"Descent," or "hereditary succession," has been defined by Blackstone to be the title whereby a man on the death of his ancestor acquires an estate by right of representation as heir at law.

2 Cooley's Bl. Com. p. 201.

In the case of McCarthy v. Marsh, 5 N. Y. 263, the New York court of appeals held that under the New York statute a person might have collateral as well as lineal ancestors.

that in this case William Went is the ancestor of the estate that is to descend, and not the source from whence Beavan derived his life, or in the language of the feudal law, his blood.

Bingham, Laws of Descent, p. 495; McCarthy v. Marsh, supra.

The common-law rule which probibited a man from tracing his inheritable blood through his alien ancestors, is a rule of descent, and has been applied purely to feudal tenures.

In State v. Carrasco, supra, an intestate left a widow and a minor child both nonresident aliens and the sum in hand under the administration was under proceedings commenced pursuant to Code Civ. Proc. 1269, paid into the state treasury. Subsequently the child died leaving the mother its only heir, and she, by an instrument in writing, sold and transferred her right to the proceeds of the sale to the claimant, who sought by petition, under Code Civ. Proc. § 1272, to have the money paid over to him. Judgment in the court below was given in favor of the petitioner, but the state appealed, claiming that even if the widow of the deceased could have appeared and claimed the proceeds of his estate her assignee could not do so, and that his claim showed no cause of action. The court held that Cal. Civ. Code, § 671, changed the rule of the common law and provided that any person, whether citizen or alien, might take, hold, and dispose of property, real or personal, within the state, and that as the provisions of the Code were to be liberally construed the petitioner was entitled to such estate.

The words, "nonresident aliens," as used in $$ 671 and 672 of the California Civil Code, were interpreted as indicating those who were neither citizens of the United States nor residents of the state. State v. Smith, 70 Cal. 153 (1886).

The California Code of Civil Procedure, § 1272, only authorizes a nonresident alien to show that he did appear and claim the property within five years from the time of the succession, and gives him no more than the five years, and such five years have no reference to escheat proceedings commenced by the attorney general. Ibid.

Cal. Const. art. 9, § 4, which provides that the proceeds of the estates of deceased persons who may have died without leaving any "heir" shall constitute a part of the school fund, does not limit the power of the legislature to declare that aliens may be heirs, but speaks of the proceeds of the land evidently contemplating procedure in the nature of office found by which the right of the state may be ascertained and determined. State v. Smith, supra.

force, foreigners were invested with the same rights in respect to the possession and enjoyment of property as native-born citizens, provided they were bona fide residents of the state. Colorado.

Nonresident aliens are capable of inheriting property in the state of Colorada by virtue of the statutes of that state (Gen. Laws, chap. 4, § 19, p. 90)McConville v. Howell, 17 Fed. Rep. 104 (1883).

By the statute of that state above referred to, all aliens may take, by deed, will, or otherwise, lands and tenements, and any interest therein, and alienate, sell, and transmit the same to their heirs or any other persons, whether such heirs or other persons be citizens of the United States or not, and upon the decease of any alien having title to, or interest in, any lands or tenements, such lands and tenements shall pass and descend in the same manner as if such alien were a citizen of the United States, and it shall be no objection to any person having an interest in such estate that he is not a citizen of the United States, but all such persons shall have the same rights and remedies, and in all things be placed upon the same footing, as natural-born citizens of the United States, and the personal estate of an alien, dying intestate, who at the time of his death shall reside in this state, shall be distributed in the same manner as the estate of natural-born citizens, and all persons shall be entitled to their proper distributive shares of such estate under the laws of this state, whether they are aliens or not.

It was contended in McConville v. Howell, supra, that although the statute was broad enough to include the case then in question, yet it was not constitutional as within the provisions of § 27 of article 2 of the Constitution, but the court upheld the same, for the reason that the rights guaranteed by the Constitution could not be taken away, but other rights might be given to the same or to other persons, the legislature having power to go further in conferring such rights upon aliens, but no power to do less than that which was required by the Constitution.

