People v. Irvin

21 Wend. 128

Opinion

By the Court,

Nelson, Ch. J.

William, the brother of the person last seised, if a citizen and capable of inheriting at the time of the decease of the intestate, would have taken the estate under § 8, of our statute of descents; and if dead leaving issue, also capable, they would like him have taken under the same section. 1 R. S. 752, § 8. 7 Wendell, 336. But he is an alien and therefore cannot take, and his uninheritable blood impedes the descent to the naturalized son, the defendant. It is perfectly settled upon all the law, that the nephew does not inherit immediately or personally from the uncle; that he must derive title from the common stock, (the grandfather) through the blood of the father ; he stands in the second degree. 2 Black. Comm. 207, 227. 7 Wend. 332, and the cases there cited. 10 id. 9, and 6 Peters, 108.

The only remaining question then is, whether the defendant is brought within the statute, 1 R. S. 754, § 22, ameliorating the law in respect to heirs claiming through alien ancestors. It provides, that “ no person capable of inheriting under the provisions of this chapter, shall be precluded from such inheritance, by reason of the alienism of any ancestor of such person.” This section was taken, substantially from the 11 and 12 Wm. 3, ch. 6,

* which is understood to apply only to the case of a deceased, not of a living ancestor; 9 Wheaton, 354; 2 Kent’s Comm. 55, 3d ed.; 7 Wend. 339 ; though I have not been able to find any express adjudication in England on the point.

Judgment for plaintiff.

The words of the statute of 11 and 12 Wm. III, ch. 6, 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 hereafter lawfully inherit and be inheritable, as heir or heirs to any honors, manors, 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, fully 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.