
    Moore vs. Wilson’s Administrators.
    
    Nashville,
    December, 1837.
    By the treaty of 1783, Great Britain and the United Stales became respectively entitled, as ageinst each other, to the allegiance of all persons who were at the time adhering to the governments respectively, and those persons became aliens to the government to which they did not adhere.
    Where it is shown that a native of Scotland was domiciled here before the close of the revolutionary war, prima facie, he is to be considered a citizen of the United States. If alienage is asserted, it must be proved that “he adhered to the British government.”
    Where a party was resident in the United States prior to the treaty of 1783, adherence to the British government, and not his foreign birth, constitutes him an alien.
    By the provisions of the act of 1809, c 63, an alien resident in the United States, and next of kin to an intestate, who dies without issue, is entitled to inherit his estate.
    The complainant filed this bill for an account of the personal estate of Thomas Wilson, deceased, and prays for a decree against the defendants for the amount in their bands. The complainant alleges, that she is the sister and only distri-butee of said Wilson. The defendants, in their answer, state that they do not know whether the complainant is the sister of said Wilson or not, and require proof. They also allege, that complainant was, at the time of Thomas Wilson’s death, an alien, and that by operation of the act of 1809, c 53, she was not entitled, but was in fact excluded, if there were relations of the deceased residing in the United States, who were citizens, and that the son of complainant, who was a citizen, was entitled if any person was.
    The proof in the case is voluminous. The court however were satisfied that complainant was the sister of Wilson. The proof also shows, particularly the deposition of William Ball, that complainant emigrated from Scotland to this country sometime about the year 1780, and was twice married to American citizens. There was no proof that she ever was naturalized according to the acts of Congress. It was also proved she has a son living who was Lorn in the United States.
    The chancellor was of opinion, that she was entitled to the relief prayed for in her bill, and decreed accordingly. From this decree the defendants appealed to this court.
    
      J. Rucks and R. J. Meigs, for complainant.
    By the treaty of peace of 1783, Great Britain and the United States became respectively entitled as against each oilier, to the allegiance of all persons who were at that time adhering to then-respective governments, and those persons became aliens to the government to which they did not adhere. . 3 Peters Rep. 164, 242: 2 Kent’s Com. 69: 2 Mass. 236, 244, note: 2 Bar. & Cres. 779.
    If therefore complainant came over and joined us before the treaty of peace, they became aliens to England and citizens of America, for this right of election is well established. Vat. b. 1, c 3, § 33: 1 Dal. Rep. 58: 2 Do. 234: 20 John. Rep. 332: 2 Mass. Rep, 179, 236, 244, note: 2 Kent’s Com. 49.
    As there is no proof that she came over since the treaty of peace, this defence fails. But the act of 1809, c 53, puts this question at rest.
    By the first section, the real and personal estate shall descend to the next of kin to the decedent, resident within the United States to the exclusion of aliens in a nearer degree. And if a person shall die leaving no relations within the United States, his estate shall go to the trustees, &c.
    Now a resident may be an alien. The word alien is here used in contradistinction to the word resident. The meaning is, if a man have relations residing in the United States, and nearer relations residing abroad, those here shall inherit. And this is made more plain by the latter part of the section, which gives the estate to the trustees only where there are no relations of decedent within the United States.
    And this is confirmed and made more plain by the second section, which gives the non-resident twelve months to remove within the United States, and take the benefit of the naturalization laws, which if he fails to do the estate shall descend to the next of kin to the decedent resident within the United States. Our legislature went upon the ground that our institutions were so superior to all others that every resident was a citizen or would be. They could -not brook the national disgrace of seizing the property of a brother for public use, and leaving his sister, who came over with him, to starve among strangers.
    This is not a case where time operates as a witness against complainant, but the contrary. Her right but lately accrued; was but lately discovered; she is driven back to a distant period to prove it. The court will not require such proof as if the occurrence happened but yesterday. We however believe the proof is abundantly sufficient to establish the fact that she is the sister of Wilson.
    
      Geo. S. Yerger, for defendant.
   Reese, J.

delivered the opinion of the court.

In this case there are two questions for our determination: 1st. Is Mary Ann Moore, the complainant, the sister and heir at law of Thomas Wilson, deceased? The evidence, we think, fully sustains her claim to heirship.

2d. Does the defence of the administrators, on the ground of the alienage, either of Wilson the deceased, or of the complainant, avail them in this case? It seems probable from the proof that the deceased and the complainant reached the United States from Scotland, their native country, and became residents and had their domicil here in and before the close of the revolutionary war and the formation of the treaty of peace of 1783, prima facie, therefore the said Thomas Wilson and complainant were not aliens, for if as is said l>y Judge Kent “the course and prevailing doctrine now is, that by the treaty of peace of 1783, Great Britain and the United States became respectively entitled as against each other, to the allegiance.of all persons who were at the timé adhering to the governments respectively; and that those persons became alien to the government to which they did no't belong,” those who impute alienage in this case, must show that Wilson adhered to the British crown in the contest. For such adherence, his residence being at that time within the United States, and not his foreign birth, would constitute him an alien, and upon those who impute alienage rests thé burthen of proving such’adherence. Besides, the complainant has resided since 1780 within the United States, and has been twice married to American citizens, and she therefore is not an alien.

But by the provisions of the act of 1809, c 53, she can claim as heir of the deceased, whatever may have been her condition with respect to allegiance and citizenship. The decree of the chancellor in this case will be affirmed.

Decree affirmed.  