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McCarthy v. Marsh

5 N.Y. 263 Court N.Y. English

Delivered by *Nuggles, C. J.

Contents

Majority

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McCarthy v. Marsh et al.

Headnote

Descent through alien ancestors. — Naturalization.
Under the revised statutes, a person may take lands by descent, though he derive title through a collateral relation, who was an alien.
Banks v. Walker, 3 Barb. Ch. 438 , overruled.
The judgment of a court of competent jurisdiction, admitting an alien to citizenship, reciting the necessary facts to entitle him thereto, is conclusive, that all the prerequisites have been complied with ; it cannot be impeached in a collateral suit.
Appeal from the general term of the Supreme Court, in the first district, where a judgment entered on a verdict in favor of the plaintiff had been affirmed.
This was an ejectment to recover possession of a lot of ground, No. 49 Walnut street, in the city of New York, of which the defendants, Charles Marsh and Benjamin Andrews, were in possession, at the commencement of the action; the latter died before the trial, and his heirs were substituted as parties.
*On the trial, at the circuit, before Mitchell, J., it appeared, that Denis McCarthy, a naturalized citizen, died seised of the premises, in 1835; the
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plaintiff claimed title as his heir-at-law. Murtaugh McCarthy, the common ancestor of the plaintiff, and of the person who died seised, left two sons, Daniel McCarthy and Timothy McCarthy; the plaintiff was the great-grandson of the former; Denis McCarthy, who died seised, was the grandson of the latter. Murtaugh McCarty and all his descendants, except the plaintiff, and the person who died seised, were aliens, and had never been within the United States.
McCarthy, who died seised, left a widow, Eliza McCarthy, and three children of a niece, Joanna Bant; the children were naturalized citizens, but their mother, who was still living, was an alien.[1] On the 25th May 1836, the legislature passed an act authorizing the commissioners of the land-office to release to the widow all the interest which the state had acquired in the premises by escheat, on the condition that tho same should be sold, under the direction of the vice-chancellor of the first circuit, the widow releasing to the purchaser her right of dower, and the net proceeds equally divided between the said Eliza McCarthy, the widow, and Joanna Bant, the niece of the decedent. The property was accordingly sold by a master, and Benjamin Andrews, one of the original defendants, became the purchaser thereof, and of the adjoining lot, for the price of $8400, for which a deed was given on the 14th December 1836. Eliza McCarthy, the widow, died in 1847.
Denis McCarthy, who died seised, was naturalized in 1806; and the plaintiff, to prove his own citizenship, produced the *original book of records, from the records of the clerk’s office of Saratoga county, wherein was an entry of the 26th August 1834, present
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Hon. Samuel Young, first judge, and Guert Van Schoon-hoven, Harvey Granger and Nicholas B. Doe, judges, as follows :
“In the matter of Denis McCarthy, an alien. It having appeared to this court, that Denis McCarthy has, in due form of law, more than two years since, declared his intention to become a. citizen of the United States, and this court being satisfied, that the said Denis McCarthy has resided within the limits of the United States, five years, at least, and within the state of New York, at least, one year, and that, during that time, he has behaved as a man of a good moral character, attached to the principles of the constitution of the United States, and well disposed to the good order and happiness of the same; and the said Denis McCarty having now here, before this court, declared on oath, as follows: — ‘I, Denis McCarthy, do solemnly swear and declare, in the presence of Almighty God, that I will support the constitution of the United States, and that I, absolutely and entirely, renounce and abjure all allegiance and fidelity to every foreign prince, potentate, state or sovereignty whatever, and particularly to the King of Great Britain and Ireland:’ — It is, therefore, ordered by this court, that the said Denis McCarthy be admitted a citizen of the United States of America.”
*The plaintiff gave evidence that he was the person referred to in the record, and that two witnesses were sworn and examined in his behalf in open court. The defendant produced from the files of the clerk’s office, the declaration of Denis McCarthy, of his intention to become a citizen, sworn to, on the 2d September 1831, but which did not' contain the facts required by the act of congress, in such declaration. Other evidence was offered tending strongly to show that no such declaration had ever, in fact, been made by the plaintiff, which was admitted by the court, under objection by the plaintiff’s counsel.
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On the close of the plaintiff’s testimony, the defendants’ counsel moved for a nonsuit on the grounds: 1. That by the defect in his declaration, the admission of the plaintiff to citizenship was void: 2. That he could not make himself heir to the person who died seised, through alien collateral relations, who were not his ancestors. The motion for a nonsuit was denied, and an exception taken.
*The learned judge instructed the jury, that the alienism of the father and grandfather of Denis McCarthy, who died seised, was no impediment to the claim of the plaintiff to be his heir-at-law; and that the evidence established, conclusively, that the plaintiff was duly admitted a citizen of the.United States; to which the defendants’ counsel excepted. There was a verdict in favor of the plaintiff; and a motion for a new trial, made upon a bill of exceptions, having been ’ denied, at general term, and judgment perfected upon the verdict, the defendants took this appeal.
O’ Conor, for the appellants.
Emmet, for the respondent.

