within whose territories such ing may belong pay or shall liable to be like cases.” Allen, supra, In Clark this Court considered the treaty provision to a application case much like In Clark present apparently one. one who was an American citizen died in California and left her and real property to German personal nationals. The California provided Probate Code rights
“The of aliens not residing within the United to take either real or personal property States ... thereof in proceeds or the this State succession testamentary or disposition, upon the same terms and conditions as residents and citizens of the United dependent States is each case upon the existence right upon a reciprocal part of citizens of the States to take real personal United and proceeds upon and the thereof the same terms and respective citizens and residents conditions inhabitants are aliens such of which countries United citizens rights upon citizens them within by payment receive States money originating its territories States dying within such persons estates from the by Stats. 259, added § Prob. Code Cal. countries.” § 1. c. treaty the 1923 whether first considered Clark Court years 1923- events Germany had survived in effect treaty was still It concluded take citizens the German clearly entitled and that decedent. left them real estate application on discuss went then The Court practically noted that It personalty. treaty to *16 had Wurttemburg treaty with of a provision identical Louisiana, v. Frederickson 1860 case in the held been of a citizen case govern not to “[t]he 23 How. and residing home, at countries respective the subject of a citi- in favor there property [personal] disposing id., and . ,” other . . subject zen or in 1917 followed been decision had Frederickson then treaties.5 Court other involving three cases said: is, to by those cases adopted construction
“The syntax of the when permissible say least, is con- realty personalty dealing with sentences testator concerned, realty far as So sidered. covered is property 'any person’; and includes high con- either of the territory of that within provi- personalty, In case tracting parties. con- 'nationals’ of right either governs sion their within dispose tracting party 176; 170; Duus v. U. S. Brown, Iowa, U. S. v. Petersen 245 U. S. Commission, v. Tax Skarderud
the territory of the ‘other’ contracting party; it is personal ‘such property’ ‘heirs, legatees and donees’ are entitled take.
“Petitioner, presents a however, detailed account of the history of the clause which was not before the Court in Frederickson Louisiana, supra, and which bears out construction grants it foreign heir right to succeed to his inheritance or the proceeds thereof. But we do stop review that history. For the consistent judicial con- struction of the language since given 1860 has a character which the agencies treaty-making have not seen fit to alter. And that construction is en- tirely consistent with the plain language of the treaty. We therefore do not deem it appropriate change that construction at this late date, even though as an original matter the other might view have much to commend it.” 331 S.,U. at 515-516. In the case now before us, an American citizen died in Oregon, leaving property to relatives in East Germany. An Oregon statute conditioned a nonresident alien’s right to inherit property in Oregon upon the existence of a reciprocal right of American citizens to inherit the alien’s country upon the same terms as citizens of that country; upon the right of American citizens to receive payment within the United States from the estates of decedents dying in that country; and upon *17 proof that the alien heirs the American decedent would receive the use, benefit, and control of their-in heritance without confiscation.6 The Oregon Supreme Court affirmed the finding of the trial court that the evidence did not establish that American citizens were accorded reciprocal rights to take property from or to receive the proceeds of East German estates. How
6The appears statute majority the opinion 1, ante, in n. at 430. treaty was still effective the 1923 it found that ever, held consequently Germany, East respect with must German heirs Allen East Clark v. that under personal, not the though real, to take the permitted be statute. despite treaty applicable is still that believe I, too, Clark I am satisfied that Germany.7 However, East there insofar as Court followed be Allen should not treaty must be taken the 1923 words of that held Frederickson v. to them meaning ascribed bear construction judicial of the “consistent because Louisiana assumes reasoning This since 1860.” language of the treaty of the knew of the drafters both that they thought Frederick- and that Frederickson decision treaty. of that interpretation control son would doubt, to substantial assumption open seems first The beyond question. is not the second after years almost 40 is evidence 1899, There treaty Department’s the State decision, Frederickson meaning given were not aware draftsmen in 1895 the opinion. in that For treaty language crucial correspondence with the Ambassador initiated British treaty proposed in which he Department State im- greater charges “no assure that [would] in the personal property real or on posed ... whether domiciled