Ames, C. J.
The statute, the construction of which is involved in the demurrer, in its first section enacts, that “ when any person shall die, leaving any real or personal property within this State, and shall leave no known heir or legal representative within the United States to claim the same, it shall be lawful for
the town council of the town in which such real or personal estate may be, to direct the town treasurer of such town to take the same into his possession, for the use of the town, until the heir or other legal representative of such deceased person shall call for the same.”
The principal purpose of the act, as appears from its terms, as well as from the preamble to the act of 1768, in which it had its origin, was to provide for the custody and care of the intestate property of deceased persons, derelict, from the absence of claimants within the Colony first, and since within the United-States, to represent them ; and through the intervention of the towns within whose limits such property might be, to preserve it from being wasted, or intruded on by strangers, to the disinherison of the heirs, or to the loss of the legal representatives, when they might come to demand it. Where property is thus left, it can rarely be known with certainty, that there are no heirs capable of inheriting it; and the fair presumption, in the larger number of cases is, that though they may not be known, they somewhere exist. It was with this state of things that the statute, as a practical measure, was designed to deal; and in our judgment, to answer its purpose, as well as to satisfy its words, its first section embraces all intestate property of deceased persons, derelict for want of lawful claimants, whether because none such exist, as in case of escheats and
bona
vacantia, or because, though known, they are without the limits of the United States.
Had the statute stopped with merely directing that the towns within whose limits such property might be, should, through their officers, take possession of, and improve it, for the benefit of the heirs or legal representatives when they might come, it might well be said, that they were but public administrators or escheators, as the case might turn out to be ; and, in the one capacity, bound to account to the heirs and representatives of the deceased when they might appear, and to the State, as entitled to escheats and
bona
vacantia, if no heirs should exist. But the statute does not stop here. It provides, not merely that it shall be lawful for the town council to direct the town treasurer to take such property into his possession, but
“for the use
of such
town, until the heir or other legal representative of such deceased person shall call for the sameDig. 1798, p. 310, § 1. And again, in the 2d section of the same statute, (Ib. p. 311,) when treating of surplusses in the hands of executors or administrators, unclaimed for the period of two years, it provides that the.same shall be paid into the town treasury of the town where letters testamentary or of administration were talcen out,
“for the use of such
town, UNTIL the heirs or persons entitled to distribution thereof, shall appear to claim the same.” These words, thus repeated, that they may apply not only to all intestate real property unclaimed, but to all unclaimed personal property left by a deceased person, whether testate or intestate, are not without signification and purpose. In our judgment they were designed to declare, as they do declare, the beneficial use of the property embraced within the provisions of the statute to be in the towns in which it is situated, or, in case of administration of personal property, in which letters testamentary or of administration are taken out, subject only to the rightful.claim of heirs or legal representatives, if any such shall appear. The beneficial tenure of the town is, by this enactment, “
until
the heir or other legal representative of such deceased person shall call for the same,” in compensation for the charge over such prcperty imposed by the statute upon the town, in favor of those entitled, if any such shall call.
