Doehrel v. Hillmer

Ladd, J.

*171

1

*170 Under the will of Hannah Halbfass, 'Wilhelmina Prellburg took an undivided one-third interest in the real estate in controversy. She was a resident of Hanover, Germany, and a subject of the king of Prussia, at the time of her death, and left, her surviving, three sons, August, Heinrich, and Christian Prellburg, who are also residents of the same place, and subjects of the king. They claim to have taken this property from their mother by descent. Under *171 the laws of this state non-resident aliens cannot so acquire land. Furenes v. Mickelson, 86 Iowa, 508 ( 53 N. W. Rep. 416 ); Burrow v. Burrow, 98 Iowa, 400 ( 67 N. W. Rep. 287 ). They rely, however, upon a treaty concluded between the United States and the king of Prussia May 1, 1828, and ratified and proclaimed March 14, 1829. A part of article 14, only, need be quoted: “And where, on the death of any person holding real estate within the territory of the one party, such real estate would, by the law 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 reasonable time to sell the same, and to withdraw the proceeds without molestation, and exempt from all duties of detraction on the part of the government of the respective states.” The provisions of this treaty are controlling, even though in conflict with the laws of this state. Opel v. Shoup, 100 Iowa, 407 ( 69 N. W. Rep. 560 ); Wilcke v. Wilcke, 102 Iowa, 173 ( 71 N. W. Rep. 201 ).

2 The mother took the property by purchase, within the meaning of chapter 85 of the Acts of the Twenty-second General Assembly. Bennett v. Hibbert, 88 Iowa, 154 ( 55 N. W. Rep. 93 ). Section 2 of that chapter is: “Any non-resident alien may acquire and hold real property to the extent of three hundred and twenty (320) acres, or city property to the amount of $10,000 in value, providing that within five years from the date of purchase of said property, the same is placed in the actual possession of a relative of such purchaser, the occupant being related to such owner within the third degree of kindred, or the husband or wife of such relative, and further provided that such occupant become a naturalized citizen within ten years from the purchase of such property as aforesaid.” Wilhelmina Prellburg, then, took the property with the conditions and *172 limitations imposed by the statute. The treaty allows a reasonable time to dispose of the land, and that fixed by this section is ample for that purpose. Her estate in the land was that defined by Plowden as a fee simple determinable, or by Blackstone, as a base or qualified fee. A fee determinable will descend in the line of succession of the purchaser, and will determine upon the happening of the event upon which it was first limited, into whosoever it may come. 1 Wash-burn, Real Prop., 90. See also, Chirac v. Chirac, 2 Wheat. 259 . This precise question is determined in Schultze v. Schultze (Ill. Sup.) 36 Am. St. 432 (33 N. E. Rep. 201), where it is said: “By the- terms of the treaty, the power to dispose of the land and appropriate its proceeds, is granted in positive terms. Such a power to sell cannot be exercised unless the donee is vested with the fee, or, in other words, the complete ownership.” Kull v. Kull, 37 Hun. 476 . Clearly, Wilhelmina was owner of real property, within the meaning of the treaty.

3 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 , that “where a treaty admits of two constructions, one restrictive of 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 *173 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; audit 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, alien-age 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 transmission. The district court rightly held the sons entitled to the property, and its decree must be AFFIRMED.