By the common law, the plaintiff could not have inherited the estate in controversy, from Denis McCarthy, of New York, because he traces the descent of the land through aliens, who, having no inheritable blood, were incapable not only of taking by inheritance, but through whom it could not be transmitted. (Jackson v. Green, 7 Wend. 333 ; People v. Irvin, 21 Id. 128; Jackson v. Fitzsimmons, 10 Id. 9; McGregor v. Comstock, 3 N. Y. 408 .)

The plaintiff insists that the 22d section of the statute of descents removes this difficulty. It is in these words: — “No person capable of inheriting, under the

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provisions of this chapter, shall be precluded from such inheritance, by reason of the -alienism of any ancestor of such person.” (1 R. S. 754.)

The defendants, however, insist, that no others than lineal progenitors of the plaintiff are embraced within the meaning of the word ancestor, as used in this section, and, therefore, that it does not remove the impediment arising from the alienism of the father and grandfather of Denis McCarthy, of New York, who died seised of the estate, and from whom the plaintiff claims to inherit. But I have no difficulty in coming to the conclusion, that the word ancestors, in the statute, was used in a more comprehensive sense, and that the act was intended to remove the impediment of alienism, in the transmission of an inheritance, in regard to all the deceased individuals, through whom the blood of the last owner of the land is to be traced to the heir. The revisers, in their note to this section, say, “ the provision was intended to change a very harsh rule of the existing law, by which a person, hot an alien himself, may sometimes be debarred from inheriting.” *If we were to adopt the defendants’ construetion of the act, the mischief of the former law would be very imperfectly remedied. The exclusion of aliens from holding lands, is founded on manifest reasons of public policy and safety; but the exclusion of a natural-born or naturalized citizen from taking lands by inheritance, merely because the degree of his consanguinity to the last owner is to be ascertained, by tracing his pedigree through deceased aliens, is and always was an absurdity, founded only on a feudal fiction, and not on any sound principle of public policy. Its primary object, probably, was to enrich the crown by escheats. To exclude a claimant, on the ground that bis collateral kindred were aliens, is no less absurd than to debar him because his lineal ancestors were in that condition. In England, the common-law rule was

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abolished, in favor of natural-born citizens, 150 years ago, by the statute of 11 & 12 Wm. III., c. 6, and it applied expressly to all ancestors, lineal and collateral. (1 Evan’s Stat. 228; 21 Wend. 130 .)

Our statute, although in fewer words, is more comprehensive than the English act. It enables naturalized, as well as natural-born, citizens to inherit through alien ancestors; and if there be any such things known in the law as collateral ancestors, they are embraced within its operation, because the claimant is not to be precluded by the 'alienism “of any ancestor,” and this means ancestors of any kind or description. The word is used in an unqualified and unlimited sense, and therefore in its most comprehensive sense. ( 14 Pet. 198 .)

