
    Jacksons v. Sanders and Wife and Others.
    March, 1830.
    (Absent Coadteb, J.)
    Statute of Descents — Construction of Section i8— Alienage of Ancestor — Case at Bar. — A citizen dies seized of lands in Virginia, leaving a brother who-is a citizen, a sister who is an alien yet living, children of the alien sister, who are citizens, and grand-children of the alien sister, who are citizens, though their fathers as well as their grandmother are aliens: Held, under the statute of descents, 1 Rev. Code, ch. 96, § 18, the descendants of the alien sister take by descent, one moiety to-be divided among them per stirpes, and the citizen brother the other moiety.
    Upon a bill exhibited in the superiour court of chancery of Wythe, by the appellees, against the appellant, for partition of the real estate of Thomas Jackson deceased,, and for other purposes, the case was:
    Thomas Jackson, a native of England, but a duly naturalized citizen of the U. States died in 1824, intestate, ^seized of a large real estate in Wythe and the neighbouring counties. His kindred, living in the U. States, were his brother John Jackson, also a native of England and duly naturalized citizen of the U. States; this brother’s children, John, a native of England, never naturalized, and Michael, Thomas and Robert Jackson, natural born citizens of the U. States; Ann Walton, (wife of Richard Walton) a sister of the intestate,' and a native of England, who had never been naturalized; the children of Ann Walton (by her second husband Richard Walton) George Walton and Hannah (the 'wife of John Sanders) natural born citizens; the children of Mrs. Walton by a former husband, Mary Parkin (the wife of Joseph Parkin) and John, William and Robert Raper, all of whom were, natives of England, and had never been naturalized ;. William Millan, a son of Mary Parkin by a former husband, and a natural born citizen; Robert, Ann, John, Eve, Chary and •-- Raper, children of the alien John Raper, and natural born citizens; and Mary and Jane Raper, children of the alien William Raper, and natural born citizens of the U. States. Pending the bill for the partition, John Jackson, the brother of the intestate, died, and the suit was proceeded in against his children Michael, Thomas and Robert.
    The question was, Whether the whole estate descended to John Jackson, the naturalized brother of the intestate? or whether the natural born citizens, descendants of his alien sister, Ann Walton, who was yet living, were entitled by descent to one equal moiety, to be divided among them, and John, the citizen brother, to the other moiety? The chancellor declared, that the descendants of the alien sister were so entitled, and pronounced an interlocutory decree accordingly. And the Jacksons appealed to this court.
    Leigh, for the appellants.'
    According to the common law, title by descent could not be made, from, to, or through, an alien. Alienage was an impediment to descent, lineal or collateral, in all cases, where it affected the person last ^seized, or the person who would otherwise be heir; or where it attached to a medius ancestor, and so intervened between the person last seized, and him who would otherwise be heir: but if it affected neither party, nor any medius ancestor, it was no impediment to the descent, that the person claiming as heir to another, derived his kindred blood from an alien. Harg. Co. Litt. 8, a. n. 37, 12, a. n. 62; Hale’s argument in Colling-wood v. Pace, 1 Ventr. 417; 2 Vin. Abr. Alien I}. p. 269. The statute of 11 and 12 W. 3, ch. 6, relaxed the rigour of the common law in favour of natural born subjects ; and the statute of 2S Geo. II. ch. 39, was enacted to explain and amend the statute of W. III.* The legislature of Virginia, with the principles of the common law and the provisions of both the english statutes in full view, enacted that, 1 ‘In making title by descent, it shall be no bar to a party, that any ancestor, through whom he derives his descent from the intestate, is or hath been an alien.” 1 Rev. Code, ch. 96, § 18, p. 357.
    The statute of W. 3, enables natural born subjects to make, not their pedigrees only, but their title* by descent, from any ancestor, lineal or collateral, in express terms, though the parents through whom they make or derive their titles or pedigrees, were or are or shall be aliens; most carefully extending the provision to collateral as well as lineal inheritance. If the legislature of Virginia had had the same design, it would have manifested the same care; it would have adopted some of many expressions of the english statute, that distinctly evince the intent. But it, did not do so : it cannot be suspected of carelessness or in-advertency; it avoided doing so. It has removed the impediment of alienage, only in favor of citizens deriving their descent from the intestate; that is, their pedigree, their blood, from him. Let the meaning of the words title by descent,1 or of the word descent taken atone, be what it may, the phrase that one person derives his descent from another, means that he derives his lineage from him. The provision, then, is confined to cases of lineal inheritance. And there might, in the view of the legislature, have been good reason for abandoning the commonwealth’s title by escheat, in favour of a man’s descendants, deriving their descent from him through an alien, and reserving it as against his collateral kindred: the one had certainly less claim than the other, to the favour of the law, since the intestate, if he had disposed of the estate himself, would not have been under the same natural obligation, and would have had less care to provide for them.
    The statute of W. 3, enables the natural born subject, to make his title by descent or pedigree from the intestate, through any medius ancestor, though he was or is or shall *be an alien ; using the past, present and future tenses. I cannot find, that any case ever arose upon this statute in England.
    The statute of G. 2, plainly supposes, that the words of the other statute, authorised a natural born subject to claim title by descent through an alien parent living at the time of the descent cast; for it provides for the case. Our statute, partially adopting the language of the statute of W. 3, in this respect, provides, that the citizen may trace his descent through a. medius ancestor who is or hath been an alien, without adopting the explanation or restriction of the statute of G. 2. If, under our statute, which admits males and females and their descendants to the inheritance in parcenary, the citizen co-heirs may claim the inheritance through a medius alien ancestor yet living, much confusion must follow, and difficulties hardly to be surmounted. In the case now before the court, suppose Mrs. Walton shall hereafter have other children, or that her alien sons and daughters shall have many more children, born citizens, during her life; must the descent open to let in these afterborn children for their share of the inheritance? Or, if some of her citizen children and grand-children should die before her, must the descent close and exclude them? Or must partition be suspended till her death? How are the heirs to be ascertained till her death? If only those who are in being and capable to take at the death of the intestate, are to share the inheritance, by what rule shall it be divided between them? It will be found, on examination, that there is no provision in the act of descents, which gives a rule for such a case, and ascertains which of them shall take, her citizen children onlj’, or her citizen grand-children also, os whether they shall take per stirpes or per capita. I cannot think, therefore, notwithstanding those words “is or hath been an alien,” that the legislature intended, that citizens might make title by descent through a medius alien ancestor living at the time of the descent cast.
    
