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the foreigner, exceptionally authorized to hold real estate in New York, has a privilege denied to the American parent, native or naturalized, of transmitting his property, in conformity with the dictates of natural affection, and, according to the latest decision of the Court of Appeals, this may be done, as will appear in the sequel, by an alien, under the act of 1845, even when he has not filed the deposition prescribed by the Revised Statutes, declaring that he is a resident, and that he has taken the initiatory steps to be a citizen of the United States.

LETTER TO GOVERNOR HOFFMAN.

OCHRE POINT, NEWPORT, R. I.,
December 26, 1870.

To his Excellency JOHN T. HOFFMAN,

Governor of the State of New York:

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Dear Sir: When I had the pleasure of seeing you here last summer, I took the liberty of soliciting your attention to the anomalous condition in which the laws of the State of New York, as to the holding and transmission of real estate, placed the descendants of American women married abroad, and you were kind enough to say that you would take into consideration, with a view to their submission to the Legislature, such sug gestions as I might have it in my power to make to you on the subject.

At the same time, I referred to the conventions between the United States and several foreign coun

tries, which, without a total abrogation of the "droit d'aubaine," or the disabilities imposed by the common law on the descent of lands, might affect, not merely political rights, but, in a manner little anticipated, the transmission of property according to the claims of consanguinity as hitherto recognized.

I may be permitted to premise that it is a wellsettled principle of the common law, which in this respect, is still in force in New York, that an alien cannot derive title to real estate by descent or mere operation of law. The general rule, however, was that if an alien purchased land, or it was devised to him, he might take and hold it until office found.

The statute carries the disability further, and provides that "every devise of any interest in real property to a person who, at the time of the death of the testator, shall be an alien not authorized to hold real estate, shall be void.”

In such case the land does not, except in default both of heirs and residuary devisees competent to take, escheat to the State, "The interest so devised," the statute adds, "shall descend to the heirs of the testator; if there be no such heirs competent to take, it shall pass under his will to the residuary devisees therein named, if any there be, competent to take such interest." (Revised Statutes, vol. II, p. 58, § 4.)*

* "In the case of a devise to a alien, who is not authorized, by any general or particular statute to hold real estate, such devise is declared by

Such is the general law, and if others than citizens can take or transmit real estate, by descent or devise, it must be in consequence of the express authorization of the Legislature, or by virtue of conventions with foreign States, if, indeed, it be within the scope of the treaty-making power of the federal government to make stipulations affecting matters exclusively of munici pal cognizance. But though it may depend entirely on a State to determine whether aliens shall be permitted to hold lands within its territory, the Constitution of the United States, by confiding to Congress the exclusive power of naturalization, has left it to that body to determine who are aliens.

"The right of citizenship, as distinguished from alienage, is a national right; it appertains to the confederate sovereignty of the United States, and not to individual States." (Lynch v. Clark, Sandford's Chanery Reports, vol. I, p. 583.)

By existing laws of the United States, the children of an American male citizen born abroad, are, irrespective of the nationality of the mother, American citizens, and consequently, though they themselves may never reside in the United States, competent to hold and transmit real property within the State of New York.*

a provision in the Statute of Wills to be void; and the interest or estate so devised descends to the heirs of the testator, if there be any, and if not then it will go to the residuary devisees, if they are competent to take. In this respect the Revised Statutes have changed the common law by a provision which is free from all doubt." (Wright v. Saddler, New York Reports, vol. XX (Smith, vol. VI), p, 326.)

* The terms of the act of Feb. 10, 1855, are, "Persons heretofore born,

On the other hand, the children of an American woman married to an alien derive no rights of citizenship from the nativity or nationality of their mother. In accordance with federal legislation they are aliens, and by the application of the State laws imposing disabilities on aliens, incapable of taking the real property which has descended or been devised to their mother, or to which they would be entitled, in right of their mother, from her parents or other relatives, by the general law of descents.

Indeed, as will appear in the sequel, it may well be questioned whether an American woman married to a subject of one of the countries with which the recent naturalization treaties have been made, and whose laws regard the marriage of a woman as a mode of naturaliz ation, has not herself lost her capacity as an American citizen, to take and hold real property within the State of New York.

A devise, it is true, to trustees of lands to sell and pay the proceeds to an alien has been construed, even in States which do not permit aliens to hold real estate, to be a bequest of personality, and may be enforced

or hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers were, or shall be at the time of their birth, citizens of the United States, shall be deemed and considered, and are hereby declared to be citizens of the United States: Provided, however, that the rights of citizenship shall not descend to persons whose fathers never resided in the United States." The same act provides that "any woman, who might lawfully be naturalized under the existing laws, married, or who shall be married to a citizen of the United States, shall be deemed and taken to be a citizen." (United States Statutes at Large, vol. X, p.

against the trustees. (Wheaton's Reports, vol. III, p. 563, Craig v. Leslie; Paige's Reports, vol. VI, p. 448, Anstice v. Brown.)

But why should a parent be compelled to change the patrimony of a child from a perfect security to one exposed to all the contingencies of personal investments, and to call in the intervention of third parties? That there is no motive of public policy involved in the continuance of the system may be inferred not only from the several exceptional acts allowing aliens to take and transmit real estate to alien heirs, but from the fact that where land would escheat to the State from the alienage of those otherwise entitled to it, the invariable practice has been for the legislature to release the claim.

Though, as respects the claim of the State, the disability of alienage may not be practically important, it is otherwise when the pretensions of differ ent members of the same family are brought in conflict.

In the case of the descendants of a daughter married abroad on the one side, and of a son married abroad on the other (not to speak of the children of sons and daughters married at home), the first named are utterly excluded, to the benefit of the latter, whether the ancestor dies intestate or not, though they all possess equal claims from consanguinity.

A case most apposite to illustrate the anomalous operation of the existing laws is furnished by the adjudications on the testamentary dispositions of the late Mr. Wadsworth, of Geneseo. He had devised lands in

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