In most of our English dictionaries, the word ancestor is defined to be “one from whom a person descends,” and some of the law dictionaries agree substantially in this definition; but this is its popular, and not its legal meaning. In Termes de la Ley, it is said, that this word, in a forensic sense, is “ more properly applied to the prepossessor of an estate than -to the ancestor of a family,” and in this sense, it is, frequently, and indeed, most generally, used in books which treat of *descents of real estate, and in statutes relating to that subject. Mr. Burrill, in his law dictionary, recently published, derives the word in question from antecediere, to go before, and defines it, when used in the law of descents, to be “ one who has gone before or preceded in the seisin or possession of real estate; a deceased person, from whom an estate has passed to another by operation of law, in consequence of his decease. The person last seised of an estate of inheritance, and from whom such estate is transmitted to the heir.” BlackstoNE, in his chapter on descents (2 Com. 201), uses the words heir and ancestor as correlative terms. “ Descent or hereditary succession is the title whereby a mart; on the death of his ancestor, acquires his estate by right of repre-

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saltation, as his heir-at-law; an heir, therefore, is he upon whom the law casts the estate, immediately upon the death of the ancestor.”

Mr. Stephen, in his commentaries, says an estate of inheritance is, where the tenant is not only entitled to enjoy the land for his own life, hut where, after his death, it is cast by the law upon the persons who represent him in in perpetuam in right of blood, according to the established order of descent. These persons are called his heirs, and himself their ancestor. (Vol. 1, p. 218.) So, where a nephew died seised of lands of which the uncle was rightful heir, but into which a stranger immediately entered, and thus ousted the uncle, by abatement, his remedy was by a writ called a writ of mort d’auncestor. (3 Bl. Com. 185; Fitz. N. B. 195.) This writ directed an inquiry whether the nephew died seised, and whether the uncle was his lawful heir; and Lord Coke, in his readings on the statute of West. II., says, that the word ancestor, in a writ of mort d’auncestor, is, in such case, intended of the nephew from whom the land descended. (2 Inst. 400, note 3.) Instances, where the word ancestor is used in this sense, may be multiplied without end. It will be sufficient, however, to refer to the following: 2 Bl. Com. 243; 2 Kent. Com. 419-20; 1 Rev. L. 317, §§ 2, 4; Den v. Jones, 3 Halst. 345, *where the point was adjudged in New Jersey; Co. Litt. b, Com. on § 5.

Blackstone speaks of lineal ancestors, in vol. 2, p. 226, and of collateral ancestors, in vol. 3, p. 186, and the statute 11 & 12 Wm. III., c. 6, enables natural-born subjects to make their titles by descent, from any of their ancestors, lineal or collateral, although their father or mother, or other ancestor, by, from, through, or under whom, they derive their “pedigrees,” were aliens; thus, using the word to denote not only the collateral kinsman who died seised of the estate, but the intermediate relations through whom the pedigree was traced. So, in the case

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of Edward Courtenay, whose father, the Marquis of Exeter, in 1509, in the reign of Hen. VIII., was attainted of treason; certain manors were afterwards granted to him by Queen Mary, in the first year of her reign, and afterwards, in the same year, an act of parliament was passed, by which Edward, the son, and his heirs, were restored in blood, “ as well as son and heir of the marquis, his father, as to all and every other collateral and lineal ancestor and ancestors of the said Edward.” Here again, the word is applied to collateral kinsmen from whom, by the canons of descent, he might derive an estate. Edward Courtenay died seised of the manors so granted to him by the queen, and his collateral relations claimed them, as his heirs, notwithstanding the attainder of his father, through whom they had to trace their pedigree. It was objected, that the act of restitution, although it might have enabled him to inherit, in his lifetime, both from lineal and collateral ancestors, yet, it applied only to his lineal heirs, his collateral heirs not being mentioned. But it was held, und voce, that the act did extend to the collateral heirs; and that it had been sufficient, if the act had restored and enabled him in blood only as heir to his father; thereby, he and his heirs, as well collateral as lineal, might make their descent from the marquis, and from all other the ancestors of the said Edward, lineal and collateral; and that the other clause was added, ex abundanti, for the more e^ear Manifestation thereof. (3 Inst. 241.) It is evident, therefore, that if the word ancestors, in this statute, had been used alone, without the addition of “ lineal or collateral,” the effect would have been the same.

