Opinion
Hearing Granted Nov. 1, 1945.
Appeal from Superior Court, City and County of San Joaquin; C. W. Miller, Judge.
In the matter of the estate of Alfred Carl Knutzen, deceased. From a decree settling the account of Theodore J. Knutzen as administrator of the estate and ordering distribution to him of the entire estate to the exclusion of foreign heirs, the United States appeals.
Affirmed.
Frank J. Hennessy, U.S. Atty., of San Francisco, Emmet J. Seawell and Thomas O’Hara, Asst. U.S. Attys., both of Sacramento, Herbert Wechsler, Asst. Atty. Gen., and Harry LeRoy Jones, Chief, Wallace H. Walker, and Richard P. Lott, Attys., and John Ernest Roe, Gen. Counsel, Alien Property Litigation Unit, all of Washington, D. C., for appellant.
O. H. Speciale, of San Jose, Robert W. Kenny, Atty. Gen., and Everett A. Mattoon, Deputy Atty. Gen., for respondent.
OPINION
ADAMS, Presiding Justice.
Alfred Carl Knutzen, a resident of San Joaquin County, California, died intestate January 24, 1943. He left surviving him one brother, Theodore J. Knutzen, living in Los Gatos, California, and one brother and two sisters living in Sylt, Schlesswig-Holstein, Germany, and no other heirs. Theodore J. Knutzen was appointed and qualified as administrator of the estate of said decedent, and after proceedings had, filed his first and final account and petition for distribution on or about February 19, 1944. On or about April 4, 1944, the Alien Property Custodian filed in the proceeding a document entitled ‘Vesting Order No. 3294,’ which recited that such custodian on investigation had found that in the said estate were property and interests ‘payable or deliverable to, or claimed by’ nationals of Germany, to wit, the two sisters and the brother of decedent, and purported to vest in such custodian all the ‘right, title, interest and claim of any kind’ of said German nationals in and to the estate of Alfred Carl Knutzen, deceased. No appearance was made by the German heirs.
On April 17, 1944, the probate court heard the petition of the administrator for settlement of his account and petition for distribution, and on May 1, 1944, made and entered a decree settling the account and ordering the distribution of the entire estate to Theodore J. Knutzen in accordance with sections 259, 259.1 and 259.2 of the Probate Code of the state of California, to the exclusion of the foreign heirs.
On May 10, 1944, the United States of America, by Frank J. Hennessy, United States Attorney, appearing ‘as successor in interest of Arthur Knutzen, Helen Ruge and [Irene] Knutzen, heirs at law’ of said decedent, filed a notice of motion to vacate said decree, and a notice of intention to move for a new trial, the grounds therefor being that the decree violates the provisions of Article IV of the ‘Treaty of Friendship, Commerce and Consular Rights’ between the United States and Germany, proclaimed October 14, 1925, 44 Stat. 2132; that it is based upon a construction of sections 259, 259.1 and 259.2 of the California Probate Code, which is inconsistent with and violates the provisions of Article I, section 8, clause 11, Article VI, clause 2, and section 1 of the Fourteenth Amendment of the Constitution of the United States; and that, as construed by the court in its decree, those statutes invade the field of international affairs and are therefore invalid.
These motions were heard by the court on June 12, 1944, and on June 30, 1944, the court amended its decree so as to include the following:
‘The Court finds that but for the provisions of the Sections 259, 259.1 and 259.2 of the Probate Code of the State of California, the said Arthur Knutzen, Helen Knutzen Ruge and Irene Knutzen all of whom are non resident aliens would each take a one-fourth part of the estate of said deceased, but that no reciprocal rights referred to in said sections of the Probate Code exist between the United States and Germany, and hence the three last named persons are not entitle to inherit any part of said estate.’
The provisions of the decree ordering distribution to Theodore J. Knutzen remained unchanged.
From such decree the United States of America has appealed, the record before us consisting solely of the files and records in the probate proceeding, and the only questions for our determination are those that appear upon the face of said record.
Sections 259, 259.1 and 259.2 read as follows:
‘259. Aliens residing abroad: Dependence of rights upon reciprocity. The rights of aliens not residing within the United States or its territories to take either real or personal property or the proceeds thereof in this State by succession or testamentary disposition, upon the same terms and conditions as residents and citizens of the United States is dependent in each case upon the existence of a reciprocal right upon the part of citizens of the United States to take real and personal property and the proceeds thereof upon the same terms and conditions as residents and citizens of the respective countries of which such aliens are inhabitants and citizens and upon the rights of citizens of the United States to receive by payment to them within the United States or its territories money originating from the estates of persons dying within such foreign countries.
‘259.1. Same: Burden of establishing that rights are reciprocal. The burden shall be upon such nonresident aliens to establish the fact of existence of the reciprocal rights set forth in Section 259.
