Article 6 of the treaty of amity and commerce with Sweden and
Norway of July 4, 1827, now in force with Norway, provides that
"The subjects of the contracting parties in the respective
states may freely dispose of their goods and effects either by
testament, donation, or otherwise, in favor of such persons as they
think proper."
Held:
(1) As the text of the original of this provision, found in the
Treaty of April 3, 1783, with Sweden, was in French only, the
French text is controlling in interpretation. P.
281 U. S.
454.
(2) The phrase "goods and effects" ("
fonds et biens")
includes real estate.
Id.
Page 281 U. S. 450
(3) While treaties, in safeguarding important rights in the
interest of reciprocal beneficial relations, may, by their express
terms, afford a measure of protection to aliens which citizens of
one or both of the parties may not be able to demand against their
own government, the general purpose of treaties of amity and
commerce is to avoid injurious discrimination in either country
against the citizens of the other. P.
281 U. S.
454.
(4) A state law, later than this treaty, providing for the
establishment of homestead with special exemption from execution
and forced sale, and inhibiting conveyances of homestead property
by any instrument not joined in by both husband and wife, is not
invalidated by the treaty as applied to a citizen of Norway who
established such a homestead in that state. P.
281 U. S.
455.
118 Neb. 105 reversed.
Certiorari, 280 U.S. 546, to review a judgment of the Supreme
Court of Nebraska which reversed a judgment setting aside deeds of
homestead property.
MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.
Christian Knudson, a native and citizen of Norway, came to this
county in 1868 and settled in Nebraska in 1878. He was never
naturalized. He established a homestead on 160 acres of land in
Hamilton County, Nebraska, and resided there until he died
intestate in August, 1923. His father and mother made their home
with him until their death, and his son Knute C. Engen, who came to
Nebraska in 1893, also lived with him for time. The wife of Knudson
remained in Norway. In July, 1923, Knudson executed deeds of the
homestead to his nieces
Page 281 U. S. 451
and their husbands, and these grantees conveyed the property to
the Union State Bank of Harvard, Nebraska.
The suit was brought by the son of Knudson, Knute C. Engen, in
the district court of Hamilton County to cancel the conveyances of
the land upon the ground that they were obtained by fraud. The
widow of Knudson, Mari Tollefsen Todok, who had not joined in the
deeds, was made a defendant. By her cross-petition, she attacked
the conveyances, alleging that the property constituted a homestead
in which she had an undivided one-half interest. The other
defendants answered her cross-petition, and, in her reply, she set
up the right to take the real estate of her deceased husband by
virtue of the treaty of amity and commerce between the United
States and Norway.
The district court determined that no fraud had been practiced
in obtaining the deeds from Knudson, but that these, and the later
conveyances dependent upon them, were void upon the ground that the
land was homestead property, the Title to which remained in Knudson
until his death and then descended to his widow and his son. The
supreme court of the state sustained the decision of the district
court with respect to the issue of fraud, but reversed the judgment
upon the ground that, under the treaty with Norway, Knudson was
entitled to convey the property, and that his grantees took title
under his deeds.
Engen v. Union State Bank, 118 Neb. 105.
This Court granted a writ of certiorari, 280 U.S. 546.
We are not called upon to decide as to the validity under the
homestead law of Nebraska of a deed of the homestead by the husband
when the wife is an alien who has never come to this country and
made the homestead her home. We accept the decision of the supreme
court of the state that, aside from the effect of the treaty,
Knudson's conveyances were void under the law of the state. That
court, referring to the statutes of Nebraska
Page 281 U. S. 452
as to homestead property, and their application to the present
case, said (118 Neb. 111-112):
"For, if we consider the provisions of § 2819 and § 2832,
Comp.St.1922, as applicable to the subject of the present action,
it necessarily follows that certain property within the purview of
the treaty before us 'cannot be conveyed . . . unless the
instrument by which it is conveyed . . . is executed and
acknowledged by both husband and wife,' and also that such property
[homestead] 'vests on the death of the person from whose property
it was selected, in the survivor, for life, and afterwards in
decedent's heirs forever, subject to the power of the decedent to
dispose of the same, except the life estate of the survivor, by
will.'"
