
    Jackson, ex dem. Elmendorf and others, against Jackson and others.
    NFW-YORK,
    Nov. 1810.
    before coming of age; the other «laughter married . a Danish subject, and died in 177», learhg an infant daughter who died in 1775. It was held, that the two «laugh-tens were natoral born subjects Where there is heritable bioo'íj te«Ahetnd¡ but "go To * the next heir. L. a native of'JXewYork was seised He afterwards Thomas,t0a Daried 'a^Harovi subject, by whom he hadt,two daugifflp, and died in 1750; one of the wd"houtbsiT':& stat. ofs Ge». H. <ss¿ 21. but that the grand-a&afandThat did noTTsc/iea#,' «tofentTfuto but that the issue^of the elder would inherit, 5.tto*"eXt 6U tain ■within the
    THIS was an action of ejectment, for land in the Hardenbergh patent, in the county of Ulster.
    
    . , , denbergh f J Palts> re_ ceaSed, Cj 1 ’ Qn the among tl . 111 que j SOU 1.6 A patent was issued the 23d April, 1708, to Jqhannis Har denbergh and others. Leonard Lezvis, one of -the patentees, died seised of one equal and undivided r * eighth part of the lands patented, in 1720, having by his will, dated the 27th February, 1723, devised the-premises to his wife, for life, with remainder in fee to his eleven children named in the will. The eldest son was named Thomas, and another was named Leonard. the 4th May, 1742, the widow released to her child- » ren all her interest m the estate ol her husband. On the 15th November, 1749, a partition was made of the Har-. nt, and the proprietors of the other seven d to the children of Leonard Lezvis, delots, equal to one eighth of the whole. Member, 1749, a subdivision was made devisees of Lezvis, by which the premises me the separate estate of the testator’s ese partitions were confirmed by an act lure, passed the 29th March, 1790. of the leg
    
      Leonard, the son of the patentee, was born in the 7 county of Duchess, and went to reside in St. Johns, in the island of St. Thomas, a Danish island, where he married a Danish subject, by whom he had issue two. daughters, named Gersie Maria, and Anne Elizabeth.
    
    He died there, in the autumn of the year 1750. Gersie 7 v ji^aria married a Danish subject, but died in 1767, without issue, and before she was of a full age. Anne Elizabeth married Hans Petrie Bey, a Danish subject, ®f St. Thomas, by whom she had a daughter, born m 1773 or 1774. She died in 1774, soon after the birth of her daughter, who also died in 1774 or 1775.
    Thomas, the heir at law of the patentee, died in 1766, and his eldest son died in his life-time, leaving a son named Thomas, who, on the 9th March, 1789, «nade a will, and died in August, 1789, leaving five children, lessors of the plaintiff. His executors, on the 9th May, 1792, as acting under a power contained in the will, conveyed, by deed, the premises in ■ question to Lucas Elmendorf, one of the lessors.
    It was admitted, that the premises are part of a large tract of wild and uncultivated land, and that the defendants have recently taken possession.
    The defendants contended, that by the death of Anne Elizabeth, daughter of Leonard., in 1774, the estate escheated'.
    
    The case was submitted to the court, without argument.
   Kent, Ch. J.

delivered the opinion of the courts. The lessors of the plaintiff claim title under Thomas Lewis, on the ground that the inheritable .blood in the line of lineal descent of Leonard Lewis, a younger brother of Thomas, and who died seised of the premises, failed, because his granddaughter was an alien. Leonard Lewis the younger was seised of the premises in 1749, and before he went to the West Indies. He married a Danish subject in the island of St. Thomas, and died there, leaving no issue but two daughters, one-of whom died without issue, and the survivor who was born in St. Thomas, married an alien, and died, leaving a daughter, an infánt and alien, and who died also without issue. The two daughters were natural born subjects within the statute of 3 Geo. II. c. 21. because their father was a subject, but the granddaughter was clearly an alien.

If the land did not escheat in consequence of the alienism of the infant heir, but went to the next collateral , . , . . , , heir who was not an alien, t then it is certain that the land went to Thomas Lewis and his representatives, he being the elder brother of Leonard, whose inheritable blood had thus failed.

The only question in this case, then, is, whether Thomas or his issue could inherit, when the lineal descendant of his younger brother was án alien, find so could not inherit. There is a dictum of Newton, J. in 22 Hen. VI. 38. pi. 5. that he could not, and that dictum appears.' to have been acquiesced in by the counsel. The instance given by Newton to illustrate his position is correct, but the application fails'. He says, that if one be attainted of felony in the life-time of his father, and survives his father, the land shall escheat, notwithstanding the father left other issue or a brother living. The same doctrine is advanced in a number of later authorities. (Co. Litt. 163. b. Hob. 334. Cro. Car. 435. Dyer,48. a. Hawk. b. 2. c. 49. s. 50.) But there is a distinction between the failure of inheritable blood, by reason of alienism, and by means of attainder; and the next heir will take in the first instance, but not in the other. This distinction is to be found in Coke; (Co. Litt. 8. a.) but it is stated in the clearest manner, in the treatise on the Law of For- ■ feiture, ascribed to the son of Lord Hardwicke. He says, (p. 72.) that by the ancient common law of England., “ where a man was not capable of civil rights by nature, as an alien born, and never naturalized, being unknown to the law, he was excluded from inheriting; and the next of kin within the allegiance, who did not claim under him, was admitted; or where he had incurred civil disabilities, by his own voluntary act, not criminal, as one who entered into religion, or abjured the realm, he was taken to have undergone a civil death, and the next in course of descent entered. But where he is at-tainted of treason or felony, the law will not pass him over, and marks him out in rei exemplum et infamiam. Tience it is, that though he was never in possession, nor those who claim under him more capable of inheriting than he, by reason of the consequential disability- arising from the attainder of the aocestor, yet the estate will be interrupted in its course to the collateral and escheat." Though this rule is well established in the case of attainder for crimes, yet even there it is condemned by C'raiK, in his Law of Feuds, who says, that the estate ought to go to the next collateral branch, instead of escheating, since it is not necessary for the collateral to make title through the criminal, hut he may have his descent from. an innocent and common ancestor. Lord Ch. Torke,'~ however, ably vindicates the escheat, in the case of attainder, on the ground of public polity. We have, at present, nothing to do with this question; and it is sufl1.~ dent to say, that the doctrine of eseheat does not apply to the present case; and judgment ought to be rendered for the plaintiff. Judgment for the plaintiff~ 
      
      
        ■ . (a) The honourable Charles Yorks.
      
     