Rubeck v. Gardner

7 Watts 455 | Pa. | 1838

The opinion of the Court was delivered by

Sergeant, J.

The charge of the judge below presents in a succinct and clear manner the history of Pennsylvania legislation on the subject of the right of aliens to hold and transmit real estate. The plaintiff in error relies on certain points arising upon this charge, as entitling him to a reversal of the judgment.

1. It is suggested that without office found the estate would descend to the heir. But the law is, that if an alien purchase land, or if land be devised to him, he may take and hold until an inquest of office; but upon his death the land would instantly and of necessity (as the freehold cannot be kept in abeyance), without any inquest of office, escheat and vest in the state, because he is incompetent to transmit by hereditary descent. See the cases cited 2 Kent’s Comm. 54. If therefore John Lawyer was incapable (on account of alienage) of holding real estate in Pennsylvania and of transmitting it to alien heirs, his estate escheated to the commonwealth on his death without inquest of office; it became vested in the commonwealth, and they bad power to transfer it by act of the legislature to the widow, who took it subject to the rights of others by the express saving in the act. When the legislature therefore, by the act of the 25th of February 1814, granted to Ann Maria Lawyer, the wife of the deceased, the interest which they had by escheat, they passed the estate accruing to them by the alienage of the heirs.

2. The main question raised by the plaintiff in error is, on the due construction of the act of 23d of February 1791: did that act, as the plaintiff in error contends, authorize a citizen or subject of a foreign state to take lands in Pennsylvania by devise or descent from an alien who had purchased them without having complied with the conditions imposed by law1? It seems to me that this construction would be contrary to the letter of the act and its whole object and design. The act was passed, as the preamble recites, for the encouragement of persons purchasing lands in this state; and therefore must naturally refer to persons purchasing lawfully, and not to persons acquiring lands here contrary to law. It enables every person, being the citizen or subject of any foreign state, to acquire and take, by devise or descent, lands and other real property in this commonwealth. A title by devise or descent is a derivative title ; it can rise no higher than its source. The devisee or heir can only take what the ancestor had. But if the ancestor was an alien, and as such incompetent to take, and on his death his property escheated, there was nothing to descend or pass by will. If this act were to receive the construction contended for by the plaintiff, the heir or devisee of an alien would enjoy a greater and more entire estate than the alien himself had : whereas, it would seem to be the object of the act to enable a party to transmit an estate legally purchased. To enable the alien heir to hold what his ancestor was prohibited bylaw from holding, would be giving a boon to an illegal act. Great relaxations in the common law have taken place in Pennsylvania from the period of the revolution to encourage foreigners to come to Pennsylvania and purchase lands, but then it has required those foreigners before purchasing to conform to certain requisites: if they did so, they were enabled by the act of 1791 to transmit their property, but not otherwise. Those who bought without conforming to these requisites were left unprovided for. Many cases were saved by the act of the 24th March 1818. But even this act on careful inspection would seem not to furnish a remedy for the precise case before us. The first section is prospective, enabling aliens to purchase and hold lands not exceeding five thousand acres, The second section confirms past purchases by emigrants residing here, made previous to declaring their intentions to become citizens of the United States and who had been naturalized after the purchase. The third section embraces the case of aliens who had purchased and sold, and of those who had died without being naturalized. The present is the case of a purchase by an alien resident, who purchased and died without having sold, without having been naturalized and without having declared his intentions of becoming a citizen. It is not however necessary to decide this point, because if the case is embraced by the last section, it falls within the proviso saving vested rights. The state had conveyed its right by escheat to the widow in 1814, and she had sold in the same year to Trauger, under whom the defendant claims. It may be added that the latter clause of this section is a very clear recognition by the legislature of the operation of the then existing law; for if the doctrine contended for by the plaintiff is correct, then by the act of 1791 the estate would have passed to the alien heirs on the death of the alien ancestor; there was no heed of confirming the title of alien heirs of an ancestor who had died without being naturalized.

Judgment affirmed.