1. The provisions of Article IV of the Treaty of 1923 with
Germany, which assures to German heirs of "any person" holding
realty in the United States the right to inherit the same, to sell
it within three years, to withdraw the proceeds, and to be exempt
from discriminatory taxation, prevail over any conflicting
provision of California law -- unless the provisions of the Treaty
have been superseded or abrogated. Pp. 331 U. S.
2. So far as the right to inherit realty is concerned, the
Treaty has not been abrogated or superseded -- although the right
to sell it and withdraw the proceeds may have been abrogated -- and
the Federal Government has discretionary power to vest the property
in itself, subject to certain rights of the owners. Pp.
331 U. S.
Page 331 U. S. 504
(a) The outbreak of war does not necessarily suspend or abrogate
treaty provisions. P. 331 U. S.
(b) The national policy expressed in the Trading with the Enemy
Act, as amended by the First War Powers Act, is not incompatible
with the right of inheritance of realty granted German aliens under
Article IV of the Treaty. Pp. 331 U. S.
(c) The Treaty of Berlin, which accorded the United States all
rights and advantages specified in the Joint Resolution of July 2,
1921, vesting in the United States absolute title to property of
German nationals then held by the United States, did not abrogate
the right of German heirs under the 1923 Treaty with Germany to
inherit realty in this country. Pp. 331 U. S.
(d) There is no evidence that the political departments of the
Government have considered that the collapse and surrender of
Germany put an end to such provisions of the 1923 Treaty as
survived the outbreak of war or the obligations of either party in
respect to them. P. 331 U. S.
3. The provisions of Article IV of the Treaty of 1923 with
Germany, which assures to German nationals the power to dispose of
their personal property in this country, does not cover personalty
located in this country which an American citizen undertakes to
leave to German nationals, but it does cover personalty in this
country which a German national undertakes to dispose of by will.
Pp. 331 U. S.
-516, 331 U. S.
4. Section 259 of the California Probate Code as it existed in
1942, which made the right of nonresident aliens to acquire
personal property dependent upon the reciprocal rights of American
citizens to do so in the countries of which such aliens are
inhabitants or citizens, is not unconstitutional as an invasion by
the the field of foreign affairs reserved to the Federal
Government. Pp. 331 U. S.
156 F.2d 653 reversed in part and affirmed in part.
A resident of California having bequeathed her entire estate to
certain German nationals after the declaration of war on Germany,
and, the Alien Property Custodian having vested in himself all
their right, title, and interest in the estate pursuant to
Executive Order 9788, 11 Fed.Reg. 11981, issued under the Trading
with the Enemy Act, as amended by the First War Powers Act, a
Page 331 U. S. 505
held that the Custodian was entitled to the entire net estate,
and that the executor and the California heirs-at-law had no
interest in the estate. 52 F. Supp.
. The Circuit Court of Appeals reversed on the ground that
the District Court was without jurisdiction of the subject matter.
147 F.2d 136. This Court granted certiorari, 325 U.S. 846, and
reversed. 326 U. S. 490
Circuit Court of Appeals then held for the executor and California
heirs-at-law. 156 F.2d 653. This Court granted certiorari, 329 U.S.
706, and substituted the Attorney General as successor to the Alien
Property Custodian. 329 U.S. 691. Affirmed in part, reversed in
part, and remanded to the District Court,
p. 331 U. S.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Alvina Wagner, a resident of California, died in 1942, leaving
real and personal property situate there. By a will dated December
23, 1941, and admitted to probate in a California court in 1942,
she bequeathed her entire estate to four relatives who are
nationals and residents of Germany. Six heirs-at-law, residents of
California, filed a petition for determination of heirship in
Page 331 U. S. 506
the probate proceedings claiming that the German nationals were
ineligible as legatees under California law. [Footnote 1
There has never been a hearing on that petition. For, in 1943,
the Alien Property Custodian, to whose functions the Attorney
General has recently succeeded, [Footnote 2
] vested in himself all right, title, and
interest of the German nationals in the estate of this decedent.
