7 Johns. 214 | N.Y. Sup. Ct. | 1810
delivered the opinion of the courts. The lessors of the plaintiff claim title under Thomas Lewis, on the ground that the inheritable .blood in the line of lineal descent of Leonard Lewis, a younger brother of Thomas, and who died seised of the premises, failed, because his granddaughter was an alien. Leonard Lewis the younger was seised of the premises in 1749, and before he went to the West Indies. He married a Danish subject in the island of St. Thomas, and died there, leaving no issue but two daughters, one-of whom died without issue, and the survivor who was born in St. Thomas, married an alien, and died, leaving a daughter, an infánt and alien, and who died also without issue. The two daughters were natural born subjects within the statute of 3 Geo. II. c. 21. because their father was a subject, but the granddaughter was clearly an alien.
If the land did not escheat in consequence of the
The only question in this case, then, is, whether Thomas or his issue could inherit, when the lineal descendant of his younger brother was án alien, find so could not inherit. There is a dictum of Newton, J. in 22 Hen. VI. 38. pi. 5. that he could not, and that dictum appears.' to have been acquiesced in by the counsel. The instance given by Newton to illustrate his position is correct, but the application fails'. He says, that if one be attainted of felony in the life-time of his father, and survives his father, the land shall escheat, notwithstanding the father left other issue or a brother living. The same doctrine is advanced in a number of later authorities. (Co. Litt. 163. b. Hob. 334. Cro. Car. 435. Dyer,48. a. Hawk. b. 2. c. 49. s. 50.) But there is a distinction between the failure of inheritable blood, by reason of alienism, and by means of attainder; and the next heir will take in the first instance, but not in the other. This distinction is to be found in Coke; (Co. Litt. 8. a.) but it is stated in the clearest manner, in the treatise on the Law of For- ■ feiture, ascribed to the son of Lord Hardwicke.
■ . (a) The honourable Charles Yorks.