1. By the laws of Missouri in force in 1866, an alien was
capable of taking by descent lands in that state and of holding and
alienating them if he either resided in the United States, and, by
taking the oath prescribed by the act of Congress, had declared his
intention to become a citizen or resided in Missouri, although the
ancestor through whom he claimed was at the time the descent was
cast, an alien, who, by reason of his nonresidence, was incapable
of inheriting.
2. The statute of 1855 which gave to a nonresident alien the
right within a limited period to sell and convey the lands whereof
the intestate died seized appplied only where, at the time of his
death, there was no person capable of taking them by descent.
3. The statute of March 30, 1872 (
infra, p.
105 U. S.
336), has no retrospective operation.
This action, under the local law equivalent to an action of
ejectment, involves the title to certain real estate in the City of
St. Louis of which Edward Sullivan, a naturalized citizen of the
United States, who died intestate in the year 1866, was seized in
fee at the time of his death.
Both parties claimed under him. The court below specially found
that Emily Sullivan, one of the plaintiffs, was his sister, and
that Jeremiah Sullivan, the other plaintiff, was a son of his
deceased brother.
It was admitted on the trial that the plaintiffs were then, and
always had been, nonresident aliens and that neither had made a
declaration of intention to become a citizen of the United
States.
The court below held that under the laws of Missouri in force at
the death of Edward Sullivan, the plaintiffs were incapable of
acquiring the real estate in dispute, especially as there were
several aliens resident in this country who had declared their
intention to become citizens and also a resident alien in Missouri
to whom the real estate would descend subject to the limitations
mentioned in those laws.
Under the foregoing view of the case, the court found it
unnecessary to pass upon the other facts and questions of law
presented by the defendants.
Page 105 U. S. 335
Judgment was rendered for the defendants, and the plaintiffs
sued out this writ.
The remaining facts are stated in the opinion of the court, and
the statutes therein mentioned are as follows:
"
GENERAL STATUTES OF MISSOURI, 1865. TITLE XXVIII. CHAPTER
110."
"SEC. 1. All aliens residing in the United States who shall have
made a declaration of their intention to become citizens of the
United States by taking the oath required by law, and all aliens
residents of this state shall be capable of acquiring real estate
in this state, by descent or purchase, and of holding and
alienating the same, and shall incur the like duties and
liabilities in relation thereto as if they were citizens of the
United States."
"SEC. 2. It shall be lawful for every alien who, except for his
alienage, would be capable of acquiring real estate by devise or
descent from any person thereafter dying capable of holding at the
time of his death real estate in this state, to sell and convey, in
the manner provided by law for the conveyance of real estate, any
real estate which he may acquire by virtue of this section to any
other person capable of holding real estate by virtue of the laws
of this state, and such sale and conveyance, when executed and
delivered in the manner provided, shall have the effect to pass all
the title to any real estate which such alien may have acquired to
the same, by descent or devise."
"SEC. 3. All such sales and conveyances shall be null and void
unless made in good faith within three years next after the final
settlement of the estate of the ancestor or devisor,
provided that if such real estate be in litigation between
such alien and any other person, then such real estate or so much
thereof as shall have been in litigation shall be sold and conveyed
within three years after the termination of such litigation."
"
CHAPTER 129, id."
"
OF DESCENTS AND DISTRIBUTIONS"
"SEC. 1. When any person having title to any real estate of
inheritance or personal estate undisposed of or otherwise limited
by marriage settlement shall die intestate as to such estate, it
shall descend and be distributed in parcenary, to his kindred, male
and female, subject to the payment of his debts and the widow's
dower,
Page 105 U. S. 336
in the following course: first, to his children or their
descendants in equal parts; second, if there be no children or
their descendants, then to his father, mother, brothers, and
sisters and their descendants in equal parts; third, if there be no
children or their descendants, father, mother, brother, or sister,
not their descendants, then to the husband or wife; if there be no
husband or wife, then to the grandfather, grandmother, uncles and
aunts and their descendants, in equal parts; fourth, if there be no
children or their descendants, father, mother, brother, sister, or
their descendants, husband or wife, grandfather, grandmother,
uncles, aunts, nor their descendants, then to the
great-grandfathers, great-grandmothers and their descendants in
equal parts; and so on in other cases without end, passing to the
nearest lineal ancestors and their children and their descendants
in equal parts."
