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“As to the right of the children or nearest relatives of the deceased to inherit, its origin,” says the able annotator, who has adapted the Commentaries of Blackstone to the existing laws of England, “is to be traced to a higher source than the mere institutions of civil society. There is a general and intuitive feeling that it has nature on its side, and there seems in truth good reason to refer it to the same natural title of occupancy on which the right of property itself is founded.” (Stephen, New Commentaries on the Laws of England, vol. I, p. 169.)
The earliest acts of the New York Legislature, after the war of the Revolution, not only abolished primogeniture, but they professedly abrogated all distinctions as to the descent of real estate between males and females. The general policy of the State, moreover, for several years past, has been to do away with the common law disabilities of coverture, and to place married women, whether native or foreign born, domiciled in the State, in the uncontrolled use and disposition of their property, of whatever kind, with the power of bequeathing and devising it at their death. Indeed, the recent legislation has gone further than exact justice between the parties to the marriage would seem to authorizé. While the wife has the entire usufruct of her own property, the obligation to maintain the family rests, as before, exclusively with the husband; she also retains, inalienable, except with her own consent, her right of dower, while it is always in the power of the wife to divest, by her own-act, the curtesy of the husband.
But, though nothing further may be required to perfect the civil rights of married women, who remain in their own country, the position of those who, in the legitimate pursuit of their own happiness form foreign matrimonial alliances, is far different. Their marriage, according to the present law of New York, in respect to alienage, may, in the cases where, by the recent treaties of naturalization, the nationality of a married woman becomes that of her husband, operate as an absolute forfeiture of her claims to the real estate of her parents or other relatives, situate in that State, so that it will pass to the relatives of the deceased, who are citizens of the United States, however remote. At all events, if she herself be capable of taking real estate by descent or devise, her issue, if their father is a citizen or subject of any foreign country, whether the United States have or have not a naturalization treaty with it, cannot succeed to the mother's real estate in the State of New York, even though she may
have inherited it from her own ancestors.
The primary object of the letter addressed last year to Governor Hoffman, was to solicit his intervention with the Legislature, at the then approaching session, to assimilate the rule as to the descent of real estate in the cases of female citizens and their descendants, the issue of foreign marriages, to that which applies in like circumstances to male citizens married abroad and their descendants.
The tendency to which we have alluded of the legislation of New York, in common with that of most of the States, of placing women, including married women, on an equality with men, as regards their property, real as well as personal, has been so uniform that the disinherison of their offspring, under circumstances which would not apply to the descendants of male citizens, could exist, it was supposed, only from the fact that the subject had not been brought to the attention of the competent authorities.
To effect a remedy for the particular grievance here referred to, a law similar to the English statute of 1844 (7 & 8 Vict. c. 66), might, before the conclusion of the naturalization treaties, have sufficed. By that law, as is elsewhere explained, every person born of a British mother, though he is not made a British subject, is rendered capable of taking real or personal property, by devise, purchase, inheritance or succession.
As, however, not only had Congress passed, in 1868, a law recognizing expatriation and emphatically repudiating all the judicial decisions of the federal and State courts based on the idea of a double allegiance, but as the same principle had been incorporated into the sev. eral naturalization treaties since concluded between the United States and those European powers with which we have the most intimate connection through emigration and inter-marriages, and, as the naturalization effected by a foreign marriage might place the American woman under the same disabilities as her children now confessedly are, it seemed to the writer that any partial legislation of the character suggested might be inadequate to the end proposed.
Indeed, even before the conventions in question, it was held, by Attorney-General Stanbery, that, as between nations, a woman, whose father was an American citizen, and who, though born in France, had not taken the measures required by the law of that country to claim the quality of a Frenchwoman (Code Civil, art. 9), but who had acquired, by her marriage with a Frenchman, the condition of her husband (Ib., art. 12), did not, when a widow, and continuing to reside in France, become reinvested with the quality of a citizen of the United States. (Mr. Stanbery to Mr. Seward, August 13, 1866. Opinions of the Attorney-Generals, vol. XII, p. 7.) There is no allusion in this case to a double allegiance.
The most eminent British jurists having given it as their opinion that the changes, introduced by the statute of May 12, 1870 (33 Vict. c. 14), were indispensable preliminaries to the entering by Great Britain into a naturalization convention, and the same changes being supposed requisite in the law of the American States, which, to use the language of the British Commissioners, “had inherited rather than adopted the English common law,” it was conceived that the exigency of the case, in all its parts, might be best met by the passage of a law based on the English statute.
It should be noted in this connection that by the Civil Code of the State of New York, as reported complete by the Commissioners (Messrs. Field and Bradford) in 1865, though it has not been passed on by the Legislature, it is provided :
“$ 170. Any person, whether citizen or alien, may take, hold and dispose of property, real or personal.”
This provision is said to be in accordance with the recommendation of the then
in his message of January, 1862.
"§ 660. Aliens may take in all cases by succession, as well as citizens; and no person, capable of succeeding under the provisions of this chapter, is precluded from such succession, by reason of alienage of any
"§ 637. Succession is the coming in of another to take the property of one who dies, without disposing of it by will."
The first clause of 8 660 is new, and, had the Code become a law, would have rendered unnecessary the present discussion. The remainder of the section is taken from the Revised Statutes of 1830, vol. I, p. 754,