Lambert. v. Paine.

Bowman v. Milbanke, 1 Lev. 130, in which the words were, "I give all to my mother, all to my mother." Yet there, although every feeling of the heart is engaged in support of that filial piety which could so fervently speak its intention of giving his whole estate to his mother, it was held, that the land did not pass. In our case, the feelings are all thrown into the opposite scale: the devise is to a stranger, in exclusion of the heir; and that heir the very brother to whose bounty the testator was indebted for this very estate.

"Uncertain words in a will must never be carried so far as to disinherit the heir-at-law. And though there be words which of themselves would disinherit him, yet, if they come in company with other words which render their import less forcible, they ought to be construed favorably for the heir;" Shaw v. Bull, 12 Mod. 594; in which case, the words of the devise were, "and all the overplus of my estate to be at my wife's disposal, and make her my executrix."

In the case of Moore v. Denn, 2 Bos. & Pul. 247, the words of the will were, "First, I give and devise unto my kinsman, Nicholas Lister, all that my customary or copyhold messuage or tenement, with the appurtenances, situate and being in Ecclesfield aforesaid, as the same is now in the tenure or occupation of Valentine Sykes; all the rest of my lands, tenements and hereditaments, either freehold or copyhold, whatsoever or wheresoever, and also all my goods, chattels and personal estate, of what nature or kind soever, after payment *of my just debts and funeral expenses, I give, devise *119] and bequeath the same unto my loving wife, Sissily Carr, and I do hereby nominate and appoint her sole executrix of this my last will and testament." Upon this devise, it was decided, by the house of lords, on a writ of error, that the wife took only an estate for life. In the present case, it is sufficient for us, if the words of the will are doubtful; for if the intention to devise the fee is not clear, beyond all doubt, the presumption is in favor of the heir-at-law.

2. Upon the question of alienage, in addition to the authorities produced on the former argument, he cited Vaughan 279, pl. 5, and 286, pl. 3, that a person born in the plantations may inherit lands in England; and 2 Tuck. edit. of Bl. Com., App. p. 53, 54, 61, 62, that the ante-nati of England, who remained British subjects, after the declaration of independence, were still capable of inheriting lands in America, or holding those which they already possessed. (a)

Key, for the defendant in error, upon the question of the devise, took the same ground as in his former argument. (b) There is a difference in the

(a) JOHNSON, J.-Does not the last clause of the will of 1786 show that the testator meant, by that will, to dispose of his whole estate?

Mason. That clause relates only to personal estate. The word property is coupled with negroes and horses, which shows in what sense he meant to use it. But if it comprehends the reversion of the real estate, yet, as he appointed no person to make the sale, the reversion would descend to the heir-at-law, until some person should be appointed by proper authority, to carry that clause of the will into effect.

(b) WASHINGTON, J.-Is the will of 1782 so executed and recorded as to pass lands?

Key.-The jury have found that he executed it, and it is not necessary that a will

Lambert v. Paine.

[*120

effect of the word "estate" when used in the preamble of a will, or in the residuary *clause, and when used in a specific devise. When used in the devising clause, it always carries the whole interest of the testator in the thing devised.

An argument has been drawn from the manner in which the two other estates are described; and it is said, that because they are not called estates, but tracts of land, the devise clearly gives only a life-estate in those two tracts, and therefore, it is to be presumed, that the testator only meant to give a life-estate in the Marrowbone tract; because he has coupled them all together by the words "likewise and "also." But we say, that he meant to give the fee of all the tracts to George Gilmer, and that the words are sufficiently large to carry that intention into effect.

In the case of Cole v. Rawlinson, 1 Salk. 234, the words of the devise were, "I give, ratify and confirm, all my estate, right, title and interest, which I now have, and all the term and terms of years which I now have, or may have, in my power to dispose of, after my death, in whatever I hold by lease from Sir John Freeman, and also the house called the Bell Tavern, to John Billingsley ;" and it was adjudged, that the fee of the Bell Tavern passed, by force of the words "and also," which caused the preposition "in" to be understood, so as to read "and also in the Bell Tavern." So, in the present case, the three specific objects of the devise are connected by the words "likewise " and "also," and you must apply the first part of the devising clause to each subject, and read it thus: "likewise, I give and bequeath unto Doctor George Gilmer, of Albemarle county, all the estate in one other tract of land called Horse-pasture." The word "likewise " shows that he meant to give the same interest in the two other tracts, which he had given in Marrowbone.