"SEC. 8. In making title by descent, it shall be no bar to a
demandant that any ancestor through whom he derives his descent
from the intestate is, or has been, an alien."
"
ACT OF MARCH 30, 1872"
"SEC. 1. Aliens shall be capable of acquiring by purchase,
devise, or descent real estate in this state and of holding,
devising, or alienating the same, and shall incur the like duties
and liabilities in relation thereto as if they were citizens of the
United States and residents of this state."
"SEC. 2. Any female born in the United States owning real estate
or any interest therein in this state who shall marry an alien and
reside in a foreign country may at any time, notwithstanding such
marriage or residence, convey such real estate or any interest
therein by deed, or may at any time devise the same by last will,
provided the same be done in either case in conformity
with the general laws of this state concerning the conveyance of
real estate by deed and the making of wills."
"SEC. 3. Chapter one hundred and ten of title twenty-eight of
the General Statutes of Missouri, being chapter five of Wagner's
Missouri Statutes, and an act entitled 'An Act to amend chapter one
hundred and ten of title twenty-eight of the General Statutes
concerning real property and its alienation,' approved March 13,
1867, are hereby repealed."
"SEC. 4. This act shall take effect on the fourth day of March,
in the year eighteen hundred and seventy-two. "
Page 105 U. S. 337
MR. JUSTICE HARLAN delivered the opinion of the Court.
At the death of the intestate, as well as at the commencement of
this action, the plaintiffs -- his sister and the son of his
deceased brother -- were residents of Ireland and subjects of the
United Kingdom of Great Britain and Ireland. The defendants, it is
sufficient to say, hold whatever title passed to a female lunatic,
foreign born and a first cousin of the intestate, residing at his
death in Maryland but who, so far as the record discloses, never
made a declaration of her intention to become a citizen of the
United States; also whatever title passed to the children of Annie
Murta and Mary Murta, foreign-born first cousins, who, like the
plaintiffs, resided at his death in Ireland and were subjects of
the United Kingdom of Great Britain and Ireland. But their
children, also foreign born, were at his death naturalized citizens
of the United States, one of them a resident of the State of
Missouri.
The controlling question related to the claim of the plaintiffs
to an interest in the property in controversy.
The statute to which, as bearing upon the case, our attention
has been called are chapter 110 of the Revised Statutes of
Missouri, 1865, sections 1 and 8 of chapter 129 of the same
revision, and an Act of the General Assembly of that state approved
March 30, 1872. The first section of chapter 110 is a reproduction
of statutory provisions which had been in force from a very early
period after the admission of Missouri into the Union. Rev.Stat.Mo.
1825, p. 126;
id. 1835, p. 66; Rev.Code of Mo. 1845, p.
113. It conferred upon two classes of aliens the same capacity of
acquiring by descent or purchase real estate in Missouri, and of
holding and alienating it, as is enjoyed by citizens of the United
States -- those residing in this country who had made a declaration
of intention to become citizens of the United States, by taking the
required oath, and those, whether they had made such declaration or
not, who resided in that state. Aliens not belonging to one
Page 105 U. S. 338
or the other of those classes were left subject to the operation
of the common law rule -- recognized as in force in Missouri --
that an alien, for the want of inheritable blood, could not take
land by descent.
Wacker v. Wacker, 26 Mo. 426; 2 Bl.Com.,
249;
Orr v.
