Thomas Roycraft having died without issue, and the conditional limitation in favor of the four alien devisees having failed to take effect on account of their alienage, it is agreed that the land has descended to the heirs of Robert Swanton, if he left heirs, as in the case of intestacy. At the common law, the plaintiff, Mary, would have had two distinct obstacles to encounter in making title to the premises as heir of Robert Swanton. First.
Her mother being alive, she, and not the plaintiff, would have been the nearest heir of the person last seized; and Secondly, her mother being in the line of descent from Robert Swanton to herself, and being an alien, and consequently without heritable blood, a title by descent could not be deduced through her.
(Collinwood v. Pace, 1 Vent., 413; 2 Kent's Com., 54, and cases cited in note c.) The last mentioned difficulty is obviated by a provision in the chapter of the Revised Statutes relating to the title to real property by descent. (1 R.S., 754, § 22.) It declares that no person capable of inheriting under the provisions of that chapter shall be precluded from such inheritance by reason of the alienism of any ancestor of such person.
If, therefore, the plaintiff were otherwise capable of inheriting the estate of which Robert Swanton died seized, the circumstance that she must convey her pedigree through an alien would no longer prejudice her. But to avail herself of the benefit of the statute, she must, at the time of the death of the person last seized, have been capable of inheriting the premises from him; for, unless she was his heir, the statute has no application to her case.
There is nothing in the *Page 537 section referred to which professes to change any of the rules of descent or to make one an heir who would not be such by the general law of inheritance.
Its object is simply to abrogate a very artificial principle, based upon reasons long since obsolete, by which it was held that where the descent, whether lineal or collateral, was mediate, the kindred through whom the claimant made title as heir, called by Sir Mathew Hale the mediianticessores, must be either natural born or naturalized subjects.
Thus, in lineal descents, if a father be an alien, and hath issue a natural born subject, and dies in the life of the grandfather of the latter, and the grandfather dies seized, the son shall not take, but the land shall escheat. And so in collateral descents: If there be A. and B., brothers, and A. is an alien, and hath issue C., a denizen, and dies, and B. purchases land and dies without issue, C. shall not inherit; for A. was incapable of transmitting the inheritance.
These examples, taken from the opinion of Sir Mathew Hale, in the case ofCollingwood v. Pace, before referred to, sufficiently illustrate the rule which it was the object of the statute to abrogate. The parties who are relieved by the statute are those who would have inherited but for the principle of the common law which I have mentioned. It is quite obvious that the statute does not introduce a new canon of descent.
It simply removes an impediment to the free operation of the existing law regulating successions to real estate.
The argument of the plaintiffs' counsel, to avoid this view of the subject, was, in effect, that the existence of the plaintiff's mother might be disregarded, upon a doctrine thus expressed by Chancellor Kent: "If a citizen dies, and his next heir be an alien, who cannot take, the alien cannot interrupt the descent to others, and the inheritance descends to the next of kin who is competent to take, in like manner as if no such alien had ever existed." (2 Kent's Com., 56.) Therefore, it is argued that the plaintiff may well be the heir of Robert Swanton, and capable of inheriting *Page 538 in the lifetime of her mother, who, being an alien, cannot interrupt the course of descent.
The difficulty of this position is, that if the name of the mother be stricken from the plaintiff's genealogical chart, it will not appear that she has any connection with Robert Swanton, whose heir she claims to be. The cases to which the doctrine referred to in the Commentaries applies are those in which the claimant does not make title through the alien, but where she can deduce her pedigree from the person dying seized, by leaving out or passing by the alien. Thus, in the case put in Co. Litt.
(8, a.): If a man has issue two sons, and the elder is an alien and the younger not, the younger may inherit from his father. So, if the elder brother had a son a natural born subject, he could not inherit, but the inheritance would still go to the younger brother. This last proposition is one of the points decided in Collingwood v.Pace. There were three brothers, Nicholas, John and George, all originally aliens, and the sons of an alien father.
