
    Rebecca Scott, Widow of Wm. Scott, Jr., deceased, Demandant, v. Mordecai Cohen.
    
    If a man, seized of lands, dies, leaving no issue or relations behind him capable of inheriting, his lands shall escheat to the State, rather than go over to aliens ; but where there is any one of his blood capable of inheriting the fee of the lands, they shall go’over to that one in preference to all others, nearer in degree, who are aliens.
    A, a naturalized citizen of the United States, who was possessed of a considerable real estate in this country, by will devised a large estate in Ireland, to his brothers and sisters, &c., and by the residuary clause, devised all his other property to his brothers and sisters, and their children, share and share alike, and appointed trustees, who were aliens, to sell, &c. B, one of the legatees, and a naturalized citizen of the United States, claimed all the lands in the United States, as the only one of the legatees who could take by descent, the rest being aliens. Held, that on the death of A, all his real estate in this country vested in B, and that after the death of B, his widow was entitled to dower in the same, although B had, in his lifetime, agreed that the other legatees might come in and take their shares agreeably to the will of A. [It had been previously adjudged that the lands in this State did not pass under the will.]
    This case came before the Court of Common Pleas, upon the claim of the demandant, for her dower, in a lot of land, in King street in the possession of the defendant, of which, it is alleged, her husband had died seized.
    Upon the return of the summons which had issued upon the petition, the defendant came in and pleaded that the demandant was not entitled to dower in the lot of land in question, as her husband had not, at any 'x'time during r. coverture, been seized or entitled to the premises in question. L
    Upon which an issue was made up, and the cause went to the jury, in October Term last, to try that fact.
    Upon the trial, the certificate of the Rev. Doctor Plinn was produced and admitted, that the demandant was married to Wm. Scott, Jr., in the month of -, 1809. It was then stated and proved, that William Scott, the uncle of the demandant’s husband, emigrated to America, and settled in South Carolina, not long after the Revolution, where he became a naturalized citizen, and acquired a considerable real and personal estate, of which the lot in question, in King street, formed a part. That after residing in South Carolina several years, the said William Scott returned again to Ireland, leaving his nephew, William Scott, the younger, who had likewise become a naturalized citizen of the United States, his agent in South Carolina, to receive the rents and profits of his lands, and to manage his other concerns, during his absence in Ireland. That soon after the return of the said William Scott, the elder, to Ireland, he departed this life, having first made his last will and testament, in writing, by which he devised a large estate in Ireland, to and among his brothers and sisters, in that kingdom, and their children and their legal representatives, and bequeathed divers legacies to and among them, as stated in said will. And in the residuary clause of his said will, (after the specific devises in his said will mentioned,) he devised all his other property to and among his brothers and sisters, and their children, share and share alike ; leaving Thomas Scott and John Scott, his executors and trustees under his said last will and testament. That after the death of the said Wm. Scott, the elder, in Ireland, the above-named Wm. Scott, the younger, who was also one of the legatees mentioned,in his uncle’s will, claimed the whole of the real estate of his said uncle, in this country, as the only naturalized citizen in South Carolina, who could take the lands of his uncle by ^descent, and entered upon them, aDd received the rents r*0Qf¡ and profits of them to his own use. That the trustees and legatees in <- Ireland, finding that the said Wm. Scott, the younger, after the death of his ■uncle, had claimed the whole of his uncle’s landed property after his death, the said executors and trustees, above mentioned, on behalf of themselves and the other legatees and devisees in said will mentioned, filed their bill in the Court of Equity, in the said State of South Carolina, to compel the said Wm. Scott, the nephew, to account for the rents and profits of the said lands, and to have the whole of them sold, and the proceeds divided among the said legatees, share and share alike, agreeably to the terms of the said will. To this bill of complaint filed against him, the said Wm. Scott, the nephew, came in, and by his answer, admitted, that after the death of his uncle, he had entered into and upon all his said uncle’s landed estate, in South Carolina, and had received the rents and profits of the same, but contended, that, by law, he was entitled to the same, as the only naturalized citizen in America, capable of taking by descent, and that the residuary clause of his said uncle, as to all the lands in South Carolina, was null and void, as it regarded or related to the devisees and legatees in Ireland, who were aliens. Whereupon the said Court of Equity, after hearing all the parties, and their counsellors and solicitors, by their solemn decree, adjudged and declared the said lands, which had belonged to the said Wm. Scott, the elder, in his lifetime, did not pass under the residuary clause in his said will, but, of right, did descend to, and go over to the said Wm. Scott, the nephew, as a citizen of the United States of Americs, and therefore the said Court dismissed the said bill filed by the executors and trustees, in the said will mentioned. After the said decree had been pronounced and adjudged in favor of the said Wm. Scott, the nephew, he generously came in, and voluntarily offered, (out of respect to the memory of his uncle, and his affectionate regard for his relatives in Ireland,) *and consented that the said lands J should be sold and divided among the said legatees, agreeably to the intentions of his said uncle; which consent and agreement was afterwards confirmed by the said Court of Equity. In consequence of which, a decretal order was made, for the sale of the said lands which had belonged to the said Wm. Scott, in his lifetime, and the proceeds to be divided according to the agreement of the said Wm. Scott, the nephew. In pursuance of which decretal order, the master in equity did proceed to sell nine lots of land in King street, which had belonged to the said Wm. Scott, the elder. At which sale, the defendant, Mordecai Cohen, became the purchaser of the lot of land in question, No. 292, in King street, at and for the sum of $4,500 ; this sale was made in the month of January, 1817, and some time in the said year the said Wm. Scott, the nephew of the said Wm. Scott, the elder, departed this life.
    To the jury, it was urged by the demandant’s counsel, Mr. Dn Saussuee, that it was evident from the foregoing premises, that the above-mentioned William Scott, the younger, held the land in question by a two-fold title.
    1. By the rules of the common law, as he was the only person in Carolina who could take by descent, being the only naturalized American citizen ; and,
    2. That he held under- a decree of the Court of Equity, which had confirmed the title in him, consequently, he was, in his life time, seized and possessed in law of the premises in question, so as to give his widow a just claim to dower; and there was nothing in the whole case which deprived her of it. That his consent and agreement, afterwards confirmed by the Court of Equity, could not amount to anything more than a gift or a sale, which would not, in either case, bar the demandant of her claim of dower.
    Mr. Lance and Mr. Simons contended, that as Thomas Scott, one of the brothers of William Scott, the elder, had been in Carolina some years before his *2971- brother, William Scott, the elder, went to Ireland, and *had returned -* again, and was believed to be an American citizen, he would have taken by the rules of common law, in preference to William Scott, the younger. But there was no positive proof that he had ever been made a citizen; only belief. That the decree of the Court of Equity was not conclusive on points not submitted to it, nor between parties not before them, when the case was determined, and therefore that this case was still open for investigation. That the estate was a trust estate, and not absolute, and therefore never could vest in 'William Scott, the younger, further, than that he held in trust for the legatees; and it was clear that a widow is not entitled to dower in a trust estate.
    The case then went to the jury, under the charge of the judge in the Court below, and the jury found a verdict for the demandant, with costs.
    The present was a motion for a new trial for misdirection in the judge, who charged in favor of the demandant, both upon the rules of the common law and the confirmatory decree in equity, and as a verdict against law and evidence.
    
