Wilson Blount being seized in fee of the land in question, on 25 February, 1799, conveyed it to Edward Kean, upon trust that Kean should at any time, upon the request of John Haslin, of Demerara in South America, or of Catharine H. Haslin, wife of said John, in case she should survive her husband, convey the same in fee simple to persons qualified to take, hold and transfer lands in this State, as the said John, or as the said Catharine surviving him, should appoint. John Haslin died in March, 1804, and Edward Kean shortly thereafter, leaving two infant children, his heirs at law. Catharine H. Haslin was born in December, 1757, within the dominions and a subject of the United Netherlands, and on 21 May, 1805, being then in the United States, was naturalized as a citizen of the United States, if the following document conclusively proves such naturalization: "To all to whom these presents shall come: be it known, that it appears to the justices of the Justices Court in and for the city and county of New York, at the city hall of the said city, that on 21 May, A.D. 1805, Catharine Henrietta Haslin was naturalized in the Justices Court of the said city, as appears from the records of the said court, and that a true copy of the certificate of such naturalization was granted on the day and year aforesaid"; which certificate is the only evidence that Catharine H. Haslin ever was naturalized. Directly after 21 May, 1805, the said Catharine H. Haslin removed to France, and there resided until her death. Soon after her arrival in France, the said Catharine H. Haslin made an appointment, whereby she required the heirs of Edward Kean to convey the premises in dispute to herself in fee. The heirs of Kean not conveying according to this appointment, the said Catharine H. Haslin instituted a suit in equity against them, and in October, 1818, obtained a decree whereby the surviving heir of Kean was directed, within six months after his arrival at full age, to convey the said land according to the (190) *Page 164 said appointment, unless, upon being served with a copy of the decree, he should show cause to the contrary, and by the said decree the said Catharine was put immediately in possession of the said lands.
On 4 August, 1819, the said Catharine, at Paris in France, being then possessed of valuable effects in France, made her last will in writing, with the solemnities necessary to pass land in North Carolina, and thereby devised, with the exception of some small pecuniary legacies, all her property to Ann Carolina, wife of Francis Gilbert Lefebre, whom the said Catharine had adopted as her daughter according to the laws of France, and in January, 1821, died without having altered or revoked the said will.
Ann Caroline Lefebre was born in the year 1787, within the dominion and a subject of the United Netherlands, resided in Demerara until the death of John Haslin, accompanied Catharine H. Haslin to the United States in the year 1805, and in the same year removed with her to France, where, on 5 July, 1807, she married Francis Gilbert Lefebre, a native subject and domiciled inhabitant of France. Ann Caroline Lefebre, from the year 1805 to her death, was domiciled in France.
On 21 December, 1820, Thomas Kean, the surviving son of Edward Kean, having attained his full age, and being required under the before-mentioned decree, duly conveyed the premises in dispute to Catharine H. Haslin.
At the death of the said Catharine H. Haslin there was living at The Hague, in the kingdom of the Netherlands, an only sister of the said Catharine, Elizabeth Mary Van Hommel, who was born within the dominion and a subject of the United Netherlands. But the said Catharine left no relative who was a citizen of the United States. In April, 1825, Ann Caroline Lefebre died, leaving two children, her issue by her said husband, who were born in France, have ever resided and still reside there. The said Ann Caroline also left her surviving a brother, Johannis William Laurisant, who was born within the (191) dominions of the United Netherlands, and is yet living a subject of the king of the Netherlands, but the said Ann Caroline left no relative who was a citizen of the United States. The case then stated the various changes of government which had taken place in the United Netherlands, which it is unnecessary to present, and proceeded as follows: The treaty concluded at The Hague, on 8 October, A.D. 1782, between the United States of America and the States General of the United Netherlands, is regarded by the executive authorities of both countries as being in full force between the United States and the king of the Netherlands. The convention of navigation and commerce, concluded at Washington on 24 June, 1822, is the only treaty between the *Page 165 United States and the king of France, which is considered by the executive of the United States to be in force.
If upon these facts the lessors of the plaintiff had title at any time before 1 May, 1825, judgment was to be entered for the plaintiff; if otherwise, for the defendant.
His Honor, Martin, J., at CRAVEN, on the spring circuit of 1828, at the request of the counsel, and to enable the cause to be brought to this Court, gave judgment pro forma for the plaintiff, and the defendant appealed.
