Treaty of Amity and Commerce with Sweden Concluded

April 3, 1783.

Art. VI. The provision in Article VI of the treaty of 1783, continued in force by Article XVII of the treaty of 1827,-that the subjects of the two nations may dispose of their "fonds et biens" (translated "goods and effects") by testament, donation, or otherwise, and that their "heirs," in whatever place they may reside, shall receive the succession "even ab intestato,"-covers real estate as well as personal property. Non-resident alien subjects of the kingdom of Sweden, by virtue of this provision, take and hold real estate in Illinois by descent or otherwise, the provisions of the alien act of the State of 1887 (Laws of 1887, p. 5) to the contrary notwithstanding. Adams v. Akerlund (1897), 168 Ill. 632.

The words "goods and effects" do not include real estate. A non-resident alien is not empowered to inherit an interest in lands in Iowa by virtue of the provision in the treaty of 1783 with Sweden, that the subjects of the contracting parties in the respective states, although unnaturalized, may dispose of and inherit "goods and effects." Meier v. Lee (1898), 106 Iowa 303.

The terms "goods and effects" as used in the treaty cover real estate passing by will or descent. In re Peterson's Estate (1915), 151 N. W. (Iowa) 66; In re Anderson's Estate, 147 N. W. 1098.

In so far as the rights to succession of property of deceased persons are concerned, the citizens of each country stand on an equal footing. The words "goods and effects" in the treaty include real, as well as personal, property. Although the word "heirs" in its technical common-law meaning is restricted to those who take by inheritance only, it applies in the civil law to all persons who are called to the succession whether by the act of the party or by operation of law; and the phrase "their heirs shall receive the succession" as used in the treaty refers to the right of succession of those who receive by testament, as well as those who receive by operation of law. In re Stixrud's Estate (1910), 58 Wash. 339.

This treaty enables non-resident aliens to inherit land in the State of Nebraska, notwithstanding conflicting statutory

provisions. The terms "goods and effects" as used in the treaty include real estate. Erickson v. Carlson et al. (1914), 95 Neb. 182.

The provision relating to the disposition of "goods and effects" does not embrace real estate. The intestate, who was the owner of land in Kansas, died without wife or issue, his father and mother having previously died. Among his surviving brothers and sisters some were aliens and some citizens. One of his surviving sisters, an alien, had two children who were citizens. Held, that the sister, being an alien, could not inherit a share of the estate, and that after her death her children, although citizens, were incapable of inheriting through her. Johnson v. Olson (1914), 92 Kan. 819.

Treaty of Friendship, Commerce and Extradition with Switzerland Concluded November 25, 1850.

Art. V. The provision of the treaty-that in case real estate situated within the territories of one of the contracting parties shall fall to a citizen of the other party, who on account of his being an alien is not permitted to hold such property in the State or Canton in which it may be situated, there shall be accorded to the said heir, or other successor, such term, as the laws of the State or Canton will permit, to sell such property,-is the supreme law of the land, and by its terms the incapacity of a citizen of Switzerland, next of kin of the intestate, is so far removed as to entitle him to recover and sell the land whereof the intestate died seized in fee, and to withdraw and export the proceeds thereof. His rights thus secured are not barred by the lapse of time, if no statute of the State where the land is situated prescribes the term within which they are to be asserted. Hauenstein v. Lynham (1879), 100 U. S. 483. See also Jost v. Jost (1882), 1 Mackey 487.

The article provides that citizens of each country, and their heirs, having personal property in the jurisdiction of the other, shall have absolute power of disposition, and that this provision shall be applicable in case of real estate in the States and Cantons which permit foreigners to "hold or inherit" real estate. In case any State or Canton does not permit foreigners to "hold" real estate, there shall be ac

corded such term, as the State or Canton may fix, within which to sell it and withdraw the proceeds. A statute of the State of Indiana, providing that aliens may "take and hold" land by devise and descent only, and may convey the same within five years, and that all property left at that time shall escheat, does not permit aliens to "hold" real property within the meaning of the treaty, but merely recognizes the terms of the treaty by giving five years in which to dispose of the property; and accordingly it is not in contravention of the treaty. Lehman v. State (1909), 45 Ind. App. 330, 88 N. E. 365.

Convention with Württemberg Abolishing Droit d' Aubaine and Emigration Taxes Concluded April 10, 1844.