Upon the question of alienage, he contended, that by the common law, every man is an alien to that government under whose allegiance he was not born. The capacity to inherit results from the fact that the heir and ancestor both owe allegiance to the sovereign of the country where the lands lie. The right of inheritance is *derived only through one common sov- [*121 ereign. The allegiance due to that sovereign is the commune vinculum which connects the heir with his ancestor, as to the tenure of lands. This common allegiance must exist at the time of the birth of the heir, and continue unbroken until the time of the descent. If this allegiance is not to be confined to the sovereign of the country where the lands lie, it would follow, that where the ancestor and heir were both natural-born subjects of a foreign state (for instance, subjects of France), and the ancestor should be naturalized in this country, and become a purchaser of lands here, the heir, although not naturalized, would still have a right to inherit those lands, because they both owed allegiance to France, their common and natural sovereign.

The American ante-nati may inherit lands in England, because the ancestor and heir both owed a common allegiance to the sovereign of that country where the lands lie. But the British ante-nati never owed allegi

of lands should be recorded, under the laws of England, and the law is considered the same in Maryland. I do not object to the will on that account.

Lambert v. Paine.

ance to the government of this country, and therefore, the British heir cannot inherit the American lands of his American ancestor.

If, then, the capacity to inherit depends upon a common allegiance to the sovereign of that country where the lands are, it will follow, that when that common allegiance ceases to exist, the capacity to inherit must cease also. The common allegiance to the sovereign of this country ceased by the declaration of independence, or, at least, when that independence was acknowledged by the King of Great Britain, at the treaty of peace, whereby he assented to the withdrawing our allegiance; and the principle of the common law, that natural allegiance must be perpetual, is not so rigid, but that it may be shaken off with the assent of the sovereign to whom it was due. For in 1 Hale H. P. C. 68, Lord HALE says, "that though there may be due from the same person, subordinate allegiances," "yet there cannot, or, at least, should not, be two or more co-ordinate absolute allegiances, by one person to several independent or absolute princes; for that lawful prince that hath the prior obligation of allegiance from his subject, cannot lose that interest, without his own consent, *by his subject's resigning *122] himself to the subjection of another; and hence it is, that the natural born subject of one prince cannot, by swearing allegiance to another prince, put off or discharge him from that natural allegiance; for this natural allegiance was intrinsic and primitive, and antecedent to the other, and cannot be divested, without the concurrent act of that prince to whom it was first due. Indeed, the subject of a prince, to whom he owes allegiance, may entangle himself, by his absolute subjecting himself to another prince, which may bring him into great straits; but he cannot, by such a subjection, divest the right of subjection and allegiance that he first owed to his lawful prince."

Hence, it is clearly the opinion of Lord HALE, that natural allegiancemay be divested and dissolved, with the concurrent act of that prince to whom it was due; and by a note of the editor, in the same page, it seems, that the doctrine of perpetual allegiance refers only to a private subject's swearing allegiance to a foreign prince, and has no relation to a national withdrawing of allegiance. If the American revolution is to be considered as such a national withdrawing of allegiance, then that withdrawing was complete and perfect, even before the assent of the King of England was obtained, and the American ante-nati are as totally absolved from all allegiance to the British king, as if they had been natural-born aliens.

There being, then, no common allegiance between the British and the American ante-nati, at the time of the descent cast, there can be no capacity to inherit the one to the other, even were it not necessary that the common allegiance should be to the sovereign of the country where the lands lie.

LORD HOLT, also, in the same page, shows in what sense Lord COKE, in Calvin's Case, and Bracton, before him, have used the expression, "ad fidem utriusque regis." He says, "it appears by Bracton, that there were very

many that had been anciently ad fidem regis *Angliæ et Franciæ, es*123] pecially, before the loss of Normandy; such were the comes mare

schallus that usually lived in England, and M. de Faynes, manens in Francia, who were ad fidem utriusque regis, but they ever ordered their homages and fealties, so that they swore or professed ligeance, or lige homage, only to one; and the homage they performed to the other, was not purely lige

Lambert v. Paine.

homage, but rather feudal, as shall be shown more hereafter; and therefore, when war happened between the two crowns, remaneat personaliter quilibet eorum cum ei, cui fecerat ligeantiam, et faciat servitium debitum ei cum quo non steterat in persona, namely, the service due from the feud or fee he holds."