] He thereupon
instituted this action in the District Court against the executor
under the will and the California heirs-at-law for a determination
that they have no interest in the estate, and that he was entitled
to the entire net estate,
Page 331 U. S. 507
after payment of administration and other expenses. The District
Court granted judgment for the Custodian on the pleadings.
Crowley v. Allen, 52 F. Supp.
. The Circuit Court of Appeals reversed, holding that the
District Court was without jurisdiction of the subject matter.
Allen v. Markham,
147 F.2d 136. The case came here on
certiorari. We held that the District Court had jurisdiction of the
suit, and remanded the cause to the Circuit Court of Appeals for
consideration of the merits. Markham v. Allen,
326 U. S. 490
Circuit Court of Appeals thereupon held for respondents. Allen
156 F.2d 653. The case is here again on a petition
for a writ of certiorari which we granted because the issues raised
are of national importance.
Our problem starts with the Treaty of
Friendship, Commerce, and Consular Rights with Germany, signed
December 8, 1923, and proclaimed October 14, 1925. 44 Stat. 2132.
It has different provisions governing the testamentary disposition
of realty and personalty, which we will treat separately. The one
pertaining to realty, contained in Article IV, reads as
"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
Page 331 U. S. 508
those which may be imposed in like cases upon the nationals of
the country from which such proceeds may be drawn."
The rights secured are, in terms, a right to sell within a
specified time plus a right to withdraw the proceeds, and an
exemption from discriminatory taxation. It is plain that those
rights extend to the German heirs of "any person" holding realty in
the United States. And, though they are not expressed in terms of
ownership or the right to inherit, that is their import and
meaning. Techt v. Hughes,
229 N.Y. 222, 240, 128 N.E. 185,
191; Ahrens v. Ahrens,
144 Iowa, 486, 489, 123 N.W. 164,
166. And see People ex rel. Atty.Gen. v. Gerke,
381; Scharpf v. Schmidt,
172 Ill. 255, 50 N.E. 182;
Colson v. Carlson,
116 Kan. 593, 227 P. 360; Goos v.
117 Neb. 750, 223 N.W. 13.
If, therefore, the provisions of the treaty have not been
superseded or abrogated, they prevail over any requirements of
California law which conflict with them. Hauenstein v.
Lynham, 100 U. S. 483
100 U. S.
The Circuit Court of Appeals concluded that
these provisions of the treaty had been abrogated. It relied for
that conclusion on the Trading with the Enemy Act, 40 Stat. 411, 50
U.S.C. App. § 1 et seq.,
as amended by the First War
Powers Act, 55 Stat. 839, 50 U.S.C. App.Supp. 1, § 5,, and the
Treaty of Berlin, 42 Stat. 1939.