      
       S. C. before, 1 N. & MeC. 413.
    
   The opinion of the Court was delivered by

Bay, J.

This case has undergone a second investigation in this Court, where all the arguments urged on the trial below have been again repeated, and some additional ones brought forward, against the demand-ant’s claim of dower. 1 Mott & M'Cord, 413. But after the fullest examination, I can see no ground to disturb this verdict.

There is no better rule established in the common law, than the one contended for in this case, that if a man, seized of lands, dies, leaving no issue behind him, nor collateral relations capable of inheriting, his lands shall escheat to the State, rather than go over to aliens. But where there is any one of his blood capable of inheriting the fee of the lands, they shall go over to that one, in preference to all others, who *are r^ono nearer to him in degree, who are aliens ; in which case the lands ^ shall not escheat, but vest in him who is capable of taking. In the present case, upon the death of William Scott, the elder, all his near relations were in Ireland, who were incapable of inheriting, but one, who was William Scott, the younger, his nephew, who was in South Carolina, and who had been made a citizen. Something was said on the trial below, about Thomas Scott, the brother, who had been in America; and he was believed to have been made a naturalized citizen, but there was no actual proof of it; and he was, at the time of his brother’s death, and still is, residing in a foreign country.

But if any doubt could arise upon the construction of the common law, surely none can remain now after the decree of the Court of Equity. That is eertainly the highest Court of judicature in Carolina, inasmuch as it in many cases controls the Courts of common law. All the parties were before that Court, and their claims and pretensions to this very land in dispute, among others, were before it, and fully investigated; and after mature deliberation, they decreed the lands of old William Scott, the uncle, to have become vested in William Scott, his nephew. This Court is bound by that decree. We cannot unravel it, or presume to say it was not founded in law and justice. On the contrary, the respect due to so high and solemn a tribunal, compels us to submit to its decrees. And in the case of Stark v. Woodward, 1 Nott & M'Cord, 259, 329, lately determined at Columbia, the same doctrine was laid down, and determined by the unanimous assent of all the judges.

Upon the whole, there does not appear to be any ground for a new trial.

ConcooK, Johnson, BjchaRDSon, Mott and HügeR, JJ., concurred.

See 1 Sp. 365. 
      
       7 Rich. 74.
     
      
       1 Sp. 536.
     