This construction is, we think, fortified by the relation which, as our early history informs us, was supposed to be borne by the towns to the Colony. Before the first charter procured by Boger 'Williams from the Earl of Warwick and the Lords’ Commissioners, in 1644, there were four principal settlements, or towns : Providence, Newport, Portsmouth and Warwick, three of which only were embraced within the terms of the charter ; Warwick being admitted at the first General Assembly held under the charter, in 1647. Preceding the charter and the Colony incorporated by it, in existence, it was at least, quite natural, that the opinion should prevail, that the towns, as the first sources of power and title,- were lords of the fee. Accordingly, in the Criminal Code enacted by the first General Assembly, in
1617, following the recital of the punishment of murder and petit treason by death and forfeiture of estate, as provided by the law of England, there is this declaration: “ Only we do declare, touching this matter, that each town is, of good right, the lord of the fee in respect of all the lands contained within its bounds, from whom every man has received his lands; which lords being all here present, in this General Assembly, and conceiving the wives and children ought not to bear the iniquities-of the husbands and parents, at least as the case stands with us,do therefore jointly agree, as far as in us lies, to allow the privilege of Kent throughout the whole Colony, and to propagate that country proverb in Providence Plantations: ‘ The father to the bough and the son to the plough,’ he having first defrayed the charges about the delinquent.” The towns in this State have ever played a principal part in the administration of its internal affairs, and for that purpose have been endowed with large and various powers and privileges. At this day, the people, as assembled in their respective towns, are alone represented in both branches of the .General Assembly ; and these- municipalities, either directly or through their principal officers, have ever been its favorites as the depositary of power, and the recipients of benefits. If the question, as a general one, had arisen at any former period of our history, whether the towns or the State should have the benefit of escheats,.no one penetrated with its spirit could doubt, that it would be answered, as it has been answered, at least, since 1768, by this statute, if not since 1617, by the declaration of the first General Assembly under the first charter, in favor of the former. So far as we can learn, this is the first claim of the sort made by the Colony or State against the towns ; though such cases, as the statute of 1768 recites, had been, as they must have been, numerous. We will not unsettle a practical construction of so old a statute, which has so long obtained; but leave it, if its spirit has passed away, or its policy no longer prevails, to be changed for the future, as it may be, by the legislative will, expressed in the form of a new statute upon this subject, or an amendment of the old one. In conclusion, however, we may be permitted to say,
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Ames, C. J.
The statute, the construction of which is involved in the demurrer, in its first section enacts, that “ when any person shall die, leaving any real or personal property within this State, and shall leave no known heir or legal representative within the United States to claim the same, it shall be lawful for
the town council of the town in which such real or personal estate may be, to direct the town treasurer of such town to take the same into his possession, for the use of the town, until the heir or other legal representative of such deceased person shall call for the same.”
The principal purpose of the act, as appears from its terms, as well as from the preamble to the act of 1768, in which it had its origin, was to provide for the custody and care of the intestate property of deceased persons, derelict, from the absence of claimants within the Colony first, and since within the United-States, to represent them ; and through the intervention of the towns within whose limits such property might be, to preserve it from being wasted, or intruded on by strangers, to the disinherison of the heirs, or to the loss of the legal representatives, when they might come to demand it. Where property is thus left, it can rarely be known with certainty, that there are no heirs capable of inheriting it; and the fair presumption, in the larger number of cases is, that though they may not be known, they somewhere exist. It was with this state of things that the statute, as a practical measure, was designed to deal; and in our judgment, to answer its purpose, as well as to satisfy its words, its first section embraces all intestate property of deceased persons, derelict for want of lawful claimants, whether because none such exist, as in case of escheats and
bona
vacantia, or because, though known, they are without the limits of the United States.
Had the statute stopped with merely directing that the towns within whose limits such property might be, should, through their officers, take possession of, and improve it, for the benefit of the heirs or legal representatives when they might come, it might well be said, that they were but public administrators or escheators, as the case might turn out to be ; and, in the one capacity, bound to account to the heirs and representatives of the deceased when they might appear, and to the State, as entitled to escheats and
bona
vacantia, if no heirs should exist. But the statute does not stop here. It provides, not merely that it shall be lawful for the town council to direct the town treasurer to take such property into his possession, but
“for the use
of such
town, until the heir or other legal representative of such deceased person shall call for the sameDig. 1798, p. 310, § 1. And again, in the 2d section of the same statute, (Ib. p. 311,) when treating of surplusses in the hands of executors or administrators, unclaimed for the period of two years, it provides that the.same shall be paid into the town treasury of the town where letters testamentary or of administration were talcen out,
“for the use of such
town, UNTIL the heirs or persons entitled to distribution thereof, shall appear to claim the same.” These words, thus repeated, that they may apply not only to all intestate real property unclaimed, but to all unclaimed personal property left by a deceased person, whether testate or intestate, are not without signification and purpose. In our judgment they were designed to declare, as they do declare, the beneficial use of the property embraced within the provisions of the statute to be in the towns in which it is situated, or, in case of administration of personal property, in which letters testamentary or of administration are taken out, subject only to the rightful.claim of heirs or legal representatives, if any such shall appear. The beneficial tenure of the town is, by this enactment, “
until
the heir or other legal representative of such deceased person shall call for the same,” in compensation for the charge over such prcperty imposed by the statute upon the town, in favor of those entitled, if any such shall call.
