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Such is the general law, and if others than citizens can take or transmit real estate, by descent or devise, it must be in consequence of the express authorization of the Legislature, or by virtue of conventions with foreign States, if, indeed, it be within the scope of the treaty-making power of the federal government to make stipulations affecting matters exclusively of munici pal cognizance. But though it may depend entirely on a State to determine whether aliens shall be permitted to hold lands within its territory, the Constitution of the United States, by confiding to Congress the exclusive power of naturalization, has left it to that body to determine who are aliens.
"The right of citizenship, as distinguished from alienage, is a national right; it appertains to the confederate sovereignty of the United States, and not to individual States." (Lynch v. Clark, Sandford's Chanery Reports, vol. I, p. 583.)
By existing laws of the United States, the children of an American male citizen born abroad, are, irrespective of the nationality of the mother, American citizens, and consequently, though they themselves may never reside in the United States, competent to hold and transmit real property within the State of New York.*
a provision in the Statute of Wills to be void; and the interest or estate so devised descends to the heirs of the testator, if there be any, and if not then it will go to the residuary devisees, if they are competent to take. In this respect the Revised Statutes have changed the common law by a provision which is free from all doubt." (Wright v. Saddler, New York Reports, vol. XX (Smith, vol. VI), p, 326.)
* The terms of the act of Feb. 10, 1855, are, "Persons heretofore born,
On the other hand, the children of an American woman married to an alien derive no rights of citizenship from the nativity or nationality of their mother. In accordance with federal legislation they are aliens, and by the application of the State laws imposing disabilities on aliens, incapable of taking the real property which has descended or been devised to their mother, or to which they would be entitled, in right of their mother, from her parents or other relatives, by the general law of descents.
Indeed, as will appear in the sequel, it in the sequel, it may well be questioned whether an American woman married to a subject of one of the countries with which the recent naturalization treaties have been made, and whose laws regard the marriage of a woman as a mode of naturaliz ation, has not herself lost her capacity as an American citizen, to take and hold real property within the State of New York.
A devise, it is true, to trustees of lands to sell and pay the proceeds to an alien has been construed, even in States which do not permit aliens to hold real estate, to be a bequest of personality, and may be enforced
or hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers were, or shall be at the time of their birth, citizens of the United States, shall be deemed and considered, and are hereby declared to be citizens of the United States: Provided, however, that the rights of citizenship shall not descend to persons whose fathers never resided in the United States." The same act provides that “any woman, who might lawfully be naturalized under the existing laws, married, or who shall be married to a citizen of the United States, shall be deemed and taken to be a citizen." (United States Statutes at Large, vol. X, p.
against the trustees. (Wheaton's Reports, vol. III, p. 563, Craig v. Leslie; Paige's Reports, vol. VI, p. 448, Anstice v. Brown.)
But why should a parent be compelled to change the patrimony of a child from a perfect security to one exposed to all the contingencies of personal investments, and to call in the intervention of third parties? That there is no motive of public policy involved in the continuance of the system may be inferred not only from the several exceptional acts allowing aliens to take and transmit real estate to alien heirs, but from the fact that where land would escheat to the State from the alienage of those otherwise entitled to it, the invariable practice has been for the legislature to release the claim.
Though, as respects the claim of the State, the disability of alienage may not be practically important, it is otherwise when the pretensions of different members of the same family are brought in conflict.
In the case of the descendants of a daughter married abroad on the one side, and of a son married abroad on the other (not to speak of the children of sons and daughters married at home), the first named are utterly excluded, to the benefit of the latter, whether the ancestor dies intestate or not, though they all possess equal claims from consanguinity.
A case most apposite to illustrate the anomalous operation of the existing laws is furnished by the adjudications on the testamentary dispositions of the late Mr. Wadsworth, of Geneseo. He had devised lands in
trust for the use of his daughter-a citizen and then unmarried for life, with remainder in fee to her issue. The daughter married, subsequently to her father's death, an alien, and died leaving a son born in Egypt, where her husband was in the public service of Great Britain. The court decided that the disability as to alienage applied only to a person who, at the time of the death of the testator, shall be an alien, and as young Murray was not then born, he could not be within the terms of the statute, that the case must be governed by the common law, and that he was capable, though an alien, to take the remainder in fee, under the will, and hold it until office found.
The inevitable inference from this decision is that if Mrs. Murray had been married, and her child been born before his grandfather's death, the statute would have applied, and that her child would, so far as regards his mother's share of her father's property, devised for the benefit of her issue, have been utterly disinherited, and the interest intended for her would, as the statute which I have quoted shows, have descended to the heirs of the testator, who were citizens of the United States, that is to say, to Mrs. Murray's collateral relatives. A proof how repugnant such a result would have been to the general sentiment of the community is found in the fact that the adult heirs of Mr. Wadsworth thought it requisite for their reputation to induce the reporter to insert a note, saying that they were willing to confirm the title of the son of Mrs.
Murray under the will, by release to him, but that the existence of minor heirs rendered the appeal necessary. The claim of the State had been, as usual, released to Mrs. Murray's son, thus confirming our previous assertion that no pecuniary benefit results to the public treasury from interfering with the transmission of property in accordance with the impulses of natural affection. (See New York Reports, volume XII (Kernan, volume II), page 376, Wadsworth v. Wadsworth; also Wright v. Saddler, Ib., vol. XX (Smith, vol. VI), p. 326.)
Nor is it any mitigation of the injustice, as between the members of the same family, that aliens enjoy and have enjoyed in the transmission of their real estate privileges denied both to native born and naturalized citizens.* I would particularly refer to the act of 1798, and acts explanatory of it. The act of 1798 (New York Statutes at Large, ed. 1863, vol. IV, p. 294), required no residence, and did not contemplate naturaliza
*The following is the provision of the treaty of November 10, 1794. with Great Britain:
'ARTICLE IX.-It is agreed that British subjects who now hold lands in the territories of the United States, and American citizens who now hold lands in the dominion of his Majesty, shall continue to hold them according to the nature and tenure of their respective estates and titles therein; and may grant, sell or devise the same to whom they please in like manner as if they were natives; and that neither they, nor their heirs or assigns shall, so far as may respect the said lands and the legal remedies incident thereto, be regarded as aliens."
This provision, applying, as it did, to the titles existing at the period of the revolution, is an affirmance of the rule of the law of nations, that the dismemberment of the Empire works no forfeiture of previously vested rights.