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Law School Case Brief

Zschernig v. Miller - 389 U.S. 429, 88 S. Ct. 664 (1968)


Or. Rev. Stat. § 111.070 (1957) is an intrusion by the State into the field of foreign affairs which the Constitution entrusts to the President and the Congress. One of the conditions of inheritance under § 111.070 requires that proof that such foreign heirs, distributees, devisees or legatees may receive the benefit, use or control of money or property from estates of persons dying in this state without confiscation, in whole or in part, by the governments of such foreign countries, the burden being on the nonresident alien to establish that fact.


Pauline Schrader, a resident of Oregon, died intestate on Sept. 30, 1962. She left an estate comprised of both real and personal property. Her next of kin, plaintiff Zschernig and others (collectively, “Relatives”), were nonresident aliens residing in East Germany. The relatives filed a proceeding in Oregon state court for a determination of heirship in their favor. Defendant State of Oregon, through its State Land Board, petitioned the Oregon probate court for the escheat of the net proceeds of the estate under the provisions of Ore. Rev. Stat. § 111.070 (1957), which provided for escheat in cases where a nonresident alien claimed real or personal property unless three requirements are satisfied. The probate court found for the State. On appeal, the state supreme court held that the Relatives could take the Oregon realty involved by reason of Article IV of the 1923 Treaty of Friendship, Commerce and Consular Rights with Germany, but that by reason of the same Article, they could not take the personalty because the reciprocity required by § 111.070 was not present. The Relatives appealed.


Did the Supreme Court of Oregon err in applying § 111.070 providing for escheat unless certain requirements were satisfied in cases where a nonresident alien claimed real or personal property?




The Supreme Court of the United States reversed the judgment of the Supreme Court of Oregon. The Court concluded that the history and operation of § 111.070 made clear that the statute was an intrusion by the state into the field of foreign affairs, which the Constitution entrusted to the President and the Congress. The Court held that although the several states traditionally regulated the descent and distribution of estates, those regulations had to give way if they impaired the effective exercise of the Nation's foreign policy. The Court observed that the Oregon courts, in construing the statute, made inquiries concerning the actual administration of foreign law and into the credibility of foreign diplomatic statements, and sought to ascertain whether "rights" protected by foreign law were the same "rights" that citizens of the state enjoyed, and the statute as construed seemed to make unavoidable judicial criticism of nations established on a more authoritarian basis than the United States.

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