The opinion of the court in Calvin's Case, 7 Co. 27, that if the kingdoms. of England and Scotland "should be, by descent, again divided and governed by several kings," "those born under one natural obedience, while the realms were united under one sovereign, would remain natural-born subjects and not aliens," was at least an extra-judicial opinion; and it is not very clear, what is the meaning of it. Does it mean, that they would be naturalborn subjects of both kingdoms, or only of that which should remain governed by the same king? If the former, yet the case is not parallel to ours. Ours is a case where a new sovereignty has sprung up, and no person could be born under its allegiance, before its existence. According to Calvin's Case, allegiance does not depend upon the country in which the person is born, but upon the obedience and subjection of that country at the time of the birth. A person, therefore, born before the independence of the United States, cannot be called a natural-born subject of the United States; and if he was not here, at the time of the revolution, he cannot maintain a suit, as to lands in this country, but by virtue of some express stipulation in a treaty.

Mason, in reply.—If the declaration of independence, and the treaty, totally divested all allegiance, so that the British ante-nati are aliens to us, it would equally make American ante-nati aliens to the British. But we all know, that cases have happened, in which American ante-nati have been adjudged capable of inheriting *lands in Great Britain; and if those [*124 British decisions were correct, they must have been grounded upon the principle that our ante-nati were not aliens to the King of Great Britain; and if the declaration of independence did not make us aliens to them, it could not make them aliens to us. The American revolution only discharged. the political relation which subsisted between us and the crown of England. It did not destroy individual rights or capacities. The revolution was to accomplish a great national object. No one individual can be charged with it. It was a national act, to maintain national rights, and only such rights. were affected by it. It only absolved our allegiance, but did not, ex necessitate, take away the capacity to inherit.

CUSHING, J.-Are not allegiance, and the capacity to inherit, connected together?

Mason.-Yes; and therefore, the common law will not consider the allegiance so totally absolved, as to make him an alien who was born a subject, and thereby deprive him of the right of inheritance. Although, by the act of Virginia, in 1779, Lambert was to be considered as an alien, and incapable to sue, &c., yet that act was repealed by the treaties, and therefore, he stands just where he did before the revolution.

The private rights of individuals were not affected by the revolution, except by the laws of the several states. The object of the treaties was to put individuals as nearly as possible on the same footing as before the revolution; and the words of the treaties are sufficiently large to accomplish

Lambert v. Paine.

that purpose. They are, "and that no person shall, on that account, suffer any future loss or damage." If Lambert is, on that account, to be deprived of his right of inheritance, it will be such a loss and damage as will be a violation of the treaty of 1783.

*125] *What is common law in England is common law in Virginia; what is law and justice there, is law and justice here. Policy, justice and magnanimity require that we should apply the same beneficial rule to them which they have extended to us.

PATERSON, J.-Would not the decisions have been the same in England, if there had been no such article in the treaty ?

Mason. Yes, if there are no British statutes to prevent it; and the decisions would have been similar in Virginia, if there were no act of assembly on the subject.

In this position, I am supported by a very learned judge in Virginia (Judge TUCKER), who is not suspected of any improper partiality to Great Britain, or her subjects. In his notes to Blackstone's Commentaries, vol. 2, Appendix, p. 53, 54, he says, "all persons born within the United States, whilst colonies of Great Britain, were natural-born subjects of the crown of Great Britain." "The natives of the colonies, and the natives of the parent state, were, in consequence thereof, of equal capacity to inherit or hold lands in the different parts of the British empire, as if they had been born, and their lands situated in the same country. And, in fact, many native Americans did hold estates in England, and on the other hand, great numbers of natives of Great Britain, who had never been in America, possessed estates in lands in the colonies. By the declaration of independence, the colonies became a separate nation from Great Britain; yet, according to the principles of the laws of England, which are still retained, the natives of both countries, born before the separation, retained all the rights of birth; or, in other words, American natives were still capable of inheriting lands in England, and the natives of England, who remained subjects of the crown of Great Britain, were still capable of inheriting lands in America, *126] *or of holding those which they already possessed." And again, in p. 61, he says, "by the common law, upon the separation between America and Great Britain taking place, the natives of Great Britain were constructively natural-born in America, and notwithstanding that separation, might hold lands here, as if they had been residents in America." After mentioning the act of assembly of Virginia of May 1779, c. 55, by which they were declared aliens, he says, "by the treaty of peace, the common-law principle that the ante-nati of both countries were natural-born to both, and as such, capable of holding or inheriting in both, seems to have been revived; in consequence of which, they are now capable of holding, purchasing or inheriting, in the same manner as if they were citizens.”

As to the question of the devise, it is not denied, that the word estate is sufficiently large to carry the fee; nor, that the intention of the testator is to govern the construction of the will. But we contend, that the word estate is not alone sufficient to carry the fee. It is only a word which courts will lay hold of, to effectuate the intention of the testator: but then the intention to pass a fee must be clear, beyond all manner of doubt, before the court will disinherit the heir-at-law.