This construction is, we think, fortified by the relation which, as our early history informs us, was supposed to be borne by the towns to the Colony. Before the first charter procured by Boger 'Williams from the Earl of Warwick and the Lords’ Commissioners, in 1644, there were four principal settlements, or towns : Providence, Newport, Portsmouth and Warwick, three of which only were embraced within the terms of the charter ; Warwick being admitted at the first General Assembly held under the charter, in 1647. Preceding the charter and the Colony incorporated by it, in existence, it was at least, quite natural, that the opinion should prevail, that the towns, as the first sources of power and title,- were lords of the fee. Accordingly, in the Criminal Code enacted by the first General Assembly, in
1617, following the recital of the punishment of murder and petit treason by death and forfeiture of estate, as provided by the law of England, there is this declaration: “ Only we do declare, touching this matter, that each town is, of good right, the lord of the fee in respect of all the lands contained within its bounds, from whom every man has received his lands; which lords being all here present, in this General Assembly, and conceiving the wives and children ought not to bear the iniquities-of the husbands and parents, at least as the case stands with us,do therefore jointly agree, as far as in us lies, to allow the privilege of Kent throughout the whole Colony, and to propagate that country proverb in Providence Plantations: ‘ The father to the bough and the son to the plough,’ he having first defrayed the charges about the delinquent.” The towns in this State have ever played a principal part in the administration of its internal affairs, and for that purpose have been endowed with large and various powers and privileges. At this day, the people, as assembled in their respective towns, are alone represented in both branches of the .General Assembly ; and these- municipalities, either directly or through their principal officers, have ever been its favorites as the depositary of power, and the recipients of benefits. If the question, as a general one, had arisen at any former period of our history, whether the towns or the State should have the benefit of escheats,.no one penetrated with its spirit could doubt, that it would be answered, as it has been answered, at least, since 1768, by this statute, if not since 1617, by the declaration of the first General Assembly under the first charter, in favor of the former. So far as we can learn, this is the first claim of the sort made by the Colony or State against the towns ; though such cases, as the statute of 1768 recites, had been, as they must have been, numerous. We will not unsettle a practical construction of so old a statute, which has so long obtained; but leave it, if its spirit has passed away, or its policy no longer prevails, to be changed for the future, as it may be, by the legislative will, expressed in the form of a new statute upon this subject, or an amendment of the old one. In conclusion, however, we may be permitted to say,
that the statute as it now exists, vesting estates derelict by heirs or legal representatives, in the towns, subject to the call of those entitled, leaves them precisely where they should be left in a country governed by law, as distinguished from one governed by mere will — in the charge of wealthy corporations suable by those entitled, instead of that of the State, which is not suable.
The information states, that Alexis Teste died seized of the real estate in question, and intestate, on the 18th day of October, 1818, and that on the 19th day of January, 1823, the City, then Town, of Providence, entered and took possession of said estate. At both those periods the act, substantially as it remains now, was in force, as may be' seen by comparing it, as it stands in the Digest of 1798, and 1822, with the same enactment, now forming Chapter 160 of the Revised Statutes. As the estate vested beneficially in the town by force of the statute, subject only to the call of the heirs, and the information discloses no title in the State except by escheat, the demurrer to the information must be sustained. It is not pretended, that after the title has vested in the city under the law, the State can recall it, any more than an individual can recall a title once vested under his deed.
The information has been filéd by the Attorney General, in conformity with a resolution of the General Assembly, passed, as we must believe, from a sense of public duty, and in the assertion of what was deemed to be a public right; and for that reason, as well as in conformity with the general rule, must be dismissed without costs.