CHAPTER III.

THE EXECUTION OF WILLS.

SECTION I.

PERSONS INCAPABLE OF EXECUTING WILLS.

ALIENS.

1. The general rule is that the capacity to execute wills extends to all.

2. Aliens cannot devise real estate, but may personalty, subject to qualifications."

3. Sir E. Sugden's definition of the rights of aliens in this respect; other views.

4. A denizen may hold land acquired after becoming such.

5. Alien may take land by devise the same as by purchase, until office found, but cannot take it by descent, or other act of law.

6, 7. Who are to be regarded as aliens in this country.

8. An alien may take, and hold, and convey land, except as against the State. 9. But upon his decease the lands instantly, vest in the State by way of escheat. 10. The right of aliens to hold land is exclusively a matter of State cognizance. n. 27. The law of the several states as to aliens holding real estate.

§ 3. 1. THE persons capable of executing wills are best defined by stating the exceptions of such as labor under incapacity, all others being competent.1

2. Of these, aliens form one class, who by the English common law, which has been adopted in most of the American states, are incompetent to devise real estate. Alien friends, by which is understood those persons owing allegiance to sover

Swinb. pt. 2, sec. 1.

Co. Litt. 2 b. This rule is here extended to chattels real.

eignties at peace with us, do not labor under any disability in regard to executing wills of personal estate. But alien enemies are incapable of making a valid will of personalty even, unless by force of special license from the National government to reside and transact business within our jurisdiction during the continuance of hostilities.3

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3. The subject of the rights of aliens, in regard to holding and transmitting real estate is, perhaps, of sufficient importance, in this connection, to warrant à reference more in detail to the rules of the English and American law upon the subject. The rule of the English law is thus stated by Sir E. Sugden,1 "Aliens are incapable of holding real estate, for although they may purchase, yet it can only be for the benefit of the king; and upon an office found the king shall have it by his prerogative." And an alien cannot protect himself by taking the conveyance in the name of a trustee. But the interest of an alien, under a devise to trustees to sell for the benefit of himself and others, does not go to the crown. The ground of these decisions seems to be, that the trust in favor of the alien is not of the land, but merely of a pecuniary obligation, which is as valid in favor of an alien as of a citizen. The Master of the Rolls, Lord Langdale, here said, that in regard to the land, "there is at the present time no vested interest in any alien. The vested interests are in English subjects. The interests in aliens are contingent and expectant on the determination of these vested

Vin. Ab. Devise, G. 17; Bac. Ab. Wills, B. The general rules of the English law in regard to the right of aliens to convey real estate by devise, or otherwise, will be found in Co. Litt. 2b, and in other elementary works. 1 Wms. Ex'rs, 11, 12, and cases cited; 1 Jarman, Perk. ed. 50, 51; 1 Jarman, Eng. ed. 1861, 35, 37, 60, 61, 62, 63, 64.

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• Vendors & Pur. ch. 20, sec. 11, p. 564.

'Co. Litt. 2 b; Dumoncel v. Dumoncel, 13 Ir. Eq. Rep. 92.

• The King v. Holland, Aleyn, 14; Sty. 20, 40, 75, 84, 90, 94; 1 Ro. Ab. 194,

pl. 8.

'Du Hourmelin v. Sheldon, 1 Beavan, 79; 4 My. & Cr. 525.

interests." This was a devise of lands to English subjects in trust to sell, and, after payment of mortgages, to invest the surplus moneys in the funds in trust for persons, some of whom were aliens. And the Chancellor, Lord Coltenham, seems to have affirmed the decree upon the same ground. His lordship said, "The incapacity of aliens to hold land is founded upon political and feudal reasons, which do not apply to money." And it is here said by the learned judge, that if the alien had an election whether to take the money or land, it could make no difference. And similar views seem to be maintained in the American courts in regard to this question. For although it has been held, that an alien cannot indirectly, and through the intervention of a trustee, become the beneficial purchaser of land, so as to hold it against the state; yet a trust to sell land and to pay over the proceeds to an alien, or hold the same for his benefit, is valid.9 The last case was where an attorney, in the collection of a debt for a partnership of which the members were aliens, accepted land in payment, and took the conveyances to himself on account of the alienage of his clients, intending to convert the land into money and remit to them, but died before effecting a sale. His heirs sold the land supposing it belonged to them, and it was considered that they held the avails of the sale, being money, in trust for the partners, and that the surviving partner might recover the same, as funds belonging to the partnership.10 And where the testator conveyed all his estate, real and personal, to his executors, as trustees, out of the proceeds to pay all, except necessary expense of administration, to an alien by name, it was held to be a mere personal legacy, and that the alien might well take and hold it.11

8 Leggett v. Dubois, 5 Paige, 114.

Anstice v. Brown, 6 Paige, 448.