      ^Johnson, for the appellees.
    The criticism by which it is endeavoured to confine the provision of the statute in question, to cases of lineal descents, cannot be maintained. When the statute says, that in making title by descent, it shall be no bar to the party, that any ancestor through whom he derives his descent from the intestate, is or hath been alien, the word descent, where last used, means the title by descent, which the party is to make from the intestate. Neither does the word descent mean pedigree, blood, lineage: it means title by descent. “Descent, or hereditary succession, is the title whereby a man on the death of his ancestor acquires his estate by right of representation, as his heir at law.'” 2 Black. Com. 201; Jac. Daw Diet, word Descent; Co. Ditt. 237, a. The statute of W. 3, is very verbose; and the framers of our statute of descents intended not to depart from the sense of its provisions, but only to condense them into fewer words. We shall look in vain, in the policy of the state, or in the. temper of the legislature which enacted the statute of descents, much more of the committee of revisors who framed it, for any reason, that should induce our law givers to be less liberal than the english parliament, in relaxing the unreasonable rigour of the common law.
    That the statute of W. 3, enables a natural born subject to claim descent from an intestate, through a medius alien ancestor, living the alien ancestor, is apparent from its words. It is admitted, that the statute of G. 2, proceeded on that interpretation of them. The supreme court of Massachusetts seems to have entertained no doubt on the point; Palmer v. Downer, 2Mass. Rep. 179, in note. And it seems impossible to put any other construction on the statute of Virginia.
    The descendants of Mrs. Walton coming to the inheritance in unequal degree, the rule of partition is provided b3r the 16th section of the statute; 1 Rev. Code, p. 3S7.
    
      
      Statute of Descents — Construction of Section 18— Alienage of Ancestor. — By 1 Rev. Code, ch. 96, § 18 (Code 1849, p. 523; Code 1887, § 2551), it Is provided: “In making title by descent, it shall be no bar to a party, that any ancestor, through whom he derives his descent from the intestate, is or hath been an alien.” This statute removes the bar of alienage in making title by descent through collateral as well as lineal kindred. Garland v. Harrison, 8 Leigh 374, citing principal case as its authority. See, also, citing principal case, Hannon v. Hounihan, 85 Va. 433, 12 S. E. Rep. 157.
    