"The statutory provisions referred to thus assume the nature of
limitations, qualifications, or modifications of the treaty itself,
and, if valid, would necessarily change its true construction. Each
of these provisions of the legislative enactment must therefore be
considered to be,
pro tanto, inconsistent with the terms
of the controlling treaty properly construed. The conclusion
follows that, to the extent inconsistent with the terms of the
treaty, the statutory provisions are inoperative. The unquestioned
rule of construction requires that the provisions of the treaty
must be liberally construed, and given full force and effect
'anything in the Constitution or laws of any state to the contrary,
notwithstanding.' Therefore, the legal effect of the conveyances
executed by Christian Knudson must be determined wholly by the
powers conferred on him by treaty, and not by the inconsistent
limitations and restrictions prescribed in the Nebraska Homestead
Act."
The only question before us is as to the construction of the
treaty. The provision invoked is Article 6 of the treaty with
Sweden of April 3, 1783 (8 Stat. 60, 64), revived by the treaty
with Sweden and Norway of Sept.
Page 281 U. S. 453
4, 1816 (8 Stat. 232, 240) which was replaced by the treaty with
Sweden and Norway of July 4, 1827 (8 Stat. 346, 354) now in force
with Norway (Sen.Doc., 61st Cong., 2d Sess., No. 357, vol. 48 (2
Malloy), p. 1300). This article is as follows:
"The subjects of the contracting parties in the respective
states, may freely dispose of their goods and effects either by
testament, donation or otherwise, in favor of such persons as they
think proper, and their heirs, in whatever place they shall reside,
shall receive the succession even
ab intestato, either in
person or by their attorney, without having occasion to take out
letters of naturalization. These inheritances, as well as the
capitals and effects which the subjects of the two parties, in
changing their dwelling, shall be desirous of removing from the
place of their abode shall be exempted from all duty called
'
droit de detraction' on the part of the government of the
two states respectively. But it is at the same time agreed that
nothing contained in this article shall in any manner derogate from
the ordinances published in Sweden against emigrations, or which
may hereafter be published, which shall remain in full force and
vigour. The United States, on their part, or any of them, shall be
at liberty to make respecting this matter such laws as they think
proper."
It was at one time supposed that the phrase "goods and effects"
in this article did not cover real property -- a construction which
was due in some measure to the view that the treaties of the United
States could not affect the operation of the laws of the several
states of the Union with respect to the inheritance of land.
Opinion of Attorney General Wirt, July 30, 1819, 1 Ops. Attys.Gen.
275. This view of the treaty-making power of the United States is
not tenable.
Haguenstein v. Lynham, 100 U.
S. 483,
100 U. S. 489;
Geofroy v. Riggs, 133 U. S. 258,
133 U. S.
266-267;
Sullivan v. Kidd, 254 U.
S. 433;
Nielsen v. Johnson, 279 U. S.
47.
Page 281 U. S. 454
The text of the treaty of 1783 with Sweden was in French only,
and the French text is therefore controlling. The phrase "goods and
effects" is a translation of the French expression "
fonds et
biens." The French word "
biens" has a wider
significance than the English word "goods" (used by the American
translator), and embraces real property. Story observed upon this
point:
The term "
biens," in the sense of the civilians and
continental jurists, comprehends not merely goods and chattels. as
in the common law, but real estate.
Conflict of Laws, c. 1, § 13, note. In a note addressed by the
Swedish Minister at Washington to the Department of state under
date of December 12, 1910, in response to an inquiry by the
Secretary of the United States, the Swedish Minister stated his
understanding that the authorities in Sweden had always held that
the words "goods and effects" in article 6 of the treaty of 1783
include real estate. This view has been taken in judicial decisions
in this country.
Adams v. Akerlund, 168 Ill. 632;
Erickson v. Carlson, 95 Neb. 182. We think that it is the
correct construction of the article of the treaty, applying the
fundamental principle that treaties should receive a liberal
interpretation to give effect to their apparent purpose.
