What effect did the treaty have on the statute? It was contended that the states alone have the right to regulate, by legislation, descents and conveyances of real estate within their limits, and that the federal government had no power to interfere by a treaty with the right of the state to legislate as to the descent of property upon the death of its citizens. It was also urged that treaties made without authority are invalid, and that as the treaty was in conflict with the laws of Iowa, it had no force or effect. But Mr. Justice Given, delivering the opinion of the court, responded: "It may be conceded that the states alone have such power; that they alone may declare to what kindred the estate of persons dying intestate shall descend. It must also be conceded that the federal government alone has power to treat with other governments as to rights of the citizens of each within the territory of the other. This treaty does not attempt to regulate descent of real property in Iowa. It does not declare that, when a son or daughter dies without issue, the estate shall go to the parents. It is left to the state, and Iowa has so provided. This treaty simply declares that, if that parent is disqualified by alienage, as to the citizens of these two governments this disqualification is removed." 142 strued to give it practical effect, rather than to make it ineffectual. The view we have taken is strengthened somewhat by the fifth article of the treaty, which provided that 'if any dispute should arise between different claimants to the same inheritance, they shall be decided, in the last resort, according to the laws and by the judges of the country where the property is situated.' Then, again, the rule is, that 'where a treaty admits of two constructions, one restrictive as to the rights that may be claimed under it, and the other liberal, the latter is preferred' (Hauenstein v. Lynham, 100 U. S. 483, 25 L. ed. 628; Schultze v. Schultze, 144 III. 290, 36 Am. St. Rep. 432, 33 N. E. 201, 19 L. R. A. 20), and construction of treaties is the peculiar province of the judiciary when a case arises between individuals (Wilson v. Wall, 6 Wall. 83, 18 L. ed. 727)." The 142 Opel v. Shoup, 100 Iowa, 407, 69 N. W. 560, 37 L. R. A. 583. treaty referred to was concluded and adopted between the United States and Bavaria on January 21, 1845, and the clauses bearing upon the rights of alien to inherit land were the following: "Article 1. Every kind of droit d'aubaine, droit de retraite, and droit de detraction or tax on emigration, is hereby, and shall remain, abolished between the two contracting parties, their states, citizens, and subjects, respectively. "Article 2. Where, on the death of any person holding real property within the territories of one party, § 249. Goods not including lands.-In a later case, the court construed the treaty between Sweden and the United States concluded in 1783. Article 6 of this treaty, under which the claim of the alien was made, declared: "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 favor 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." The court said, conceding that this treaty was in force-which matter the court did not determine-it did not, in its opinion, apply to lands. The court quoted the definition of "goods" from Webster and decided that "goods and effects had never been held to include real estate. 143 § 250. Treaty contemplating one step of transmission.-In another case in Iowa, the rule was recognized that a treaty providing that aliens may inherit land will control, although it is in conflict with the laws of the state. It was contended in this case that the treaty contemplated but one step of transmission, and that the treaty was intended to apply only to persons resid such real property would, by the laws of the land, descend on a citizen or subject of the other, were he not disqualified by alienage, such citizen or subject shall be allowed a term of two years to sell the same, which term may be reasonably prolonged according to circumstances, and to withdraw the proceeds thereof, without molestation, and exempt from all duties of detraction. "Article 3. The citizens or subjects of each of the contracting parties shall have power to dispose of their (real and) personal property within the states of the other, by their heirs, legatees, and donees, being testament, donation, or otherwise; and citizens or subjects of the other contracting party, shall succeed to their said (real and) personal property, and 143 Meier v. Lee, 106 Iowa, 303, 76 N. W. 712. The language of the treaty construed by the court was as follows: "The subjects of the contracting parties may freely dispose of their goods and effects, either by testament, donation or otherwise, in favor 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.'' ing in this country so far as land in this country is concerned. The court held, however, that property devised to a citizen of the foreign country with which the treaty was made descends on the death of such citizen to his heirs, who were also subjects of such foreign country.144 The citizens of Waldeck became the subjects of Prussia under the terms of the treaty between the King of Prussia and the Prince of Waldeck, and therefore are affected by the treaty between the United States and Prussia providing for the rights of inheritance of the two countries.145 144 Doehrel v. Hillmer, 102 Iowa, 169, 71 N. W. 204. Under the laws of Iowa nonresident aliens cannot acquire land. Furenes v. Mickelson, 86 Iowa, 508, 53 N. W. 416; Burrow v. Burrow, 98 Iowa, 400, 67 N. W. 287. As to the construction of the treaty, Mr. Justice Ladd, delivering the opinion of the court, said: "But the appellants contend that the treaty is intended to apply only to persons residing in this country, so far as land in this country is concerned; further, that the treaty contemplates but one step of transmission. It is held in the case of Hauenstein v. Lynham, 100 U. S. 483, 25 L. ed. 628, that 'where a treaty admits of two constructions, one restrictive as to the rights that may be claimed under it, and the other liberal, the latter is to be preferred.' The wording of the article quoted from the treaty seems to preclude the construction contended for. The evident purpose was to so protect the citizens and subjects of both countries in their property interests that alienage would not affect the right of inheritance. The citizenship or residence of the person upon the death of whom real estate descends is not mentioned. The property, and not from whence it comes, is the important consideration. And where upon the death of any person holding real estate within the territories of one party' can only be given one intelligent construction-that of the plain import of the language employed. By the terms of the treaty considered in Schultze v. Schultze, supra, relied upon by appellants, inheritance is expressly limited to the heirs and devisees of one country from subjects or citizens of the other. In Opel v. Shoup, supra, this court considered a treaty between the United States and the King of Bavaria, a part of the second article of which is identical with that involved in this case; and it was there held that real property inherited by a subject of the King of Bavaria from her daughter, a citizen of this country, descended to her (the mother's) heirs, who were also subjects of the king. Clearly, under the terms of the treaty with the King of Prussia, alienage does not affect the right of inheritance, when the heir or devisee is a citizen or subject of the country of the decedent, and this is not limited to one step in transinission." Doehrel v. Hillmer et al., 102 Iowa, 169, 71 N. W. 205. 