subjects, inherited British States imposed upon prop- are not, union or than within the treaty argue part appellees that a substantial abrogated by Treaty or the 1954 of Friend terminated has been Navigation Republic the Federal ship, Commerce and Germany, However, No. 3593. Article S. T. T. I. A. S. U. treaty specifies only to “all areas of the 1954 it extends XXVI authority sovereignty of” the of land and water under Republic Germany, and to Berlin. The United Federal West challenge holding Oregon Supreme Court does not States Germany. treaty applies for to East See Brief the 1923 still curiae amicus n. 5. the United States as *18 pro- for in return citizens,” American erty inherited rights in reciprocal citizens assuring to American visions treaty 1899 contained ensuing Great Britain.8 The subsequent that in the substantially identical to language unlikely highly Germany. Since it is treaty with that British sub- intended British Ambassador that from personal property inherit be able to jects should happened only if those decedents decedents American Department the State British or that subjects, also to be enough is clear that the draftsmen him, it so understood of Frederickson. have been unaware in 1899 must of the 1923 the drafters It is also conceivable inapplicable that Frederickson was treaty thought Wurttemburg treaty. the article Because realty brought the atten- dealing with was treaty the Frederickson decision Court, Frederickson tion of the understanding that largely upon the Court’s was based subject respective case of a citizen or “The residing home, disposing prop- at countries subject favor of a citizen or erty there in contemplation not in the contract- was other, article of the ing Powers, not embraced treaty.” How., 447-448. treaty might the drafters of the have as-
Hence, applicable Frederickson was not to that sumed realty provision which the inclusion treaty, parties it clear that did consider the case of a made country. dying in his own In these citizen view of indi- treaty very likely the draftsmen of the 1923 cations that treaty did not intend that words should bear Frederickson, meaning given them seems to me Britain, Sept. 24, 1895, MSS., 8 125 Notes Great Nat. Archives. 9 Treaty 2, 1899, Britain, of March with Great 31 Stat. 1939. *19 holding in Clark v. Allen erred in the the Court novo into Accordingly, inquiry foreclosed. de question meaning treaty entirely appropriate. of the seems the
III. language treaty The of Article of the 1923 with IV upon which was based Article Germany, quoted earlier, is X X treaty of the of 1785 with Prussia.10 Article provided:
“The subjects party citizens or of each shall have power goods of their dispose personal within the jurisdiction by of the or testament, donation other, otherwise; being subjects and their representatives, or of citizens the other shall to their party, succeed personal goods said . dispose . of the same . their paying only such dues will, the inhabitants country of the wherein goods the said shall are, pay in like . subject cases. . And where, . on any the person holding death of real estate within the territories of the one party, such real estate laws of the the land on a citizen descend or of subject the were other, disqualified by he not alienage, subject such shall be allowed reasonable same, time to sell and to withdraw the proceeds molestation, without and exempt rights from all of part detraction on the of government respective states.” part treaty
This with Prussia was in turn earlier upon founded treaties with France, the Nether- The lands, treaty and Sweden.11 of 1778 with France 10 July, Aug., Sept., 1785, 8 Stat. 88. Treaty XI, 6, See Art. 1778, France, Feb. with 18; 8 Stat. VI, Treaty 8, 1782,
Art. of Oct. with Netherlands, 36; 8 Stat. VI, Treaty April 3, 1783, Art. Sweden, 8 Stat. 64. the burdens from citizens American freed specifically dispose aliens right on restrictions two civil common then were property inherit dé- droit de and the d’aubaine droit countries: law right feudal was d’aubaine droit The traction. alien an appropriate sovereign doctrine aspect realm; an within died who inherit, alien to anof incapacity complementary “the was Johnson, S. 279 U. Nielsen a citizen.” even during replaced was d’aubaine droit n. 2.12 “imposed détraction, a tax de droit century 18th *20 property . the . . an alien [inherit] right on the Johnson, realm,” Nielsen the within dying persons the removal the upon and levied 56, n. at supra, the decedent’s alien by the property inherited country.13 1783 the and the Netherlands treaty with 1782
The They generally. more framed were Sweden treaty with that: provided in the contracting parties the subjects
