Barclay v. Cameron
25 Tex. 232
Tex.
1860
Check Treatment
Wheeler, C. J.

Upon the death of David Cameron in November, 1841, there was no one in being who, by the common law, was capable of inheriting his estate in lands in Texas. None of the parties to this suit would have been entitled, for they were all aliens, and, by the common law, incapable of taking the title to real property by descent. The land would instantly have escheated and vested in the State by operation of law, for the failure of competent heirs. (2 Bl., 249; 4 Kent. Com., 454; 2 Id., 54.) But the rule of the common law which excluded aliens from the inheritance was changed by the constitution and a statute of the Republic, so as to enable aliens to take by descent from a citizen a defeasible estate. The constitution declared that “ no alien shall hold land in Texas, except by titles emanating directly from the government of this Republic. But if any citizen of this Republic should die intestate or otherwise, his children or heirs shall inherit his estate; and aliens shall have a reasonable time to take possession of and dispose of the same, in a manner hereafter to be pointed out by law.” (Gen’l Provisions, sec. 10.) The statute of 1840, in pursuance *241of this provision, enacts that “ every alien to whom any land may be devised or may descend, shall have nine years to' become a citizen of the Republic and take possession of such lands, or shall have nine years to sell the same before it shall he declared to he forfeited, or before it shall escheat to the government.” (Hart. Dig., Art. 585.) The effect of these provisions was to enable aliens to acquire the title to real property by descent equally with citizens. And so it has been decided. (Cryer v. Andrews, 11 Tex. R., 170.) The consequence is, that upon the death of the intestate, the lands descended to the appellees, who were his sisters, and whom the law pointed out as his heirs, to the exclusion of the appellant, who was his uncle. (Hart. Dig., Art. 577.) The appellees as sole heirs of the intestate inherited his estate. The title vested in them instantly upon his death, by descent, subject to be defeated by their failure to become citizens, or to dispose of the estate by sale, within the period prescribed by the statute.

That the appellees were the heirs, and that a defeasible estate vested in them by inheritance immediately upon the death of the intestate, cannot admit of a question. The terms used in the constitutional and statutory provisions are “ children or heirs,” “inherit,” “descend.” These terms have a certain and fixed meaning, which cannot be mistaken, “ Descent,” or hereditary succession, is the title whereby a person on the death of his ancestor, acquires his estate as his heir at law. An heir, therefore, is he upon whom the law casts the estate immediately on the death of the ancestor, and an estate so descended on the heir, is in law called the inheritance. (3 Cruise, 318; 2 Bl. Com., 201.) The appellees were the heirs of the intestate; and unquestionably the estate of which he died seized vested in them immediately upon his death in November, 1841, by force of the provision of the constitution and statute. It was an estate upon condition that within nine years from the death of the ancestor, they should become citizens, or should sell the land. The law annexed this condition to the estate. It was a condition in law, and more properly a limitation than a condition, and the estate, it would seem, a qualified or determinable fee—determinable upon the failure to perform the condition within the time limited for its performance. *242(2 Bl. Com., 154, 155, 156; 4 Kent Com., 129.) Such appears to have been the view taken of the estate of the alien heirs in Cryer v. Andrews, (11 Tex. R., 182.) But it is not perceived that the failure of the appellees to perform the condition annexed to the estate, could enure to the benefit of the appellant, or confer any right upon him. The estate took its direction upon the death of the ancestor of the appellees, and vested in them as the heirs. He could not succeed to them, nor could he succeed to the ancestor, out of whom the estate had already passed by his death. The descent was cast upon the heirs by the death of the ancestor. The appellant was wholly without right; and it is difficult to comprehend how he could afterwards acquire the estate by operation of law. He was neither a citizen nor an heir. “ An heir is he upon whom the law casts the estate immediately upon the death of the ancestor.” Not being then an heir, he could not become so by matter ex 'post facto. He was an alien, excluded by the common law, though the appellees had not been in being, and not capacitated by the statute to take, because not an heir. Not being an heir, his after acquired citizenship by force of annexation, did not bring him within the provision of the statute. That was enacted for the benefit of the “ children or heirs.” They only were within its provision. The appellant therefore acquired no right to the estate by becoming a citizen before the expiration of the nine years; but it remained vested' in the heirs during the prescribed period, unaffected by his intervening citizenship. If at the expiration of that period they failed to perform the condition, and the estate became thereby forfeited or escheated, the forfeiture or escheat could not enure to his- benefit. It could not confer on him the right to come in to succeed them and intercept the reversion to the State. They had the nine years to acquire an indefeasible estate. Upon their failure, at the expiration of the time limited, it might be “declared forfeited,” or “escheat to the government.” The declaration, of a forfeiture would require a judicial proceeding to he provided by law. (Hancock v. McKinney, 7 Tex. R.) Its-effect would be to divest the title out of the heirs, and vest it in the State. But whether the estate be declared forfeited by the heirs for their failure to perform the condition, or escheat for the *243want of heirs competent to take, it would enure to the benefit of the State, and not to a private person. Whether it was an estate upon condition subsequent, which required entry; or a judicial proceeding on the part of the State to take advantage of the breach of the condition, or an estate determinable without judicial enquiry, it would take the same direction. Or, if the effect of the statute was to suspend the complete operation of the descent until the condition was performed, it was for the benefit of the heirs, and the effect of their default would be the same.