The case of Jackson v. Fitzsimmons ( 10 Wend. 9 ) was one in which the descent took place before our present statute took effect, the decision was made afterwards. Patrick Fitzsimmons claimed the land, as heir of his uncle, Eelix Fitzsimmons, who died seised; Patrick,

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therefore, for the purpose of showing himself heir, had to trace his pedigree through his father, Hugh, the brother of Felix; but his father was an alien, and his alienism was held to be fatal to the plaintiff’s title. His uncle was not a lineal, but, a collateral ancestor, and according to the defendants’ construction of our statute of descents, the 22d section would not have helped the plaintiff in that case, if it had been in force when the ancestor died; but it is evident, that a different opinion was entertained by the chancellor (p. 12), by senator Seward (p. 16), and by senator Tracy (p. 22); and by Chief Justice Savage, in Jackson v. Green, a case concerning the same title ( 7 Wend. 339 ). In both those cases, the 22d section of our statute of descents was regarded as an adoption, substantially, of the English statute of Wm. III. It may be regarded a safe conclusion, therefore, that the word ancestors, by its established import, when used in relation to succession to real estate by descent, embraces both lineals and collaterals. The statute, therefore, removes the impediment arising from the alienism of Denis McCarthy, of Kil-macowen, and of Timothy McCarthy, the father and grandfather of Denis McCarthy, of New York, who died seised of the estate in question. They were the plaintiff’s collateral ancestors, through whom, by force of the statute, he was enabled to trace his pedigree and make his title.

But it is said, that the plaintiff himself is an alien, not regularly or effectually naturalized, and, therefore, incapable of inheriting. If this be so, he must fail, and this point, therefore, remains to be examined. The objection is, that the plaintiff *did not take the oath of his intention to become a citizen, two years before his admission, and that this is an indispensable condition precedent, without which there was no power or authority to admit him to citizenship.

The plaintiff’s answer to this objection is, that lie produced and read in evidence the record of his natural

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ization, on the 26th of August 1834, in the court of common pleas of Saratoga county, containing the following recital, namely, “ It having appeared to this court, that Denis McCarthy has, in due form of law, more than two years since, declared his intention to become a citizen of the United States,” &c., and he insists, that this record, and the recital therein, is conclusive evidence of his compliance with the requirements of the law in that respect. If the entry in the minutes of the court, made in August term 1834, is to be regarded as a complete and sufficient record of the plaintiff’s naturalization, the law seems to be conclusively settled in his favor, by the case of Spratt v. Spratt, in the supreme court of the United States. Chief justice Marshall there says — “ The various acts upon the subject, submit the decision of the right of aliens to admission as citizens, to courts of record; they are to receive testimony, to compare it with the law, and to judge on both law and fact; this judgment is entered on record, as the judgment of the court. It seems to us, if it be in legal form, to close all inquiry; and like every other judgment, to be complete evidence of its own validity. The inconvenience which might arise from this principle has been pressed upon the court; but the inconvenience might be still greater, if the opposite opinion be established.” This decision is a binding authority upon all the state courts, on a question of this kind. The principle was distinctly acknowledged and applied by the supreme court of this state, in Ritchie v. Putnam, ( 13 Wend. 524 ).