    
      
      See 1 Bac. Abr. Aliens. C. p. 133; 2 Cay’s Abr. Naturalization, III. XXVII. XXVIIT. pp. 87, 90.
      The words of the statute of W. III. are. “That all and every person or persons, being the king's natural born subject or subjects, within any of the king's realms or dominions, shall and may herealter lawfully Inherit and be inheritable, as heir or heirs to any honours, manours, lands, tenements or hereditaments, and make their pedigrees and titles by descent from any of their ancestors, lineal or collateral, although the father and mother, or fathers or mothers, or other ancestor of such person or persons, by, from, through or under whom he. she or they shall or may make or derive their title or pedigree, were or was, or is or are, or shall be born out of the king’s allegiance, and out of his majesty’s realms and dominions, as freely, íully and effectually to all intents and purposes, as if such father or mother, or fathers or mothers, or other ancestor or ancestors, by, from, through, or under whom he, she or they shall or may make or derive their title or pedigree had been naturalized. or natural born subjects.”
      The statute of G. 2. (§ 1.) confines the benefit of the statute of W. 3, to such persons as shall be living and capable to take as heirs at the death of the person last dying seized: "provided (§ 2). that in case the person who shall be in being, and capable to take at the death of the ancestor so dying seized, and upon whom the descent shall be east by virtue of this, or oi the said act, shall be daughter of an alien; and the alien father or mother, through whom such descent shall be derived, shall after-wards have a son born within any of his majesty's dominions, the descent so cast upon such daughter shall be divested in favour of such son; and such son shall inherit and take the estate as is allowed by the common law of this realm, in cases of the birth of a nearer heir; or in case such father or mother shall have no son, but shall have one or more daughters afterwards born within any of his majesty’s dominions, the daughters so born after-wards, shall inherit and take in coparceny with the daughter, upon whom the descent shall be cast at the death ol the ancestor last seized.’’ — Note in Original Edition.
    
   CARR, J.

The question depends mainly upon the 18th section of the statute of 'descents: but before I discuss the ’x'meaning of that provision, I will take a brief view of the doctrines of the common law with respect to alienage, and the changes wrought in them by british statutes, so that we may see distinctly the state of the subject, at the passage of our law>.

By the common law, an alien is defined to be, “one born out of the ligeance of the king.” Upon such a person many disabilities were imposed. He could take real estate by contract, but he could not hold it against the king; neither could he transmit it by hereditary descent. He was disabled to take by any act in law; for the law, as lord Hale says, quae nihil frustra facit, will not give him an inheritance or freehold by act in law, for he cannot keep it. The law, therefore, will not give an alien the benefit of either descent, curtesy, dower, or guardianship. His incapacity resembles “that of a person attaint, yet with this difference: the law looks upon a person attaint, as one it takes notice of; and therefore the eldest son attaint over-living his father, though he shall not take b3r descent, yet he shall hinder the descent to the younger son. But if the eldest son be an alien, the law takes no notice of him; and therefore, as he shall not take by descent, so he shall not impede the descent to the younger brother.” There is also what lord Hale calls a consequential, consecutive disability, which reflects to an alien from one, that must derive by or through him, though such one be perchance a natural born subject. Thus, if there be a grand-father a natural born subject, father an alien, and son a subject, and the father dies, and then the grand-father dies intestate, seized of an inheritance; the son cannot inherit his grand-father; because he must derive his descent through his father, the medius ancestor, whose alienage opposes an insurmountable obstacle. So, in collateral descents, if there be three brothers, the eldest an alien, and the two younger natural born subjects; one of the y’ounger brothers dies seized of lands, living the other native born, and also a native born son of the alien brother: this son cannot inherit, though he is capable to *hold and to transmit inheritance, and though he would be heir of his uncle who died seized; but he must derive his descent through his father, and he, as lord Hale expresses it, stands as ‘ ‘a block in the way. ’ ’ In Collingwood v. Pace, where this whole doctrine is so ably treated, the case was, a father alien, and two sons naturalized, one of whom died leaving a son natural born ; and the question was, whether this son should inherit his uncle? He was considered as standing exactly in the shoes of his father, and presenting the question, as between the two brothers, whether they could inherit each other, or were impeded by the alienage of their father? It was adjudged in the exchequer, by seven judges against three, that they could: and the reason given was, that the descent between them was immediate, so that there was no necessity of deriving it through their father.

