7 Wend. 333 | N.Y. Sup. Ct. | 1831
By the Court,
The question in this case is, whether the children and heirs at law of James Doran are entitled to inherit the real estate of Felix Cunningham, or whether it escheats to the state. It is contended on the part of the plaintiff that upon the death of Cunningham, the estate passed to James Doran, who was then living.
An alien cannot hold real estate by descent, though he may by purchase until office found ; but if he dies before office found, the property will escheat. An alien by the common law has no inheritable blood through which a title can be deduced, and cannot transmit the estate. 2 Kent’s Comm. 46. Naturalization gives the alien all the rights of a natural born citizen \ he thereby becomes capable of receiving property by
Cunningham and Doran, both being citizens, had capacity to transmit and to take by descent, provided that descent be immediate; but the difficulty in this case arises from the fact that Doran must inherit, if at all, through alien ancestors. It is stated by Coke, Co. Lit. 8, that if there be two sons subjects, the father an alien, if one of the sons be seised of land and die, the other cannot inherit, because there was no inheritable blood between the father and the sons, and when the sons cannot be heir to the father, neither shall be heir to the other ■—this doctrine must have rested upon the supposition, that the surviving brother must inherit, if at all, through the father, and as the father could not inherit, so neither should the son. A contrary doctrine was established in Collingwood v. Pace, 1 Ventr. 413. It was there held that one brother should inherit from the other, because the descent between brothers was immediate, as from father to son; not that he could derive title through the alien father. The father could never inherit from his son, though a natural born subject, because inheritances in England never lineally ascend. 2 Black. Comm. 208.
As this case must be determined according to the rules of the common law, not being embraced in any of our statute alterations, it will be proper to refer to some of the canons of descent. 1. The first rule laid down by Blackstone is, that inheritances shall lineally descend to the issue of the person who last died actually seised in infinitum, but shall never lineally ascend. 2d. The male issue shall be admitted before the female. 3d. When there are two or more males in equal degree, the eldest only shall inherit; but the females all together. 4th. The lineal descendants in infinitum of any person de
Suppose, however, Eleanor Doran to be dead, then James Doran’s heirs claim as the heirs at law of Felix Cunningham, and must derive title through his mother and his aunt, who were both aliens. Patrick and John Doran, the'elder brothers of James, being aliens, could not take, and therefore shall not impede the descent: this is an instance which shews the application of the rule that an alien who cannot take, shall not impede the descent. If Eleanor Doran were a citizen, and the owner of the property in question, and her two eldest sons aliens, the third a citizen, the property shall not escheat, because the government cannot take it so long as there is an heir to the last owner, who derives title by passing by, not through the alien sons. The lessors of the plaintiff cannot be-rive title in any other manner than through aliens ; they therefore cannot take at the common law. The statute 11th and 12th Wm. III. ch. 6, was intended to apply to such a case, by enabling natural born subjects to inherit the estate of their ancestors, either lineal or collateral, notwithstanding the ancestors, through whom they derive title were aliens ; but this statute has never been adopted here until the last revision Of our statutes, which cannot affect this case ; and if adopted, would not authorize the deduction of title through an alien ancestor still living. 2 Kent’s Comm. 48.
I consider it Well settled, both upon English and American authority, that a citizen cannot inherit through an alien at the