We start from the premise that the outbreak of war does not
necessarily suspend or abrogate treaty provisions. Society
for the Propagation of the Gospel v. New Haven,
Wheat. 464, 494, 21 U. S. 495
may, of course, be such an incompatibility between a particular
treaty provision and the maintenance of a state of war as to make
clear that it should not be enforced. Karnuth v. United
States, 279 U. S. 231
the Chief Executive or the Congress may have formulated a national
policy quite inconsistent with
Page 331 U. S. 509
the enforcement of a treaty in whole or in part. This was the
view stated in Techt v. Hughes, supra,
and we believe it
to be the correct one. That case concerned the right of a resident
alien enemy to inherit real property in New York. Under New York
law, as it then stood, an alien enemy had no such right. The
question was whether the right was granted by a reciprocal
inheritance provision in a treaty with Austria which was couched in
terms practically identical with those we have here. The court
found nothing incompatible with national policy in permitting the
resident alien enemy to have the right of inheritance granted by
the treaty. Cardozo, J., speaking for the court, stated the
applicable principles as follows:
"The question is not what states may do after war has
supervened, and this without breach of their duty as members of the
society of nations. The question is what courts are to presume that
they have done. . . . President and Senate may denounce the treaty,
and thus terminate its life. Congress may enact an inconsistent
rule, which will control the action of the courts (Fong Yue
Ting v. United States, 149 U. S. 698
). The treaty of
peace itself may set up new relations, and terminate earlier
compacts, either tacitly or expressly. . . . But until some one of
these things is done, until some one of these events occurs, while
war is still flagrant, and the will of the political departments of
the government unrevealed, the courts, as I view their function,
play a humbler and more cautious part. It is not for them to
denounce treaties generally, en bloc. Their part it is, as one
provision or another is involved in some actual controversy before
them, to determine whether, alone or by force of connection with an
inseparable scheme, the provision is inconsistent with the policy
or safety of the nation in the emergency of war, and hence
Page 331 U. S. 510
presumably intended to be limited to times of peace. The mere
fact that other portions of the treaty are suspended or even
abrogated is not conclusive. The treaty does not fall in its
entirety unless it has the character of an indivisible act."
229 N.Y. at 242-243, 128 N.E. at 192. To the same effect,
see Goos v. Brocks, supra; State ex rel. v. Reardon,
Kan. 614, 245 P. 158. [Footnote
We do not think that the national policy expressed in the
Trading with the Enemy Act, as amended, is incompatible with the
right of inheritance granted German aliens under Article IV of the
treaty. It is true that, since the declaration of war on December
11, 1941, 55 Stat. 796, the Act and the Executive Orders issued
thereunder have prohibited the entry of German nationals into this
country, [Footnote 5
outlawed communications or transactions of a commercial character
with them, [Footnote 6
have precluded the removal of money or property from this country
for their use or account. [Footnote
] We assume that these provisions abrogate the parts of
Article IV of the treaty dealing with the liquidation of the
inheritance and the withdrawal of the proceeds, even though the Act
provides that the prohibited activities and transactions may be
licensed. [Footnote 8
] But the
Act and the Executive Orders do not evince such hostility to
ownership of property by alien enemies as to imply that its
acquisition conflicts with the national policy. There is, indeed,
tacit recognition that acquisition of property by inheritance is
compatible with the
Page 331 U. S. 511
scheme of the Act. For the custodian is expressly empowered to
represent the alien enemy heir in all legal proceedings, including
those incident to succession. [Footnote 9
] Much reliance for the contrary view is placed
on the power to vest alien property in an agency of the United
States. [Footnote 10
the power to vest -- i.e.,
to take away -- what may be
owned or acquired does not reveal a policy at odds with the
reciprocal right to inherit granted by Article IV of the treaty.
For the power to vest is discretionary, not mandatory. The loss of
the inheritance by vesting is therefore not inevitable. But, more
important, vesting does not necessarily deprive the alien enemy of
all the benefits of his inheritance. If he owes money to American
creditors, the property will be applied to the payment of his
debts. [Footnote 11
To give the power to vest the effect which respondents urge
would, indeed, prove too much. That power is not restricted to
property of alien enemies. It extends to the property of nationals
of any foreign country, friend or enemy. [Footnote 12
] Provisions comparable to that contained
in Article IV of the present treaty are found in existing
Page 331 U. S. 512
with friendly nations. [Footnote 13
] We will not readily assume that, when
Congress enacted § 5(b) and authorized the vesting of property, it
had a purpose to abrogate all such treaty clauses. Cf. Cook v.
United States, 288 U. S. 102
288 U. S. 120
Yet, if the power to vest is inconsistent with the right of
inheritance of an alien enemy, it is difficult to see why it is any
less so when other aliens are involved. Finally, there is a
distinction between the acquisition of property and the use thereof
which § 5(b) itself recognizes. That section not only grants the
President the power to vest; it likewise grants him authority under
the same circumstances to "prevent or prohibit, any acquisition . .