‘259.2. Same: Disposition of property on finding of non-reciprocity. If such reciprocal rights are not found to exist and if no heirs other than such aliens are found eligible to take such property, the property shall be disposed of as escheated property.’
Appellant’s argument before us is that the trial court erred in distributing the whole estate to Theodore J. Knutzen because (1) the California statute is not self-executing, and the aliens took at least defeasible interests in the estate which upon acquisition by the United States in some manner became indefeasible; (2) it is presumed that the laws of Germany are the same as the laws of California and reciprocal inheritance rights therefore exist under the German laws; (3) as construed and applied the statute contravenes the provisions of the treaty with Germany; and (4) as construed and applied the statute is unconstitutional.
Points (1), (2) and (4) above set forth have but recently been before the District Court of Appeal, First Appellate District, Division Two, in the Matter of the Estate of Bevilacqua, 70 Cal.App.2d ___, 161 P.2d 589, and decided contrary to appellant’s contentions. It was there held that the aforesaid probate code sections are constitutional, that an alien claimant cannot rely upon a presumption that the laws of Germany respecting inheritance are the same as those of California but the burden is on him to show that such is the case; and that, in the absence of such proof, no interest passes to aliens not residing within the United States. We are in full accord with the reasoning and conclusions of that court, and take the liberty of adopting them as our own. Applying such conclusions to the case before us, we hold that since no proof whatever as to the pertinent statutes of Germany was adduced in this proceeding, the two sisters and the brother of decedent, who are nationals of Germany residing therein, never acquired any right to share in the estate of decedent, and, accordingly, appellant, which under the Trading with the Enemy Act, 50 U.S.C.A.Appendix § 616 et seq., was entitled to take and sought to take only such interests as were ‘payable or deliverable to, or claimed by’ such heirs, became vested with nothing by virtue of the Vesting Order filed in the probate court.
We have left for consideration then the contention of appellant that the treaty with Germany secures to the German sisters and brother of decedent, rights to inherit proportionate shares of the estate of decedent. In considering this question we shall assume, without deciding, that the treaty was not abrogated by the declaration of war between the United States and Germany, and that, if in conflict therewith, it supersedes the statutes of the state regarding succession. Cf. United States v. Fox, 94 U.S. 315, 24 L.Ed. 192; and ‘Limitations on the Treaty Making Power’ by Henry St. George Tucker, ch. VI.
Article VI of that treaty provides:
‘Where, on the death of any person holding real or other immovable property or interests therein within the territories of one High Contracting Party, such property or interests therein would, by the laws of the country or by a testamentary disposition, descend or pass to a national of the other High Contracting Party, whether resident or nonresident, were he not disqualified by the laws of the country where such property or interests therein is or are situated, such national shall be allowed a term of three years in which to sell the same, this term to be reasonably prolonged if circumstances render it necessary, and withdraw the proceeds thereof, without restraint or interference, and exempt from any succession, probate or administrative duties or charges other than those which may be imposed in like cases upon the nationals of the country from which such proceeds may be drawn.
‘Nationals of either High Contracting Party may have full power to dispose of their personal property of every kind within the territories of the other, by testament, donation, or otherwise, and their heirs, legatees and donees, of whatsoever nationality, whether resident or non-resident, shall succeed to such personal property, and may take possession thereof, either by themselves or by others acting for them, and retain or dispose of the same at their pleasure subject to the payment of such duties or charges only as the nationals of the High Contracting Party within whose territories such property may be or belong shall be liable to pay in like cases.’ (Italics ours.)
Before attempting an analysis of these treaty provisions reference may properly be made to the principle set forth in the opinion in Estate of Bevilacqua, supra, and cases there cited, that the right to determine how property within their own boundaries shall descend by inheritance is matter for the legislatures of the various states. See particularly In re Estate of Perkins, 21 Cal.2d 561, 569, 134 P.2d 231; Farmers, etc., National Bank v. Superior Court, 25 Cal.2d 842, 155 P.2d 823; Irving Trust Co. v. Day, 314 U.S. 556, 62 S.Ct. 398, 86 L.Ed. 452, 137 A.L.R. 1093. Therefore unless it can be said that by reason of the provisions of the treaty with Germany above set forth the rights of California to provide how the property involved in the proceeding before us should descend, the provisions of the Probate Code above set forth must be held to govern.
Also it may be well to consider what is and what is not involved in this proceeding. Strictly speaking, all that is involved is the right of the brother and sisters of decedent, who are aliens residing in Germany, to inherit the respective shares of the estate of their deceased brother, in the absence of proof of reciprocal rights under the laws of Germany, proof of which is required by sections 259 and 259.1 of the Probate Code. Neither the right of German nationals to hold real property within this state, nor the right of German nationals to dispose of their personal property within this state is involved. It is not contended that decedent was a German national, and the record discloses no attempt by any German national to dispose of his personal property within this state. Decedent, it is conceded, died intestate, and the property remaining for distribution consists solely of cash.
