2 Johns. Cas. 29 | N.Y. Sup. Ct. | 1800
It appears that John Kelly was a subject of Great Britain previous to the revolution ; that he resided at that time in the city of New York, and continued to reside in this state until his death, in 1798. His widow, the present demandant, has always resided in Ireland, and continued a British subject. She had, therefore, antecedent to the revolution, a capacity, in the'event of her husband’s death, to take and demand her dower. The question is, whether by the revolution she is deprived of that right. If the case had been silent as to her continual residence abroad, it might have been presumed that her condition followed that of her husband; but she is expressly stated to be a British subject, and always to have remained in Ireland. I think the validity of her claim, therefore, depends on the genera] question, how far the rights of individuals with regard to property, are af
In general, the severance, or revolutions of empire, I think, ought not to affect the rights of individuals with regard to property, and it does not appear to me, material, whether that right be contingent or absolute. It is sufficient that it had a commencement or inception, and actually attached to a specific subject. In the present case the demandant by her intermarriage with John Kelly, had, previous to the revolution, acquired a right, eventually, in case of his death, to be endowed of the estate of which he was then seised. The right was thus far acquired, and although dependent on the contingency of her surviving him, she ought not to be deprived of it by the circumstance, that a revolution intervened, before the contingency happened. Until the period of the revolution, she, therefore, had a capacity and a right to be endowed at his death, of the lands of,which he was then seised, and had been seised during the coverture, and that right must be deemed to continue. I think, however, it ought not to be extended beyond that period, and applied to lands subsequently acquired. At the revolution she became an alien, and her husband an American' citizen. The independence of this country, by creating a,new sovereignty, necessarily had that effect. (Black. Com. 131; Co. Lit. 31.) The general principle, therefore, that an alien cannot be endowed seems to be properly applicable to all lands which her husband acquired, in the character of an American citizen. This qualification of her claim will not affect any
*1 am, therefore, of opinion, that the demandant is entitled to judgment, in respect to those lands only, of which her husband was seised before the revolution; to wit, on the 4th of July, 1776.
The demandant must be ■ considered as an alien. She was not in fact a resident of the United States, at the declaration of independence,(
Being an alien, the next point that arises in the case is, how far she can support her claim of dower.
I admit the doctrine to be sound, (Calvin’s case, 7, Co. 27, b. Kirby Rep. 143,) that the division of an empire works no forfeiture of a right, previously acquired, and as a consequence of it, that all the citizens of the United States, who were born prior to our independence, and under the allegiance of the king of Great Britain, would be still entitled in Great Britain to the rights of British subjects. But the rule will not apply, e converso, that British subjects have with us the privileges of citizens ; and for this evident reason, that the sovereignty of the United States was created by the act of independence, and There could be no previous right acquired in respect to it, and conseqently none to lose, nor could it include any persons, other than residents at the time, within its jurisdiction. The revolution, accordingly, left the demandant where she was before, and impaired no right she then enjoyed. She is entitled now to dower in all lands of which she wouldiiave been dowable, had her husband died at that time. But being an alien she cannot since have acquired rights of property which aliens are not permitted to acquire; and to render her dowable of lands pur
By marriage, she was capable of being endowed of lands purchased by her husband at any time during the coverture. But the right could not attach till the land was purchased,' and I distinguish between the capacity to acquire and the vested right. The revolution took away the one, and did not impair the other.
I am of opinion, therefore, that if the lands of which dower is now claimed, were owned by the demandant’s husband, on the 4th July, 1776, she is entitled to dower; otherwise, not.
Benson, J. concurred.
Lansing, Gh. J. It has already been stated, that the only question which arises in this cause is, whether the demandant is capable of taking as tenant in doioer ?
It was admitted in argument, that the demandant, prior to the declaration of independence, had a capacity to take as such.
In determining this question, 1 do not think it necessary to enter into a minute consideration of the effects which the separation of the United States from Great Britain, had on the situation of the subjects of that crown, inhabiting its dominions, beyond those states, as respects their rights in them, prior to the revolution.
T think, however, neither justice, sound sense, nor the just interpretation of the authorities submitted to our consideration, or such as I have had an opportunity of examining with a view to this question, impose it upon the court to decide on principles analogous to those which influenced the decisions of the English courts in the several stages in which they acquired or lost their continental possessions.
The event most analogous in English history to the separation of the United States from Great Britain, is that of the loss of Normandy. The Normans claimed England by conquest, and, however much it may be affected to be disguised, actually exercised the most rigorous rights derived
Their sovereign, however, remained in England. Upon the separation of those states, it appears from 7 Co. 20, that it was held there, that all such lands as any Norman had, either by descent or purchase, escheated to the king, for their treason in revolting from their liege lord and sovereign. This was on the principle of a rebellion against their feudal chief; hut the dictates of policy must, obviously, have exclusively influenced an opinion so extremely rigorous and unjust, as to define the treason by territorial limits, and to subject the Normans, however diversified their cases might be, in consequence of their promoting or assisting the separation, to an indiscriminate loss of property.
This case cannot, therefore, be admitted as of any weight in forming a rule here.
