| S.C. | Feb 4, 1878
The opinion of the Court was delivered by
This was an action to recover possession of certain real estate in the County of York. Both parties claim under William Hacket, Sr., as a common source of title — the plaintiffs as his next of kin and heirs-at-law, and the defendants as the alienees of his devisee. The plaintiffs contend that though William Hacket, Sr., did leave a will duly executed, yet as to the real estate in controversy he died intestate, and that they, as his only next of kin capable of inheriting, are entitled to the land.
The defendants deny both of these propositions, and contend that the land was well devised by the will, and has come to them from the devisee; but, failing in establishing this proposition, they insist that, even if William Hacket, Sr., did die intestate as to this land, the plaintiffs are not entitled to claim it as next of kin and heirs-at-law.
The facts upon which these questions are to be determined are all conceded and are fully stated in the decision of the Circuit Judge. It is contended on the part of the plaintiffs that inasmuch as Hugh Hacket, the devisee named in the second clause of the will, who was an alien, died before he became qualified, “ according to Acts of Congress of the United States of America, to take and to hold said real estate,” the devise to him failed, because it was only upon his
Looking, then, to the terms of this will in this spirit, we cannot fail to see that the testator had in his mind certain prominent intentions :
1st. An intention to dispose of his whole estate; for besides the legal presumption arising from the mere making of the will, we find him saying in the preamble that he is “ desirous of disposing of my worldly estate,” by which phrase persons are universally understood to express an intention of disposing of all their property or “ worldly goods.” We next find him, after making various specific dispositions of portions of his property, providing in the fourteenth clause — which must be regarded, as the late Court of Appeals, in Mallet vs. Smith, (6 Rich. Eq., 12,) did regard it, as the residuary clause of tbe will — not only for the disposition “ of anything not included in the above and not hereinbefore disposed of,” but also for the disposition of “ any legacies that may fall back.” These last quoted words conclusively show that the intention of the testator was to provide in this, the residuary clause of the will, not only for the disposition of such property as he may have overlooked in the previous clauses of his will, but also for the disposition of such as might from any cause, whether from lapsed or void legacies or devises or otherwise, fall back into his estate. Nothing can be clearer than that the testator intended that in no contingency should he be regarded as intestate as to any portion of property.
2d. The next prominent intention which appears from the terms of the will is an intention to make his brother Hugh the principal, object of his bounty, and after him, in succession, the two sons of Hugh — William and James. This is so manifest that it is alto
Finally, it appears that the testator did,-by the second clause of his will, devise the land in question to R. G. McCaw, in trust for the use and benefit of Hugh Hacket, in which clause he uses the following words: “The legal title to remain and be vested in the said Robert G. McCaw until such time as the said Hugh Hacket, now an alien, shall become duly qualified, according to Acts of Congress of the United States of America, to take and to hold said real estate. When the said.Hugh Hacket becomes so qualified, the said Robert G. McCaw is hereby directed to execute to the said Hugh Hacket a valid conveyance, in fee, to said tracts of land and house and lots, the rents and profits of said Turkey Creek tract and house and lot in Yorkville to go to the said Hugh Hackett from the time of my decease.”
The question then to be considered is, what is the true construction of the words of the will above quoted ? Are they to be construed literally, so as to require, as a condition precedent to the vesting of any estate in Hugh, that he should become a naturalized citizen of the United States, or are they to be construed as meaning simply this: that the testator desired to give this property to Hugh, but was only prevented from so doing in absolute terms, vesting a then present estate, by the fact that the alienage of Hugh prevented Him from holding real estate, and that so soon as such obstacle was removed he was then to be invested with the full benefit of the bounty clearly intended for him ?
Considering this question in the light of the prominent intentions hereinbefore alluded to, which, upon reading the will as a whole, stand out in bold relief) we are irresistibly led to the conclusion
We cannot suppose that this proposed bounty was intended as an inducement to his brother to abandon his native land and become a citizen of this country. Such a view is contradicted by the whole tenor of the will. Everything that an alien was capable of taking and holding, even the slaves, for some of whom the testator manifested special care, were given to Hugh without any condition whatever as to naturalization. In addition to this the testator gives to his brother Hugh the rents and profits of the real estate from the time of his decease, showing clearly that his intention was that Hugh should have every benefit from the property possible for an alien to have. This leads to the irresistible inference that but for such disability he would take the absolute estate in the land too. If the property was intended to be offered to him merely as a bribe to become a citizen of this country, it is scarcely probable that he would have been given every benefit to be derived from the property without requiring him to renounce his allegiance to the British Crown and become a citizen of the United States.