Art. II. The provision, that "such citizen or subject shall be allowed two years to sell the same, which term may be reasonably prolonged according to the circumstances," is in effect a statute of limitation. Seven years having elapsed between the death of the ancestor and the commencement of the action, and there being nothing to show that a prolongation of the term of two years had been applied for or obtained, it was held that the time prescribed by the treaty must apply. Wieland v. Renner (1883), 65 How. Pr. Repts. 245.

The convention intends to confer on the alien heir, for the period of two years, precisely the same rights that he would enjoy if he were a citizen, imposing upon him simply the obligation to sell and convey, within that period or such other period as the State or country shall see fit to confer upon him by prolonging the time, the fee to some one capable of holding it, or to become, or declare his intention of becoming, a citizen of this country. In the meantime he may possess and take care of the property, improve it, and exercise all the authority of ownership, for the purpose of making it more productive and valuable, and may himself enjoy such rents and profits as he can obtain therefrom. The convention is a part of the supreme law of the land and supersedes all local statutes that contravene its provisions. Kull v. Kull (1885), 37 Hun 476.

The provision, that where land owned by a citizen or subject of the one country would descend to a citizen or subject

of the other, were he not disqualified by alienage, such citizen or subject may sell the same, and withdraw the proceeds, exempt from all duties of detraction, was abrogated by the treaty of December 11, 1871, between the United States and the Emperor of Germany, who, under the constitution of the empire, of which the kingdom of Württemberg has become a part, represents the empire among nations, enters into alliances with foreign countries, &c. It was however held that the tax, in question, imposed by the laws of the State on all property which should pass by will or the intestate laws, was not a "duty of detraction" within the meaning of the treaty, but a succession tax to which all persons including citizens were subjected. In re Strobel's Estate (1896), 39 N. Y. S. 169.

The operation of the alien act of the State of Illinois of 1887 (laws of 1887, p. 5) is suspended by the convention between the United States and Württemberg, which convention was not abrogated by the absorption of the State of Württemberg into the German Empire. Under Article II of the convention, whereby aliens may take the fee to real estate and be allowed a term of two years to sell the same, "which term may be reasonably prolonged, according to circumstances," the alien need take no formal step to prolong the term. The courts may allow the alien heirs such time, in addition to the two years' limitation, as is reasonable, under the circumstances, to enable them to sell. Scharpf v. Schmidt (1898), 172 Ill. 255.

Art. III. This article does not include the case of a citizen or subject of the respective countries residing at home, and disposing of property there in favor of a citizen or subject of the other. Consequently a statute of the State of Louisiana which imposes a tax of 10% on the amount of certain legacies left by a citizen of that State to subjects of the King of Württemberg is not in conflict with the convention. Frederickson v. State of Louisiana (1859), 23 How. 445.

DISCRIMINATORY LEGISLATION.

Convention with Bavaria Abolishing Droit d'Aubaine and Emigration Taxes Concluded January 21, 1845.

Arts. I-III. Subjects of Bavaria are by virtue of this convention exempt from the payment of the tax of 10% imposed by the State on property passing to non-resident aliens. Succession of Crusius (1867), 19 La. Ann. 369.

Treaty of Trade, Consuls, and Emigration with China Concluded July 28, 1868.

Arts. V. and VI. (See also treaty of November 17, 1880.) A mining regulation, authorized by a State, in effect forbidding Chinese from working in a mining claim for themselves or for others, seems to be in direct conflict with Article VI of the treaty with China, under which the citizens or subjects of China visiting or residing in the United States are guaranteed the same privileges, immunities and exemptions in respect of travel or residence as may there be enjoyed by citizens or subjects of the most favored nation. If in conflict therewith it is void. Chapman v. Toy Long (1876), 4 Sawy. 28.

A legislative act of the State of Oregon which prohibits the employment by contractors of Chinese on street improvements or public works, but which permits all other aliens so to be employed, is in conflict with the provisions in the treaty with China, pledging to the Chinese, resident here, the same right to be employed and labor for a living as enjoyed by the subjects of any other nation, and is therefore void. Baker v. City of Portland (1879), 5 Sawy. 566.

The privileges and immunities, which, under the treaty, the Chinese are entitled to enjoy to the same extent as enjoyed by the subjects of the most favored nation, are all those which are fundamental, among which is the right to labor and to pursue any lawful employment in a lawful manner. A provision of the constitution of the State of California, as likewise legislation for its enforcement, providing that no corporation formed under the laws of the State shall, directly or indirectly, in any capacity, employ any Chinese or Mongolian, is in conflict with the provisions in the treaty