Whether these doctrines had their root in the feudal tenures, or, as Blackstone thinks, were founded “rather upon a principle of national or civil policy, than upon reasons strictly feudal,” it would be useless to inquire. With a change of times and manners, the rigour of them, and the hardships and injustice produced by them, were felt, and the" statute of 11 and 12 W. 3, ch. 6, was enacted to correct them. That statute cured the mischief, by removing the bar of alien-age both in lineal and collateral descents. I think it clear too, that it contemplated the case of a party claiming through a living ancestor. Those words, “though the father or mother &c. from whom he may derive his title or pedigree, was, is, or shall be born out of the king’s allegiance,” mean nothing more than though the father &c. through whom &c. was, or is, or shall be an alien. This is clearly the meaning put upon it by the statute of 25 G. 2, ch. 39.

Such was the state of the law, when our committee of revisors came to act upon the subject: the harsh features of the common law had been softened down, and parties permitted to make descent, both linea and collateral, through *alien ancestors though living. The object of that committee was to transfuse into our code whatever of sound and wise legislation they found in the english system. With these laws on the subject of alienage before them, they said, that “in making title by descent, it shall be no bar to a party, that any ancestor, through whom he derives his descent from the intestate, is or hath been an alien.” It was contended, that this clause was applied to lineal descent only, leaving collat■eral descents as they stood at common law. It would seem strange, that with the mischief of the common law, and the remedy of the english statutes before them, these law-makers should stop halfway, and leave unredressed so material and obvious a part of the evil. The position was rested on two grounds, 1. That having the statute of W. 3, before them, which so carefully provided for collateral descents, they have departed from the language of that statute; 2. that the terms they have used are peculiarly applicable to lineal descents, and inapplicable to collateral. With respect to the first, it is clear, that they have not followed the language of the english statute; but I do not think that evidence that they meant to depart from the substantial effect of it. The english statute is singularly verbose; employing a vast number of words to express a few ideas. It is no wonder that this example should have been avoided in a law, which seems to have been studiously condensed into the smallest possible compass, compatible with clearness. Let us examine the terms of this clause, and see if they are such as would be naturally used to embrace lineal and exclude collateral descents. “In making title by descent:” does this mean pedigree, blood, extraction, lineage? not at all, in my judgment. Title by descent, is a phrase of the largest and most comprehensive sense; purchase and descent are the only modes of acquiring land. In Co. Litt. 237, a., lord Coke says, “this word (Descents) cometh of the latin word discendere, id est’ ex loco superiore ad inferiorem movere; and in legal understanding it is taken when land &c. after the death of an ancestor, is cast by ^course of law, upon the heir, which the law calleth a descent.” Blackstone, and all the elementary books use the term in the same sense. The title of our law is, “an act to reduce into one the several acts directing the course of descents;” which I understand to mean, the course in which lands shall descend from one to another : the first section of the act says, “that when a person having title to real estate of inheritance, shall die intestate, it shall descend and pass in parcenary, to his kindred, male and female, in the following course.” All going to shew, that wherever in the act the word descent is used, it means the passage of the inheritance, and not the blood, the pedigree. Let us return to the law. “In making title by descent, it shall be no bar to a party, that any ancestor, through whom he derives his descent from the intestate, is or hath been an alien.” “It shall be no bar that any ancestor:” could words be more extensive than these? Where the law saj's it shall be no bar, that any ancestor is an alien, how can we suppose that it means lineal ancestor only? Any ancestor includes both lineal and collateral. It removes the bar as to both; and how can we restrain it? “Through whom he derives his descent from the intestate:” that is, through whom he derives his title by descent; his claim to the estate; the land ; not the blood, the genealogy. ‘ ‘Is or hath been an alien:” is, in the present tense, shews that the law contemplated a claim through a living, as well as a dead alien ancestor. This section then, in my apprehension, is full and complete to remove out of the way the bar of alienage in both lineal and collateral descents, and also to remove any impediment from the life of the ancestor, through whom the descent may be derived.

The objections of the alienage and life of the mother being removed, the case is the common one of a brother of the intestate, and nephews and nieces concurring. He takes per caput; they, per stirpes, the share which their mother would have taken, had she been capable.

The other judges concurred, and the decree was affirmed.  