Britain, it is provided that British subjects who now hold lands in the territories of the United States, and American citizens who now hold lands in the dominions of his majesty, shall continue to hold them according to the nature and tenure of their respective estates and titles therein, and that neither they nor their heirs or assigns shall, so far as respects the said lands, and the legal remedies incident thereto, be regarded as aliens." This was held to extend to a married woman who left this country with her husband, a British officer, upon the ratification of peace, and never returned.22 8. The rule seems to be clearly established that an alien may take land by purchase or devise, and hold the same in fee, or any lesser estate, against all the world except the state, and against the state until after office found, or some equivalent act by the legislature. And the rule in this respect seems to be the same, whether it be an alien friend, or an alien enemy.24 And many of the cases in the American states hold that the alien may convey a defeasible estate, subject to be divested by the same proceedings which will divest the estate of an alien.25 9. But Chancellor Kent thus states the law, in regard to the descent of lands held by an alien at the time of his decease: "The law will not enable him to transmit by hereditary descent." "An alien has no inheritable blood," and upon his death, “the land instantly, and of necessity, without any inquest of office, escheats to the people." 26 "Shanks v. Dupont, 3 Peters, U. S. R. 242, 249; Orr v. Hodgson, 4 Wheat. 453; Blight's Lessee v. Rochester, 7 Wheat. 535. Craig v. Leslie, 3 Wheaton, 563; Doe d. y. Robertson, 11 Wheat. 332. See also, Inglis v. Sailors' Snug Harbor, 3 Peters, U. S. R. 99; Shanks v. Dupont, id. 242; Craig v. Radford, 3 Wheat. 594; Jackson v. Beach, 1 Johns. Cas 399; Jackson v. Lunn, 3 Johns. Cas. 109; Dudley v. Grayson, 6 Monroe, 260. * Fairfax's Devisee v. Hunter's Lessee, 7. Cranch. 603. 25 Marshall v. Conrad, 5 Call, 364; Sheafe v. O'Neil, 1 Mass. 256. *Mooers v. White, 6 Johns. Ch. 360, 366. See also, Collingwood v. Pays, 1 Sid. 193; 1 Vent. 413; 1 Plow. 229 k, 230 a. 10. This matter of the right of aliens to hold land in the several states, although a question affecting national allegiance, which is a question under the exclusive jurisdiction of the national government, seems to have been regarded as a matter wholly within the control of the state legislatures. Hence, at a very early day, it was not uncommon for special statutes to be passed in the different states, allowing aliens to hold lands. And there can be no question of the entire validity of such laws, and that the several states may allow resident aliens to hold lands within the state, upon such terms as they see fit to prescribe. And there can be no question, we apprehend, that the several states may by general laws allow all resident aliens to hold and convey lands within their limits, upon such terms as they deem proper, without naturalization. But such acts would be in conflict with the general national policy of most European nations. And so is the general policy of this country, in placing no limits or restrictions upon free access, ingress, and immigration into all parts of our widely extended country. We are now passing through a national crisis which may have the effect to restrict this unrestrained license of immigration, and to qualify the rights of the states in some respects, in relation to the right of aliens to hold lands under license from state authority.27 "In some of the states statutes have been enacted allowing aliens to hold land without restriction, while in others, residence, or that and the oath of allegiance is required. But it seems to be the generally received law in almost all the states, that they may hold and convey land as against every one but the state, and that they may even maintain an action for its recovery. M'Creery v. Allender, 4 Har. & McH. 409; Bradstreet v. Supervisors, 13 Wend. 546; Scanlan v. Wright, 13 Pick. 523; People v. Conklin, 2 Hill, 67; Waugh v. Riley, 8 Met. 295; Ramires v. Kent, 2 Cal. 558; Fiott v. Com. 12 Gratt. 564. A statute allowing aliens to hold lands by purchase will not enable them to take by descent. Colgan v. McKeon, 4 Zab. 566. In Louisiana aliens may inherit and transmit real estate by descent. Richmond v. Milne, 17 Louis. 312. In South Carolina, it has been held, that under the statutes of that state, upon the decease of an alien leaving an alien widow residing in the state, his land will SECTION II. DISABILITY FROM INFANCY. 1. At what age infants may dispose of property, by last will and testament. 2. Statutory provisions upon the subject, in the different states. 3. Ratification of will, made before age of capacity, must be in prescribed form. 4. Mode of computing the requisite age. § 4. 1. THE AGE at which persons shall be allowed to dispose of their property, real or personal, by last will and testament, is now determined by statute, both in England, and the United States. In England, until 1838, in conformity to the rule of the Roman Civil Law, upon this subject, males, at fourteen, and females, at twelve, were held competent to make wills in regard to personal estate. This rule was established, in the English not escheat, but if there be no heirs capable of taking, it will all go to his widow, but will go to his legal heirs, being naturalized, in preference. Ford v. Husman, 7 Rich. 165; Keenan v. Keenan, 7 Rich. 345. The State of New York early made laws allowing any alien resident in any of the United States, by making a declaration of intention to obtain naturalization in due course, capable of holding and transmitting by devise or descent, as by other means, the title to real estate, under certain qualifications, which indulgence by subsequent statutes has been very much extended. See 2 Kent, Comm. 52, et seq.; Currin v. Finn, 3 Denio, 229; Priest v. Cummings, 16 Wend. 617; McLean v. Swanton, 3 Kern. 535. 