MCILVAINE v. COXE'S LESSEE
6 U.S. 280 (1805)

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U.S. Supreme Court

MCILVAINE v. COXE'S LESSEE, 6 U.S. 280 (1805)

6 U.S. 280 (Cranch)

M'ILVAINE
v.
COXE'S LESSEE. *

February Term, 1805

ERROR from the circuit court for the district of N. Jersey, to reverse a judgment given for the plaintiff below, upon a special verdict in ejectment.

The material facts of the case are stated in the argument of W. Tilghman.

W. Tilghman, for plaintiff in error.

The question which arises in this case is of great importance, and has never been decided in this court, nor in the State of New Jersey.

It is, in substance, whether a person born in the U.S. while they were British colonies, and who took no part in favour of the revolution but joined the British army in an early stage of the war, and from that time to this, by the whole tenor of his actions and declarations, has shewn his election not to be a citizen of the U.S. but to adhere to the British empire, was capable of taking land in New Jersey by descent in the year 1802.

There is no occasion to dwell minutely on the title. The lessor of the plaintiff had good title if Daniel Coxe, the younger, was capable of taking by descent from his aunt Rebecca Coxe who died in 1802, that is to say, he has title to a certain undivided part, according to the law of descents in New Jersey, concerning which there is no question.

Family disputes are always unpleasant; yet as laws regulating descent, are merely of municipal creation, no one has a right to complain if, by a change of the law, he now receives a less portion than formerly, or even if he receives no portion at all.

Page 6 U.S. 280, 281

By the law of New Jersey before the revolution, Daniel Coxe would have taken all the estate of his aunt, Rebecca, not only to the entire exclusion of his cousins, the children of his uncle William Coxe, deceased , but of his own sister, Mrs. Kempe. As the law now stands, we suppose he is entirely excluded.

In tracing the conduct of Daniel Coxe, from the commencement of the Revolution to the year 1802, which it is necessary to do in order to decide the cause, nothing more is intended than to bring into view those facts which the law must arise. It is far from our minds in doing this, to pass any censure on his conduct.

In revolutions, every man has a right to take his part. He is excusable, if not bound in duty to take that part which in his conscience he approves.

I will now proceed to state the facts necessary to be attended to, in order to decide the cause.

The ejectment is brought for a message and 200 acres of land situated in Trenton in New Jersey.

Daniel Coxe, the son, conveyed to John Redman Coxe, lessor of the plaintiff, who had previous notice of the defendant's claim.

The premises are part of the estate of Rebecca Coxe, deceased, and are of the value of 5000 dollars.

Rebecca Coxe died at Trenton in 1802, seized in fee of the premises, intestate and without issue.

In the year 1783, and before that time, she was a citizen of N. Jersey, and so continued until her death. -She left no brother or sister, but there were children of her two brothers, Daniel and William, as follows, viz.

1. Her brother Daniel, who died about 47 years ago, had issue Daniel Coxe, (under whom the lessor of the plaintiff claims) and Grace, Kempe ( widow of John Tabor Kempe, deceased) both now living. [6 U.S. 280, 282]


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