Wadsworth and others vs. Murray and others, 16 Barb. 601

By the Court, Johnson, J. The question here is whether the lands devised by James Wadsworth to his daughter Elizabeth for life, and to her issue in fee, at her death, descended to the heirs at law of the testator; or whether her son, the defendant, Charles James Murray, who was an infant alien, took under the devise, subject to the right of the government to escheat. By the common law an alien could purchase land, or hold it' by devise, as against all the world except the government, during his life. But upon an inquest of office found it became forfeited to the government.

And if he died before such proceeding the inheritance could not descend, but escheated of course. _ He could also convey, and the grantee took a good title subject, nevertheless, to the prerogative right of forfeiture, (2 Kent, 61.) The revised statutes (2 R. S. 57, § 4,) provide that “ every devise of any interest in real estate to a person, who, at the time of the death of the testator, shall be an alien not authorized by statute to hold real estate, shall be void.

The interest so devised shall descend to the heirs of the testator.” On behalf of the appellants it is claimed that the real estate at the death of Elizabeth, the mother, descended to the heirs of the testator, under this

section of the statute. But the statute is not general in its terms. It is confined to a particular class of persons, and relates to their condition at a particular period, namely, at the death of the testator. The devise is declared void only as to those who were aliens and not authorized by statute to hold real estate at the period of the testator’s death, and not as to those then in being who might subsequently become aliens, or those who might be born such.

The mother of the defendant who claims under the devise, married an alien, long after the testator’s death, and the respondent is the issue of that marriage. This devise does not fall within the words of the statute, and, it seems to me, is not within its meaning and intent. The object ofithis

section of the statute seems to have been to defeat the intention of the testator in the particular case specified, and to prevent his devising in effect, and unconsciously, his lands to the state, and not to change beyond that, the rule of the common law. Had the legislature designed by this provision to work a complete and entire change, they would scarcely have been so careful and guarded in the terms used. The note of- the revisers on this

section confirms this view of its object. And as this devisee was not an alien at the period of the testator’s death, and it cannot be supposed to have been within the contemplation of the testator that the issue of his daughter would be born or would ever become aliens, it follows that he takes the estate under the devise, as against the testator’s heirs at law and all other persons except the government. And as the people have by the act of April 14, 1852, relinquished to said devisee all their rights, his title has become perfect. [Monroe General Term, December 5, 1853. Welles, Johnson and T. R. Strong, Justices.] The judgment of the special term must therefore be affirmed.