10 See Mooers r. White, Johns. Ch. 360; Wright v. Methodist Episcopal Church, 1 Hoff. Ch. Rep. 222, 224.

"Craig v. Leslie, 3 Wheaton, 563.

4. "If an alien be made a denizen by the king's letters patent he is then capable of holding land purchased after his denization." 12" And if after the purchase of the estate by the alien, and before office found the king make him a denizen by letters patent and confirm his estate, it is thereby rendered valid, as the estate is not in the crown until office found." 13

5. It seems to be well settled at common law,14 and has been repeatedly decided in this country, that an alien may take land by devise the same as by purchase, and hold the title subject to the right of the sovereignty to procure an escheat or forfeiture, by information and office found.15 It is held in some of the states that the estate of a deceased alien in land will escheat to the state without office found, since it cannot pass to the heir, as an alien can only take land by purchase and not by act of law.16 So an alien cannot be tenant by the curtesy, as that is an estate which vests by act of law.17 And even where the husband being an alien makes the preliminary declaration of intention to become a citizen before the decease of

Co. Litt. 2 b; 7 & 8 Vict. ch. 66, sec. 6-11.

Fourdrin v. Gowdey, 3 My. & Keen, 383. This case was three times argued before Sir John Leach, M. R., and grave doubt seems to have been entertained whether the English sovereign could confirm by letters patent to one made denizen the title of his before acquired lands; but upon the authority of the early cases, it was regarded by the learned judge as unquestionable, that he might do so. Anony. Goulds. 29, pl. 4; 1 Leon. 47, pl. 61; 4 Leon. 82, pl. 175, where it appears that letters patent of denization contained such clauses, as early as the 20 Eliz.

"This will be found to be the uniform current of the English decisions from the time of the Year Books to the present time. 11 Hen. 4, 26; 14 Hen. 4, 20; Co. Litt. 2b; Pow. Dev. 316; 10 Mod. 113-125; Dyer, 2 b, n.

15 Fairfax's Devisee v. Hunter's Lessee, 7 Cranch, 603; Sheaffe v. O'Neil, 1 Mass. 256, where it was held, that the alien may convey his estate and his grantee may maintain an action in his own name, declaring upon his own right

in fee. But the question does not seem to have been much considered here.

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15 Rubeck v. Gardner, 7 Watts, 455. See Mooers v. Wright, 6 Johns. Ch. 360. "Reese v. Waters, 4 Watts & Serg. 145.

the wife, and completes his naturalization afterwards, he is not entitled to hold her land by curtesy.18

6. The settled doctrine in this country is, that a person born here, and who left the country before the declaration of independence and never returned here, became an alien, and incapable of taking land subsequently by descent.19. The point of time at which the American ante nati ceased to be British subjects, differs in this country and England, as established by the decisions of the courts of justice in the respective countries. The English rule is to take the date of the treaty of peace, 1783, and ours that of the declaration of independence.19 But a British subject and his children, remaining here during the Revolutionary war under British protection, and leaving with their armies; or upon the ratification of peace, and never returning; are aliens as to our government, and cannot take lands in the State of New York by inheritance.19

7. By the treaty of 1783, all those, whether natives or otherwise, who then adhered to the American states, were virtually absolved from all allegiance to the British crown, and those who adhered to the British crown were deemed subjects of that crown.20 It is held, that British subjects born before the Revolution, are equally incapable of inheriting land here, as if born since.21 By the ninth article of the treaty of 1794, with Great

18 Foss v. Crisp, 20 Pick. 121. Putnam, J., here said, "It is very clear that the alien himself does not become a citizen until he is actually naturalized. Until that time the common law disabilities of alienage continue, except as they are relaxed in favor of his widow and children by the statute of the United States," by which an alien dying after having made the preliminary declaration, by his widow and children, are to be considered as citizens of the United States. Inglis v. The Trustees of The Sailor's Snug Harbor, 3 Peters, U. S. R. 99; Shanks v. Dupont, 3 Pet. U. S. R., 242.

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20 Shanks v. Dupont, 3 Pet. U. S. R. 242, 247. It is here held, that marriage of the wife who is a citizen with an alien husband does not affect her allegiance, but a permanent removal out of the country is an effectual renunciation of her allegiance.

21 Blight's Lessee v. Rochester, 7 Wheaton, 535.