Zschernig v. Miller

LOCATION: Lafayette Diner

DECIDED BY: Warren Court (1967-1969)

CITATION: 389 US 429 (1968)
ARGUED: Nov 07, 1967
DECIDED: Jan 15, 1968

Facts of the case


Media for Zschernig v. Miller

Audio Transcription for Oral Argument - November 07, 1967 in Zschernig v. Miller

Earl Warren:

Number 21, Oswald Zschernig et al., appellants versus William J. Miller, Administrator et al.

Mr. Schwabe.

Peter A. Schwabe, Sr.:

Mr. Chief Justice, may it please the Court.

This is an appeal from a decree of the Supreme Court of the State of Oregon as cheating the estate of a woman by the name the Pauline Schroeder (ph).

Under an Oregon Reciprocity and Inheritance Rights Statute number ORS 111070, the trial court in the case escheated all of the estate in the State of Oregon on a finding that the heirs who are residents of the Russian zone of occupation, East Germany were not eligible to inherit under the Reciprocity and Inheritance Rights Statute.

On appeal, the Supreme Court affirmed escheat of the personal property but held that under a 1923 Treaty which I’ll explain in just a moment the heirs were entitled to the real property.

The facts very briefly are not disputed in anyway.

This woman died in September 1962 in Portland, Oregon.

She left an estate of approximately $17,000 of which $4,500 was a small home that she had, the balance was cash and personal property.

Her heirs, she died intestate were brother and sister and number of nieces and nephews in Leipzig (ph) in the Russian zone, Germany, which is also called East Germany, the GDR, Deutsche Demokratische Republik, German Democratic Republic whatever you please.

Under our concept and the concept of the United States government, it is simply an occupied portion of Germany.

The heirs contended that they were entitled to inherit the whole of this estate under the Article 9, subsection 3 of the Treaty between the United States and Federal Republic of Germany in 1954, which provides without question for Reciprocity and Mutual Rights of Inheritance.

They claim that they although they lived in the Russian zone of Germany, nevertheless they were German citizens, have the same citizenship as German national and therefore they had the benefits of that treaty.

The state came back into the trial the case, produced a letter by the state department to the Attorney General of Oregon, saying that no the 1950 Treaty did not have territorial application to the East zone or the Russian zone of Germany.

In their opinion they thought the 1923 Treaty might have application.

The 1923 treaty has been heretofore construed by this Court in Clark versus Allen handed down in 1947 in which the Court held that under Article 4 of 1923 Treaty there were Rights of Inheritance guaranteed in respect of real property, but under the language of the treaty that such rights were not guaranteed in respect of personal property.

The heirs also challenged the constitutionality of the Reciprocity Inheritance Rights Statute on the ground that it was an unlawful invasion by the State of Oregon by an individual state into the exclusive power of the Federal government to regulate the foreign relations of the United States.

The court in respect to that simply said in very few words, this argument was put to bed by Clark versus Allen.

The rulings of the lower court, the Oregon Supreme Court in respect to the treaties was not appealed here, but we have appealed on the constitutional ground because we feel very strongly that the statute does constitute as I have said an unlawful intrusion by an individual state on the exclusive Federal power to regulate the foreign relations of the United States, and that is we feel a very grave and a very serious issue.

Potter Stewart:

As I recollect my understanding of the government to make this brief they say that as far as the government itself is concerned it’s not any greater power or have I misunderstood?

Peter A. Schwabe, Sr.:

Your Honor read that correctly.

The state department in the Solicitor General’s brief, the state department where he said, that the state department had found that it had very little effect on the management of the foreign relations of the United States.

They did say that, but --

Potter Stewart:

The government is on your side in the case I know, but not precisely for this reason here?

Peter A. Schwabe, Sr.:

I claim Your Honor that whether it has actually to this point, if you can put your finger on whether it has adversely affected the foreign relations of the United States with the affected government, I am speaking now primarily of the iron curtain countries because this is a iron curtain country case, I will point out that our contention is that even though you may not have a demonstrable effect, you may not be able to pinpoint that alright we’ve had trouble with the Soviet Union because of the (Inaudible) case in 1961, but this not the issue.

The issue is, does it have a potential, does it have a -- is it an actual interference with the exclusive power of the Federal government, does that answer your question sir?

Now then the fundamental issue here is this.

Can any individual state imposed by statute, conditions upon the Rights of Inheritance of nonresident aliens within that state.

Now it's been held and we do not contend here that a state may not pass laws prohibiting all aliens or nonresident aliens from inheritance, but we are presented here with the case where the State of the Oregon in its statute ORS 111070, which we are attacking here, lays down three requirements.

They say number one, you’ve got to, the foreign government must, a foreign country must allow American citizens the same Rights of Inheritance that they allow their own citizens.