
    [Civ. No. 3730.
    First Appellate District, Division One.
    February 8, 1921.]
    In the Matter of the Estate of MARY E. TURNER, Deceased. H. S. HERRICK, Appellant, v. J. T. HARMES, Respondent.
    
       Estates of Deceased Persons—Dismissal of Petition fob Probate of Will—Nonresident Alien Petitioner—Eight to Beoeive Devise—Order -of Dismissal not Determinative.—An order dismissing a petition for the probate of a will on the ground that the petitioner was a nonresident alien and not a person interested in the estate and that the petition was not signed by the petitioner personally, but by his attorney in fact, was not a determination of the right of the petitioner as a nonresident alien to take by devise under the will.
    
       Id.—Nonresident Aliens—Bight to Inherit Beal Estate.—A nonresident alien and subject of Italy is entitled under the “most favored nation” clause of the treaty between the United States and Italy to receive by devise real estate in this state, notwithstanding section 17 of article I of the constitution adopted in 1894.
    1. E’ffeet of treaties upon an alien’s right to inherit, notes, Ann. Cas. 1912A, 1100; 32 I». E. A. 177; L. K. A. 1915E, 327.
    Alien’s right to inherit generally, notes, 12 Am. St. Bep. 93; 31 L. B. A. 177.
    
      
       Constitutional Law—Inheritance by Aliens—Power of Legislature.—Section 17 of article I of the constitution, adopted in 1894, is not to be construed as a limitation upon the power of the legislature to deal with the right of succession of nonresident aliens to real estate, and the passage of the Alien Land Act of 1913, wherein it is provided all aliens eligible to citizenship may inherit real property in the same manner and to the same extent as citizens, except as otherwise provided by the laws of this state, was within the power of the legislature.
    APPEAL from a decree of partial distribution of the Superior Court of the City and County of San Francisco. George A. Sturtevant, Judge.
    Affirmed.
    The facts are stated in the opinion of the court.
    H. S. Herrick, in pro. per. for Appellant.
    Charles A. Christin and Hutchinson, Van Fleet & Christin for Respondent.
    U. S. Webb, Attorney-General, and Frank L. Guerena, Deputy Attorney-General, for State of California.
   RICHARDS, J.

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 ordered that there be distributed to said Herrick an undivided one-half of certain real estate in San Francisco devised to him by the terms of said will. It was further provided in said decree that before said Herrick should receive said property he should execute and deliver to the administrator with the will annexed a bond in the sum of two thousand dollars with proper sureties to he approved by a judge of said court, conditioned for the payment when required of his proportion of the debts due from said estate. Thereafter and on February 4, 1920, another petition for partial distribution was presented by the said administrator wherein no reference was made to the prior petition for and decree of partial distribution, but wherein, after reciting at considerable length the previous proceedings in said estate, and setting forth in full the terms of the will of said decedent, and of the several contests and controversies which had occurred as between said Herrick and said administrator and other persons, involving the right to administer said estate, and also apparently involving the question as to the right of said Basletta to have and receive any portion of said estate as one of the devisees of said decedent, the administrator prayed for a decree of partial distribution awarding an undivided one-half interest in the real estate of said decedent, situate in San Francisco, to said Herrick, and an undivided one-half interest in the same property to A. Basletta, and also praying that the whole of the lot lying in Fresno be distributed to said Basletta. This petition came regularly on for hearing, whereupon said Herrick presented his opposition to the same, in so far as it prayed for the distribution of any portion to said Basletta, Upon the ground that as a nonresident alien and a subject of Italy he was not entitled to take by devise any portion of said estate. * In his said objections to said petition no reference was made by Herrick to the fact that the court had previously made a decree of partial distribution of the undivided one-half of the San Francisco property referred to in the petition of said administrator to him. Upon said hearing the court refused to sustain the several objections urged by said Herrick against the partial distribution of said estate, according to the prayer of said petition, and thereupon proceeded to distribute, in accordance with the ternas of the will of said deceased, an undivided one-half interest in the San Francisco real estate to said Herrick, and an undivided one-half interest therein to said Basletta, and further proceeded to distribute to the latter the whole of the Fresno real estate, conformably to the terms of said will.

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.” 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:

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

later proceedings, it would appear that the only matter passed upon by the court in making said order was the right of said A. Basletta to have his petition for the probate of said will and for the issuance to him of letters of administration with the will annexed granted; and that the only determinative part of said order is the concluding portion thereof, in which it is ordered that said “petition for probate so filed by said Basletta through his attorney in fact be and the same is hereby dismissed.” That sufficient basis existed for the making of this order cannot be questioned, for the reason that under section 1369 of the Code of Civil Procedure, the said A. Basletta, not being a tona fide resident of the state, was not competent nor entitled to act as an administrator in said estate, and for the further reason, as expressly stated by the court, his petition for such letters was not properly signed under the requirements of section 1371 of the Code of Civil Procedure. So far as appears upon the face of this order, or so far as appears from the record in the case, the question of the right of A. Basletta as a nonresident alien to take by devise under the will of said decedent was not before the court and was not decided by it at the time of making said order or according to its terms. That this was apparently the view of this matter taken by the trial court is evident from its later action in awarding A. Basletta the share of said estate devised to him by the will of said decedent in the decree of partial distribution, from which this appeal is taken, and when the direct question of the right of A. Basletta as a nonresident alien to take by said devise was presented to said court for determination. We find, therefore, no merit in the appellant’s said contention.

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 between the United States and Italy in which what is known as the “most favored nation” clause appeared; but the appellant contends that notwithstanding the existence of said treaty and the presence and effect of said clause therein, the constitution of this state, by virtue of the amendment of section 17 of article I thereof, adopted in 1894, must be held to override said treaty and must be construed as denying to nonresident aliens the right to take and hold by succession or devise, real estate in California.

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 citizens and subjects of other nations under the express terms of the treaties therein referred to enjoy.

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.

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 death of said decedent, and said statute being in force at the time of her death, she was entitled by her last will and testament to devise to A.. Basletta the portion of her real estate assigned to him by the terms of said will.

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:

THE COURT.

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.  