The language of the clause under consideration, especially when read in connection with the sixth clause of the will, as it is not only allowable but proper to do, certainly admits of the construction which we have placed upon it. In that (the sixth) clause, the testator, in the event of the death of his brother Hugh and his nephew William before his own death, gives the real estate in qnestion to McCaw in trust to hold the same and convey it to his nephew James, who was an alien, “when the said James becomes legally qualified to take and hold said real estate.” Now, it cannot be doubted that this language must be construed to mean that James was to have the legal estate whenever he should in any manner become qualified to hold it, whether by naturalization or otherwise. Hence, to give the language of the second clause a strictly literal construction, as contended for by the plaintiffs, would involve us in the absurdity of supposing that the testator intended to place more stringent restrictions upon the capacity of his brother to take — manifestly the primary object of his bounty — than he did upon a more distant relation, one who was not only not the primary object of his bounty but two degrees removed beyond it.
It will be observed that the language of the second clause is, not when Hugh Hacket shall become a citizen or become naturalized, according to Acts of Congress, which would carry with it something more than the mere right to take and hold real estate, but the language is “ shall become duly qualified, according to the Acts of Congress of the United States of America, to take and to hold said real estate, not to acquire the right to vote or any other political right, which is the real object of such Acts of Congress. In fact, speaking with strict technical accuracy, it is not correct to say that an alien acquires any more capacity to hold property by virtue of these Acts of Congress, as such rights have their origin solely in the laws of the States. We regard, therefore, the language used in the second clause of the will as a loose and inaccurate form of expressing the same idea which in the sixth clause is embodied in more comprehensive and correct terms, viz.: That as the objects of the testator’s bounty were, by reason of their alienage, incapable of holding real estate, provision was made whereby the legal estate should be held by a trustee until such incapacity was removed. And when we find a testator applying the terms “devise” and “bequeath” indiscriminately to real and personal property, we are prepared to expect to find similar inaccuracies of expression in other portions of the will and in relation to other matters.
This being the proper construction of the terms of the second clause of the will, it follows necessarily that there was no intestacy as to the real estate in question, and hence that the plaintiffs failed to establish their right to recover; for even if, as was argued, Hugh Hacket failed to acquire the capacity to hold real estate by the proceedings taken by him for the purpose of becoming a denizen, he certainly became legally qualified to hold such real estate by virtue of the provisions of the Act of 1872, (15 Stat., 73,) placing
It is not true, as has been supposed, that the decision of the late Court of Appeals in the case of McCaw vs. Galbraith (7 Rich., 74,) precludes us from taking the view hereinbefore advanced. That case, though not relied upon as having the effect of res adjudícala, as it could not be for lack of the necessary identities, it is contended, authoritatively determines certain principles which are inconsistent with the construction which we have placed upon this will. We do not so understand it. In that case not more than two Judges out of the six composing the Court agreed upon any proposition except the point actually decided in the case ; and that point was that the inquisition of escheat should be quashed, because the case as made by the proceedings did not show that the escheator was entitled to possession of the real estate of which William Hacket died seized and possessed. Anything else to be found in the case must be regarded as merely an obiter dictum; and though entitled to the highest respect on account of the source from which it comes, certainly does not carry with it the weight of authority. And in estimating the weight to be allowed to the dictum relied upon by the plaintiffs, we must remember that at the time that case was heard Plugh Hacket had taken no step whatever towards becoming a denizen, he not having come to this country until the 6th of November, 1854, while that case was decided at November Term, 1853. Hence the Court did not and could not have had before it the question which we have been considering, because no event had then occurred which could give rise to such a question.
From the view which we have taken of this case, it becomes unnecessary to enter upon the inquiry, which would be a purely speculative one, whether the plaintiffs would be the only next of kin of William Hacket, Sr., capable of inheriting his real estate if he had died intestate as to such real estate.
The motion is granted.