Hodgson, 4 Wheat. 453. The second and third
sections, as to their substantial provisions, are brought forward
from an act approved Feb. 22, 1855, which declares it to be
"lawful for every alien who, except for his alienage, would be
entitled to any real estate by devise or inheritance from any
person hereafter dying, capable at the time of his death of holding
real estate situate in this state, to legally sell, for his own
use, and convey the title thereof to any person capable of holding
real estate situate within this state,
provided he make
such sale and conveyance within three years next after the death of
him from whom he shall claim such devise or inheritance."
When the minor is an alien, his guardian is authorized to make
such sale and conveyance. Sess.Laws Mo. 1855, p. 4.
It is quite clear that upon the death of Edward Sullivan,
neither of the plaintiffs took by descent any interest in his real
estate, for the reason suggested by the very words of the statute
and fortified by the policy which dictated its enactment, that they
were and are alien non-residents of the United States. This
construction must be adopted unless the object of the act of 1855
was, for purposes of descent, to obliterate all distinction between
aliens residing in and those residing out of the United States. But
no such interpretation is admissible, especially in view of the
fact that the statute of 1855, upon this general subject as well as
that enacted previously thereto, was embodied in the same chapter
of the general revision of 1865. The section declaring it lawful
for an alien to sell and convey, within a prescribed time, to one
capable of holding, real estate which, except for his alienage, he
would have been capable of acquiring by devise or descent, has
reference to cases not embraced by the first section of chapter 110
-- that is, to cases in which the property would vest at once in
the state for the want of some person who could, at common law or
under the statute, inherit. Aliens of the class described in the
first section of chapter 110 could not
Page 105 U. S. 339
inherit at common law, but by statute they were permitted to
take by descent or purchase, holding or selling and conveying as it
suited their convenience to do the one or the other. In all those
respects, aliens embraced by that section were placed upon the same
footing of equality with citizens of the United States. But to an
alien who did not have capacity to inherit by virtue of residence
in Missouri or of residence in the United States accompanied by a
formal declaration under oath of intention to become a citizen, the
right was given by the act of 1855, continued and enlarged in
section 2 of chapter 110 -- not to inherit and hold, as a native or
naturalized citizen could, but to take and sell and convey to one
who could hold. Until the law of 1855 was enacted, the right of the
state to take the real estate of one who left no person in
existence capable of acquiring it, by descent, accrued immediately
upon the death of the owner. Impelled by a sense of justice or to
meet the hardships of cases likely to arise in a new state
receiving large accessions to its population from Europe, Missouri,
as a partial waiver or suspension of its rights and for no other
purpose, declared by the act of 1855 that an alien who did not
reside in Missouri or in this country with an intention to become a
citizen of the United States and who could not therefore inherit,
might, within a limited period, sell and convey to one who could
take and hold.
That statute plainly had no reference to those aliens upon whom
had already been conferred by statute the capacity to inherit and
hold or to sell and convey in the same manner as citizens of the
United States.
But the contention of counsel for the plaintiffs is that the
children of Annie and Mary Murta could not take this property, nor
any interest in it, because their alien nonresident mothers,
through whom they traced relationship to the deceased, were alive
at his death, and since the parents were incapable of taking for
the reasons we have given, their children could not take. Upon the
basis of that conclusion, counsel advance to the further
proposition that if neither the plaintiffs nor the Murta children
could take by descent, the property upon the death of the intestate
escheated to the state, and the right of the plaintiffs to take as
the nearest of kin was subsequently recognized
Page 105 U. S. 340
and established by the first section of the act of March 30,
1872.
Although that statute was enacted within three years after the
final settlement of Edward Sullivan's estate, and although its
object was undoubtedly to remove the disabilities of aliens or
every class, whether resident or nonresident, to acquire real
estate in Missouri by purchase, descent, or devise, we are of
opinion that neither of the propositions just stated can be
successfully maintained. The Murta children, we have seen, were
naturalized citizens of the United States, one of them being also a
resident of Missouri. At the time descent was cast, they were the
nearest of kin of the class of aliens who, by the first section of
chapter 110, were capable of acquiring real estate in Missouri by
descent or purchase. Their right to take by descent was not, as we
think, affected by the fact that their respective mothers were,
when the intestate died, alive and alien nonresidents of this
country, incapable themselves of inheriting the estate. The eight
section of the chapter (129) on descents and distributions declares
that, "in making title by descent, it shall be no bar to a
demandant that any ancestor through whom he derives his descent
from the estate is or has been an alien." This language would seem
to embrace as well the case of one whose alien progenitor, through
whom is traced relationship to the intestate, was living when
descent was cast, as the case where such progenitor was then dead.
