Opinion
(December Term, 1859.)
1. Under Rule 9 of the Chapter of Descents, chap. 38, Rev. Code, the naturalized children of a sister, herself alien born and not naturalized, and still alive, take the share their mother would have taken had she been naturalized or native born, which share must be equal to the shares of each of the mothers, brothers, and sisters.
2. And so of the children of a sister who is dead without having been naturalized.
APPEAL from the Court of Equity of GRANVILLE.
Lanier for plaintiffs.
No counsel for defendants.
Robert Kyle died in the county of Granville, seized of real estate, without lineal descendants, leaving seven children and one grandchild of one brother, David, deceased, who are all plaintiffs; three children of one deceased sister, Jane Carr, also plaintiffs; two children and three grandchildren of another sister, Elizabeth Johnston, and three children of another sister, Mary Johnston. David Kyle and Jane Carr were duly naturalized, and died in the lifetime of Robert. Elizabeth Johnston was alien born and never was naturalized. She came to this country and resided until her death, which took place before that of Robert, but her children were naturalized and her grandchildren native born. Mary Johnston was alien born and never was naturalized; she is still alive, but nonresident. Her children reside in this State and have been duly naturalized.
This was a petition filed by the heirs of David Kyle and Jane Carr against the descendants of Elizabeth Johnston and Mary Johnston, praying for a sale of the land for partition, and insisting that the defendants are not entitled to a share in the land descended. The court below decreed a sale of the land and ordered a distribution of the proceeds according to the prayer of the petition — that is, among the lineal descendants of David Kyle and Jane Carr, to the exclusion of the children and grandchildren of Elizabeth Johnston and of the children of Mary Johnston. From this latter part of the decree defendants appealed to this Court.
Robert Kyle died in 1857. So the question of (247) descent presented by the case depends upon the construction of Rule 9 as set out in Rev. Code, chap. 38, which is a modification of sec. 2, chap. 575, Laws 1801, which was reenacted by the Revised Statutes, and is Rule 9, chapter 38.
At common law, if an alien was naturalized and died, leaving a kinsman who was also naturalized or native born, such kinsman would inherit if near enough to take immediately, although there was a kinsman an alien, who would have excluded him but for that fact — in which respect an alien differs from one attainted. This distinction is put on the ground that the alien never was capable of taking by descent, whereas the person attainted was at one time capable. But if the citizen kinsman was not near enough to take immediately, and was forced to claim by representation through an alien, he could not inherit, for if the alien was living the right of representation did not apply; and if he was dead, representation would be of no avail as the party could only take that to which the ancestor, if living, would have been entitled. For instance:
1. One who has been naturalized dies, leaving his eldest son an alien and a younger son a citizen, the younger son will inherit because he takes immediately from his father.
2. Or, leaving a grandson a citizen, the child of a son who was an alien, the grandson cannot inherit for he cannot take immediately; and although his father be dead, representing him will be of no effect.
3. Or, leaving a brother a citizen, their father being an alien, the brother will inherit for he takes immediately from the deceased brother, and not by representing the father, as was held in Collingwood v. Pace, 1 Sid., 193; 1 Ventress, 413, in opposition to the opinion of Lord Coke. Co. Lit., 180 b., id., 8 a.
4. Or, leaving a nephew a citizen, the son of an alien brother, the nephew cannot inherit, whether his father be dead or living, for he cannot take immediately, and representation would be of no (248) avail as his father was an alien.
The statute of 11 and 12 William III., chap. 6, was made to cure the disabilities in the second and fourth instances put above, and the like, by "enabling natural born subjects to inherit the estates of their ancestors, either lineal or collateral, notwithstanding their father or mother or other ancestor by, from, through, or under whom they might make or derive their title were aliens."
This statute, however, did not go so far as to enable a person to deduce title as heir from a remote ancestor through an alien ancestor still living. 2 Kent Com., 55.