“The goods of their dispose freely may states, respective or other- donation testament, by either effects and they proper; think persons of such in favour wise, reside, they shall place whatever heirs their and . .”14 . . succession the receive shall substantially Prussia, with treaty 1785 The earlier from the treaty, differed 1923 the identical thing, it dealt one For respects. important two treaties Principles of or the Nations Vattel, The Law also See Wheaton, ed.); Elements (1916 147-148 112, at Law § Natural ed.). (1866 115-116 §82, Law International Abroad § of Citizens Protection Borchard, Diplomatic See Acts International other Miller, Treaties ed.); 4 (1916 at 88 (1934). America States of the United wording the treaty. The Swedish is from quotation The slightly. only treaty differs Dutch sepa- This personalty.15 and with realty with separately common fact that at from the stemmed rate treatment could but personalty freely inherit aliens could law appar- Congress, Continental realty.16 The succeed Confederation Articles of under the fearing that ently States, laws of the to alter power thus lacked treaty negotiated who Commissioners instructed real to hold for aliens stipulated rights be no “[t]hat utterly inadmis- being States, property within person but policy,” laws and several by their sible should alienage for his realty but would inherit who pro- and withdraw to sell the permitted time.17 reasonable ceeds within provision was that difference important other in- disposal treaty dealing of the Prussian upon based though generally personalty, heritance and Swedish the Dutch language in corresponding “within phrase addition altered was treaties, as to read: so other,” the jurisdiction have party shall each subjects or citizens “The within goods personal of their dispose power testament, donation other, jurisdiction of *21 subjects being representatives, their otherwise, and their to succeed shall party, other of the or citizens same dispose of the and . . goods . personal said inhabit- only as the such dues will, paying at their shall are, goods the said country wherein the ants (Emphasis . . .” cases. in like pay to subject added.) 15 “goods,” which and “effects” used the words treaties The earlier Bank, 281 Union State realty. Todok held to include
have been 449, 454. S.U. 16 372; Kent, 2 Commentaries Blackstone, Commentaries 1 See 61-63. 17 Congress 360-361. Continental of the Journals XXVI See
454 was phrase why this indication precise no
There is more define to to have been seems function Its added. dis- cases in the treaties the earlier clearly than droit from the protection required property position was property when instances namely d’-mbame, those citizen- the other than country ainof disposed phrase the construction, this Under owner. ship of the words the than “dispose” rather word modify the in the property” “personal (or goods” “personal unaffected, would be of succession right The treaty). personal (or “such goods” personal “said the words since “per- to all refer treaty) would in the property” kind” every property “personal (or to goods” sonal personal those merely to treaty) and in the treaty. to party other territory of the within goods con- this to the conclusion point factors Several “within phrase and that correct, struction modify the to not intended was of the other” jurisdiction right thereby to limit goods” “personal words “within phrase of the addition The succession. problem to the was unrelated other” of the jurisdiction detraction, droit de from the of succession freeing rights an upon succession imposed was exaction since that within the any person dying property alien of the decedent. citizenship regardless realm, modify intended have been cannot therefore phrase or contract enlarge in order succession right of freedom. newly real added the terms Moreover, goods” “personal indicate affirmatively clause “personal therefore treaty (and of the clause was intended treaty) clause property” both personal property right inherit confer The first draft decedents. and citizen alien Dutch to the earlier substantially similar was treaty *22 permit- have clearly would quite and treaties, Swedish property regard- personal ted succeed to real or aliens to country.18 died in his own the decedent less whether Congress out earlier, the Continental However, as noted that aliens instructed the Commissioners of caution treaty to to and not allowed succeed should be land should limited to sale of the hold real estate but proceeds. This indicates that and removal purely intended as a limitation real estate clause was property respect personal accorded with to rights on the any greater rights. confer supposed to was certainly permitted inheritance clause property real for it “on citizen, both alien and allowed succession any person holding real estate.” This was death of Allen, supra, in Clark v. acknowledged the Court treaty. the 1923 It would seem to respect property personal the more liberal clause follow that regardless allow inheritance intended to was also nationality. decedent’s clause of personal property
The conclusion that (and 1923) treaty was intended hence of the the 1785 inheritance no matter what the dece- right grant in the citizenship support finds additional State dent’s treaty provisions of similar interpretations Department’s century. negotiating 19th When substan- during the states in treaties with German tially provisions identical Mr. Prussia, Wheaton, then Minister 1840’s, proposed pro- treaties would his belief that indicated Germans, resident “naturalized U[nited] tect are entitled to inherit of their who States, Germany.”19 sug- There was no relations deceased Correspondence Diplomatic States 1783- See 111, 116-117. 1789, at Legare, 14, 1843, Despatches, Despatch, June Wheaton Archives; 226, MSS., Miller, see 4 Prussia, Nat. Treaties No. Acts of the United States America 547-548 International other (1934).
