1. In the absence of a controlling treaty, the capacity of an
alien to inherit land within a the Union depends upon the law of
that state. P.
254 U. S.
435.
2. Treaties are to be interpreted upon the same principles as
written contracts between individuals, all parts being considered
with a view to giving a fair operation to the whole, and they are
to be executed in the utmost good faith to effectuate the purposes
of the high contracting parties. P.
254 U. S.
439.
3. The Treaty of March 2, 1899, between Great Britain and the
United States grants the subject of each party certain right of
inheritance respecting real property within the territories of the
other, but declares (Art. IV) that it stipulations shall not be
applicable to any of the colonies or foreign possessions of the
British
Page 254 U. S. 434
Crown unless a notice to that effect shall have been given by
Great Britain to the United States on behalf of such colony or
possession, and that its provisions shall extend and apply to any
territory pertaining to or occupied by the United States beyond the
seas, only upon notice to that effect being given by the United
States to Great Britain.
Held that the giving of such
notice conditions the applicability of the treaty to a foreign
possession not merely in respect of the property there situate, but
also in respect of the subjects and citizens there residing, so
that, no notice having been given on behalf of Canada, a subject of
Great Britain who was a citizen and resident of that Dominion
acquired no right under the treaty to inherit land in the United
States. P.
254 U. S.
436.
4. The fact that Canada, as a self-governing dependency, in the
exercise of her legislative power, has granted aliens the right to
inherit cannot affect the construction of the treaty. P.
254 U. S.
440.
5. In the practice of this country, the "most favored nation"
clause is held not to extend the rights acquired by treaties
containing it because of reciprocal benefit expressly conferred in
treaties with other nations in exchange for right or privileges
given to our government. P.
254 U. S.
441.
6. The "most favored nation" clause in the above-cited treaty
does not control its specific condition upon the right of citizens
of a foreign possession to participate in its benefits.
Id.
7. In construing the treaty, little weight can be attached to a
different construction placed by Great Britain on an earlier treaty
with Japan, but which was not made known to the representative who
negotiated the treaty in question for this country. P.
254 U. S.
442.
8. A construction placed upon a treaty and consistently adhered
to by the Executive Department should be given much weight by the
court.
Id.
Reversed.
The case is stated in the opinion.
Page 254 U. S. 435
MR. JUSTICE DAY delivered the opinion of the Court.
This is an appeal from a decree of the United States District
for the District of Kansas. It involves the construction of the
Treaty between Great Britain and the United States of March 2,
1899, relating to the tenure and disposition of real and personal
property. Compilation of Treaties in Force 1904, 375 (Malloy); 31
Stat. 1939.
The case arises from the following facts:
Peter Martin died at Osawatomie, Kansas, January 29, 1915,
owning real estate situated in the County of Saline, Kansas. He
left surviving him certain relatives, among others a sister
Margaret Ingoldsby, a resident of the Township of Sheffield, County
of Lennox Addington, Province of Ontario, Canada. After the death
of Peter Martin, and on July 28, 1916, Margaret Ingoldsby died at
her home in Canada, and by her last will and testament, duly
probated, she named the appellee, Jane Kidd, her sole devisee and
legatee. The real estate in Kansas has been sold in partition sale,
and the question to be decided is whether Jane Kidd, thus holding
by devise the interest of Margaret Ingoldsby, is entitled to
succeed to the undivided one seventh of the estate of Peter
Martin.
Primarily the devolution of the estate, it being situated in the
State of Kansas, would be determined by the laws of that state.
Blythe v. Hinckley, 180 U. S. 333, and
previous cases in this Court cited and quoted on page
180 U. S. 341
et seq. Under the Constitution and laws of Kansas,
Margaret Ingoldsby, an alien, was incapable of inheriting, and the
estate would pass to the brothers and sisters and their
representatives who were native citizens.
Johnson v.
Olson, 92 Kan. 819.
Page 254 U. S. 436
The right of Jane Kidd to succeed to the interest of Margaret
Ingoldsby is said to arise from the fact that the latter was,
although a citizen and resident of Canada, a British subject, and
entitled to the succession because of the Treaty of March 2, 1899.
The district court sustained this contention. Pertinent provisions
of the treaty are:
"
ARTICLE I"
"Where, on the death of any person holding real property (or
property not personal) within the territories of one of the
contracting parties, such real property would, by the laws of the
land pass to a citizen or subject of the other were he not
disqualified by the laws of the country where such real property is
situated, such citizen or subject 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 to 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
citizens or subjects of the country from which such proceeds may be
drawn."
"
ARTICLE II"
"The citizens or subjects of each of the contracting parties
shall have full power to dispose of their personal property within
the territories of the other by testament, donation, or otherwise,
and their heirs, legatees, and donees, being citizens or subjects
of the other contracting party, whether resident or nonresident,
shall succeed to their said personal property, and may take
possession thereof either by themselves or by others acting for
them, and dispose of the same at their pleasure, paying such duties
only as the citizens or subjects of the country where the property
lies shall be liable to pay in like cases."