The entry in the minutes of the court, of August 26th, 1834, contains everything necessary to constitute the entire record of the admission of the plaintiff as a citizen. It was not necessary *that the evidence on which the court acted, should be set forth in the record. In relation to the fact, that there had been a previous declaration of intention regularly made, in due form of law, the record shows it by recital, without stat

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ing the proof, and this is sufficient. It was unnecessary for tbe plaintiff to give evidence in support of tbe fact recited; and incompetent for tbe defendant to contradict it, unless by matter of record importing equal verity. Tbe defendants read in evidence tbe minutes of tbe same court, of tbe 2d September 1831, for the purpose of contradicting tbe recital and showing that, instead of declaring bis intention to become a citizen be bad merely reported bis arrival in the country; and if tbe recital in the minutes of August 1834, had referred to the proceedings of September 1831, as being tbe declaration on which the court acted in admitting tbe plaintiff to citizenship, the case might have presented a difficulty, fatal to tbe validity of tbe naturalization. But the recital makes no such reference; it does not, in any way, connect itself with tbe previous proceeding in that court; that previous proceeding was not a necessary part of the record of naturalization.

Tbe plaintiff may have declared bis intention to become a citizen, in a different court, and at a different time, and proof of such valid and regular declaration of intention may have been produced and exhibited, at tbe time of bis naturalization. Tbe acts of congress do not require tbe declaration of intention to be made before tbe same court which afterwards admits tbe alien to citizenship; bis declaration of intention may be made before any one of a great number of courts enumerated in tbe first section of the act of 1802, and in any state or territory. He is not required, by this provision, to declare bis intention before a court of tbe place or of the state in which be resides, of has resided, or intends to reside; and' by tbe same section, be may be naturalized before “ some one of the courts aforesaid,” of a state or territory in which be has resided one year. Any one of these courts is thus authorized to receive and record bis preliminary declaration; and *any one of these courts, held in tbe state or territory in

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wbicla the alien has resided one year, may admit him to citizenship. (2 U. S. Stat. 153.) Each of these courts is authorized to authenticate its proceedings in such manner as to entitle them to full faith and credit in the others. The final judgment of admission to citizenship may, therefore, as well be founded on the preliminary declaration made in another court, as if it were made in the court where the final decision is rendered.

I am aware, that the court of chancery of South Carolina took a different view of this point, in the case of Vaux v. Nesbit ( 1 McCord Ch. 366 ). But that construction of the law, founded on implication merely, seems to be erroneous. It would not only lead to great inconvenience, in cases where aliens had changed their residence ; but it would, in many cases, defeat the operation of the law. Where an alien had, within one year after making his preliminary declaration, removed into a different state, and resided there long enough to complete a residence of five years in the United States, he would not be entitled to admission in either state. This construction creates a condition of admission (not contained in the law) that the alien shall have resided a year in the state where he declares his intention. The condition prescribed in the law is, that he shall have resided a year in the state where he is naturalized.

The law appears evidently to have been designed to enable aliens to declare their intention to become citizens, without reference to the place of their residence, and to enable them to be naturalized, after five years’ residence in the United States, before any court of record sitting in a state in which the alien has resided one year. These provisions apply as well to aliens who have constantly resided in one place, as to those who have removed from one state or place to another. The evidence, therefore, on which the court acted in 1834, in admitting the plaintiff to citizenship, may have been

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precisely *what the law required, without impeaching the truth of the entry in 1831. The last record is not inconsistent with the first; they do net contradict each other. We are only to presume that the plaintiff produced other evidence than that contained in the minutes of September 1831; and that we are bound to presume, because the record of 1834 requires us to do so. We cannot, therefore, say, that the plaintiff’s naturalization was defective or invalid.[1]

Two important questions arise in this cause, both of which affect the inheritable capacity of the respondent. The first involves the true construction of the section of our statute, which provides, that no person, capable of inheriting real property under the provisions of our laws respecting descents, “shall be precluded from such inheritance by reason of the alienism of any ancestor of such person” (1 R. S. 754, § 22), and the precise point for decision is, whether the word ancestor, as used in this section, embraces collateral ancestors. The appellants insist that it does not, and only applies to lineal ancestors. After a full and careful examination of the numerous authorities referred to by the learned counsel for the respective parties, and some others met with in my own researches, I am satisfied, that the term ancestor has no clear, settled and technical meaning, confining it to lineal ancestors, and thereby precluding the court from inquiring into the general policy of the act, the evil existing, and the remedy which the legislature intended to apply. The revisers of our statutes, who proposed the section to the legislature, have no doubt correctly stated, in their notes, its object; their language is — “This section is intended to change a very harsh rule of the existing law, by which a person, not an alien himself, may sometimes be debarred from inheriting.” (3