An analysis of the first paragraph of Article IV of the treaty shows, first, that it purports to deal only with real property or interests therein. Second, it purports to provide only that where a national of either country may, either by descent or testamentary disposition, acquire real property situated within the boundaries of the other, such national may have three years within which to sell same— or longer if circumstances render it necessary— and withdraw the proceeds without interference and exempt from any charges other than those that may be imposed in like cases upon the nationals of the country from which such proceeds may be drawn; and, third, it specifically applies only to such real property or interests therein as would pass or descend to the nationals of the other, ‘by the laws of the country or by a testamentary disposition,’ were the party taking ‘not disqualified by the laws of the country where such property or interests therein is or are situated.’ It is, we think, apparent that the said provision does not purport to supplant or limit the laws of succession of either of the contracting countries. The use of the above quoted language evidences, on the contrary, a recognition that real property and interests therein may not, because of the laws of the various states in the United States and of Germany, pass to the nationals of the other, and that the nationals of either may, by the laws of the other, be disqualified from taking or holding title to real property located within its boundaries.
An analysis of the second paragraph of the article shows that it purports to provide only for the rights of the nationals of the one residing in the other, to dispose of their personal property, and the rights of those who may acquire personal property so disposed of by such nationals to succeed to same, take possession thereof, and retain or dispose of same without paying any duties or charges other than the nationals of the country within whose territory the property may be would be liable to pay in like cases. No right of any German national to dispose of his property is involved in this proceeding, nor is the right of any person to whom any national has conveyed or from whom the property of any national has descended, to dispose of same involved. The right here involved is the right of German nationals not residents of the United States to acquire rights under the succession laws of California, without proving that an American, citizen not residing in Germany would have the right to inherit from a German national residing in Germany, property located in Germany.
Appellant states in its brief that ‘Both provisions of Article IV evidence a broad purpose to remove the impediment of alienage and thereby secure to nationals of either country the right to dispose of property located in the other, and passing to them by will or by the laws of succession of that country. Thus the treaty secures to the German legatees involved herein the right to inherit property located in the United States and left to them under the will of the testatrix .’ (Italics added.)
While it may be conceded that the provisions of Article IV evidence a purpose to secure to the nationals of either country the right to dispose of their property located in the other, it does not follow that the treaty therefore secures to the German nationals in this case, or in any case, the right to inherit property located in the United States without complying with the provisions of local law; and in this case no property was left by will. Nor can it be said that the provisions of the treaty ‘evidence a broad purpose to remove the impediment of alienage.’ On the contrary the phrases ‘Where * * * such property or interests therein would, by the laws of the country * * * descend or pass to a national of the other,’ and ‘were he not disqualified by the laws of the country where such property or interests therein is or are situated’ give specific recognition to the fact that rights of inheritance and the right to hold real property within their borders are matters within the control of the respective countries. Throughout this treaty recognition of the force and effect of local laws is given. See Articles I, XII, XIII and XXIV. In the latter article, which deals with the rights of consular officers to deal with the estates of the nationals of their country who may die within the territory of the other, the phrases ‘so far as the laws of the country permit,’ and ‘provided the laws of the place where the estate is administered so permit,’ are used in defining the rights of such consular officers.
The effect of such phrases in treaties has been considered in numerous decisions of our courts. In Re Estate of Ghio, 157 Cal. 552, 108 P. 552, 37 L.R.A.,N.S., 549, 137 Am.St.Rep. 145, affirmed in Rocca v. Thompson, 223 U.S. 317, 32 S.Ct. 207, 56 L.Ed. 453, a provision of the treaty with Argentina was relied upon by the consul of Italy— under the most favored nation clause in the treaty with Italy— which gave consuls the right to intervene in the possession, administration, and judicial liquidation of the estate of a deceased conformably with the laws of the country, for the benefit of the creditors and legal heirs. And it was contended that this gave consuls the right to administer property left by a foreigner within the jurisdiction of California. But it was held that in this country the right to administer such property is primarily committed to state law, that it is so regulated in California, and that the treaty was not to be construed to give the consul the right to administer and thus supersede the local law. Also see In re Estate of Servas, 169 Cal. 240, 146 P. 651, Ann.Cas.1916D, 233.
In Santovincenzo v. Egan, 284 U.S. 30, 52 S.Ct. 81, 82, 76 L.Ed. 151, the consul for Italy in New York claimed the right to receive the net assets of a deceased native of Italy for distribution to the Kingdom of Italy. He relied upon a provision in a treaty with Persia, under the most favored nation clause in a consular convention with Italy. The provision relied upon read:
‘In case of a citizen or subject of either of the contracting parties dying within the territories of the other, his effects shall be delivered up integrally to the family or partners in business of the deceased; and in case he has no relations or partners, his effects in either country shall be delivered up to the consul or agent of the nation of which the deceased was a subject or citizen, so that he may dispose of them in accordance with the laws of his country.’