"
* * * *"
Page 254 U. S. 437
"
ARTICLE IV"
"The stipulations of the present convention shall not be
applicable to any of the colonies or foreign possessions of Her
Britannic Majesty unless notice to that effect shall have been
given, on behalf of any such colony or foreign possession by Her
Britannic Majesty's representative at Washington to the United
States Secretary of State, within one year from the date of the
exchange of the ratifications of the present convention."
"It is understood that, under the provisions of this article,
Her Majesty can in the same manner give notice of adhesion on
behalf of any British protectorate or sphere of influence, or on
behalf of the Island of Cyprus, in virtue of the convention of the
4th of June, 1878, between Great Britain and Turkey."
"The provisions of this convention shall extend and apply to any
territory or territories pertaining to or occupied and governed by
the United States beyond the seas only upon notice to that effect
being given by the representative of the United States at London,
by direction of the treaty making power of the United States."
"
ARTICLE V"
"In all that concerns the right of disposing of every kind of
property, real or personal, citizens or subjects of each of the
high contracting parties shall in the dominions of the other enjoy
the rights which are or may be accorded to the citizens or subjects
of the most favored nation."
"
ARTICLE VI"
"The present convention shall come into effect ten days after
the day upon which the ratifications are exchanged, and shall
remain in force for ten years after such exchange. In case neither
of the high contracting parties shall have given notice to the
other, twelve months before
Page 254 U. S. 438
the expiration of the said period of ten years, of the intention
to terminate the present convention, it shall remain in force until
the expiration of one year from the day on which either of the high
contracting parties shall have given such notice."
"The United States or Her Britannic Majesty shall also have the
right separately to terminate the present convention at any time on
giving twelve months' notice to that effect in regard to any
British colony, foreign possession, or dependency, as specified in
Article IV, which may have acceded thereto."
The case was argued and submitted at the last term of this
Court. It was ordered reinstated with notice to the Attorneys
General of the United States and of the State of Kansas. The case
has been reargued. The Solicitor General presented the views of the
State Department of the United States, and submitted a brief in
behalf of the government.
There are opposing views of the treaty, one taken by the
British, and the other by the American, government, the view of the
former being that British subjects, resident of Canada or
elsewhere, are entitled to inherit property in any state of the
United States, and citizens of the United States are entitled to
inherit in Great Britain and its possessions and colonies,
provided, as to the latter, that notice has been given under
Article IV of the treaty of adhesion to the terms of the convention
as to such colonies and possession. The American contention is
stated by the Solicitor General, and appears by a communication
from the Secretary of October 2, 1920, sent in response to the
invitation of the Solicitor General and now on the files of the
Department of Justice. The Secretary of State sets forth that it is
the view of this government that British subjects, citizens and
residents of Canada, do not inherit in the United States by virtue
of the stipulations of the treaty, because, as to the Dominion
Page 254 U. S. 439
of Canada, no notice of adhesion to the same has been given, as
is required by the stipulations of Article IV. It hence appears
that the one contention is that the notice required by Article IV
has a territorial effect only, and, when given, brings such
territory into the operative force of the treaty as to the property
situated therein; the other, that as to subjects and citizens, the
notice is required to bring residents and property within the
operative effect of the treaty.
Applied to the concrete case, the American contention is that
Margaret Ingoldsby was not entitled to inherit in Kansas by the
terms of this treaty, because notice of adherence for the Dominion
of Canada was not given. The communication of the State Department
to the Solicitor General shows that the American government is
ready, and has expressed its willingness to take up the matter of
extending the treaty provisions to the Dominion of Canada,
notwithstanding the fact that the stipulated time for notice has
expired.
Writers of authority agree that treaties are to be interpreted
upon the principles which govern the interpretation of contracts in
writing between individuals, and are to be executed in the utmost
good faith, with a view to making effective the purposes of the
high contracting parties; that all parts of a treaty are to receive
a reasonable construction with a view to giving a fair operation to
the whole. Moore, International Law Digest, vol. 5, p. 249. At the
time of the negotiation of the treaty, Great Britain had numerous
colonies and possessions, and the United States had recently
acquired certain islands beyond the seas. Concerning these, the
contracting parties made the stipulations contained in Article IV,
adding the right to give like notice in behalf of any British
protectorate or sphere of influence, or on behalf of the Island of
Cyprus by virtue of the convention of June 4, 1878, between Great
Britain and Turkey. As to the islands beyond
Page 254 U. S. 440
the seas occupied or governed by the United States, they were to
come within the terms of the treaty only upon notice to that effect
by direction of the treatymaking power of the United States.