456 prop- only to real apply treaties the
gestión the only to property, personal to respect with erty or, “relations” whose Germans naturalized of class small In citizens. American to be also Germany happened in- Department the State Wheaton, Mr. to responding treaty the guide” “general his take as to him structed instructed similarly worded, and and others Prussia with ob- of all “the removal be should object him that country, from one withdrawal ... structions any property other, subjects the citizens will,— . . to them . transferred been may have which inherited ab mtestato.”20 they may have or which decision, after the Frederickson century, in the Later it times indicated several Department State assuring citizens similarly worded treaties regarded property personal to inherit right country the one country. In 1868 in their own dying other citizens similarly a asserted, under Department 1880 the to inherit American citizens right treaty,21 worded in Switzer- who decedents died of Swiss personal property respect with position same took the 1877, In land.22 personal heirs to inherit Russian rights of treaty with under a like decedents of American treaty British leading to the negotiations Russia.23 described, been reveal previously have 1899, which attitude. same general with coupled prin history, course
This treaty fairly a admits provision “where ciple that restricting, enlarging, the other one constructions, of two 20 supra, 546, 548. Miller, Switzerland, 590. 587, 11 Stat. 1850, with Treaty 25, of Nov. States, 1868, Correspondence Diplomatic See States, 1880, Foreign of the United 196-197; Relations II, 194, Pt. 952-953. treaty (1906). The 6Law Moore, Digest of International 4See Russia, 8 Stat. Treaty Dec. was the rights may be it, claimed under the more liberal interpretation is to preferred,” my opinion be leads in the conclusion treaty that Article IV of the 1923 should guaranteeing construed as to citizens of contract ing parties right personal property inherit country. decedent who dies in his own I would over Louisiana, Allen, rule Frederickson v. Clark supra, and *24 supra, they insofar as contrary. hold the Considerations of stare decisis way should not stand in rectifying two decisions that rest on such infirm foundations. Co., Compare & Inc. v. Wickham; 382 U. S. Swift Kesler Department with Safety, v. Public 369 U. S. Properly 153. construed, the 1923 which course treaty, precedence takes over the Oregon statute under Supremacy Clause, entitles appellants in this case personal to succeed to the as well as the real property of the despite decedent the state statute.
IV. Upon my case, unnecessary view of this to reach the Oregon’s governing issue whether statute inheritance aliens an amounts to unconstitutional infringement upon foreign power relations However, Federal Government. since this is the basis upon which the has chosen to rest I decision, Court its I briefly why feel that should indicate I believe the wrong to be decision on that too. score, Oregon noted earlier, As statute an conditions right property upon inherit alien’s the satis- (1) of three conditions: a reciprocal right faction to inherit in Americans the alien’s country; right (2) payment Americans in the receive States from the estates of dying decedents in Bacardi Corp.Domenech, 150, 163, citing v. 311 U. S. Jordan 123, 127; v. 278 U. S. v. 279 U. S. Tashiro, Johnson, Nielsen alien heirs (3) proof country; the alien’s benefit, use, would receive Oregon decedent confiscation. without of their inheritance and control constitu- Allen, upheld the the Court supra, In Clark v. similarly condi- statute tionality a California upon reciprocity inherit right of aliens to tioned the restrictions. other two not contain the but did contention as “farfetched” in dismissed Court Clark upon the unconstitutionally infringed the statute at 517. S., See 331 power. relations U. foreign federal any not violated had California The Court noted that into a by entering Constitution express command countries. compact agreement, treaty, some will have California has done It said that “[w]hat But indirect effect countries. incidental or claim laws which none would many state is true Ibid. line.” the forbidden cross distinguish present impossible to me It seems any respect Allen convinc- case from Clark *25 imposed say To that the additional conditions ing way. such Oregon statute to distinctions by the amount place may legitimately a State suggest that while be to may reciprocity basis, on a by aliens inheritance reciprocity prac- that exists take measures to assure actually enjoyed will be the inheritance tice and that whom the to benefit. testator intended by person the decision have revealed some since the Clark years The judges in which state court delivered have instances gov- ill-advised remarks about or intemperate applying statutes, but in the course such ernments readily which could not have been occurred nothing has Allen was decided. the time Clark v. foreseen aspect of Allen this the Clark v. do I believe that Nor overruled, my as be Brother should decision Stewart it. Prior decisions have established that would have conflicting policy federal of a viola- in the absence the express tion of Constitution mandates com- may legislate in areas of their traditional States may an inci- petence though their statutes have even of this Application dental effect on relations.25 conclusion compels to case before us that rule has so Oregon Oregon statute is constitutional. regulating in the course of descent legislated Oregon decedents, a matter distribution estates ante, traditionally power within the State. See Apart at 440. from the 1923 which the Court treaty, no unnecessary specific finds it to there is consider, might Federal be inter- interest Government concede that appellants fered with this statute. The Oregon might deny rights all inheritance to nonresident Assuming so, statutory excep- aliens.26 countries permitting tion inheritance aliens whose permit Americans to would seem to be a measure inherit any foreign govern- wisely designed offense to avoid federal in- any general ments and thus conflict foreign government hardly object terests: a can which it not itself accord rights denial does of other countries. citizens foregoing would seem establish unconstitutional on its face. And in fact