The court upheld the contentions of Santovincenzo in that case, but it was stated, 284 U.S. at page 36, 52 S.Ct. at page 83, 76 L.Ed. 153:
‘The provision of article VI of the Treaty with Persia does not contain the qualifying words ‘conformably with the laws of the country’ (where the death occurred) as in the case of the Treaty between the United States and the Argentine Confederation of [July 10] 1853 (article IX, 10 Stat. 1001, 1009; Rocca v. Thompson, 223 U.S. 317, 326, 330, 332, 32 S.Ct. 207, 56 L.Ed. 453 [456-458]); or the phrase ‘so far as the laws of each country will permit,’ as in the Consular Convention between the United States and Sweden of [June 1] 1910 (article XIV, 37 Stat. 1479, 1487, 1488; Rocca v. Thompson, supra; In re D’Adamo’s Estate, 212 N.Y. 214, 222, 223, 106 N.E. 81, L.R.A.1915D, 373). The omission from article VI of the Treaty with Persia of a clause of this sort, so frequently found in treaties of this class, must be regarded as deliberate. In the circumstances shown, it is plain that effect must be given to the requirement that the property of the decedent ‘shall be delivered up to the consul or agent of the nation of which the deceased was a subject or citizen, so that he may dispose of them in accordance with the laws of his country,’ unless a different rule is to apply simply because the decedent was domiciled in the United States.’
That opinion was written by Mr. Chief Justice Hughes, who, it should be noted, was the United States plenipotentiary who signed the treaty with Germany here under consideration; and it clearly indicates that where such language as is quoted above, and as appears in Article IV of the treaty with Germany, is used, it is not to be disregarded or its use said to be inadvertent.
In Re D’Adamo’s Estate, 212 N.Y. 214, 106 N.E. 81, 83, L.R.A.1915D, 373, cited in the foregoing quotation, the right of a consul of Italy to administer the estate of an Italian national who died in New York was in question. The decedent left a wife and child in Italy who were his sole heirs; but he left a brother in New York who claimed the right, under the New York statutes to administer the estate, and who was held to have such right unless some treaty provision prevented. Under a most favored nation clause the consul relied upon a provision in a consular convention with Sweden (and not that of the treaty with Argentina as in Rocca v. Thompson, supra), which provided that in the event of the death, intestate, of any citizen of either of the contracting parties within the territory of the other the consul of the nation to which the deceased belonged should ‘so far as the laws of each country will permit and pending the appointment of an administrator, * * * take charge of the property left by the deceased for the benefit of his lawful heirs and creditors, and, moreover, have the right to be appointed as administrator of such estate.’ This language, it was contended, superseded the local law and gave the consul a paramount and conclusive right to administer the estate of decedent. But the court, in an opinion by Mr. Justice Cardozo, held that the phrase, ‘so far as the laws of each country will permit,’ qualified the whole sentence of the treaty; and that such phrase is equivalent to the phrase ‘conformably with the laws of the country,’ construed in Rocca v. Thompson, supra, and that ‘it maintains the continuity of the purpose, revealed repeatedly in conventions and treaties throughout our history, to subject the rights of consuls to the requirements of local law.’ That opinion also set forth certain incidents in our diplomatic history disclosing a disinclination of the federal government by treaty to trench upon the rights of the states to administer the estates of those dying within their territorial limits.
Re D’Adamo is cited and followed in numerous later decisions. See Lely v. Kalinoglu, 64 App.D.C. 213, 76 F.2d 983, 100 A.L.R. 1523, certiorari denied, 295 U.S. 765, 55 S.Ct. 925, 79 L.Ed. 1707, Schneider v. Hawkins, 179 Md. 21, 16 A.2d 861, and cases cited in note in 100 A.L.R. 1527-1537.
In Wyers v. Arnold, 347 Mo. 413, 147 S.W.2d 644, 134 A.L.R. 876, Babette Orth, a German national resident in Germany died, leaving, as the only assets of her estate, an interest in the estate of a brother, Carl Orth, who had died in Missouri. After the estate of Carl Orth was fully administered the portion thereof payable to the estate of Babette Orth was paid to her administrator. More than three years after the administration of Carl Orth’s estate was begun, a copy of a purported will of Babette Orth was presented to the Missouri probate court, with a petition that her estate be paid over to the legatees named in that will, who were nationals and residents of Germany. The will was admitted to probate, whereupon a proceeding was begun by a nephew and heir at law of Babette Orth, not mentioned in the will, to prohibit the Missouri court from distributing the estate to the named legatees, on the ground that under the law of Missouri the probate court had no authority to admit the will to probate after the lapse of the time provided by Missouri law for the admission of a will to probate. It was contended, in opposition to the writ, that under Article IV of the treaty with Germany the court was bound to admit the will to probate regardless of the local law. The court held that the provisions of the treaty did not override the state statute. Todok v. Union State Bank, 281 U.S. 449, 50 S.Ct. 363, 74 L.Ed. 956, was cited, in which case it was held that a provision in a treaty with Sweden, that the subjects of the contracting parties might freely dispose of their goods and effects in favor of such persons as they thought proper, did not supersede a statute of the state of Nebraska providing that a homestead could not be conveyed unless both husband and wife joined in the conveyance; and that the husband, though a national of Sweden, was powerless to dispose of homestead property without the consent of his wife. Certiorari was denied by the United States Supreme Court, Arnold v. Wyers, 313 U.S. 589, 61 S.Ct. 1112, 85 L.Ed. 1544.
