Herrick v. Harmes

This is an appeal from a decree of partial distribution made and entered in the matter of the estate of Mary E. Turner, deceased. The appellant is the brother and heir of said decedent and is also one of the distributees under the decree of partial distribution from which this appeal has been taken. The respondent is the administrator with the will annexed of the estate of said decedent. By the terms of said will certain real property in San Francisco was devised in equal undivided shares to her said brother and to one A. Basletta. There was also devised to Basletta the whole of certain real estate in the county of Fresno. The record shows that a petition for letters of administration with the will annexed was made on behalf of said Basletta, but that upon a hearing thereon said petition was dismissed by the court. Thereafter the respondent Harmes applied for and received letters of administration with the will annexed in said estate. Thereafter and on January 8, 1920, the court having jurisdiction of said estate made and entered a decree of partial distribution upon the application of said Herrick, wherein it was

Up to the time of the making and entry of this decree no bond had been filed by said Herrick in conformity with the requirements of the former decree of partial distribution of an undivided one-half interest in the San Francisco property to him; but a few days after the making and entry of the last decree of partial distribution he filed said bond, and thereafter took an appeal to the supreme court from said last made decree of partial distribution, which appeal the supreme court at a later date transferred to this court for hearing and determination.

The appellant presents three points upon this appeal. The first of these is that the trial court determined the right of A. Basletta as a nonresident alien to receive by devise any portion of the estate of Mary E. Turner, deceased, by its order dismissing the petition filed on behalf of A. Basletta for the probate of the will of said deceased and for the issuance to him of letters of administration therein.

The order of said court upon which the appellant relies in support of this contention reads as follows:

“This cause coming on regularly to be heard this 23d day of September, 1918, upon the motion of H. S. Herrick, proponent of the last will of said deceased, and said proponent A. Basletta being represented by counsel on said motion, and it appearing to the court that said A. Basletta is a nonresident alien, and not a person interested in the estate of said deceased, and his said petition for the probate of the last wills of said deceased was not signed by him personally, in accordance with the requirement of section 1371, Code of Civil Procedure, but by his attorney in fact J. T. Harmes;

“It is hereby ordered that said petition for probate so filed by said Basletta be and the same is hereby dismissed.”

The parties to this appeal have, for some reason, not seen fit to furnish this court with any of the proceedings in said estate prior to the making and entry of this order; but so far as we are able to determine from the face thereof and from certain indirect references made thereto in other and

[2] The next contention urged by the appellant is that said A. Basletta, as a nonresident alien and subject of Italy, is not entitled, under the constitution and laws of this state, to receive by devise any portion of the real estate of said decedent, and hence that the decree of partial distribution from which this appeal has been taken, in so far as it purports to distribute to said Basletta any property whatever of said decedent, is void. In making this contention the appellant, in his brief, concedes that at the time of the death of said decedent and also at the time of making said decree of partial distribution there existed a treaty

We are of the opinion that this court is concluded from attempting to determine either of these two contentions in the appellant’s favor by the decision of the supreme court of this state, in the case of Blythe v. Hinckley, 127 Cal. 431 , [ 59 Pac. 787 ]. That case involved the right of a nonresi- ' dent alien, a citizen and subject of England, to take by inheritance real estate in California. The supreme court, in passing upon that question, held, first, that the treaty-making power of the federal government with respect to the rights of aliens to inherit property was of controlling force, and that the laws of the individual states upon that subject, in so far as they were in conflict with the treaty provisions, were suspended or controlled during the life of the treaty.

It is true that in that case it appeared that the treaties between Great Britain and this country were silent upon that subject, but notwithstanding this fact, the supreme court there decided that the laws of the several states were subject to treaty control. It is not contended by the appellant herein that the subjects of Great Britain and of a number of other foreign powers were not accorded the right under treaties existing at the time of the death of said decedent and at the time of the making and entry of the decree herein appealed from, to take real estate by inheritance or devise in this state. In point of fact, the authorities cited in his brief, notably the case of Succession of Rixner, 48 La. Ann. 552 , [ 32 L. R. A. 177 , and notes thereto, 19 South. 597 ], show the existence of such rights under a number of existing treaties between the United States and foreign powers; while in the case last referred to as cited by the appellant himself, it is held that a nonresident alien and citizen and subject of Italy is entitled by the “most favored nation” clause of the Italian treaty to be accorded the same rights of inheritance and succession which the

We are, therefore, constrained to hold that the language of the supreme court in Blythe v. Hinckley, above referred to, determines this point against the appellant’s contention.