Geofroy v. Riggs, supra; Tucker v. Alexandroff,
183 U. S. 424,
183 U. S. 437;
Jordan v. Tashiro, 278 U. S. 123,
278 U. S. 128;
Nielsen v. Johnson, supra.
The question remains whether the treaty operates to override the
law of the state as to the disposition of homestead property. If
so, it would appear to place an alien owner of a homestead in
Nebraska on a better footing than that of a citizen of the state.
This conclusion seems to us to be repugnant to the purpose of the
treaty. While treaties, in safeguarding important rights in the
interest of reciprocal beneficial relations, may, by their express
terms, afford a measure of protection to aliens which citizens of
one or both of the parties may not be
Page 281 U. S. 455
able to demand against their own government, the general purpose
of treaties of amity and commerce is to avoid injurious
discrimination in either country against the citizens of the other.
Compare 64 U. S.
Louisiana, 23 How. 445,
64 U. S. 447;
Geofroy v. Riggs, supra; Maiorano v. Baltimore & Ohio R.
Co., 213 U. S. 268;
Patsone v. Pennsylvania, 232 U. S. 138;
Petersen v. Iowa, 245 U. S. 170;
Duus v. Brown, 245 U. S. 176;
Sullivan v. Kidd, supra. This purpose is indicated in the
recital of the treaty of 1783 with Sweden that the high contracting
parties thought that they could not better accomplish the end they
had in view
"than by taking for a basis of their arrangements the mutual
interest and advantage of both nations, thereby avoiding all those
burthensome preferences, which are usually sources of debate,
embarrassment and discontent."
It is not to be supposed that the treaty intended to secure the
right of disposition in any manner whatever regardless of
reasonable regulations in accordance with the property law of the
country of location, bearing upon aliens and citizens alike. For
example, conveyances of land would still be subject to
nondiscriminatory provisions as to form or recording. Nor can the
right to "dispose," secured by the treaty, be deemed to give a
wholly unrestricted right to the alien to acquire property, without
regard to reasonable requirements relating to particular kinds of
property and imposed upon both aliens and citizens without
discrimination.
It is true that the policy of Nebraska with respect to the
selection of homesteads was established after the treaty in
question was made. General Laws, Nebraska, 1879, p. 57,
et
seq. But we find no ground for the conclusion that, in
establishing this reasonable policy, Nebraska took any action which
was inconsistent with the provisions of the treaty. The citizens of
Norway and Sweden who settled in Nebraska had no reason to
complain
Page 281 U. S. 456
of that policy, and had obtained no right to ignore it. The
homestead property under the law of Nebraska has a special quality.
It is exempt from judgment liens and from executions or forced
sale, except as specially provided. Nebraska Comp.St.1922, § 2816.
The acquisition of the homestead with these incidents depends upon
the
bona fide intention to make it a home.
Hair v.
Davenport, 74 Neb. 117. It is because of this quality that it
enjoys special privileges, and that it cannot be conveyed or
incumbered unless the instrument is executed and acknowledged by
both husband and wife.
When Knudson selected the homestead, he sought the advantages of
the provisions of the local law as to homesteads, and he could not
properly obtain the benefits of these provisions without accepting
the property with the quality which the law attached to it. If he
had not been entitled to establish the homestead, and thus his
acquisition lay outside of the homestead law, it would be clear
that the statutory provision against disposition of the homestead
would have no application, and there would have been no occasion
for the supreme court of the state to cite the provisions of the
treaty in order to strike down the prohibition against conveying
the property. We are unable to see that anything in the treaty,
which was continued in force with Norway, gave Knudson the right to
establish a homestead and then hold it free from the restrictions
which governed it as a homestead, restrictions which operated upon
every citizen of Nebraska who owned a homestead.
Our conclusion is that the treaty did not invalidate the
provisions of the Nebraska statute as applied to the present case
in relation to the disposition of the land considered as homestead
property.
The judgment is reversed, and the cause is remanded for further
proceedings not inconsistent with this opinion.
It is so ordered.