Radcliff, J.
It appears that John Kelly was a subject of Great Britain previous to the revolution ; that he resided at that time in the city of New York, and continued to reside in this state until his death, in 1798. His widow, the present demandant, has always resided in Ireland, and continued a British subject. She had, therefore, antecedent to the revolution, a capacity, in the'event of her husband’s death, to take and demand her dower. The question is, whether by the revolution she is deprived of that right. If the case had been silent as to her continual residence abroad, it might have been presumed that her condition followed that of her husband; but she is expressly stated to be a British subject, and always to have remained in Ireland. I think the validity of her claim, therefore, depends on the genera] question, how far the rights of individuals with regard to property, are af[30] fected by the revolution. The treaties between the United States and Great Britain do not appear to me to-reach this case. The one of 1783, merely forbids all forfeitures and confiscations on either side, and that of 1794, provides, that the subjects and citizens of both nations, holding lands in the territories of the other, may sell, devise and dispose of them at their pleasure, and shall be entitled to all legal remedies, &c. These provisions seem only to relate to rights that are vested and Complete. The interest. now claimed was not vested either at the time of the revolution, nor at the date of either of those treaties, and is, therefore, to be considered as independent of them.
In general, the severance, or revolutions of empire, I think, ought not to affect the rights of individuals with regard to property, and it does not appear to me, material, whether that right be contingent or absolute. It is sufficient that it had a commencement or inception, and actually attached to a specific subject. In the present case the demandant by her intermarriage with John Kelly, had, previous to the revolution, acquired a right, eventually, in case of his death, to be endowed of the estate of which he was then seised. The right was thus far acquired, and although dependent on the contingency of her surviving him, she ought not to be deprived of it by the circumstance, that a revolution intervened, before the contingency happened. Until the period of the revolution, she, therefore, had a capacity and a right to be endowed at his death, of the lands of,which he was then seised, and had been seised during the coverture, and that right must be deemed to continue. I think, however, it ought not to be extended beyond that period, and applied to lands subsequently acquired. At the revolution she became an alien, and her husband an American' citizen. The independence of this country, by creating a,new sovereignty, necessarily had that effect. (Black. Com. 131; Co. Lit. 31.) The general principle, therefore, that an alien cannot be endowed seems to be properly applicable to all lands which her husband acquired, in the character of an American citizen. This qualification of her claim will not affect any [31] right which had actually attached, at the period of the revolution, and such rights only are we bound, by the policy and justice of the case, to maintain. She had it in her power to pursue the condition of her husband, and entitle herself to the like claim in his subsequent estate. Not having done this, she must be deemed to have continued a British subject, and ought from that period to be restricted to her rights as such.
*1 am, therefore, of opinion, that the demandant is entitled to judgment, in respect to those lands only, of which her husband was seised before the revolution; to wit, on the 4th of July, 1776.
Kent, J.
The demandant must be ■ considered as an alien. She was not in fact a resident of the United States, at the declaration of independence,(a) nor do I perceive [32] that she can be considered a resident, by construction of law. If she had been here previously, and was at the time absent, animo redeundi, or although she had never resided in America, yet if we could collect from the case, that the separation between her and her husband, was intended to be temporary merely, and that, in the year 1776, she really meditated a removal here, and afterwards, effected it, or was prevented by inevitable accident, in such cases I might, perhaps, be disposed to consider the residence of her husband, constructively, as her residence. But the case before us will not justify any such intendment. Her hushand had left her, six years previous to our independence, and the separation continued until his death, 1798. The inference from these facts must be, that there was a permanent separation, by agreement of the parties, and not being a resident within the United States, in July, 1776, either in fact or in law, nor naturalized since, she is an alien.
Being an alien, the next point that arises in the case is, how far she can support her claim of dower.
I admit the doctrine to be sound, (Calvin’s case, 7, Co. 27, b. Kirby Rep. 143,) that the division of an empire works no forfeiture of a right, previously acquired, and as a consequence of it, that all the citizens of the United States, who were born prior to our independence, and under the allegiance of the king of Great Britain, would be still entitled in Great Britain to the rights of British subjects. But the rule will not apply, e converso, that British subjects have with us the privileges of citizens ; and for this evident reason, that the sovereignty of the United States was created by the act of independence, and There could be no previous right acquired in respect to it, and conseqently none to lose, nor could it include any persons, other than residents at the time, within its jurisdiction. The revolution, accordingly, left the demandant where she was before, and impaired no right she then enjoyed. She is entitled now to dower in all lands of which she wouldiiave been dowable, had her husband died at that time. But being an alien she cannot since have acquired rights of property which aliens are not permitted to acquire; and to render her dowable of lands pur[33] chased by her husband subsequent to July, 1776, is to vest her with a right not then vested.