The estate could not remain in the intestate after his death, and the default of heirs and consequent escheat must relate to the period of the death of the intestate. Whatever portion of the estate did not descend, necessarily vested instantly in the State as the original ultimate proprietor. In no event could the default of the heirs enure to the benefit of the appellant. It is a general principle in American law, says Chancellor Kent, which is everywhere declared and asserted, that “when the title to land fails from defect of the heirs or devisees, it necessarily reverts or escheats to the-people, as forming a part of the common stock to which the whole community is entitled.”

The rule of the common law is, that “whenever the owner dies intestate, without leaving any inheritable blood, or. if the relations whom he leaves are aliens, there is a failure of competent heirs, and the lands vest immediately in the State by operation of law.” (4 Kent. Com., 424.) So if an alien purchase or if land be devised to him, though he may take and hold until inquest of office, yet if he should die before inquest had, “upon his death the land would instantly and of necessity, (as the freehold can not be kept in abeyance,) without any inquest of office, escheat and vest in the State.” (2 Id., 54.) Upon no principle could the failure' of the appellees to secure the inheritance operate to transfer the estate to the appellant.

When the constitution of the Republic was adopted, many of the persons engaged in the formation of the new government had but recently emigrated to the country, and many of them had children or near relations who were aliens, to whom they wished to secure their estates in Texas in case of death. Hence, in, *244forming the constitution, they provided that if any citizen should die intestate “his children or heirs,” though aliens, should inherit his estate. The provision of the statute giving nine years to become citizens ór dispose of the land was enacted to effectuate this provision. It was a special favor or privilege which was extended to the children, or relations whom the law pointed out as the heirs of the deceased citizen. But if they failed to avail themselves of the privilege extended to them, it was not provided that their right should be transferred, by operation df law, to other remote kindred, or to persons not of the favored class or description for whom the benefit had been provided; but the estate was to become liable to be “declared forfeited” orto “escheat to the government.” Remote kindred were not within the spirit or intention of the provision; and they were not provided for, unless in exceptional cases, where there was a defect of near relatives ; they would then be embraced in the general term “heirs.” By the common law, as we have seen, the appellant could in no event have been entitled. He was not of the description of persons entitled to the benefit and privilege conferred by the constitution and statute. All the rights an alien can have are derived from these, and they confer none upon the "appellant.

It is an insuperable objection to the claim set up by the appellant, under the common law, that he was an alien at the time of the descent cast and under the statute that he is not an heir. Hone but an heir can inherit; and while the sisters of the deceased survived they "are the heirs, not the appellant. “If a father be seized in fee, and the son commits treason and is attainted, and then the father dies, here the lands shall escheat to the lord, because the son, by the corruption of his blood, is incapable to be heir, and there can be no other heir during his life.” (2 Bl. Com., 253.) So in the present case, the sisters being the heirs, none of the remoter kindred can be during their lives; and if they forfeit their estate, or suffer it to become determined, and to es-cheat, there is no known principle of either the common or statute law upon which the appellant can succeed to the inheritance. It is a controlling principle which must govern the disposition of this ease that none but an heir can inherit. The appellant can have *245no right to the inheritance, and, consequently, no standing in court; for it is only as heir that he claims the estate. His title having failed, it results that he is wholly without right to maintain this action. It does not become necessary to inquire further in this case respecting the rights of the appellees. The court held rightly that the appellant was without title; "and as he was the plaintiff, the proper judgment which should have been rendered was, simply, that' the case be dismissed, and such will be the judgment here rendered.

Reversed and dismissed.