2 See Commonwealth v. Sheriff, 1 Brewst. 183; Commonwealth v. Leary, Ibid. 270; Sheppard’s Case, 2 Ibid. 1; The Acorn, 2 Abb. U. S. 434.

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.R. S. 2d ed. 605.) That “harsh rule” was, that no one who was obliged to trace his descent through an alien, could inherit real estate. It recognises no distinction between lineal and collateral ancestors; and if a natural-*ze(^ *°r na'*iUra''''^om citizen had to trace his descent through an alien ancestor, lineal or collateral, he could not inherit; and in this very case, the attempt of the appellants is, to apply this harsh rule to the respondent, while they seek refuge from it under this' statute. The evil existing, the remedy applied, and the policy of the measure, are all plain to my mind, and relieve it from any doubt, that the legislature intended to abolish this harsh rule, and not permit the alienage of any ancestor, lineal or collateral, to deprive a naturalized or natural-born citizen of this state of his inheritance therein.

This conclusion is strongly confirmed, by the considertion, that our statute is conceded on all sides, to be an abridgment of the English statute of 11 & 12 Wm. III., c. 6, passed to effect the same object; and in which the terms ancestors lineal or collateral, are used. Hence, the inference is pretty plain, that our revisers and legislature used the terms any ancestor, without the qualifying words lineal or collateral, with the intent of embracing ancestors of both classes. If they had designed to include the’ one, and exclude the other, it is almost, if not quite certain, that they would have used the appropriate qualifying words.

The second question is, whether the respondent was lawfully admitted a citizen of the United States, by the court of common pleas of Saratoga county, at the August term thereof, 1834, and this resolves itself into a question of evidence. The respondent produced the record of his admission, which was in due form, and according to law. The appellants claimed that this was not sufficient, and that the respondent was bound to go further, and prove that he had, in due form of law, more than

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two years before Ms admission, declared liis intention to become a citizen of the United States, insisting that such ■declaration was a condition precedent, with which the respondent must show he had complied; and the appellants further claimed, that notwithstanding it was stated in the record, that it appeared to the court, that the respondent *had, more than two years before, declared in due form of law, his intention to become a citizen, yet, that fact was open to inquiry, and they proceeded to give proof, rendering it somewhat doubtful, whether the respondent ever had declared his intention in due form of law.

The simple question then is, whether the record is conclusive evidence of the fact, that a prior declaration of intention was made in due form of law. The weight of authority is decidedly in the affirmative. (Campbell v. Gordon, 6 Cranch 182 ; Stark v. Chesapeake Ins. Co., 7 Id. 420; Spratt v. Spratt, 4 Pet. 408 ; Conk. Treat. 1842, p. 501; Ritchie v. Putnam, 13 Wend. 526 ; Priest v. Cummings, 16 Id. 624-26 ; Commonwealth v. Towles, 5 Leigh 743 ; McDaniel v. Richards, 1 McCord 187 ; contra, Vaux v. Nesbit, 1 McCord Ch. 370 .) These authorities accord with the great and general principle, that a record of the proceedings and judgment of a court of competent jurisdiction is conclusive evidence of the facts appearing therein. All courts look with favor on proceedings to admit aliens to citizenship, and it is just that they should; for the want of acquaintance with our laws and judicial proceedings, the unsettledness of their residences, in general, for some years, and the consequent liability to lose their documents and papers, should shield them from technical and sharp objections to their naturalization papers, whenever there appears to have been an honest intention to become a citizen, and comply with the laws of our country.

Judgment affirmed.

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