In an interesting note in 57 Harvard Law Review, 730, 731, it is said that ‘since the treaty of 1923 [with Germany] gives only a right of sale to aliens who are disqualified from taking property by the law of the situs, it contemplates that there shall be state laws on the subject.’ Reference is there made to Gibson, Aliens and the Law, in which work it is stated at pages 37, 38:
‘The treaties still leave it to the state governments to decide whether aliens may or may not continue in possession of real property acquired by inheritance. If the state government permits this, then there are treaties requiring national treatment, thereby preventing the state, at least as far as the nationals of the contracting parties are concerned, from discriminating against them. But on the other hand, if the state governments decide that aliens shall not acquire real property by inheritance, the only provision to be found in the treaties is that aliens, nationals of the other contracting party, inheriting real property in such states shall have the right not of holding the property, but merely of liquidating it and removing the proceeds. All of which seems to indicate clearly that ‘the Government of the United States has exhibited restraint in generally refraining from attempts to hinder the several States of the Union from shaping their own policies with regard to lands within their respective territorial limits.’’
Also at pages 49, 50:
‘Treaty provisions relative to aliens’ acquisition of real property by descent do not in most instances permit aliens to receive property upon the same basis as citizens. For the most part, the state governments determine one’s right to real property and prescribe the manner in which such property is to be enjoyed in the United States. It is a principle of American constitutional law that a treaty takes precedence over a conflicting state constitution or legislation. However, the federal government has used the treaty-making power in this connection cautiously. Most of the provisions do not give the alien the right to obtain real property ab intestato in the fullest sense. What these provisions do grant is the right to dispose of the real property inherited and to remove the proceeds of such disposal. This arrangement assures to the alien the market value of the property and leaves the state governments free to keep the real estate situated in their jurisdictions out of alien hands should they so desire. The provisions do not deny the state the power to determine who shall own real property within its jurisdiction. In fact they specifically recognize this power by the phrase, ‘were he not disqualified by being an alien.’ Therefore, in most of the provisions concerned with descent of real property to aliens, all that is granted is that when ‘such real estate would by the laws of the land [in the United States this means state laws] descend on a citizen or subject of the other, such citizen or subject shall be allowed,’ not to enter into full and complete enjoyment and possession thereof, but to have a specified time or a reasonable time ‘to sell the same and to withdraw the proceeds.’ The treaty-making power has been used to modify the common law to the benefit of alien heirs. By virtue of these provisions, aliens have been extended national treatment in that they receive distributive shares in cases of intestacy the same as citizens. They further grant aliens the right to sell that which they obtain by operation of law. But here the provisions stop. They do not grant aliens the right to enter into unconditional possession.’
Appellant argues that treaties are to be liberally construed, and that if there is any doubt as to their meaning the more liberal construction is to be adopted— which in this case should be a construction in favor of the United States as claimant of the rights of the German nationals. But we find nothing ambiguous or uncertain in the provisions of Article IV. As we read it, the first paragraph merely means that in the event that the national of the one country should, by the laws of descent of the other or by testamentary disposition, become entitled to real property, which, under the laws of that country, he was not, because of alienage, entitled to hold, he should have three years or more within which to dispose of same exempt from any charges which would not be imposed on the nationals of the country in which said property was located. And the second paragraph merely gives a national of one country residing in the other the right to dispose of his personal property in that territory, and any persons who may acquire such property from such national the right to dispose of same without the imposition of charges not imposed upon nationals of the country where the property is situated.
Treaties are not formulated by illiterate amateurs. In Rocca v. Thompson, supra, the court said, 223 U.S. at page 332, 32 S.Ct. at page 210, 56 L.Ed. 458:
‘It is further to be observed that treaties are the subject of careful consideration before they are entered into, and are drawn by persons competent to express their meaning, and to choose apt words in which to embody the purposes of the high contracting parties. Had it been the intention to commit the administration of estates of citizens of one country, dying in another, exclusively to the consul of the foreign nation, it would have been very easy to have declared that purpose in unmistakable terms.’
Similarly, if the parties to this treaty intended it should have the meaning attributed to it by appellant, no reason appears why they should not have said so in so many words.