[3] It is further claimed by the appellant that the amendment of section 17 of article I of the state constitution, adopted in 1894, has the effect of superseding the decision referred to, and was in fact adopted with the express intent of so doing. It is to be noted that the case of Blythe v. Hinckley, supra, was decided by the supreme court six years after the date of said amendment; and it may be inferred that if any such change in the constitution as is herein contended for had been effected by said amendment the supreme court would have so declared; but instead of doing this it appears that the court in its decision in said ease also dealt with the question as to whether section 17 of article I of the constitution was intended to be a limitation upon the powers of the legislature to deal with the question of the right of succession of nonresident aliens to real estate; and in so doing the court expressly held that the constitutional provision in question was not to be construed as being such a limitation. A cursory examination of section 17 of article I of the constitution, as amended in 1894, will show that it does not expressly prohibit nonresident aliens, eligible to become citizens of the United States under the naturalization laws thereof, from acquiring by inheritance or devise real estate, but apparently leaves it to the legislature to determine the extent and conditions under which such aliens may hold and dispose of such real estate,, as shall be thus acquired by them after the adoption of said amendment. The legislature of California, acting, apparently, upon this construction of the state constitution, adopted, in 1913, an Alien Land Act (Stats. 1913, p. 206), wherein, in section 1 thereof, it is provided that “All aliens eligible to citizenship under the laws of the United States may acquire, possess, enjoy, transmit and inherit real property or any interest therein, in this state, in the same manner and to the same extent as citizens of the United States, except as otherwise provided by the laws of this state.” We are of the opinion that the state legislature was empowered to pass this provision; and that having done so prior to the

The third and final contention of the appellant is that since the trial court by its decree of partial distribution, made on January 8, 1920, distributed to him an undivided one-half of the San Francisco real estate of said decedent, and that since its decree of partial distribution made and entered on March 17, 1920, also distributed to him an undivided one-half interest in the same property, he is entitled to the whole thereof under said decrees, or at least that the second of said decrees was in error in awarding to A. Basletta an undivided one-half of said property, since the court thereby attempted to dispose of more by one-half than the whole thereof.

We find no merit in this contention, since aside from the fact that up to the time of the making of said second decree the appellant had not complied with the requirement of the first decree in the matter of filing the bond provided for therein; and also since in his opposition to the making of said second decree he altogether failed to refer to the fact that he had already received an undivided one-half of said property by said former decree, we are of the opinion that these two decrees should be construed together, and that when so construed it must be held that it was not the intention of the trial court to do otherwise than to dispose of the real estate of said decedent, in conformity with the terms of her will, and hence by its second decree to assign to the appellant no more than that share of said property which he had been declared entitled to receive upon the accomplishment of the yet unfulfilled requirements of the first decree. This being our construction of said decrees it follows that there is no merit in the appellant’s contention as to the effect of said decrees.

Judgment affirmed.

Kerrigan, J., and Waste, P. J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on March 10, 1921, and the following opinion then rendered thereon:

petition for rehearing presented by the attorney-general herein is denied.

The case of Blythe v. Hinckley, 127 Cal. 431 , [ 59 Pac. 787 ], cited in the main opinion herein, was not referred to as one involving the question of the right of the alien therein concerned to inherit real estate in California under a treaty provision, but was relied upon for the reason that the supreme court did expressly declare in that case that state laws “in so far as they are in conflict with treaty provisions are suspended or controlled during the life of the treaty.” It is not the province of this court to treat as dicta and disregard as such this express declaration of the supreme court.

The case of Sullivan v. Kidd, 254 U. S. 433 , [ 65 L. Ed. 344 , 41 Sup. Ct. Rep. 158 ], cited by the petitioner, does not, in our opinion, sustain his contention as to the effect of the “most favored nation” clause in treaties upon state statutes undertaking to regulate or restrict the inheritance of real estate by nonresident aliens.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 7, 1921.

All the Justices concurred, except Sloane, J., who was absent.

fornia, to this date, but their matrimonial relations have not been pleasant or agreeable and either is entitled to a divorce from the other and for the purpose of settling and adjusting their property rights, this agreement is made as follows: