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V.

escheator.

1876. that "when the verdict on such inquest is for the January Term. commonwealth, any person claiming any interest in the lands (escheated), whether legal or equitable, may, Hauens'ns before the sale thereof, petition the said circuit court Lynham, (to which the inquisition is directed to be returned), for redress. To such petition the escheator shall be a defendant. He shall file an answer, stating the objections to the claim. And the cause shall be heard without any unnecessary delay, upon the petition, answer and the evidence."

In the petition, the petitioners expressed their willingness to unite in a sale of the property by the escheator. To this petition, the escheator accordingly filed an answer, stating the objections to the claim. Evidence was taken and filed on both sides, but chiefly on the side of the petitioners, and especially to prove that they were, in fact, as they claimed to be, the next. of kin of the said intestate, or their representatives. On the 20th day of October 1876, and during the same. year in which the petition was filed, the cause came on for final hearing; when the court, being of opinion that the plaintiffs had no claim upon the fund arising from the sale of the real estate disposed of by the escheator (but without deciding whether the petitioners were the next of kin, or their representatives, of the intestate, as they claimed to be), therefore dismissed the petition, and decreed that the petitioners pay to the defendant his costs by him about his defence in that behalf expended. From that decree the petitioners applied to a judge of this court for an appeal, which was accordingly allowed, and which is the case now to be disposed of by this court.

We proceed at once to enquire whether the appellants are entitled to the estate of the intestate Solo

mon Hauenstein, or the

proceeds of the sale thereof,

1876.

January

Term.

Hauens'ns

V.

escheator.

even if they be in fact, as they claim to be, his next of kin, or their representatives, which latter question will not be decided, unless its decision be rendered necessary for the decision of this case by our opinion on and decision of the question first above propounded. Lynham, If the appellants, who are citizens of Switzerland and aliens to the commonwealth of Virginia, be entitled to the estate, or the proceeds of the sale thereof, which they claim (even admitting them to be in fact the next of kin of the said intestate), they must be so entitled either first under the common law; or, secondly, under some statute law of the state of Virginia; or, thirdly, under some treaty between the United States and the Republic of Switzerland.

1st. Are they entitled under the common law? Certainly not. Under the common law an alien is incapable of taking real estate by descent. 1 Rob. Pr. (new) 125, and cases cited; 2 Kent's Com., 53 marg.

2dly. Are they entitled under any statute law of the state? If there was any such law in existence at the time of the intestate's death, in 1861 or 1862, it is embodied in the Code of 1860; for no law on the subject was enacted before his death and after the publication of the said Code. There is but one provision in that Code which can have any bearing on the subject; and that is the sixth section of chapter 115, page 557, which is in these words: "When by any treaty now in force between the United States and any foreign country, a citizen or subject of such country is allowed to sell real property in this state, such citizen or sub. ject may sell and convey the same, and receive the proceeds thereof within the time prescribed by such treaty; and when by any treaty now in force between the United States and any foreign country, citizens of the United States are allowed to inherit, hold, sell and VOL. XXVIII-9

Hauens'ns

1876. convey real property lying in such foreign country, the January Term. citizens or subjects of such foreign country may inherit, hold, sell and convey real property lying in this state: provided, however, that such purchase, sale and Lynham, inheritance, herein before mentioned, shall apply only to real estate, hereafter purchased and acquired by a citizen or subject of such foreign country."

V.

escheator.

The former part of this section, down to the words, "by such treaty" inclusive, constituted the corresponding section of the same chapter of the Code of 1849, when it was engrafted for the first time in our statute law at the suggestion of the revisors who compiled that Code, for reasons set forth in a note to their report, pp. 587-8. In that form the section remained in force, until it was amended and reënacted, as it stands in the Code of 1860 by an act passed April 7, 1858, acts of 1857-8, chap. 42, p. 44. The said former part of the section does not, and the corresponding section of the Code of 1849 did not, apply to such a case as this, in which there is no treaty in force between the United States and the foreign country of which the claimants are citizens, prescribing any time for their selling and conveying any real property in this state, and receiving the proceeds thereof. And the latter part of the said amended section does not apply to the case by reason of the proviso, which expressly limits its application to real estate purchased and acquired by a citizen or subject of such foreign country after the enactment of said amended sectionWhereas, all the real property in this state which was ever purchased and acquired by Solomon Hauenstein, was so purchased and acquired before such enactment. We do not mean to say, however, that it would apply to the case, even if there had been no such proviso; but it is unnecessary to decide that question.

The appellants, then, are not entitled under the statute law to what they claim; and the only remaining inquiry is:

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1877.

January
Term.

Hauens'ns

V.

escheator.

3dly. Are they entitled under any treaty between the United States and the republic of Switzerland? Lynham, If they are, it is under the treaty between the two countries which went into operation on the 9th day of November 1855, and has ever since remained in force, and so was in force at the time of the death of Solomon Hauenstein, in 1861 or '62. It may be found in the 11th volume of the Statutes at Large of the United States, page 590.

If they are entitled under this treaty, it is under article V, which is in these words:

"The citizens of each of the contracting parties shall have power to dispose of their personal property within the jurisdiction of the other, by sale, testament, donation or in any other manner; and their heirs, whether by testament or ab intestato, or their successors, being citizens of the other party, shall succeed to the said property, or inherit it; and they may take possession thereof, either by themselves or by others acting for them, they may dispose of the same as they may think proper, paying no other charges than those to which the inhabitants of the country wherein the said property is situated shall be liable to pay in a similar case. In the absence of such heir, heirs, or other successors, the same care shall be taken by the authori ties for the preservation of the property, that would be taken for the preservation of the property of a native of the same country, until the lawful proprietor shall have had time to take measures for possessing himself of the same."

"The foregoing provisions shall be applicable to real estate situated within the states of the American

1877. Union, or within the cantons of the Swiss confederaJanuary

Term. tion, in which foreigners shall be entitled to hold or inherit real estate."

Hauens'ns "But in case real estate situated within the territo

V.

escheator.

Lynham, ries of one of the contracting parties should fall to a citizen of the other party, who, on account of his be-ing an alien, could not be permitted to hold such property in the state or canton in which it may be situated, there shall be accorded to the said heir or other successor, such term as the laws of the state or canton will permit, to sell such property; he shall be at liberty at all times, to withdraw and export the proceeds thereof without difficulty, and without paying to the government any other charges than those which, in a similar case, would be paid by an inhabitant of the country in which the real estate may be situated."

The first clause of this article relates only to personal estate, about which there is no difficulty; aliens being capable of acquiring, holding and transmitting movable property in like manner as our own citizens, without any enabling statute or treaty for that purpose. 2 Kent's Com. 62, marg. Though there is a statutory provision to that effect in the Code of 1860, p. 557, § 5. There is no personal property involved in this controversy.

The second clause relates only to real estate situated in those states of the American Union, or cantons of the Swiss confederation, in which foreigners shall be entitled to hold or inherit real estate. Wherever they are so entitled, the same reason exists for the application to such real estate of the provisions made by the first clause in regard to personal property. There were, no doubt, states in the American Union, at the time of the making of that treaty, in which foreigners were entitled to hold or inherit real estate situated in

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