Taylor

V.

Mason.

concile his kindness to J. T. M. with his pride, he 1824. endeavours to give his nephew the advantages of an estate for life, in such form as to leave him no power over the fee. It is not unworthy of remark, that in endeavouring to accomplish this object, he continues the use of the word "possession." My will is, he says, "that he (J. T. M.) shall keep the whole of my property in his possession during his life, with full power," &c. Whether the legal effect of this clause be the same with an express devise to J. T. M. fcr life, remainder to his heirs in tail, is unimportant with respect to the present inquiry. It shows the intention of the testator, and the sense in which he used the word. It shows that he distinguished between possession and title.

The Court is of opinion, that were the paper which is supposed to have been executed in 1803 to be considered as constituting singly the will of Richard Barnes, and were it to be admitted, that an estate tail did not vest in J. T. M., still the conditions annexed to the estate devised to his oldest heir male are subsequent, and not precedent; and, consequently, the contingency, on which the devise is to take effect is not too remote. This opinion renders it unnecessary to decide the questions, so elaborately discussed at the bar, whether the last will revoked those which preceded it, and whether an estate tail is vested in J. T. M. It would be improper to decide those questions at this time, because persons may be interested in them who are not now before the Court

Decree affirmed.

Vel. IX.

15.

The statute of 11 and 1 Wn. III. c. 6., vhich is in force in Maryland, removes the common law disability of claiming title through an alien ancestor, but does 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 or citizen. Thus, where A. died seised of lands in Maryland, leaving no heirs, except B., a brother, who was an alien, and had never been naturalized as a citizen of the United States, and three nieces, the daughters of the said B., who were native citizens of the United States: it was held, that they could rot claim title by inheritance, through B., their father, he being an alien, and still living.

ERROR to the Circuit Court of Maryland.

The case agreed, stated, that William M'Creery was seised and possessed of a tract of land in Baltimore county, in the State of Maryland, called Clover Hill, and died possessed thereof about the 1st of March, 1814. He had previously executed an instrument of writing, purporting to be his last will and testament, by which he devised the above tract of land to those under whom the defendant, Somerville, claimed; but it was witnessed by two persons only, and was, therefore, inoperative to pass lands in Maryland, the laws of which require. three witnesses to a will for that purpose. W. M'Creery left at his death no children, but a brother, Ralph M'Creery, a native of Ireland, who is still living, and who has not been naturalized, and three nieces, Letitia Barwell, Jane M'Creery, and Isabella McCreery, the latter being the lessor of the plaintiff, who are the daughters of the said Ralph, and native born citizens of the United States.

1824.

V.

Somerville.

The devisees under the will applied by petition to the Legislature of Maryland to confirm the will, McCreery and the Legislature, accordingly, without the knowledge or consent of the lessor of the plaintiff, passed an act for that purpose; saving, nevertheless, the rights of all persons claiming title to the lands devised, by conveyance from any of the heirs of W. McCreery. The action was brought to recover an undivided third part of Clover Hill.

Upon this case, judgment was rendered by the Court below for the defendant, and the cause was brought by writ of error to this Court.

1825.

The cause was argued by Mr. Winder, for the March 14th, plaintiff in error, and by Mr. D. B. Ogden, for the defendant, and continued to the present term for advisement.

Mr. Justice STORY delivered the opinion of the Feb. Sd, 1824, Court.

The title of the lessor of the plaintiff to recover in this case, depends upon the question, whether she can claim as one of the coheirs of her deceased uncle, her father being an alien, and alive at the commencement of the present suit. It is perfectly clear that, at common law, her title is invalid, for no person can claim lands by descent through an alien, since he has no inheritable blood. But the statute of 11 and 12 Wm. III. ch. 6. is ad

a He cited Co. Litt. 3 b. 1 Sidif. 193. 2 Bl. Com. 226. 249, 250. 257. Bac. Abr. Alien, C. 132. 4 Wheat. Rep. 453. 2 Mass. Rep. 179.

1824.

McCreery

V.

Somerville.

mitted to be in force in Maryland; and that statute, beyond all controversy, removes the disability of claiming title by descent, through an alien ancestor. The only point, therefore, is, whether the statute applies to the case of a liring 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 have not been able to find any case in England, in which this question has been presented for judicial decision. In the case of Palmer v. Downer, (2 Mass. Rep. 179.) in the State of Massachusetts, the facts brought it directly before the Court, but it, does not appear to have attracted any particular'attention, either from the Bar or the Bench. It may, then, be considered as a question of new impression, and is to be settled by ascertaining the true construction of the statute of William.

That act is entitled, "An act to enable his majesty's natural been subjects to inherit the estate of their ancestors, either lineal or collateral, notwithstanding their father or mother were aliens." The title is not unimportant, and manifests an intention merely to remove the disability of alienage. It proceeds to enact, "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, should and might, thereafter, inherit and be inheritable, as heir or heirs, to any honours, &c. lands, &c. and make their pedigrees and titles, by descent, from any of their ancestors, lineal or collateral, although the father and mother, or father or mother, or other ances

M'Creery

V.

Somerville.

tor, of such person or persons, by, from, through, 1824. or under whom he, she, or they should or might make or derive their title or pedigree, were, or was, or should 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 and mother, or father or mother, or other ancestor or ancestors, by, from, through, or under whom he, she, or they should or might make or derive their title or pedigree, had been naturalized, or natural born subjects." In construing this enactment, it ought not to escape observation, that the language is precisely such as Parliament might have used, if the intention were confined to the mere removal of the disability of alienage. It declares, that persons might lawfully inherit and be inheritable, as heirs, and make their titles and pedigrees, by descent, from any of their ancestors, although their parents were born out of the realm; plainly supposing that they might take as heirs by descent, but for the circumstance of the alienage of the intermediate ancestors, through whom they must claim. It speaks of such intermediate ancestors, as persons who were or should be born out of the realm, and it enables the party to take, as heir, as effectually as if such ancestors had been natural born subjects. Now, this language imports no more than a removal of the defect, for want of inheritable blood. It does not, in terms, create a right of heirship, where the common law, independently of alienage, prohibits it; it puts the party in the same situation, and none