Under Colo. acts Nov. 4, 1861, and April 18, 1889, aliens were capable of inheriting mining claims in that state. Billings v. Aspen Min. & S. Co. 51 Fed. Rep. 338, 10 U. S. App. 1, 2 C. C. A. 252 (1892).

Wunderle v. Wunderle, 144 Ill. 40, 19 L. R. A. 84 (1893). By them a nonresident alien was not capable of acquiring title to, or taking or holding, any lands or real estate in that state by descent, devise, purchase, or otherwise, except that the heirs of aliens who had theretofore acquired lands in that state under the laws thereof, and the heirs of aliens who might acquire lands under the provisions of that act, might take such lands by devise or descent, and hold the same for three years and no

we have directed the personal property to be distributed to the next of kin as well as the real. It cannot be said the legislature intended that only those who could on the principles of the common law inherit real property should take the personal property and exclude all other relatives in the same degree of kindred, yet that must be the case unless the legislature meant two different descriptions of persons by the same words, of which there is not the least intimation in the statute.

Reeve, Laws of Descent, pp. 17, 18. Our statute of descents and the statute of Charles II. respecting the distribution of personal property are almost identical.

22 & 23 Car. II. chap. 2; Reeve, Laws of

descent nor transmit them to others as his heirs by the common law.

And the court also stated that the act of 1887, in enacting that "a nonresident alien . . . shall not be capable of acquiring title to, or taking, or holding any land or real estate in this state by descent,' was merely declaratory of the common law, by which if a man left no other relations, but aliens, his lands escheated to the state without of fice found. Ibid.

And also that the object of the exception to the statute was to save the rights of those aliens who had already “acquired lands in this state subject to the laws thereof," that was subject to the provisions of the Illinois act of 1851. Ibid.

And it was further stated that by the use of the words "heirs of aliens who may acquire lands under the provisions of this act," as found in the above act, reference was made to the case specified in the 8th section thereof, where a nonresident alien owning lands in that state at the time the act took effect disposed of the same during his lifetime, taking security for the purchase money, and afterwards ne "or his nonresident heirs" again obtained the title on a sale made under a judgment or decree enforcing payment of any part of such purchase money, and that the claimants did not come within the terms of the exception mentioned in the 1st section of the act, for the reason that they are not the heirs of an alien, the intestate being a citizen and resident of the United States at the time of his death, but they came directly within the terms of the principal or enacting clause of section 1, for the reason that they were residents and subjects of the German empire and nonresident aliens, and were by the enacting clause of § 1, expressly and explicitly declared to be incapable of acquiring title to, or taking or holding, any lands or real estate in that state by descent, and therefore could not take by inheritance from their deceased brother, the act of 1887 being a valid law.

So, the alien heirs of citizens are not included among the "heirs of aliens" to whom the Illinois act of 1887 gives a certain time in which to sell the lands of their ancestor, or to become residents of the state. Ibid.

A statute as to the right of aliens to hold property which is general as applied to all nonresident aliens who are not protected by treaties, except the heirs who have already acquired lands or who may acquire them under general provisions therein specified, does not violate a constitutional prohibition against local or special laws changing descent. Ibid.

The nonresident alien heirs of a deceased citizen of the United States do not take such an interest in the lands of the deceased as they can hold until the state interferes with them and the interest so taken by them cannot be regarded as valid until a sale in a direct proceeding is instituted by the state. Ibid.

Descent, p. 33, and cases cited; Bates v. Brown, 72 U. S. 5 Wall. 710, 18 L. ed. 535. In construing the meaning of the words "next of kin" as used in the statute of Charles II., the rule adopted by the court was that the quantity of blood was not to be regarded, but the proximity.

Smith v. Tracey, cited in Crooke v. Watt, 2 Vern. 124; Reeve, Laws of Descent, p. 70; Rogers v. Weller, 5 Biss. 169; Campbell's Appeal, 64 Conn. 290, 24 L. R. A. 667; Heath v. White, 5 Conn. 228; Hillhouse v. Chester, 3 Day, 166, 3 Am. Dec. 265; Bush v. Bradley, 4 Day, 298.