. of . . . any property in which any foreign country or a national
thereof has any interest." § 5(b)(1)(B). No action has been taken
to prevent or prohibit the acquisition of property by inheritance
on the part of enemy aliens. The grant of express power to cut off,
the right of inheritance and the nonexercise
of the power lend support to the view that the Trading with the
Enemy Act, as amended, did not, without more, suspend or abrogate
Article IV of the present treaty. This conclusion squares with the
general rule stated in Karnuth v. United States, supra,
279 U. S. 237
that treaty provisions "giving the right to citizens of subjects of
one of the high contracting powers to continue to hold and transmit
land in the territory of the other" survive the outbreak of
The argument based on the Treaty of Berlin is inconclusive. The
Joint Resolution of July 2, 1921, 42 Stat. 105, 106, declared that
property of German nationals held by the United States should be
retained and no disposition made of it, except as specifically
provided by law, until the German government made suitable
provision for the satisfaction of claims of American nationals
Page 331 U. S. 513
Thus, absolute title to the property in question became vested
in the United States. Cummings v. Deutsche Bank,
300 U. S. 115
Treaty of Berlin accorded the United States all rights and
advantages specified in the resolution. But the Treaty of 1828 with
Prussia contained a provision substantially similar to Article IV
of the present treaty. 8 Stat. 378, 384, art. XIV. Hence, it is
argued that, if the Treaty of 1828 survived the outbreak of war and
thus guaranteed property rights in German nationals by way of
inheritance during that war, it would not have been necessary to
have negotiated a new convention covering the same ground in 1923.
And it is also argued that, if the provision in the earlier treaty
did not survive the war, it is unlikely that the same parties would
intend like provisions in the later treaty to have a different
The attitude of the State Department has varied. In 1918,
Secretary Lansing expressed the view that such treaty provisions
were not in force during the war with Germany and Austria.
] Today, the
Department apparently takes the other view. [Footnote 15
] We have no reliable evidence of the
intention of the high contracting parties outside the words of the
present treaty. The attitude and conduct under earlier treaties,
reflecting as they did numerous contingencies and conditions, leave
no sure guide to the construction of the present treaty. Where the
relevant historical source and the instrument itself give no plain
indication that it is to become inoperative in whole or in part on
the outbreak of war, we are left to determine, as Techt v.
indicates, whether the provision under which
rights are asserted is incompatible with national
Page 331 U. S. 514
policy in time of war. So far as the right of inheritance of
realty under Article IV of the present treaty is concerned, we find
no incompatibility with national policy, for reasons already
It is argued, however, that the Treaty of 1923 with Germany must
be held to have failed to survive the war, since Germany, as a
result of its defeat and the occupation by the Allies, has ceased
to exist as an independent national or international community. But
the question whether a state is in a position to perform its treaty
obligations is essentially a political question. Terlinden v.
Ames, 184 U. S. 270
184 U. S. 288
We find no evidence that the political departments have considered
the collapse and surrender of Germany as putting an end to such
provisions of the treaty as survived the outbreak of the war or the
obligation of either party in respect to them. The Allied Control
Counsel has, indeed, assumed control of Germany's foreign affairs
and treaty obligations [Footnote
] -- a policy and course of conduct by the political
departments wholly consistent with the maintenance and enforcement,
rather than the repudiation, of preexisting treaties.
The problem of the personalty raises distinct
questions. Article IV of the treaty contains the following
provision pertaining to it:
"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 nonresident, 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
Page 331 U. S. 515
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
A practically identical provision of the Treaty of 1844 with
Wurttemburg, art. III, 8 Stat. 588, 590, was before the Court in
23 How. 445. In that case, the testator
was a citizen of the United States, his legatees being citizens and
residents of Wurttemburg. Louisiana, where the testator was
domiciled, levied a succession tax of 10 percent on legatees not
domiciled in the United States. The Court held that the treaty did
not cover the "case of a citizen or subject of the respective
countries residing at home, and disposing of property there in
favor of a citizen or subject of the other . . ." Pp. 64 U. S.