By marriage, she was capable of being endowed of lands purchased by her husband at any time during the coverture. But the right could not attach till the land was purchased,' and I distinguish between the capacity to acquire and the vested right. The revolution took away the one, and did not impair the other.
I am of opinion, therefore, that if the lands of which dower is now claimed, were owned by the demandant’s husband, on the 4th July, 1776, she is entitled to dower; otherwise, not.
Benson, J. concurred.
Lansing, Gh. J. It has already been stated, that the only question which arises in this cause is, whether the demandant is capable of taking as tenant in doioer ?
It was admitted in argument, that the demandant, prior to the declaration of independence, had a capacity to take as such.
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Radcliff, J.
It appears that John Kelly was a subject of Great Britain previous to the revolution ; that he resided at that time in the city of New York, and continued to reside in this state until his death, in 1798. His widow, the present demandant, has always resided in Ireland, and continued a British subject. She had, therefore, antecedent to the revolution, a capacity, in the'event of her husband’s death, to take and demand her dower. The question is, whether by the revolution she is deprived of that right. If the case had been silent as to her continual residence abroad, it might have been presumed that her condition followed that of her husband; but she is expressly stated to be a British subject, and always to have remained in Ireland. I think the validity of her claim, therefore, depends on the genera] question, how far the rights of individuals with regard to property, are af[30] fected by the revolution. The treaties between the United States and Great Britain do not appear to me to-reach this case. The one of 1783, merely forbids all forfeitures and confiscations on either side, and that of 1794, provides, that the subjects and citizens of both nations, holding lands in the territories of the other, may sell, devise and dispose of them at their pleasure, and shall be entitled to all legal remedies, &c. These provisions seem only to relate to rights that are vested and Complete. The interest. now claimed was not vested either at the time of the revolution, nor at the date of either of those treaties, and is, therefore, to be considered as independent of them.
In general, the severance, or revolutions of empire, I think, ought not to affect the rights of individuals with regard to property, and it does not appear to me, material, whether that right be contingent or absolute. It is sufficient that it had a commencement or inception, and actually attached to a specific subject. In the present case the demandant by her intermarriage with John Kelly, had, previous to the revolution, acquired a right, eventually, in case of his death, to be endowed of the estate of which he was then seised. The right was thus far acquired, and although dependent on the contingency of her surviving him, she ought not to be deprived of it by the circumstance, that a revolution intervened, before the contingency happened. Until the period of the revolution, she, therefore, had a capacity and a right to be endowed at his death, of the lands of,which he was then seised, and had been seised during the coverture, and that right must be deemed to continue. I think, however, it ought not to be extended beyond that period, and applied to lands subsequently acquired. At the revolution she became an alien, and her husband an American' citizen. The independence of this country, by creating a,new sovereignty, necessarily had that effect. (Black. Com. 131; Co. Lit. 31.) The general principle, therefore, that an alien cannot be endowed seems to be properly applicable to all lands which her husband acquired, in the character of an American citizen. This qualification of her claim will not affect any [31] right which had actually attached, at the period of the revolution, and such rights only are we bound, by the policy and justice of the case, to maintain. She had it in her power to pursue the condition of her husband, and entitle herself to the like claim in his subsequent estate. Not having done this, she must be deemed to have continued a British subject, and ought from that period to be restricted to her rights as such.
*1 am, therefore, of opinion, that the demandant is entitled to judgment, in respect to those lands only, of which her husband was seised before the revolution; to wit, on the 4th of July, 1776.
Kent, J.
The demandant must be ■ considered as an alien. She was not in fact a resident of the United States, at the declaration of independence,(a) nor do I perceive [32] that she can be considered a resident, by construction of law. If she had been here previously, and was at the time absent, animo redeundi, or although she had never resided in America, yet if we could collect from the case, that the separation between her and her husband, was intended to be temporary merely, and that, in the year 1776, she really meditated a removal here, and afterwards, effected it, or was prevented by inevitable accident, in such cases I might, perhaps, be disposed to consider the residence of her husband, constructively, as her residence. But the case before us will not justify any such intendment. Her hushand had left her, six years previous to our independence, and the separation continued until his death, 1798. The inference from these facts must be, that there was a permanent separation, by agreement of the parties, and not being a resident within the United States, in July, 1776, either in fact or in law, nor naturalized since, she is an alien.
Being an alien, the next point that arises in the case is, how far she can support her claim of dower.