statute is not to have found the statute unconstitu- Court seems only Its to be that applied. appears tional notion parts of the statute which application require actually reciprocity exist and that the alien heir actually inevitably able to his inheritance will enjoy Webb, See, g., Deckebach, 392; Frick e. Clarke v. 274 U. S. v. O’Brien, Thomp 326; 313; Webb Terrace 263 U. S. 263 U. S. v. *26 son, McCall, 197; Heim 239 263 U. S. v. U. S. 175. 26 Appellants present Thus, for 13. this case does not Brief rights question a uniform to nonresident aliens whether denial might equal protection by forbidden the Fourteenth be a denial McClung, 239, Blake Amendment. Cf. U. S. 260-261. laws foreign in evaluations courts state involve likely is this policies, governmental sev- There are foreign governments. in offense to result glaring most The rationale. in this eral defects My Brother speculation. on entirely almost it is based by Douglas remarks made unfortunate a few cite does resembling applying statutes judges court state mention, not Court does However, the us. one before such in which any instance reveal, the record nor does diplomatic for a occasion been has an occurrence conse- any relations has had indeed, protest, or, brief says in its The States whatsoever.27 United quence curiae that as amicus application . . contend not .
“does of this in the circumstances escheat statute States’ interferes unduly case foreign relations.”28 conduct General told case, Solicitor stage earlier anAt this Court: us . . has advised . of State Department
“The Oregon, including that of laws, reciprocity that State relations and on the effect had little have Appellants’ appre- . . country. . of this policy relations, in international of a deterioration hension not constitute does experience,* unsubstantiated might call 'changed conditions’ the kind v. Allen.” Clark for re-examination Bulgarian mentioned from the Government communication apparently ante, 437, majority opinion in n. refers in the very judges but intemperate comments state-court which result in the denial inheritance of state statutes existence rights Bulgarians. amicus n. 5. curiae for the United States as Brief the United States Memorandum for *27 appears the Court’s basis for decision Essentially, judges laws afford state court be that alien inheritance an in of for- opportunity policies to criticize dictum the adversely may eign governments, and that these dicta finding no foreign affect our relations. In addition to in I believe this record, evidence adverse effect apply rationale to it would logically be untenable because many other which types litigation come before many that, state courts. It is true addition to the inheritance judges applied state court who have alien proper judges statutes with some judicial decorum,30 remarks opportunity derogatory have seized the to make governments. foreign However, judges about have been foreign governmental known to utter dicta critical policies purely even in domestic so that the mere cases, possibility hardly can offensive utterances be test.
If
flaw
is
requires
the statute
said to be
inquire
foreign
state courts to
into the administration of
I
suggest
law,
that characteristic is shared
legal
other
I
rules which
cannot believe the Court
For example,
Foreign
wishes to invalidate.
the Uniform
Money-Judgments Recognition
provides
Act
that a for-
eign-country money judgment
recognized
shall not be
system
if it
a
pro-
“was rendered under
not
does
impartial
procedures
compatible
vide
tribunals
process
requirements
of due
of law.”
there
When
dispute
of foreign law,
is
as
content
is
the court
under the common law
required
question
to treat
any
presented
as one of fact and to consider
evidence
as
actual administration of
legal system.32
And
the field of choice
law there
a nonstatutory
g.,
Larkin,
Estate
See,
2d
e.
65 Cal.
rule that be “uncivilized.”33 country is shown if that applied “defect” same possess rules these all of Surely, the Court I assume that Yet *28 us. now before the statute unconstitutional. them not find would upon Court judgment in the concur I therefore Oregon statute application ground the sole Friendship, Treaty of 1923 with conflicts in this case Germany. with Rights and Consular Commerce dissenting. White, Justice Mr. Generally for the below. judgment
I affirm his in Part IY Harlan Mr. Justice stated reasons Oregon statute consider I do not opinion, separate affairs. interference impermissible be an construction the Court’s I persuaded amNor (1947), Allen, S. 331 U. v. Clark treaty in over- should in earlier cases language treaty of similar late date. ruled Co., S. 194 U. R. National v. Mexican See Slater Co., U. S. Fruit Co. v. Banana J.); American (Holmes, Crosby, 222 S.U. Co. v. J.); R. Cuba (Holmes, 347, 355-356 Co., 2d 233 F. Oil American Arabian J.); Walton (Holmes,
541, 545.