14 Mo. 526 | Mo. | 1851
delivered the opinion of the court.
A citizen in this State died, leaving several slaves, and his next of kin were some brothers and nephews living in Canada, who were aliens, and two nephews living in this State, who were citizens. The question was, whether the slaves should be given to the two nephews who lived here, excluding the alien brothers and nephews from any share, or whether the property should be equally distributed among all, according to the statute of descents and distributions, without regard to alienage. The latter course was taken by the county court, and sanctioned in appeal by the circuit court and we concur in the propriety of this decision.
An injurious argument has been made by the counsel here, the object of which was to construe the 7th section of an act concerning descents and distributions, as applicable both to personal property and to real ►estate. That section provides that “in making title by descent, it shall be no bar to a descendant, that any ancestor through whom he derives his descent from the intestate is or has been an alien.” This section was designed to remove the bar of alienage or restrict it in certain eases and it was of course only designed to apply to subjects where such a bar previously existed. There is no basis upon which to rest any argument, therefore, derived from its mere phraseology, when no such bar ever did exist here, to the inheritance of personal property, either by the common law or by any statute. To what avail then is it
But the language of this section is certainly most singularly unfortunate, if it was designed to include personal property. Not only is the word descent used, about which different opinions might be entertained, but the word demandant is also used — a phrase which never could be applicable to any thing but real estate. The word demandant is a technical word, and is well understood to mean a claimant, a plaintiff in a real action, and it is never applied to designate the plaintiff in a personal action. We think it quite clear, that this section applies exclusively to real estate.
It is said that slaves ought, to be regarded as real estate, that the same policy which prevents aliens from getting control over our lands, ought to prevail in relation to our slaves. This may be so. The question of policy we are not authorized to consider. The legislature have not made slaves real property; but have expressly declared them to be personal property, and this settles the question with the court.
Judgment affirmed.