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trust for the use of his daughter—a citizen and then unmarried—for life, with remainder in fee to her issue. The daughter married, subsequently to her father's death, an alien, and died leaving a son born in Egypt, where her husband was in the public service of Great Britain. The court decided that the disability as to alienage applied only to a person who, at the time of the death of the testator, shall be an alien, and as young Murray was not then born, he could not be within the terms of the statute, that the case must be governed by the common law, and that he was capable, though an alien, to take the remainder in fee, under the will, and hold it until office found.
The inevitable inference from this decision is that if Mrs. Murray had been married, and her child been born before his grandfather's death, the statute would have applied, and that her child would, so far as regards his mother's share of her father's property, devised for the benefit of her issue, have been utterly disinherited, and the interest intended for her would, as the statute which I have quoted shows, have descended to the heirs of the testator, who were citizens of the United States, that is to say, to Mrs. Murray's collateral relatives. A proof how repugnant such a result would have been to the general sentiment of the community is found in the fact that the adult heirs of Mr. Wadsworth thought it requisite for their reputation to induce the reporter to insert a note, saying that they were willing to confirm the title of the son of Mrs. Murray under the will, by release to him, but that the existence of minor heirs rendered the appeal necessary. The claim of the State had been, as usual, released to Mrs. Murray's son, thus confirming our previous assertion that no pecuniary benefit results to the public treasury from interfering with the transmission of
property in accordance with the impulses of natural affection. (See New York Reports, volume XII (Kernan, volume II), page 376, Wadsworth v. Wadsworth; also Wright v. Saddler, 16., vol. XX (Smith, vol. VI),
Nor is it any mitigation of the injustice, as between the members of the same family, that aliens enjoy and have enjoyed in the transmission of their real estate privileges denied both to native born and naturalized citizens.* I would particularly refer to the act of 1798, and acts explanatory of it. The act of 1798 (New York Statutes at Large, ed. 1863, vol. IV, p. 294), required no residence, and did not contemplate naturaliza
* The following is the provision of the treaty of November 10, 1794; with Great Britain:
“ARTICLE IX.-It is agreed that British subjects who now hold lands in the territories of the United States, and American citizens who now hold lands in the dominion of his Majesty, shall continue to hold them according to the nature and tenure of their respective estates and titles therein; and may grant, sell or devise the same to whom they please in like manner as if they were natives; and that neither they, nor their heirs or assigns shall, so far as may respect the said lands and the legal remedies incident thereto, be regarded as aliens."
This provision, applying, as it did, to the titles existing at the period of the revolution, is an affirmance of the rule of the law of nations, that the dismemberment of the Empire works no forfeiture of previously vested rights.
tion. By it a conveyance made to an alien friend vested the estate in him, and he might hold it to his heirs and assigns for ever, any plea of alienage to the contrary notwithstandiny. It has been repeatedly decided in the State courts, one of the cases having been before the Court of Appeals so late as 1852, that an alien heir may take, by descent from an alien, who was, by the statute of 1798, entitled to hold the property, and that alien heirs of grantees might take in succession from one another. The statute bestows on the land the quality of being inheritable by aliens until by inheritance, grant, or devise, it comes to a citizen, when, it might be added, the disabilities incident to the estate of a citizen again apply. (New York Reports, vol. VII (Selden, vol. III), p. 305, Duke of Cumberland v. Graves. See, also, New York Reports, vol. XII (Hand, vol. II), p. 412, The People v. Snyder, December, 1869, Opinion of Woodruff, recognizing the rule in that case).
Without noticing the intermediate acts, including the general provision of the Revised Statutes in favor of aliens who file depositions in the office of the Secretary of State, declaring that they are residents, and have taken the initiatory steps to be citizens of the United States (New York Statutes at Large, vol. I, p. 668, ed. 1863), I would here allude to the act of April 30, 1845 (1b., vol. IV, p. 300), which has been recently construed by the Court of Appeals to give “to a resident alien (even though he has not filed the deposition) who takes title by grant of real estate, the same power of transmitting such title by descent as a citizen.” The court expressly rejected the suggestion that the term resident alien applied only to aliens who had filed the prescribed depositions, which confessedly the alien in question had not done. He had left three children surviving him, two sons and a daughter, all of full age at the time of his death, residents in and subjects of Great Britain, none of whom had ever resided in the United States, or filed the deposition which, by the terms of the act itself, the persons answering the description of heirs, are required to file, if males of full age, and not citizens of the United States. He also left surviving him collateral kindred who were residents and citizens of the United States. It was insisted that the descent to aliens must be confined to those who were residents, as none but residents can make the prescribed deposition, but the Court decided that the limitation applied to the right of the State only. The conclusion was that “ upon
the death of the alien the daughter took one-third of the real estate by descent, and that the two sons took each one. third in like manner, the title to the latter being defeasible by the State, unless before the consummation of the proceedings instituted for that purpose, the sons filed the deposition.”
The report of the case shows that the State had already released to the grantee of the children any title acquired by escheat. (Goodrich v. Russell, New York Reports, vol. XLII (Hand, vol. III), p. 171.)
It is believed that the disabilities imposed on the transmission of real estate to the children born abroad of female citizens or subjects are peculiar to New York, unless, indeed, they are to be found in some other States of the Union. They cannot exist on the con. tinent of Europe, as nearly everywhere, including Turkey, with the exception of provisions having for their object to secure reciprocity, the distinctions between citizens and foreigners have ceased with the abolition of the droit d'aubaine.
In England, long before the late radical change in her laws with respect to the tenure of real estate, rendered necessary, as her jurists supposed, by the contemplated naturalization convention with the United States, an act of Parliament had removed the disability in question.
By the 7th and 8th Victoria, c. 66 (1844), every person born of a British mother, though not made a British subject, is rendered capable of taking real or personal property by devise, purchase, inheritance or succession.
Rhode Island, in advance of her act of February 7, 1868,* which does away with all disabilities on the
*"All disabilities heretofore existing in aliens taking, holding, conveying, and transmitting title to real estate, situate within this State, are hereby removed, and aliens may sue for and recover possession of real estate in the same way and with the same effect as native born citizens of the United States." (Public Laws of Rhode Island, 1867–1869, p. 472.)