-448. That decision was made in 1860. In 1917, the
Court followed it in cases involving three other treaties.
Petersen v. Iowa, 245 U. S. 170
Duus v. Brown, 245 U. S. 176
Skarderud v. Tax Commission,
245 U.S. 633.
The construction adopted by those cases is, to say the least,
permissible when the syntax of the sentences dealing with realty
and personalty is considered. So far as realty is concerned, the
testator includes "any person," and the property covered is that
within the territory of either of the high contracting parties. In
case of personalty, the provision governs the right of "nationals"
of either contracting party to dispose of their property within the
territory of the "other" contracting party, and it is "such
personal property" that the "heirs, legatees, and donees" are
entitled to take.
Petitioner, however, presents a detailed account of the history
of the clause which was not before the Court in Frederickson v.
and which bears out the construction that it
grants the foreign heir the right to succeed to his inheritance or
the proceeds thereof. But
Page 331 U. S. 516
we do not stop to review that history. For the consistent
judicial construction of the language since 1860 has given it a
character which the treatymaking agencies have not seen fit to
alter. And that construction is entirely consistent with the plain
language of the treaty. We therefore do not deem it appropriate to
change that construction at this late date, even though, as an
original matter, the other view might have much to commend it.
We accordingly hold that Article IV of the treaty does not cover
personalty located in this country and which an American citizen
undertakes to leave to German nationals. We do not know from the
present record the nationality of Alvina Wagner. But, since the
issue arises on the Government's motion for judgment on the
pleadings, we proceed on the assumption less favorable to it --
that she was an American citizen.
It is argued, however, that, even though the
provision of the treaty is inapplicable, the personalty may not be
disposed of pursuant to the California statute because that statute
is unconstitutional. Issues under the Fourteenth Amendment are not
raised as in Terrace v. Thompson, 263 U.
. The challenge to the statute is that it is an
extension of state power into the field of foreign affairs, which
is exclusively reserved by the Constitution to the Federal
Government. That argument is based on the fact that, under the
statute, the right of nonresident aliens to take by succession or
testamentary disposition is dependent upon the existence of a
reciprocal right on the part of citizens of the United States to
take personalty on the same terms and conditions as residents and
citizens of the other nation. [Footnote 17
] The argument is that, by this method,
California seeks to promote the right of American citizens to
inherit abroad by offering to aliens
Page 331 U. S. 517
reciprocal rights of inheritance in California. Such an offer of
reciprocal arrangements is said to be a matter for settlement by
the Federal Government on a nationwide basis.
In Blythe v. Hinckley, 180 U.
, California had granted aliens an unqualified
right to inherit property within its borders. The alien claimant
was a citizen of Great Britain with whom the United States had no
treaty providing for inheritance by aliens in this country. The
argument was that a grant of rights to aliens by a State was, in
absence of a treaty, a forbidden entry into foreign affairs. The
court rejected the argument as being an extraordinary one. The
objection to the present statute is equally far-fetched.
Rights of succession to property are determined by local law.
See Lyeth v. Hoey, 305 U. S. 188
305 U. S. 193
Irving Trust Co. v. Day, 314 U. S. 556
314 U. S. 562
Those rights may be affected by an overriding federal policy, as
where a treaty makes different or conflicting arrangements.
Hauenstein v. Lynham, supra.
Then the state policy must
give way. Cf. Hines v. Davidowitz, 312 U. S.
. But here there is no treaty governing the rights of
succession to the personal property. Nor has California entered the
forbidden domain of negotiating with a foreign country, United
States v. Curtiss-Wright Export Corp., 299 U.
, 299 U. S.