Such statutes as sections 259 and 259.1, supra, are not peculiar to California. Similar provisions are found in the statutes of other states. See Oregon Compiled Laws, Annotated, Vol. 5, pp. 4, 5, section 61-107, and Chapter 104 of the 1939 Laws of Montana, sections 2-5. To hold that the language of the treaty with Germany supersedes the statutes of the state of California regarding the rights of succession by nonresident German aliens, would have the effect of nullifying the statutes of those states and every other state on the same subject; and since most treaties contain a ‘most favored nation’ clause, such as was relied upon in Rocca v. Thompson; In re D’Adamo; and Santovincenzo v. Egan, supra, it would have the effect of holding that all other countries whose treaties have such ‘most favored nation’ clauses would enjoy the same rights.
No purpose to so limit or restrict the recognized rights of states to regulate through their legislatures the manner and terms upon which property within their dominion may pass by succession, should be lightly assumed; rather the contrary. The language of a treaty wherever reasonably possible will be construed so as not to override state laws or to impair rights arising under them. Guaranty Trust Co. v. United States, 304 U.S. 126, 143, 58 S.Ct. 785, 82 L.Ed. 1224, 1234. As was said by our Supreme Court in Re Estate of Ghio, 157 Cal. 552, 557, 108 P. 516, 523, 37 L.R.A.,N.S., 549, 137 Am.St.Rep. 145, affirmed in Rocca v. Thompson, supra, ‘such intent is not to be lightly imputed to the federal government, and that it cannot be allowed to exist except where the language used in a treaty plainly expresses it, or necessarily implies it.’ Also it was there said, 157 Cal. at page 560, 108 P. at page 525, 37 L.R.A., N.S., 549, 137 Am.St.Rep. 145, that it was not probable ‘that the words of the treaty under consideration were chosen with the intent to have the international agreement become a part of, and in part supplant, the laws of the states of the United States, or of the provinces of Argentina, in matters committed solely to the states or provinces.’ And in Chryssikos v. Demarco, 134 Md. 533, 107 A. 358, 360, it was said: ‘It would not be just to assume that in making a treaty with a foreign country laws of the different states were intended to be repealed or ignored, in the absence of express language or clear implication showing such intent, especially such as testamentary laws, which are necessary and exist in every state, although they differ in some particulars.’
We therefore conclude that the treaty with Germany does not conflict with or override the provisions of sections 259 and 259.1 of the Probate Code of California. This conclusion renders it unnecessary to determine whether or not the said treaty was abrogated by the declaration of war between the United States and Germany.
The judgment is affirmed.
PEEK, J., concurs.
THOMPSON, Justice (concurring).
I concur in the conclusion. The chief question is whether the court erred in distributing the entire estate to a resident brother of the deceased to the exclusion of another brother and two sisters residing in Germany. If the German relatives were heirs under sections 259, 259.1 and 259.2 of the Probate Code, they were entitled to inherit equal on-fourth shares, subject to the claim of the Federal Alien Property Custodian. Section 259.1 places the burden on the claimants to affirmatively prove the country in which they live confers similar reciprocal rights of inheritance. In other language section 259 authorizes nonresident aliens to inherit property from the estate of a resident intestate deceased person, conditioned upon their proof of the existence of law in their country conferring similar reciprocal rights upon our residents. On distribution, no affirmative proof of the existence of a similar statute in Germany was offered. The court did, however, consider the treaty of 1925 between the United States and Germany which contains provisions with respect to reciprocal rights of inheritance by nonresident aliens of the respective nations. The court was bound to take notice of the provisions of that treaty since it is considered the supreme law of our land.
It has been held that courts will take judicial notice of treaties with foreign countries. United States v. Rauscher, 119 U.S. 407, 419, 7 S.Ct. 234, 30 L.Ed. 425; San Lorenzo Title & Imp. Co. v. Caples, Tex.Civ.App., 48 S.W.2d 329. Treaties become the supreme law of the land (U.S.Const., Art. VI, cl. 2) and upon subjects which are self-executing they take precedence over state statutes in conflict therewith. In re Terui, 187 Cal. 20, 24, 200 P. 954, 17 A.L.R. 630; 24 Cal.Jur. 650, sec. 5; 52 Am.Jur. 815, secs. 17, 18; 134 A.L.R. 886, note. It is contended that the treaty of Germany was self-executing with respect to reciprocal rights of nonresidents to inherit property by will or by succession; that no subsequent enactment of a statute was required. Provisions in treaties with respect to the rights of individuals should be construed exactly as Federal statutes are interpreted. Edye v. Robertson, 112 U.S. 580, 5 S.Ct. 247, 254, 28 L.Ed. 798; 52 Am.Jur. 815, secs. 17, 18. Courts take judicial notice of the acts of Congress. Code Civ.Proc. sec. 1875, subd. 3; Young v. Boy Scouts of America, 9 Cal.App.2d 760, 764, 51 P.2d 191; Sheehan v. Vedder, 108 Cal.App. 419, 292 P. 175; 31 C.J.S., Evidence, § 16.