1 1 Vict. ch. 26, sec. 7; 20 & 21 Vict. ch. 77. And the substance of the provisions of the English statute upon this subject has been enacted in most of the American states, either before or since the date of the English statute. Swinb. pt. 2, sec. 2, pl. 6; Godolph. pt. 6, ch. 8, sec. 8. There is however some contrariety of statement, among English writers upon the subject. Co, Litt. 89 b, note 83, by Hargrave; 1 Williams' Ex'rs, 15, n. (o); Swinb. pt. 2, sec. 2, n. (f). But upon the whole there seems no ground to question, the rule was firmly established in England, as laid down in the text, previous to 1838. 1 Vict. ch. 26, sec. 7. ecclesiastical courts, at an early day; and as the exclusive primary jurisdiction, in matters of probate and the settlement of estates, until a recent period, resided in those courts, the * In the year 1857, the British parliament made a thorough revision of their probate jurisdiction, and established an independent court for that purpose, the judge being of civil appointment, and being also the judge of the Court of Divorce and Matrimonial Causes. This created a very important and radical change in regard to that jurisdiction. And as indicating the importance attached to that jurisdiction in that country, it may not be improper to state, that the late Sir Creswell Creswell, at the time one of the most esteemed of the common-law judges in Westminster Hall, accepted the office under the new act, which gave him the same rank and precedence, as that of the puisne judges in the superior courts of Westminster Hall, the same salary and retiring pension, and made him one of the judicial committee, whenever he is a member of the Privy Council. The successor of Sir Creswell Creswell, Baron Wilde, is one of the most acceptable of the puisne judges in Westminster Hall. than It is curious too, as affording a marked, and gratifying contrast, with the more common practice in this country, of committing the probate administration, especially in the rural districts, to unprofessional judges, who are too often the mere foot-balls of party politics. A judicious change, in this respect, which has been attempted in some of the states, by which an attorney and counsellor of the first grade should receive the appointment of probate judge, for the whole state, or an extensive district, which should require his entire capacity for service, and entitle him to an adequate salary; and should be also a permanent appointment, would be productive of more advantage practically, any other reform in the judiciary, which has been attempted, for the last half century. The members of our legislatures are not sufficiently impressed with the importance of committing this jurisdiction to competent hands. All the property of a state, about once in a generation, or the period of thirty years, has to pass through the probate court, in some form. The importance of the jurisdiction, in its entire scope, is therefore infinitely beyond that of the chancery or common-law courts, if no appeal were allowed. And these appeals are attended with great expense and delay, much of which might be saved by the appointment of competent men as probate judges. And the mere allowance of an appeal to the higher courts, in the last resort, affords no adequate security, that the detail of the administration will be wise and just. It is the daily progress of judicial administration, which is required to be in competent and faithful hands. It is undoubtedly an important and indispensable desidera common-law courts, and the Court of Chancery, conformed their rules upon the subject to that which obtained in the ecclesiastical courts. 2. By the present English statute, it is provided, "that. no will made by any person under the age of twenty-one years shall be valid." There is manifested of late, in this country, a disposition to raise the age of legal capacity to execute wills, to that of legal majority. This rule already obtains in a large number of the American states. But in a considerable number of the states infants are still allowed to dispose of their prop tumn, that the court of last resort, in all matters, be entirely reliable, in order to sustain that confidence which, in all states, is so necessary to produce and maintain quiet and good order. But while we place so much reliance upon this, we ought not to forget, that in the subordinate tribunals of the state, one judge, entirely competent, can accomplish more, and far more satisfactorily to the interests of those concerned, than ten, who are deficient in the proper training for the place. The probate administration is a department of the law, which in itself demands the study of a lifetime, for its mastery. And it is one which, from want of thorough study and extensive experience, the judges of our superior courts are not always entirely competent to administer. There should be at least one of the judges of the superior courts trained, in vacation, in the trial of probate causes. And if the facts, in this class of causes, were allowed to be definitively settled, in the probate courts, by the intervention of a jury, as in common-law actions, in the trial terms, and as is now done in England, in probate causes, it would be an improvement of vast consequence in its practical benefit. We trust the example of the British parliament, in this respect, will not be lost upon the American legislatures. • Smallwood v. Brickhouse, 2 Mod. 315. Here it was moved, in the King's Bench, that a writ of prohibition issue to the Prerogative Court, because that court proceeded to the proof of the will of a person under the age of sixteen years. And for authority, Lord Coke, 1 Inst. 89 b, was cited, where it is said, "that at eighteen years of age he may make his testament and constitute executors." But the court said, the proof of wills and the validity of them doth belong to the ecclesiastical courts; and sometimes they allow wills made by persons of fourteen years of age; and the common law hath appointed no time, it depends wholly upon the spiritual law. Hyde v. Hyde, Prec. Ch. Finch. 316; Ex parte Holyland, 11 Ves. 10, 11; 1 Williams' Ex'rs, 15, note (1); 2 Bl. Comm. 497. 1 Vict. ch. 26, sec. 7. |