-317, or making a compact with it contrary to the
prohibition of Article I, Section 10 of the Constitution. What
California has done will have some incidental or indirect effect in
foreign countries. But that is true of many state laws which none
would claim cross the forbidden line.
In summary, we hold that disposition of the realty is governed
by Article IV of the treaty. Disposition of the personalty,
however, is not governed by the treaty unless it is determined that
Alvina Wagner was a German national. If she was an American
citizen, disposition of the
Page 331 U. S. 518
personalty is governed by California law. Whether there are
other requirements of the California statute which would bar the
California heirs-at-law is a question on which we intimate no
The judgment is reversed in part and affirmed in part, and the
cause is remanded to the District Court for proceedings in
conformity with this opinion.
Section 259, California Probate Code, in 1942 provided:
"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."
"Section 259.2 provided:"
"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
The condition with respect to receipt of moneys in the United
States was repealed in 1945, while this case was pending.
Cal.Stats.1945, c. 1160, § 1, effective September 15, 1945. Under
the original act, the nonresident aliens had the burden of
establishing the fact of existence of the reciprocal rights. §
259.1. By the 1945 amendment, the burden of establishing the
nonexistence of such reciprocal right was placed on him who
challenged the right of the nonresident aliens to take. Section
259.2 was repealed.
Executive Order No. 9788, Oct. 14, 1946, 11 Fed.Reg. 11981.
Vesting Order No. 762, 8 Fed.Reg. 1252.
For a recent review of the authorities see
Effect of War on Bilateral Treaties, 34 Geo.L.J. 129.
§ 7(c); § 5(b), as amended; Executive Order No. 8785, 3
Executive Order No. 9193, � 5, 3 C.F.R.Cum.Supp. 1174, 1176.
Section 5(b)(1), as amended, provides in part:
"During the time of war or during any other period of national
emergency declared by the President . . . , any property or
interest of any foreign country or national thereof shall vest
when, as, and upon the terms directed by the President in such
agency or person as may be designated from time to time by the
President, and upon such terms and conditions as the President may
prescribe, such interest or property shall be held, used,
administered, liquidated, sold, or otherwise dealt with in the
interest of and for the benefit of the United States, and such
designated agency or person may perform any and all acts incident
to the accomplishment or furtherance of these purposes. . . ."
60 Stat. 925, adding § 34 to the Trading with the Enemy Act.
See note 10
Treaty with Great Britain, arts, I, II, March 2, 1899, 31 Stat.
1939. Treaty with Norway, art. IV, June 5, 1928, 47 Stat. 2135,
U.S. Foreign Rel.; 1918 Supp. 2, p. 309 (Dept. State 1933); VI
Hackworth, Digest of International Law (1943) p. 327.
Letter to the Attorney General from Acting Secretary of State,
Joseph C. Grew, dated May 21, 1945, commenting on the Government's
position in the present litigation.
The Axis in Defeat, State Dept.Pub. No. 2423, pp. 71, 72,
See note 1
MR. JUSTICE RUTLEDGE, concurring in part.
I join in the Court's opinion insofar as it relates to the real
estate. But, as to the personal property, I think the cause should
be remanded to the District Court for determination of Alvina
Wagner's nationality, without expression of opinion here upon the
constitutionality of the California statute.
The decision now made on that issue, by virtue of the Court's
hypothesizing that she was an American citizen, will be rendered
both moot and advisory in character if it is found, as it may well
be in the District Court's further proceedings, that she was a
German national. This Court has consistently declined to decide
constitutional questions on hypothetical presentations. Rescue
Army v. Municipal Court, 331 U. S. 549
practice should be followed in this case, even though conceivably
another appeal might be saved by indulging the presumption which
the Court makes. It is more important that constitutional decisions
be reserved until the issues calling for them are squarely and
inescapably presented, factually as well as legally, than it is to
expedite the termination of litigation or the procedural
convenience of the parties.