64 Conn. 277 | Conn. | 1894
The appellant claims to be aggrieved by the probate decree of distribution, as an heir at law and next of kin to the intestate, and also as a citizen of the State, acting for himself and all the rest of its citizens. His contention is that either the real estate in question escheated to the State, in which case he, as one of its citizens, has an interest in defeating a distribution to private individuals; or else that an escheat, so far as he is concerned, has been prevented by force of the statute of 11 and 12 Wm. III., Chap. 6, in favor of inheritances by natural born citizens.
It was a rule of the common law of England that “ on failure of lineal descendants or issue of the person last seised, the inheritance shall descend to his collateral relations, being of the blood of the first purchaser.” 2 Blackst. Comm., 220. The requirement that the heir musts be of the blood, that is, descended from the first purchaser, was something peculiar to the feudal system. It rested on the principle that feuds were granted for personal service and personal merit, and that like service and like merit, on the part of the successors in estate of the feudatory, would be best assured by admitting to that- number only those who derived their natural characteristics from him by descent. A legal fiction was next invented, by which, failing direct descendants of the person last seised, his collateral heirs were deemed to be of the blood of the first purchaser; that position being arbitrarily assigned to the common ancestor, whether in fact he
It is this regard paid by the common law to the original purchaser of the estate, real or fictitious, that led it to reckon degrees of consanguinity in accordance with the canon law, by simply going back to the common ancestor, without then proceeding, as bj^ the civil law, to compute the degrees between him and the intestate.
The real estate tenures of a country are necessarily an important feature of its political system. The institution of feudalism and primogeniture were obviously unsuited to the conditions under which New England was first settled, and her people looked more to the civil than to the common law to guide their policy as to the distribution of landed estates. 2 Washburn on Real Property, 404, 408.
In October, 1639, the General Court of Connecticut, upon the report of a committee, which had been appointed “ to ripen some orders that were left unfinished the former Court,” as to the “ settling of lands, testaments of the deceased,” and other matters, enacted that intestate estates should be divided by the Public (or Particular) Court between the wife, children, or kindred, “ as in equity they shall see meet;” and if no kindred be found, the court “to administer for the public good of the Commonwealth.” 1 Colonial Records of Conn., 38; Ludlow’s Code, id., 553. In the Revision of 1673 (Ed. of 1865, p. 36) the provision is that such estates be divided between the wife, and children or kindred “ according to Law, and for want of Law, according to rules of Righteousness and Equity; And if no Kindred be found, the Court to Administer for the publick good of the Colony.” At the close of the century, in 1699, a statute of distributions was passed, copied mainly from that adopted several years before in Massachusetts. It put all the children of an intestate on a footing of equality, except
This course of legislation plainly set up for the Colony of Connecticut rules of inheritance differing fundamentally from those of the common law of England. For that cause, our statute of distribution was pronounced null and void by the King in Council, in the well-known case of Winthrop v. Lechmere, in 1727-8. 7 Colonial Records of Conn., 191, 571-9. That judgment was, however, practically disregarded in the Colony; and the statute was finally sustained, as a legitimate exercise of chartered rights, by the same tribunal, in 1745, in the case of Clark v. Towsey, 9 Colonial Records of Conn., 587-593.
This had been the uniform doctrine of our own courts. “ The English law of descents has never been admitted in this State.” Heath v. White, 5 Conn., 228, 233. The common law maxim, seisina faeit stipitem, was never accepted here. Hillhouse v. Chester, 3 Day, 166, 211; Bush v. Bradley, 4 id., 298, 305. The computation of degrees of relationship between an intestate and his heirs has always been made according to the rule of the civil law. Hillhouse v. Chester, supra. Bastards have been allowed to inherit through their mothers, without regard to the common law doctrine as to
The only indication, either in our legislative or judicial records, of the recognition in this Colony of the common law doctrine that no title to an inheritance could be traced through alien blood, which has been brought to our attention by the researches of counsel, is that contained in a private act passed by the General Assembly in 1774. By this statute, entitled “ An Act for the Naturalization of Francis Forgue, for confirming the Purchase of Real Estate by him made and rendering his Issue capable of inheriting,” a grant of naturalization was made to Francis Forgue, a Frenchman, who had purchased lands in the Colony and resided in Fairfield; his title to these lands was confirmed; and it was declared that his son, Francis Forgue, Jr., was and should be “as capable of inheriting and taking by descent or purchase all and any real estate or estates whatsoever as he might, could, or would have been, had the said Francis, the elder, been compleatly naturalized as aforesaid before the birth of the said Francis, the younger.” 14 Colonial Records of Conn., 308-9. It is, doubtless, true that this express provision in favor of the son was made in order to assure or confirm his title, should he survive his father and become his heir, to the lands acquired by the latter while still a subject of France, as well as to any which he might subsequently purchase ; and it is probable that it was inserted in view of the rule of common law that naturalization by Act of Parliament enables the son of the alien so naturalized to inherit from him, though born before the passage of the Act. Such was not the case, if the alien had only been made a denizen, by letters patent from the crown (Co. Litt., 129), and the draftsman of our statute could hardly have felt safe in assuming that greater effect, even in our own courts, would be given to a colonial than to a royal grant, unless it was plainly required in express terms. So late as 1795 it was an unsettled question in this State whether a conveyance of land to an alien might not
• It is therefore our opinion that the common law rule of the exclusion from inheritance of all tracing their descent through uninheritable blood was never in force in Connecticut, and that there was no error in the decree of distribution to the first cousins of Patrick Sloan, notwithstanding their relationship to him through alien ancestors.
Another first cousin was the mother of the appellant; but as she died before the intestate, and there is no representation among cousins under our statute of distribution, the appellant had no right to share in the inheritance, as one of the next of kin; nor has the State (if he could make claim in its behalf) any interest in the lands, since there has been no escheat.
The extent of whatever interest the appellant could claim in the estate appeared on the face of his appeal to the Superior Court. He could appeal only if “ aggrieved ” by the decree ; and as he was neither next of kin, nor heir at law, nor representative of any party in interest, the cause was properly erased from the docket. His allegation that he is “ aggrieved both as an heir at law and next of kin,” is a mere averment of a legal conclusion from the facts previously set up, and these show that it is wholly without foundation.
The appellant claims that as, if his mother had been first purchaser of the land in controversy, he could have claimed it as ancestral real estate, under General Statutes, § 632, the motion to erase should have been denied. But had he such a claim to make, he was bound to set out the facts upon which it arose. In the absence of such allegations, and in the face of others showing that he is not the next of kin, the bare statement that he is the heir at law could not avail to defeat the motion to erase. Norton’s Appeal, 46 Conn., 527.
There is no error in the judgment appealed from.
In this opinion the other judges concurred.