The act of 1801 does not follow the statute of William III., but takes broad and independent ground, so as to make an heir, irrespective of the canons of descent, when necessary, to prevent an escheat. The preamble sets forth: "Whereas it is contrary to the true policy of this Government that lands should escheat to the State through failure of blood, when any relation of the ancestor exists who, in any case, might or in justice ought to inherit the estate," and it is enacted, section 1: "When any person shall die seized of real estate of inheritance, leaving no person who can claim as heir, but leaving a widow, the widow in such case shall be taken and held to be the heir of her husband, and inherit his estate as such." Thus making an heir in disregard of the principle which requires the heir to be of the blood of the first purchaser.
Section 2: "When any person shall die seized of real estate of inheritance, leaving descendants or other relations citizens of the United States who would, according to law, inherit were all other nearer descendants or relations extinct, but who, according to the now existing laws, cannot inherit because there may be others who, if citizens, would be entitled to inherit, but, being aliens, cannot hold land in this State, whereby such land would escheat, in such case the nearest descendant (this applies to the second instance put above) or relation (this applies to the fourth instance), being a citizen of the United States, shall (249) inherit." Thus making an heir out of a kinsman who is a citizen, in disregard of the principle of representation, and rendering a reference to alien kinsmen who are nearer in degree to the deceased ancestor necessary for the purpose only of counting the degree of relationship between the deceased ancestor and such of his citizen kinsmen as set up claim to the estate as heirs under the statute — in which point of view it is obviously immaterial whether the alien kinsmen be living or dead; indeed, the wording of the statute seems to apply only to the case of nearer alien kinsmen who are living, and its application to the case of alien Kinsmen who are dead is left as a matter of necessary implication.
The act of 1801 was evidently not drawn by a lawyer. Its substance that nearer alien kinsmen, whether living or dead, shall not exclude more remote citizen kinsmen from inheriting land as heirs of a deceased ancestor; being incapable of inheriting, they are not allowed to act "the dog in the manger," and thereby cause an escheat, which was considered to be against "justice" and "the true policy of our government." This construction is necessary in order to give any effect to the statute, for, taken literally, it only applies to relations who would inherit at common law, whereas the professed object is to let in citizens who would not inherit according to the rules of the common law, although the alien relations were out of the way by reason of the rule of representation; and the obvious intention is carried into effect by giving to the statute the force of dispensing with that rule in favor of relations who are citizens, but who could not inherit if required to represent or make claim through or under their alien kin, whether dead or living.
In the case under consideration, as Robert Kyle left him surviving nephews and nieces, citizens, who are children of a deceased brother and sister, both of whom were naturalized, it might have been a question, inasmuch as these nephews and nieces are capable of inheriting according to the common law, so as to prevent any danger of an escheat, does the act of 1801 apply so as to bring in to divide the (250) inheritance with them the other nephews and nieces, who, although citizens, are the children of two alien sisters? We think, however, the question is met by the fact that the wording of the act is changed in the Revised Code, Rule 9 (Chapter of Descents), so as to drop the idea that the sole purpose was to prevent escheats, and put the rule on the broad ground that relations who are citizens shall be entitled to the land as heirs of the deceased ancestor, without reference to alien relations except for the purpose of ascertaining the degrees of relationship. It will be declared to be the opinion of the Court that the real estate mentioned in the pleadings should be divided into four parts and allotted among the petitioners and defendants per stirpes, and so much of the decree in the court below as is appealed from is reversed.
PER CURIAM. Decree below reversed in part.
NOTE BY THE CHIEF JUSTICE: After writing this opinion, I met with, by accident, the case of Rutherford v. Wolfe, 10 N.C. 272. It is in point, and sustains our construction: The grandfather and the father of the lessors of the plaintiff were both aliens and were both living. It was held that the lessors were the heirs of the grandfather's brother by force of the act of 1801. The objection mainly relied on was that the act of 1808 repealed the act of 1801. This is the only point noticed in the head-note, either in the index or in Iredell's Digest, which may account for the fact that the case had escaped the research of the very diligent and learned counsel who argued the question before us.
Cited: Harman v. Ferrall, 64 N.C. 476, 478.
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