John and George were naturalized by act of parliament, with words enabling them to inherit to any ancestor, lineal or collateral. Nicholas and George both had children born in England. John purchased the estate in controversy, and died without issue. The issue of George, the younger brother, was the lessor of the plaintiff, and the defendant claimed under the issue of Nicholas, the elder of the three brothers.
The issue of Nicholas was passed by, because his father was an alien, and the issue of George held to have inherited the estate, his father having been naturalized. Upon the argument of the plaintiffs' counsel in the present case, Nicholas being the elder brother, and the heir of John but for his alienage, could have been passed over as though he had never existed, and his issue, instead of the issue of the younger brother, would have taken the estate.
All the cases decided in this country, where an alien would have taken the estate but for his alienage, and in which a more remote heir was preferred, were cases of the same character, the successful *Page 539 claimant making out his descent independent of and not through the alien. (Orr v. Hodgson, 4 Wheat, 453; Lessee of Levy v. McCartee, 6 Pet., 102; Jackson v. Lun, 3 John.
Ca., 109; Jackson v. Jackson, 7 John., 214; Orser v. Hoag, 3Hill, 79; Jackson v. Green, 7 Wend., 333.) Upon the plaintiff's theory, the statute under consideration would have been quite unnecessary; for if she can be allowed to strike out her alien ancestors, intervening between the person dying seized and herself, whether living or dead, and make title to the land of the person so dying seized, as his immediate heir, the defect of heritable blood in such ancestors would be a matter of no moment.
Independently, therefore, of direct authority, we are of opinion that the plaintiff is not aided by the statute referred to. It does not improve the situation of a person who, aside from all questions as to alienage, would not have been the heir; and the plaintiff cannot be the heir of Robert Swanton during the life of her mother. But if we were less confident of the soundness of these views than we are, we should find ourselves led to the same conclusion by authority.
The precise question involved in this case arose inMcCreery v. Somerville (9 Wheat., 354), and was carefully examined by Mr. Justice Story, and decided against the plaintiff's position. It was suggested by the plaintiffs' counsel, in the argument before us, that there was a material difference between the language of the act of 11th and 12th William III., ch. 6, which prevailed in Maryland, and governed the case of McCreery v. Somerville, and our statute.
Upon carefully comparing the two enactments, we are unable to see any distinction which can affect this question, or indeed any substantial difference whatever. The New-York statute contains the whole principle of the English, stripped of the redundant phraseology in which acts of parliament were in that day clothed.
For instance, our statute uses the words, "person capable of inheriting," while the English legislature, with greater *Page 540 amplitude of language, described the same class of persons as any "who shall or may lawfully inherit, or be inheritable as heir or heirs, and make their pedigrees and title by descent from any of their ancestors, lineal or collateral.' The sense is certainly the same under both forms of expression, and it is impossible, I think, to state any difference between them.
In this state, the same question arose under our statute, and was decided in the same way in the late supreme court. (The People v. Irvin, 21Wend., 128.) The question was not much elaborated in the opinion of the court, but the decision is a direct authority upon the point.
Again, in this court, in McCarthy v. Marsh (1Scld., 263), the plaintiff, who was a relative in the fourth degree of the person dying seized, was allowed to recover, though the case disclosed that the intestate had grand nephews and nieces who were citizens of the United States, and who would have been entitled to the inheritance but for the fact that their mother, the niece of the intestate, was living and an alien.
The point we are considering was not discussed at the bar or by the court, but the fact which, upon the position of the present plaintiff, would have been fatal to the judgment which was affirmed, was patent upon the face of the case, and could scarcely have escaped the attention of the counsel or the judges, if the position had been regarded as tenable.
The construction which we adopt was spoken of with approbation by Chief Justice Savage, in Jackson v. Green, above referred to, and is laid down in Kent's Commentaries as the true rule. (2 vol., 53, 5thed.) The judgment of the supreme court should be affirmed
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