Treaties should receive a liberal construction to ascertain and carry out the intentions of the contracting nations. De Geofroy v. Riggs, 133 U.S. 258, 10 S.Ct. 295, 33 L.Ed. 642; Nielsen v. Johnson, 279 U.S. 47, 49 S.Ct. 223, 75 L.Ed. 607; In re Estate of Romaris, 191 Cal. 740, 218 P. 421; 52 Am.Jur. 825, sec. 34.
If the treaty with Germany conferred unconditional reciprocal rights of inheritance conforming to the requirement of section 259, then the burden of proof was sustained and the German heirs acquired title to their respective interests, unless those inheritable rights were abrogated by the subsequent declaration of war between the United States and Germany in 1941, which was prior to the death of Knutzen.
I am of the opinion that the covenants in the treaty providing for reciprocal rights of inheritance were neither abrogated nor suspended by the subsequent declaration of war. Modern authorities assert that the provisions of treaties fixing what are deemed to be permanent rights of nations, like state lines, and covenants purporting to establish permanent personal rights of individuals, like the rights of nonresident aliens to inherit property, are neither abrogated nor suspended by a subsequent declaration of war, unless the language of the treaty specifically so provides. Techt v. Hughes, 229 N.Y. 222, 128 N.E. 185, 11 A.L.R. 166, certiorari denied; State ex rel. Miner v. Reardon, 120 Kan. 614, 245 P. 158, 47 A.L.R. 452; Goos v. Brocks, 117 Neb. 750, 223 N.W. 13; Rickmers, etc., v. United States, D.C., 45 F.2d 413, 418; Society, etc., v. New Haven, 21 U.S. 464, 5 L.Ed. 662; 1929 Supp. Thompson on Real Property, 767, sec. 2352; 63 C.J. 833, sec. 13; 3 C.J.S., Aliens § 7f; 52 Am.Jur. 813, sec. 15; 11 A.L.R. 180, elaborate note. No intention to abrogate individual reciprocal rights of inheritance by the subsequent declaration of war is suggested by the treaty. The leading cases on that subject are the Techt and the Miner decisions above cited.
No one has the natural inherent right to inherit property from the estates of deceased persons. That right exists only by grace of legislative authority. In re Estate of Perkins, 21 Cal.2d 561, 569, 134 P.2d 231; McCaughey v. Lyall, 152 Cal. 615, 93 P. 681; Childs v. Gross, 41 Cal.App.2d 680, 689, 107 P.2d 424; 9 Cal.Jur. 450, sec. 4; 16 Am.Jur. 777, sec. 12; 2 Am.Jur. 484, sec. 42; 26 C.J.S., Descent and Distribution, § 2. Since the burden was cast by section 259.1 of the Probate Code upon the nonresident relatives of the deceased to prove that a German statute existed, as distinguished from the treaty provisions, conferring reciprocal inheritable rights, and no proof was offered in that regard, there is no presumption, under the circumstances of this case, that such statute existed. Ordinarily, according to California authorities, the presumption is undulged, in the absence of proof to the contrary, that the law of a foreign country is the same as the law of our own state. Murphy v. Murphy, 145 Cal. 482, 78 P. 1053; Nesbit v. MacDonald, 203 Cal. 219, 224, 263 P. 1007; Wickersham v. Johnston, 104 Cal. 407, 411, 38 P. 89, 43 Am.St.Rep. 118; Christ v. Superior Court, 211 Cal. 593, 598, 296 P. 612; Marsters v. Lash, 61 Cal. 622, although a different rule may exist in some other jurisdictions. 31 C.J.S., Evidence, § 21. But when the statute definitely casts the burden upon a litigant to affirmatively prove the fact, the presumption of the similarity of the laws may not be indulged or relied upon as proof. Under such statute there is no presumption that the law of a foreign country is the same as our own statute, or at least the presumption is against the party upon whom the burden is cast. 31 C.J.S., Evidence, § 114. In the text last cited it is said:
‘It has also been considered that a presumption is generally only a rule of law as to which party shall first proceed and go forward with the evidence, to prove an issue, the presumption being against the party having the burden of proof.’
I am convinced sections 259, 259.1 and 259.2 of the Probate Code, which were adopted in 1941, are constitutional. Estate of Bevilacqua, 70 Cal.App.2d — —, 161 P.2d 589; In re Estate of Blak, 65 Cal.App.2d 232, 150 P.2d 567; In re Estate of Michaud, 53 Cal.App.2d 835, 128 P.2d 595. The Estate of Bevilacqua, supra, does not involve the construction of a treaty. Even though the German residents in this case failed to sustain the burden cast upon them by our code they would nevertheless be entitled to inherit provided the treaty conferred unqualified reciprocal rights to do so independently of the statute since the treaty is the supreme law of the land and would be controlling in that regard. I believe the covenants of a treaty providing unqualified reciprocal rights of inheritance are not abrogated by a subsequent declaration of war between the contracting nations.