When feuds first begun to be hereditary it was made a necessary qualification of the heir who should succeed to a feud that he should

In that case the lands of a deceased citizen of the United States were claimed by his nonresident alien heirs whose title was void under the Illinois statute of 1887, and it was held that the interest in the land descended to the next of kin competent to take under the Illinois statute, and that therefore the widow of the intestate who survived him was entitled to take the whole of the land under the statute of descent, Rev. Stat. chap. 39, § 1, cl. 6.

In Schultze v. Schultze, 144 Ill. 290, 19 L. R. A. 90 (1893), wherein the Illinois statute of 1887 was involved, the court distinguished the case from the preceding one of Wunderle v. Wunderle, supra, upon the ground that in the latter case there was no treaty existing between the grand duchy of Baden and the United States of which the claimants could take advantage, while in the former case a treaty existed between the United States and the Hanseatic republic of Bremen, under which the nonresident alien heirs of a deceased citizen of the United States had power to sell the land of the deceased, which they would have inherited but for their alienage, and to withdraw their proceeds within a given time from their ancestor's decease.

It seems, therefore, that if there had been a treaty in existence in the case of Wunderle v. Wunderle, supra, the nonresident alien heirs would have been entitled to the benefit of that treaty, but, in the absence of such a treaty, the state law controlled, and therefore the claim of such alien heirs to the benefit of the exceptions to the Illinois act of 1887 was barred.

So, in Ryan v. Egan, 156 Ill. 224 (1895), the court adopted the construction placed upon the Illinois statute of 1887, in the case of Wunderle v. Wunderle, supra, and held that nonresident aliens, nephew and niece, were not entitled to take under the will of a naturalized citizen. Indiana.

The Indiana statute of March 9, 1861, provides "that it shall be lawful for any nonresident alien to acquire real estate in this state by descent or devise, and to hold, sell, alienate, and convey the same as if he or she were a citizen of the United States, but the time during which such alien may thus hold, sell, alienate and convey said real estate shall expire eight years after the final settlement of the decedent's estate from which such real estate was derived."

The same act provides, § 2, that if such nonresident alien, who has acquired land for such limited time, shall die before the expiration of such time, then his heirs, if bona fide residents of the United States, shall inherit and succeed as they would have done if their ancestor had been a resident of the United States.

And $3 of the same provides that the nonresident alien heirs of any resident of this state, who shall have died before the passage of this act, may, dur

58.

The law never casts a freehold upon an alien who cannot keep it. Nor is a party permitted by the common law to trace his descent through his alien father or through alien relatives.

The appellant in this case is prohibited from inheriting the land mentioned herein by reason of his alien ancestry.

Orr v. Hodgson, 17 U. S. 4 Wheat. 453, 4 L. ed. 613; Mooers v. White, 6 Johns. Ch. 365; 1

whole indicating that the rights of acquiring and holding lands in that state were intended to be limited to aliens resident of the state or of the United States, and not to foreign aliens, except in the single instance of a devise by the will of a resident citizen to a foreign alien, who might become a devisee in such case, provided he subsequently removed to and became a resident of the state, thus indicating that the word "alien” as used in §§ 2 and 3 of the act referred to the resident alien of the United States and not to the foreigner; and further, that the legislature intended to confine the words "every alien" to those of the United States whether residents or not and not so as to include foreign aliens.

In Purczell v. Smidt, 21 Iowa, 540 (1866), the constitutionality of the above act was involved, the particular question being whether art. 1, § 22, of the Iowa Constitution, which provided: "Foreigners who are or may hereafter become residents of this state shall enjoy the same rights in respect to the possession, enjoyment, and descent of property as native-born citizens,"-was a restriction upon the power of the legislature for extending the same privileges to other foreigners than those named in the clause, namely nonresident foreigners, or whether it simply enabled the classes named to enjoy the rights specified, and limited the power of the legislature to exclude them. The court held that the act merely extended the rights in respect to the possession, enjoyment, and descent of property to others than those named in the Constitution, and was therefore constitutional, there being no prohibition as to the exercise of such power.