I admit the doctrine to be sound, (Calvin’s case, 7, Co. 27, b. Kirby Rep. 143,) that the division of an empire works no forfeiture of a right, previously acquired, and as a consequence of it, that all the citizens of the United States, who were born prior to our independence, and under the allegiance of the king of Great Britain, would be still entitled in Great Britain to the rights of British subjects. But the rule will not apply, e converso, that British subjects have with us the privileges of citizens ; and for this evident reason, that the sovereignty of the United States was created by the act of independence, and There could be no previous right acquired in respect to it, and conseqently none to lose, nor could it include any persons, other than residents at the time, within its jurisdiction. The revolution, accordingly, left the demandant where she was before, and impaired no right she then enjoyed. She is entitled now to dower in all lands of which she wouldiiave been dowable, had her husband died at that time. But being an alien she cannot since have acquired rights of property which aliens are not permitted to acquire; and to render her dowable of lands pur[33] chased by her husband subsequent to July, 1776, is to vest her with a right not then vested.
By marriage, she was capable of being endowed of lands purchased by her husband at any time during the coverture. But the right could not attach till the land was purchased,' and I distinguish between the capacity to acquire and the vested right. The revolution took away the one, and did not impair the other.
I am of opinion, therefore, that if the lands of which dower is now claimed, were owned by the demandant’s husband, on the 4th July, 1776, she is entitled to dower; otherwise, not.
Benson, J. concurred.
Lansing, Gh. J. It has already been stated, that the only question which arises in this cause is, whether the demandant is capable of taking as tenant in doioer ?
It was admitted in argument, that the demandant, prior to the declaration of independence, had a capacity to take as such.
In determining this question, 1 do not think it necessary to enter into a minute consideration of the effects which the separation of the United States from Great Britain, had on the situation of the subjects of that crown, inhabiting its dominions, beyond those states, as respects their rights in them, prior to the revolution.
T think, however, neither justice, sound sense, nor the just interpretation of the authorities submitted to our consideration, or such as I have had an opportunity of examining with a view to this question, impose it upon the court to decide on principles analogous to those which influenced the decisions of the English courts in the several stages in which they acquired or lost their continental possessions.
The event most analogous in English history to the separation of the United States from Great Britain, is that of the loss of Normandy. The Normans claimed England by conquest, and, however much it may be affected to be disguised, actually exercised the most rigorous rights derived [34] from that sourcej and though in process of time Normandy became only a secondary object to the successors of William the Conqueror, it might justly be considered, as the superior or ruling state, as long as the rights of sovereignty of both countries were cencentered in the same person.
Their sovereign, however, remained in England. Upon the separation of those states, it appears from 7 Co. 20, that it was held there, that all such lands as any Norman had, either by descent or purchase, escheated to the king, for their treason in revolting from their liege lord and sovereign. This was on the principle of a rebellion against their feudal chief; hut the dictates of policy must, obviously, have exclusively influenced an opinion so extremely rigorous and unjust, as to define the treason by territorial limits, and to subject the Normans, however diversified their cases might be, in consequence of their promoting or assisting the separation, to an indiscriminate loss of property.
This case cannot, therefore, be admitted as of any weight in forming a rule here.
In all the other instances presented in English history, the countries lost or acquired, were merely in right of the crown. The principle is universally admitted in all the authorities, that birth in its locality, is the test of subjection. A person under the allegiance of that crown, has a community of rights as a subject, and owes allegiance *to it as such. The object to which that allegiance attached continues to exist: and a new modification of the forms of government, as respected its executive, would not be permitted to vary its application.
But the present case appears under a somewhat different aspect. The United States formed a portion of the British dominions, but had no constitutional influence on the national will; the colonies were confessedly subordinate. Among them were found no objects to which allegiance, as derived from the previously existing government, could attach. I merely hint at this distinction, as 1 do not not mean to pursue or give any opinion on it. It is important, but the manner in which I contemplate the subject, does not lead me to a particular investigation of its tendency.
[35] It is admitted, that the demandant once had a capacity to fake. Her husband obtained the right of acquiring and holding real estate in this state, until his death. There is no pretence that the long separation between them, is to be attributed as a fault to her. She must, therefore, in legal intendment, be considered as'under the control of her husband. It does not appear that, as to him she has done any act to forfeit her dower. Her residence in Ireland, in legal construction, must have be.en dictated by her husband; and her domicil, constructively, is that of her husband.(a)
I am, therefore, of opinion, that she is entitled to recover, whether the seisin of her husband of the land of which she claims her dower, was before or after the revolution.
Lewis, J. was of the same opinion.
Judgment for the demandant, for dower in lands of which her husband was seised prior to the revolution.