
    Polk, Gov. vs. Ralston, Adm’r.
    
    Persons of foreign birth resident in the State of Tennessee, but not naturalised, have capacity to inherit personal estate in Tennessee, the term “alien,” in the act of 1809, ch. 53, being intended by the legislature to mean foreigners by residence as well as birth.
    James Read, senior, died in the county of S umner, in 1838, possessed of personal estate, and at the September term of the county court of that county, Ralston was appointed administrator of his ©state. He gave bond payable to Newton Cannon, governor of the State, and his successors in office, in the penalty of $17,500.
    An action of debt was instituted on this bond on the 26th day ■of September, 1840, in the circuit court of Sumner county, in the name of Polk, successor of Cannon, for the use of Hutchison, administrator of James Read, junior, deceased; Hutchison claiming as distributee, in right of his intestate James Read, junior.
    The breach assigned in the declaration is, that there is a large sum of money, to wit, the sum of twenty-five hundred dollars, in the hands of said Ralston, as administrator, due and owing to the said Hutchison, administrator of the said James Read, jr. deceased, he being a distributee of the said James Read, the elder, and which the said Ralston has failed and refused to pay over to the said administrator, Hutchison.
    The plea is, that the said James Read, jr. deceased, the intestate of the said Hutchison, at the time of his death was an alien, having been born out of the allegiance of the, State of Tennessee, and of the U. S. of America, and within the allegiance of the King of Great Britain and Ireland, and that the said James Read, jr. deceased, had not become a citizen of the U. S. in conformity with laws of naturalization prescribed by the Congress of the U.'S.; nor had the said James Read, jr. deceased, at the time of his death, filed his declaration to become a citizen of the U. S, as required by the acts of Congress, and that the said James Read, jr. deceased, at the time of his death was not entitled to any part of the personal estate of defendant’s intestate, nor is the administrator of the said James Read, jr. entitled to any portion of the estate, but that the same has descended and is due to William Edmiston and others, native and naturalized citizens of the U. S. next of kin to defendant’s intestate.
    To this there is a replication, that the said James Read, jr. deceased, was next of kin to the said decedent, and was one of the distributees of the said decedent under the acts of assembly; that the said James Read, jr. moved to the U. S. and settled himself here in 1821, bona fide, with the intention of becoming a citizen of the U. S., to wit, in the county of Sumner, and was a resident of the U. S. from the period aforesaid up to his death, and that at the period of the death of the said James Read, sr., deceased, he the said James Read, jr., deceased, was a resident of the United States.
    To this replication there is a demurrer and joinder in demurrer. The cause came on for argument at the June term, 1841. The circuit judge sustained the defendant’s demurrer to the plaintiff’s replication and gave judgment in favor of the defendant. The plaintiff appealed in error.
    
      Cook, for the plaintiff in error.
    
      John J. White, for defendant in error.
    This is a question which depends altogether upon the construction which is to be placed upon our acts of assembly in regard to aliens. The first clause of the first section of the act of 1809, (N. &. C. 87,) is in these words: “in all cases where any person within this state shall die intestate, without issue, and possessed of any estate, real or personal, the said estate and .every part thereof, shall descend to such person or persons who are next of kin to the said decedent, and resident within the U. S. to the perpetual exclusion of aliens, who may be related to the said decedent in a nearer degree.” An alien is a term well understood by lawyers and judges; it is a term used in contradistinction to that of native or naturalized citizens. In 1st Black. 366, aliens are said to be those who are born out of the dominions orthe allegiance of the crown of England. Chancellor Kent, in his second Com. 50, (4th Edition,) says that “an alien is a person born out of the jurisdiction of theU. S.,” with some exceptions which it is not important for the argument to consider. In 4th John. 79, it is laid down that “he must be regarded as an alien, who has emigrated to this country, after the declaration of independence.” But at all events, those who have emigrated to this country since the treaty of 1783 between Great Britain and the U. S. will be regarded as aliens. 2nd Kent’s Com. 69, recognized in 10th Yer. 406.
    The meaning of this clause of the • act then is, that it shall descend to such persons resident in the U. States next of kin, whether native or naturalized citizens, in preference toothers even nearer who are aliens. If this were not the true construction of the act of 1809, any person who had merely come it/to the U. States upon business, not intending to remain, but still was for the time a resident of the U. S., might inherit real estate. This could not have been the meaning of the act as is evident from the preamble. It did not intend “to allow British subjects to inherit ^estates within this State, when American citizens are not allowed the same right of inheritance within the dominions of the British King.” What, then, is the principle of the English law? It is, that “an alien cannot acquire a title to real property by descent, or created by other mere operation of law. This is a well settled rule of the common law.” 2nd Kent, 53: Calvin’s case, 7th Coke, 25: 1st Yent. Rep. 417: 3 John. Ca. 109, 121: 4th ;iWheaton, 461: 7 do. 535: 2nd Black. 268. It cannot be, then, that under this clause of the act of 1809, an alien \yas to inherit, who might happen to be a resident of the U. S. as against native or naturalized citizens.
    This view of it is irresistibly strengthened by the second section of the act which says, “where any alien has acquired a right of succession,” &c., “he shall be forever barred,” unless in twelve months thereafter he becomes a naturalized citizen;, if he does not, it shall descend “to such person next of kin who are resident in the U. S. to the perpetual exclusion of aliens.” The term resident in this section evidently means native or naturalized citizens, who are resident; it must be presumed therefore that it has the same meaning in the preceding section.
    The act of 1819 is to the same effect; the proviso requires the alien who has come to the U. S. and settled in Tennessee to become a naturalized citizen, or he shall derive no benefit from the act. I might refer here likewise to the act of 1838, page 266, which is conceived in a more liberal spirit, although it has nothing to do par* tículárly with this question, yet it will be seen that it requires the alien to be not only a bona fide resident of the U. S. but also to have filed his declaration to become a citizen before the death of the ancestor, in order to have the benefit of its provisions.-
    If it is said there is a difference between the descent of personal and real estate, the answer is, that the act of 1809 makeá no such distinction. It speaks of both real and personal estate, and that the said estate and every part thereof shall descend, &c< And when the words are plain and clear, the legislature must be intended to mean what they have plainly expressed, and consequently no room is left for construction. 6th Bacon, 380: 2nd Cranch, 386, 399. It is true, the preamble only speaks of Ameri* can citizens being debarred the right of succession to real estate in England, as the cause of its enactment. But that will not control or restain the enacting part of the statute, where it is ex-* pressed in clear and unambiguous language, as is the case here. 6th Bacon, 381: 8th Mod. 144: 6th Mod. 62. , ,
    Now it may be, that under the second clause of the first section of the act of 1809, the estate of the decedent would nut descend to the trustees of the academy, where he left relations within the U. S., although they might not have been naturalized. That, however, has nothing to do with this case , which is one that arises under the first clause of the section, and involves the question between native and naturalized citizens and aliens. There might be a very good reason, why the legislature would be willing that the property of the deceased, should go to any of his relations within the U. S. although not naturalized, before it should be claimed as escheat-ed property; and yet when the question was between native and naturalized citizens and aliens, they should direct the estate to descend to the former.
    If the case in 10th Yerg. 406, of Moore vs. Wilson’s Adminis* trators, is relied on, it is sufficient to say, that that case was decided upon the ground, that complainant was not an alien, having come to the U. S. before the treaty of peace of 1783. That wras an end of the case, and it was not necessary to have decided any thing more. The court, to be sure, go on to say, “that by the provisions of the act of 1809, she could claim as heir of the deceased, whatever may have been her condition with respect to allegiance and citizenship.” Under what clause or what section of the act of 1809 she would have been entitled,- it is not said. There may have been something in the peculiar facts of that case, (for there is but little of the proof reported,) that would have entitled her toa portion of the estate, under the same clause of the act of 1809; but this cannot be regarded, I apprehend, as a decision upon this statute in reference to the facts of this case, and the parties now before the court.
   Reese, J.