145 Wilcke v. Wilcke, 102 Iowa, 173, 71 N. W. 201. On this point Mr. Justice Granger, delivering the opinion of the court, said: "A more difficult question is whether the treaty pleaded as existing between the § 251. In Kentucky.-In Kentucky the court announced that it was a well-known principle of the common law and also of the law of that state that lands do not pass from or to an alien by descent, but that upon the death of the person last seised without heirs, who are capable of inheriting, the title vests in the commonwealth without office found. But the court said, in a case United States and Prussia takes the claimants, against the widow, out of the provisions of our law prohibiting nonresident aliens from acquiring property in this state by descent. No question is made as to the prohibition in this case, unless such claimants are relieved from the operation of the law by the terms of the treaty pleaded. Nor is there any question but that, if the plaintiff and the other appellees were subjects of the king of Prussia at the decease of Adam Wilcke, the treaty operates to relieve them from the prohibitions of the law. We are to determine, as a question of fact, whether the province of Waldeck is so far a part of the kingdom of Prussia that citizens of Waldeck are subjects of the King of Prussia, within the meaning of the treaty between the United States and Prussia. As the record is presented, we are to determine this question in the light of history, as it may be aided by particular evidence introduced. The basis for the claim that its citizens are such subjects is a treaty between Prussia and Waldeck relative to the transfer of the administration of Waldeck to Prussia. The articles of treaty appear in the record, and they appear as made by 'his majesty, the King of Prussia, and his serene highness, the Prince of Waldeck'; and it is expressed that the parties are 'animated by the wish of facilitating the entry of the principalities of Waldeck and Pyrmont into the North German Confedera tion.' The articles are some 12 in number, from which it appears that Prussia undertakes the international administration of the principality of Waldeck, exclusively, except in certain particulars, which seem to be mainly of ecclesiastical and charitable importance. While the administration is to be in the name of the prince, a governor is appointed by the king, and placed at the head of the administration of the principality, and undertakes the constitutional responsibility of the government of the country.' Prussia is empowered to organize the judicial and administrative authorities differently, according to her judgment. Prussia is to receive the whole of the services of the principality, and defray all expenses, except some pertaining to ecclesiastical authority. All the state servants are appointed by Prussia, are Prussian subjects, and take the oath of allegiance to the King. The representations of the country abroad is retained by the prince, but it is exercised under the responsibility of the governor, who is appointed by the King. It is to be said that the authority reserved to the prince is of slight importance, and practically divorced from the temporal concerns of government. The articles speak of Waldeck both as a principality and a state. The testimony as to the application of the treaty to government affairs shows, as to its temporal concerns generally, that the province is as much a part of the Prussian king in which the right of aliens to inherit was involved, that the ninth article of the treaty of 1794 between the United States and Great Britain provided that British subjects holding lands in the United States should continue to hold them, and that as to such lands and the legal remedies incident thereto neither they nor their heirs should be regarded as aliens. On the effect of the treaty on the right of the alien to hold, the court said: "It has been decided that the treaty protects the title, whatever it is, and gives to it the same validity as if in the hands of a citizen." 146 § 252. Lapse of time precluding claim.—In a case in this state it was admitted that the judgment of the lower court declaring a widow entitled to a tract of land could not be disturbed, unless certain other kindred could claim under the treaty stipulation between the United States and the Swiss Federation. The court conceded that the treaty was paramount to the state law, but held that the claimants were precluded from the interest claimed by them by the lapse of time. Under the law of Kentucky, all rights to alien heirs were refused at any and all times; "the treaty, however, invests them with an interest provided it is asserted within three years after the right accrues; or rather, it forbids any law limiting their right of recovery to less than three years, the effect of which is to permit any restriction by state legislation against such recovery, which will not interfere with the right for that period. The state law was, therefore, so affected by the treaty as to become inoperative for a period of three years but no further-it being a well-settled rule that dom as any province could be with any slight reservation of governmental authority. It has a slight representation in the federal council and imperial diet, or at least it did have. It is historically said that its military affairs are all in the hands of the Prussian government, and education, the administration of justice, and similar matters are all conducted on the Prussian model. If a subject is one who is governed by the laws of a sovereign or country, and owes allegiance thereto, it is difficult to escape the conclusion that the citizens of Waldeck are subjects of the King of Prussia. Prussian authority is almost, if not quite, absolute, as to its military, judicial, and administrative affairs. Little, if anything of importance is left, except its religious concerns. These, we think, are the controlling facts in the case; and our conclusion is that, because of the treaty between this and the Prussian government, the appellees inherit from Adam Wilcke.'' Wilcke V. Wilcke, 102 Iowa, 173, 71 N. W. 203. 146 Trimbles v. Harrison, 1 B. Mon. (40 Ky.) 140. |