If the contention of the appellee be correct, it necessarily
follows that, as to British possessions, the inhabitants thereof,
being British subjects, had nothing to gain by giving notice which
Article IV specifically required, for, as to them, their rights had
been secured by Articles I and II of the treaty. Applying this
construction to the instant case, Canadians, while residents of the
Dominion and citizens of a self-regulating and self-governing
community, acquired by virtue of this treaty as British subjects
the right to inherit in every state of the American Union,
regardless of local laws; this while citizens of the United States
acquired no corresponding right to inherit in the Dominion of
Canada until notice be given -- a matter entirely beyond the
control of American authority. American right to inherit in Canada
became a matter of grace on the part of the other contracting
nation when it saw fit to grant it by signifying its adhesion to
the treaty. Such construction is inconsistent with the general
purpose and object of such conventions to secure equality in
exchange of privileges and reciprocity in rights granted and
secured.
Geofroy v. Riggs, 133 U.
S. 258,
133 U. S.
271.
The fact that Canada, as a self-governing dependency, in the
exercise of the legislative power which is hers, has seen fit to
give aliens the right to inherit adds nothing to the argument in
favor of the appellee. The Dominion of Canada has not the
treatymaking power. Whatever the Dominion may see fit to do in the
exercise of its own legislative authority cannot affect the right
of a state of the American Union to determine for herself whether
aliens shall inherit property within her borders. The construction
insisted upon by the United States makes for the exchange of
reciprocal rights under the provisions
Page 254 U. S. 441
of the treaty, and, when the required notice is given, British
subjects resident of Canada would have property rights in the
United States similar to those accorded citizens of the United
States in Canada. That notice was deemed essential to the security
of rights of British subjects, resident of the colonies, is shown
by the practice which has followed the making of the supplementary
convention of 1902 (Treaties in Force 1904, 377; 32 Stat. p. 1914),
extending for twelve months from July 28, 1901, the time fixed in
Article IV of the Treaty of March 2, 1899, for the notification of
accession to that convention by British colonies or foreign
possessions. In a note to this treaty, published in Treaties in
Force 1904,
supra, it appears that most of the British
colonies and possessions have given notice of adhesion to the
treaty of 1899.
The significance of Article VI is important. In this article,
provision is made for the right of the United States or the British
government to terminate separately the convention by twelve months'
notice to that effect in regard to any British colony, foreign
possession, or dependency, as specified in Article IV, which may
have acceded to the convention. This article lends strong support
to the argument that only colonies or possessions which accede to
the convention are to have the benefit thereof, such rights,
recognized as acquired by accession, being subject to termination
by the withdrawal provision of Article VI.
Nor are we impressed with the argument that Canadian citizens,
being also British subjects, are entitled to inherit in Kansas by
virtue of the most favored nation clause. That clause has been
held, in the practice of this country, to be one not extending
rights acquired by treaties containing it because of reciprocal
benefits expressly conferred in conventions with other nations in
exchange for rights or privileges given to this government. This
clause cannot overcome the specific provisions of Article
Page 254 U. S. 442
IV, making adhesion to the treaty necessary in order to bring
citizens and property of colonies and possessions within the
benefits of the treaty.
We are unable to see that the construction of this treaty is
aided by the argument of counsel in the supplemental brief of the
appellee that Lord Salisbury, for the British government, insisted
upon the construction which they contend for in relation to a
similar convention with Japan. We find nothing in the archives of
the Department of State to show that this insistence was brought
forward in the course of negotiations, or in any manner came to the
attention of the American representative, Mr. Hay, who negotiated
this treaty with Sir Julian Pauncefote, the British
representative.
The American government, upon a message from the President for
the purpose of securing the consent of the Senate, as we learn from
public documents on file in the State Department, has, with the
consent of the Senate, extended the provisions of the Convention of
1899 to Porto Rico, and has so notified the British government. We
are advised by the letter of the Secretary of October 2, 1920 (on
file in the Department of Justice) that this government is ready to
take up with the British government the matter of extension of the
treaty provisions to Hawaii and the Dominion of Canada.
While the question of the construction of treaties is judicial
in its nature, and courts, when called upon to act, should be
careful to see that international engagements are faithfully kept
and observed, the construction placed upon the treaty before us and
consistently adhered to by the Executive Department of the
government, charged with the supervision of our foreign relations,
should be given much weight.
Charlton v. Kelly,
229 U. S. 447,
229 U. S. 468.
See also Castro v. De Uriarte, 16 F. 93, 98 (opinion by
Judge Addison Brown).
Taking the view which we have here expressed of the
Page 254 U. S. 443
real purpose of the treaty as evidenced by its terms, which is
strengthened by the practices of both governments in pursuance of
it, we reach the conclusion that, for lack of notice of the
adhesion of Canada to the terms of the treaty, the law of Kansas
was not superseded in favor of British subjects resident in Canada,
and it determined the rights of aliens to inherit lands in that
state.
Reversed.