In all the other instances presented in English history, the countries lost or acquired, were merely in right of the crown. The principle is universally admitted in all the authorities, that birth in its locality, is the test of subjection. A person under the allegiance of that crown, has a community of rights as a subject, and owes allegiance *to it as such. The object to which that allegiance attached continues to exist: and a new modification of the forms of government, as respected its executive, would not be permitted to vary its application.
But the present case appears under a somewhat different aspect. The United States formed a portion of the British dominions, but had no constitutional influence on the national will; the colonies were confessedly subordinate. Among them were found no objects to which allegiance, as derived from the previously existing government, could attach. I merely hint at this distinction, as 1 do not not mean to pursue or give any opinion on it. It is important, but the manner in which I contemplate the subject, does not lead me to a particular investigation of its tendency.
I am, therefore, of opinion, that she is entitled to recover, whether the seisin of her husband of the land of which she claims her dower, was before or after the revolution.
Lewis, J. was of the same opinion.
Judgment for the demandant, for dower in lands of which her husband was seised prior to the revolution.
(a) An alien is detlhed to be one who is born out of the ligeance of the king, Com. Dig. tit. Alien, A.; Lit. Sec. 198 ; Wood's Inst. 23 ; 1 Inst. 198, b.; 1 Wood, 386 ; Calvin’s case, 7 Co. 16, a.; or commonwealth, per Parsons, Ch. J. in Ainslie v. Martin, 9 Mass. R. 454, 459 ; Martin v. Woods, id. 377 ; as for example one born within the British dominions before the American revolution, and who was never in the United States. Principal case. Jackson v. Burns, 3 Binney, 75. Dawson v. Godfrey, 4 Cranch, 321. Lambert’s Lessee v. Paine, 3 id. 97. And see S. C. per Minor, arg. 104-108. The distinctions between the antenati and postnati, in reference to our revolution, have frequently been the subject of judicial discussion. The latter are cltiaens by a tie too strong to be dissolved without the assent of the government. (United States v. Gillies, Peters’ C. C. R. 161. The Same v.Williams, 4 Hall’s Am. Law Journal, 361. See 2 Cranch, 82, n. Ainslie v. Martin, cited supra, per Parsons, Ch. J. See also Inglis v. Sailors’ Snug Harbor, 3 Peters, 125. Talbot v. Janson, 3 Dallas, 133. See Murray v. The Charming Betsey, 2 Cranch, 120. Murray v. McCarty, 2 Munf. 393. Santissima Trinidad, 7 Wheat. 348, where this question is stated, but not determined. See also 2 Kent’s Comm. 43-50, where the question is considered whether the English doctrine of perpetual allegiance applies in its full extent to this country.) But whether the former are so, depends upon their intention to enter into the Commonwealth at the time of its formation, or to avoid it and seek some other allegiance. In Jackson v. White, 20 Johns. 313, Spencer, Ch. J. said : — “ We are called upon to discuss and decide this question, as a mere matter of private right, when all the feelings and passions, incident to so mighty a revolution, have subsided. I think it cannot be doubted, that when a people, from a sense of the viciousness of the government under which they have lived, are driven to the necessity of redressing themselves,
(a) A married woman follows the domicil of her husband. Voet ad Pand. lib. 5, tit. 1, No. 101. Warrender v. Warrender, 9 Bligh, 89, 103, 104. Greene v. Greene, 11 Pick. 410. This results from the general principle that a person who is under the power and authority of another, possesses no right to choose a domicil. Encyc. Am. tit. Domicil. Poth. Gout. d’Orleans, c. 1, art. 10. 2 Domat Pub. Law, b. 1, tit. 16, § 3, art. 11, 13. Merlin Repert. Domicil, § 5. Mulierem quamdiu mipta esl, incolam ejusdem eivitatis videri, cujus manías ejus est. Dig. lib. 50, tit. 1,1. 38, § 3. Id. lib. 5, tit. 1, 1. 65. Pothier Pand. lib. 50, tit. 1, No. 24. 2 Domat Pub. Law, b. 1, tit. 15, § 3; art. 12. Voet ad Pand. lib. 5, tit. 1, No. 101. And upon this general principle, minors are generally deemed incapable proprio marte of changing their domicil, during their minority, and therefore they retain the domicil of their parents, and if the parents change their domicil, that of the infant children follows it; and if the father dies, his last domicil is that of the. infant children. Dig. lib. 50, tit. 1,1. 9. Pothier Pand. lib. 50, tit. 1, n. 3. Cout. d’Orleans, c. 1, art. 32, 16. 2 Domat Pub. Law, b. 16, tit. 16, § 3, art. 10. Guier v. O’Daniel, 1 Binney, 349, 351. Voet ad Pand. lib. 5, tit. 1, n. 91, 92, 100. Story on Conflict of Laws, § 46. See also Burge Comm, on For. & Col. Law, vol. 1, p. 32-57. Henry on Foreign Laws, App. A. 181-209. Denizart Die. art. Domicil. Merlin Rep. art. Domicil. Encyclopedia Moderno, art. Domicil_ jEncyclop. Americana, tit. Domicil.