In construing the Iowa act of 1856, as embodied in $8 2488-2493, Rev. 1860, both inclusive, in the case of Purczell v. Smidt, supra, the court held that $1 of such act being § 2488 of the Revision, conferred upon resident aliens of the United States who had declared their intention to become citizens, and upon such as were residents of the state, the right to acquire title to real estate by descent or purchase, and was prospective only in its provisions. With regard to the 2d section of the act, being $2489 of the Revision, the court held that such section conferred upon every alien wherever resident the right, after the act took effect, to acquire real estate by descent or devise but not by purchase; and with regard to § 3, being § 4490 of the Revision, that it conferred upon every alien wherever resident the right to take title by purchase from any person holding an absolute title, on the condition that he made a bona fide sale within ten years, to one capable of acquiring an absolute title, and that when such title was cast by descent from such alien purchaser, the heirs were subject to the same conditions, the section being retrospective. And with regard to § 5, being § 2492 of the Revision, the court held that it conferred upon all aliens, wherever resident, the right to acquire personal property by de. scent or distribution in the same manner as citizens after the time when the act took effect.

Lery v. McCartee, 31 U. S. 6 Pet. 102, 8 L. ed. 334; Jackson, Doran, v. Green, 7 Wend. 336: Jackson, FitzSimmons, v. FitzSimmons, 10 Wend. 9, 24 Am. Dec. 198; Redpath v. Rich, 3 Sandf. 79; 2 Kent, Com. p. 54; 2 Bl. Com. p. 249.

The word "descent," as ordinarily used, signifies more than a mere sudden transition from place to place, and, on the contrary, in

In the construction thus placed by the court upon the above statute, the court overruled the prior decisions in which the construction of the statute had been considered, namely the cases of Krogan v. Kinney, 15 Iowa, 242 (1863), and Rheim v. Robbins, 20 Iowa, 45 (1865), although the Chief Justice and Justice Wright upheld the construction placed upon the statute as to the construction of the Constitution by such prior cases. Purczell v. Smidt, 21 Iowa, 540 (1866).

With reference to the construction of the Constitution given by the court in Purczell v. Smidt, supra, and Stemple v. Herminghouser, 3 G. Greene, 408 (1852), Justice Dillon, although dissenting from the reasons employed, and the construction given to the statute, concurred in the result holding that such Constitution conferred upon resident foreigners the right to transmit as well as to acquire property by descent.

In Greenheld v. Stanforth, 21 Iowa, 595 (1866), the only question involved was the right or capacity of a nonresident alien to acquire real estate in that state by descent, and the court stated that so far as the right or capacity depended upon the construction of the act of 1858, the judgment of the district court must stand affirmed by reason of the different views of the members of the court as found in Purczell v. Smidt, supra.

In that case the action was for partition, plaintiff alleging that he and defendant were the owners of an undivided half of real estate, both acquiring their respective titles by descent as the only heirs of a naturalized citizen who died intestate, leaving no wife or children, and no blood relations in the United States, except the defendant, who was the daughter of a deceased brother. Plaintiff was a son of the sister of the deceased, and a nonresident alien at the time of the decease of the intestate, but subsequently became a resident of the United States and declared his intention to become a citizen. The defendant's demurrer, on the ground that the plaintiff was a nonresident alien at the time of the intestate's death, was sustained and affirmed on appeal. Greenheld v. Stanforth, supra.

In Greenheld v. Morrison, 21 Iowa, 538 (1868), the question was as to the right and capacity of a nonresident alien to take a distributive share of an intestate's estate, no question arising in the determination of the case as to the construction of the act of 1858, inasmuch as so far as that act related to personal property it was only declaratory of the common law. The court held that, such being the case, aliens were capable of acquiring, holding, and transmitting movable property in like manner as citizens, and were not deprived of any of those rights by the state statutes, and that the provision of Iowa Rev. Stat. § 2422, which provided "that personal property shall be distributed to the same persons and in the same proportions as though it were real estate," did not prevent aliens from taking distributive shares of personal estate although