The serious question to be determined in this case depends upon the construction of the language of the treaty with respect to reciprocal rights of inheritance of real and personal property. This case definitely involves the right of nonresident aliens to inherit real estate, and a construction of paragraph one of the treaty applying to real property is therefore necessary. The chief value of the estate consisted of real property. The deceased died possessed of real property which was subsequently sold to pay debts and expenses of administration. There was but $338 in cash. If the German heirs were entitled to inherit a share of the estate, the title to their proportion vested immediately upon the death of Alfred Knutzen, which occurred January 24, 1943, before the real property was sold. Prob. Code, sec. 300; 26 C.J.S., Descent and Distribution, § 65; 16 Am.Jur. 786, sec. 20. The right of the administrator to sell the real property to pay debts and expenses of administration did not alter the character of the property to which title had then actually passed. I am convinced the construction of the first paragraph of the treaty is necessarily involved and that it is the important portion of the treaty to construe and apply to the issue as to whether reciprocal rights of inheritance are provided for by German law.
Mindful of the rule that statutes and treaties should be liberally construed to carry out the intentions of the contracting parties, and to preserve individual rights of the citizens of both countries, I am disposed to concede that the language of the treaty fails to absolutely confer unqualified reciprocal rights of inheritance. On the contrary, paragraph one appears to confer such rights conditionally upon proof that ‘Where, * * * by the laws of the country ’ such property would ‘descend or pass to a national of the other High Contracting Party.’ Of course a treaty is the law of both countries. Indeed it is the highest law of both nations. But the language quoted quite evidently requires proof of the existence of some statute or law, independent of the treaty, authorizing such reciprocal rights of inheritance. That paragraph of the treaty provides, in part, that:
‘Where, on the death of any person holding real * * * property * * * within the territories of one High Contracting Party, such property or interests therein would, by the laws of the country, * * * descend or pass to a national of the other High Contracting Party,’ etc., he shall be allowed three years in which to sell or dispose of it. (Italics added.)
If that language is construed to mean that where a deceased person holds real property in either country, and the laws of that country in which he holds the property provides that it shall ‘descend or pass to the national of the other High Contracting Party,’ it would be an absolute binding provision entitling the German heirs to inherit, provided the California statute contained such an unqualified right of inheritance. But it does not so provide unconditionally. It authorizes them to inherit only conditioned upon their first affirmatively proving that Germany had a statute conferring similar reciprocal rights. That they failed to do. I am therefore persuaded that the provisions of the treaty, standing alone, do not furnish proof of reciprocal rights of inheritance sufficient to comply with the requirements of our sections of the Probate Code.
The second paragraph of the treaty, pertaining to personal property, provides that:
‘Nationals of either High Contracting Party may have full power to dispose of their personal property * * * within the territories of the other, by testament, donation, or otherwise, and their heirs, * * * of whatsoever nationality, whether resident or nonresident, shall succeed to such personal property ,’ etc. (Italics added.)
The word ‘national,’ as it is used in the treaty, means one who owes allegiance to a particular country or nation. Applying the foregoing language to the facts of this case, I assume it means that if the brother and two sisters of the deceased who live in Germany, own personal property in this country, they have ‘full power’ to dispose of it by will, deed or otherwise, and that their heirs ‘shall succeed to such property.’ But the real issue is whether they actually owned interests in the property of the estate. The deceased did not dispose of the property. He died intestate. The language of the treaty that ‘their heirs * * * shall succeed to such personal property’ does not directly authorize nonresident aliens to inherit it unconditionally. It does not constitute them heirs of their deceased California brother independently of a statute of Germany providing for reciprocal rights to do so. I construe it to mean that if the German residents are heirs entitled to inherit, they may ‘succeed’ to the title to such property. In other words, the treaty appears to contemplate the necessity of an independent statute providing for reciprocal rights of inheritance. The burden was on them to prove that fact. They failed to do so and they may therefore not be deemed to be heirs who are entitled to inherit any part of the estate. The trial court therefore properly distributed the entire estate to the resident brother of the deceased. Orr v. Hodgson, 17 U.S. 453, 4 L.Ed. 613; Connolly v. Probate Court, 25 Idaho 35, 136 P. 205; 19 Am.Jur. 388, sec. 15.
Since I am unable to satisfactorily construe the language of the treaty so as to independently create reciprocal rights of inheritance under the circumstances of this case, and the claimants failed to affirmatively prove that Germany had such a statute, I conclude, as the majority opinion determines, that the trial court properly distributed the entire residue of the estate to the resident brother of the deceased. There was no title in the brother and two sisters of the deceased residing in Germany, upon which the Alien Property Custodian could fasten his claim in behalf of the United States government.
The judgment should be affirmed.