delivered the opinion of the courf.

The question in this cause involves the construction of the act of 1809, ch. 53. The preamble to the act reads, that “whereas American citizens are debarred the right of succession to any real estate, which might descend to them by the death of relations in the kingdom of Great Britain, and whereas it is inconsistent with the protection which this State owes to its citizens to allowBritish subjects to inherit estates within this State, when American citizens are not allowed the same right of inheritance within the dominions of the British King'. Wherefore,” &c. Upon this preamble, it is obvious to remark, that the assumption which it contains is erroneous, for the subjects and citizens, respectively of the two countries indicated, at that time, bore towards each other, as to questions of succession and inheritance, the precise reciprocal relations which are intimated as being proper, being alike entitled to succession in personal, and alike barred from inheritance in real property. The first section of the act contains the following provisions: “In all cases where any person, within this State', shall die intestate, without issue, and possessed of any estate, real or personal, the said estate and every part thereof shall descend to such person or persons who are next of kin to the said decedent, and residents within the United States, to the perpetual exclusion of aliens, who may be related to the decedent in a nearer degree.”

In what sense is the term “alien” here used? Is it intended to include persons of foreign birth, not naturalized, although “resident,” and having their domicil within the U. States? or is it intended to apply to foreigners only, as well by residence as birth? In favor of the former sense, it may be rémarked, that it is more consistent with the scope of the preamble, the “protection” therein mentioned, being intended in favor of those who owe allegiance to our laws and institutions, and against the foreign subjects of Great Britain. Moreover, the estate is to descend to the next of kin of the decedent, resident within the U. S., in contradistinction to aliens, who are excluded indeed, throughout this statute, in every instance. The persons to take are described as residents merely within the .United States, not as citizens or American citizens, terms used in the preamble only.

The framers of the law seem to have been studious, except in the inartificial use of the term “alien,to exclude, throughout the statute, the use of words that might interfere with our denizen population. So to have interfered, would have been in express conflict with the liberal feeling uniformly acted on by the American States towards that class: a policy expressly announced by our own legislature, as having been permanently that of the United States, in their preamble to the act of 1819, ch. 36. The next clause, in section 1st, to that above extracted, is as follows: “And in all cases where any person dying as aforesaid, shall have no relations within the U. States,” “then the county academy shall take,” &c. The first clause gives the estate to the next of kin of the decedent, “resident within the U. States,” excluding aliens, to wit, foreign residents. The second clause gives it to the county academy, when the person dying has no relations within the United States. “Residents within the U. S.,” “relatives within the U. S.” are tire terms selected, and not citizens, or American citizens, as descriptive of the next of kin, andaré used in contradistinction to the term “alien.”

If it were necessary to pursue the second section, it would be found still more strikingly to exhibit this contradistinguished use of the terms, resident and alien, so as to make it manifest, that the legislature did not intend to take the estate from, but on the contrary to give it to, a resident relation, although of foreign birth, domiciled among us at the time of the death.

Another consideration may be suggested, that it is not proper to amplify by construction, a statute which upon its face shows that its framers were mistaken as to the existing state of the law, especially, w'here such amplified construction makes it conflict still more with the liberal spirit of the American States on this subject.

We are of opinion, therefore, that the judgment of the circuit court must be reversed, and the case be remanded, in order that the jury may enquire into the damages.  