This view is controverted by the plaintiffs on the authority of
McCreery's Lessee v.
Somerville, 9 Wheat. 354, where this Court had
occasion to determine the meaning of the statute of 11 & 12
William III. c. 6, which, it is claimed, is, upon the present
point, identical with the foregoing section in the Missouri statute
of descents and distribution. It was there ruled that the English
statute (in force in Maryland, from which state the case came)
removed the common law disability to claim title through an alien
ancestor, but did not apply to a living alien ancestor so as to
create a title by heirship where none would exist by the common law
if the ancestor were a natural-born subject. We remark in reference
to that case that the English statute is not accurately quoted in
the opinion of the Court, as an examination of 10 British Stat. at
Large 319
Page 105 U. S. 341
(Pickering's Ed.) will show. but without deciding that the words
omitted ought to have produced a judgment different from that
rendered, we are of opinion that the present case is not governed
by
McCreery's Lessee v. Somerville. The statute of
Missouri which permits the demandant to inherit from an intestate
notwithstanding his ancestor, through whom he derives his descent,
is or has been an alien must be interpreted with reference as well
to other provisions conferring upon aliens the capacity to inherit
real estate as to the public policy which manifestly induced such
legislation. These provisions, in terms, make an alien resident in
Missouri, or an alien resident elsewhere in this country, intending
to become a citizen, capable of inheriting real estate by descent
or purchase. In making title by descent it may be that his ancestor
is or was an alien, without inheritable blood, either at common law
or by statute. That fact would ordinarily constitute an insuperable
difficulty in the way of his taking or holding the estate. But the
statute elsewhere interposes in his behalf and says that he shall
not be barred in tracing his descent from the intestate by reason
of the fact that any ancestor either is or has been an alien --
language broad enough, as we have suggested, to include a living as
well as a dead progenitor.
Unless the statute be so construed, it would result that while
an alien residing in Missouri, having no purpose to become a
citizen of the United States, could, under the then existing law,
if the nearest of kin, inherit and hold as fully as if he were a
citizen of the United States, a naturalized citizen, actually
residing in Missouri, would be barred from taking and holding by
the fact -- wholly unimportant in view of the policy of the state
-- that his parent or ancestor, through whom he must trace
relationship to the intestate, was, when descent was cast, alive
and an alien nonresident of the country, or a resident of the
United States outside of Missouri with no intention to become a
citizen. We are not satisfied that such an interpretation of the
statute would be consistent with the intention of the legislature,
and we therefore reject it as unsound.
But should we be in error in this construction, there is
Page 105 U. S. 342
another ground upon which the claim of the plaintiffs must be
denied.
We have ruled that when descent was cast, neither of the
plaintiffs had capacity to inherit, and if, as contended, the Murta
children were also barred by the fact that their respective alien
mothers were then living, it would result, as counsel concede, that
the property escheated to the state immediately upon the death of
Edward Sullivan. This upon the ground that the legal title could
not be in abeyance. 2 Fearne 20. In that contingency, neither the
plaintiffs nor the defendants could claim any interest in the
property by virtue of the act of 1872. The Constitution of Missouri
forbids the General Assembly from passing any law retrospective in
its operation. Art. 1, sec. 28. And if that inhibition does not
prevent the state from releasing, under the authority of a statute
and for the benefit of individuals, any right of property it may
have acquired by escheat, it is sufficient to say that the act of
1872 contains no language clearly indicating an intention to make
it retrospective. It is consequently applicable alone to future
acquisitions by aliens of real estate in Missouri.
Judgment affirmed.
