Yeaker's heirs vs. Yeaker's heirs. of November, 1850; which convention as subsequently amended by competent authorities of the respective governments, and being in the English and French language, is word for word as follows," &c. The stipulations of this treaty in regard to the subject now under consideration read thus: "ARTICLE 5. The citizens of each one 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 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. absence of such heir, heirs or other successors, the same care shall be taken by the authorities 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." In the "The foregoing provisions shall be applicable to real estate situated within the States of the American Union, or within the cantons of the Swiss Confederation, in which foreigners shall be entitled to hold or inherit real estate," "But in case real estate situated within the territories of one of contracting parties should fall to a citizen of the other party, who, on account of his being an alien, could not be permitted to hold such property in the State or in the 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 he 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." Yeaker's heirs vs. Yeaker's heirs. If, as is contended by appellants, this last treaty, by relation back from November, 1955, the day of its exchange and retification by the contracting powers, took effect and became the law of the land from November 1850, the day of its date, without regard to the period or periods when the amendments referred to in the proclamation were agreed upon and adopted, we confess there is difficulty in avoiding the conclusion that appellants, under the articles cited, have an interest, to some extent, in the real estate of their deceased relative. The constitution of the United States, in the second section of article VI, declares that "This constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the au thority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding." The treaty before us seems to have been made with due solemnity between the contracting parties, adopted and ratified by the proper authorities, and proclaimed as the law of the land by the President. Its provisions with regard to real estate, appear to have been carefully drawn, with an eye to the rights of the several States and their local regulations respecting such property, within their boundaries, and give to the subjects of the Swiss Confederation only the share of the proceeds of the realty, when by the laws of any State they are forbidden from holding the realty itself. It may be said to be the well settled doctrine in relation to treaties, that, as to the Governments making them, they take effect, not merely from the day of ratification, but from the date of their execution, unless they contain stipulations to the contrary. (Wheaton's International Law, 336; 1 vol. Kent, 170; 9 Howard S. C. Rep., 148, 289.) But the rule seems to be otherwise where individual rights are to be affected thereby, as settled by the supreme court in the case of United States vs. Arredendo. (6 Peters, 749.) In regard to that point, which was then raised, the court, in speaking of the treaty then under consideration, say "That it may and does relate to its date as Yeaker's heirs vs. Yeaker's heirs. between the two governments, so far as respects the rights of either under it, may be undoubted; but as respects individnal rights, in any way affected by it, a very different rule ought to prevail." And in the next sentence, after remarking that the point was not new, state, that in regard to individual rights, the rule is, that the ratification of the treaty must be deemed its date.. Admitting however that the rule contended for in this case, was the correct one, it is extremely questionable whether this court could say, in view of the proclamation of the President, supra, that the articles of the treaty relied on by appellants in support of their claim, constituted any part of the original treaty when signed. It seems that the original document was signed in Nov. 1850, but it further appears that it was subsequently amended. Now what amendments were made, or when, does not appear. For aught that appears to the contrary the very articles upon which appellant founds his claim, may have been the only amendments made, and they may have been inserted long after Yeaker's death and the accrual of the widow's right. And, in view of this state of uncertainty as to when the articles referred to were embodied, it would be difficult to say they were in force when Yeaker died. But this point need not now be decided, inasmuch as the treaty, for the reason heretofore stated, so far as Mrs. Yeaker's rights are concerned, did not go into effect until 1855, when it was ratified. The treaty of 1848, in our opinion, is likewise insufficient to uphold appellants, claim to an interest in the property now in dispute-Because (1.) it may be seriously doubted whether the second article of said treaty intended to confer upon the citizens of the confederation any right to real estate or its proceeds, unless the land was situate within the territories of the United States, that is, the districts of country known as "territories," and distinguished from the States. The language is "If, by the death of a person own ing property in the Territory of one of the high contracting parties, such property should descend," &c. Yaker's heirs vs. anker's heira. The doubt mentioned arises, not only because of the equivocal language thus used to describe the district of country in which the proposed right of succession or inheritance was to be conferred; but also from the fact that the treaty of 1855, in reference to the same matter, is specific and distinct in extending this right to land within the States of the Union, and also in providing for any conflicting State or local legislation -thus showing that the contracting parties themselves deemed the right conferred by the previous treaty as not distinctly extended to the States. But, waiving the question arising upon a proper construction of the language of the treaty in regard to the point suggested, and giving full effect to the provision as contended for by appellants, still they are precluded from the interest claimed by lapse of time. We have seen, and it is admitted, that by the law of Kentucky appellants could take no interest in the realty of their deceased relative. It is also well known that by the statutes of descent (1st Stanton Ed., 420,) the widow, in this case, took the entire real estate. This being the law of this State it was in full force and effect, so far as the parties hereto are concerned, except as restricted by article 2 of the treaty of 1848. To the extent of its conflict with said treaty it must give way, because, by the constitutional provision supra, the treaty is regarded as paramount to the State law. The law of the State refuses all right to appellants at any and all times; the treaty however invests them with an interest provided it is asserted within a period of three years after the right accrues; or rather it forbids any law limiting their right of recovery to less than three years, the effect of which is to permit any restriction by State legislation against such recovery, which will not interfere with the right for that period. The State law was therefore so affected by the treaty as to become inoperative for a period of three years, but no further-it being a well settled rule that when a State law is deemed unconstitutional, because opposed to the Constitution, laws and treaties of the Federal Government, it is only void so far as it contravenes the Constitution, laws or treaties. Beyond the three years, the Woodcock, &c. vs. Bowman, &c. period within which foreigners may claim such interest, there is no contravention, because there is nothing forbidding the State legislation which denies the right to that class of persons after that time. It seems to us, therefore, that no error was committed by the circuit court in giving all the proceeds of the land to the widow-appellants having permitted more than three years after Yeaker's death to elapse before they brought their suit or asserted their right. Judgment affirmed. CASE 10-MOTION-JUNE 24. Woodcock, &c. vs. Bowman, &c. APPEAL FROM GARRARD CIRCUIT COURT. 1. The statute authorizing the sale of the real estate of infants must be strictly complied with. The report of the commissioners appointed to appraise the estate of the infants, must be full and explicit on all the matters which, by the statute, they are required to ascertain and report to the court. Without this the court has no jurisdiction to decree a sale. 2. Among other things the report of the commissioners must show "the net value of the real and personal estate, and the annual profits thereof." See the opinion for a report held insufficient in its statement of the value of the infants estate, as well as in other respects. It must state the "net value." 3. An order appointing commissioners authorized them simply to "value the infants real estate." It may well be questioned whether such defect in the order of appointment would be cured by a report subsequently made in conformity with the law and approved by the court-a point not decided. A. J. JAMES, for appellants, cited 16 B. Mon., 295; 18 Ib., 387; 1 J. J. Mar., 511; Mattingly vs. Read, 3 Met. R. M. BRADLEY, on same side, cited 16 B. Mon., 296; 18 Ib.; 390; Ib., 781; 1 Met., 262; Ib., 424; Ib., 284; 2 Ib., 291; Willey vs. Clark, Ms. opin. Sep. 1854. G. W. DUNLAP, for appellees, cited chap. 86, Rev. Statutes. |