The case was argued at June Term, 1831, by The trustees claim the land in question as an escheat upon the death of Catharine Haslin without heirs, and they insist that the certificate of naturalization which Mrs. Haslin has obtained does not prove that she has been naturalized under the law of the United States. To me that question appears immaterial. If she was an alien, and so continued until her death, she was capable of acquiring by purchase and holding real estate against all but the sovereign, and even against the sovereign until her estate was divested by an office found, establishing the fact of her alienage, or by some sovereign act declaring that fact, as by an act of the Legislature, or by seizing (192) these lands (in the same capacity), as forfeited by it, and perhaps by other means. But it is clear that the sovereign cannot seize these lands, and upon the trial of an action for them prove the alienage by parol, or other evidence in pais, as is attempted to be done in this case. As well might the State bring an action for the lands of a citizen, alleging that he had forfeited them for felony, and on the trial prove bywitnesses that he had committed murder, and thereby forfeited his estate; whereas it is the well established law that a felony can be proven by a record of his attainder only, which is an office found establishing the fact. But there is another and equally strong ground to resist such an attempt. Mrs. Haslin is now dead, and the law has cast the estate upon her heirs, if she has any, and their estate cannot be divested by an office now found establishing her alienage, or proving the fact in any other manner. For, suppose she had left a child born within the United States? Can there be a doubt that it would have succeeded to these lands as her heir? In fact, the plaintiffs claim this estate because she left no heirs at her death. Without that being the case, there can be no escheat, as it is out of the question to claim the land as forfeited by reason of her alienage, both for want of an inquest of office and from *Page 166 the fact that she died seized. I say they affirm that she died without heirs, as an escheat arises only on the death of the tenant without an heir, or what is the same thing, an heir qualified to take. But in this case the lessors of the plaintiff go further, and affirm that she was qualified to take and hold lands according to the laws of the State, for to such, and such only, was Kean, by the power in the deed from Blount to him, authorized to convey. And although there is nothing like an estoppel in this case, as the lessors of the plaintiff were not parties nor privies to the deed, nor parties to the suit, in which it was decreed that Kean's heirs should convey to Mrs. Haslin, yet they affirm both these facts by claiming these lands as an escheat for want of heirs to Mrs. Haslin. (193) For, as was said before, the estate did not pass to her, if she was incapable of receiving it under the power in Blount's deed. And therefore it remains in Kean. It would be the same thing in a deed not made under a power. For if there is no grantee capable of receiving a thing attempted to be granted, it remains where it was. But where theheirs come to claim as heirs, if they are aliens, there needs no office found to ascertain that fact. They must show their capacity to take and hold. The want of it need not be shown, for the law will not cast an estate on him who cannot hold it against all, even against the sovereign.
This brings before us the construction and effect of the treaty with the States General of the United Netherlands, made in the year 1782. I need not state the various revolutions and changes which that government has undergone, and its present form, nor attempt to support by reasoning why treaties are, or ought to be, binding upon the people of the same countries, although both or one of the governments have undergone revolutions or changes. This does not belong to this department of the government. We can know our exterior relations only through that branch or organ of the government appointed by the form of it to represent and act for us with foreign powers. The case states that that organ or department of the government still considers the treaty as binding on us, and, of course, on the people of the other contracting party.
The next question is the effect of that treaty on the case. By the sixth article it is provided that the subjects of either party may dispose of their effects by testament, donation, or otherwise, and their heirs, subjects of one of the parties, shall receive such successions abintestato, even though they have not received letters of naturalization. And if the heirs to whom such succession falls shall be minors, their guardian or curator may govern, direct, and alienate the effects fallen to such minors by inheritance. If this case rested on the meaning to be given to the word effects, even without a context, I should think, being found where *Page 167 it is, in a treaty between powers having no common technical terms, in fact, not a common language, that it included things (194) immovable as well as movable. In the first place, the instrument is to receive an extended and liberal construction; not like the contract of individuals, where nothing is presumed to be granted, but what falls plainly within the words of the grant. But in this case, unless the meaning of the word be extended to things immovable, nothing at all is granted by the word effects. For, by our law, alienage is no objection to the acquisition of movables in any way, either by purchase or successionab intestato. And so I presume it is in the States General. If not, to obtain it by pretending to grant something in lieu of it, when in fact nothing was granted, is a trick which I would not, even in argument, impute to our negotiator. But taken with the context, I think there cannot be a doubt. The words succession ab intestato are a well-known term of the civil law; a law on which the laws of continental Europe may be said to be based. By that law it includes succession to immovable as well as movable estates. And to use terms which by this almost universal law would give to our citizens the right to succeed to immovable estates, and deny it to them by any restricted sense, to which we might confine the terms, is not presumed to have been the intent of either party. I say to give to our citizens, because if the civil law prevails in the Netherlands, and I presume it does, it would do so. But why negotiate in the terms of the laws of the Netherlands, and not in the terms of our laws? The answer is, our laws are peculiar to us, and the English — the civil law, common to all continental Europe. But there are terms in the context which, even in our law, would give to this wordeffects an immovable character. In the civil law, he who succeeds to the estate of a dead man, either movable or immovable, is called heir. By our law, the term is confined to him who succeeds to his immovable, or rather real estate. By the civil law, inheritances embrace movable as well as immovable estate. By our law, the term is confined to immovable estates; at least, it does not embrace what we call chattels. But in the treaty, both the word heirs and the word inheritances are used. How shall they be understood, according to our laws, or theirs? (195) If by our laws, and goods only are to be included, we shall have in our legal phraseology, new, to be sure, heirs claiming money and otherpersonal goods descending from their ancestor as their inheritance. It is very plain, I think, that it was intended to embrace all kinds of property by the treaty; and, therefore, the lands in question are embraced by it. Effects descending by inheritance must include land.
The case further states that after the said Catharine Haslin had appointed that the heirs of Kean should convey the lands in question to *Page 168 her, she removed to France, and devised to Anne Caroline Louisa, with some trifling exceptions, all that she possessed or should possess at her death. That after the making of the will, the heirs of Kean conveyed to Mrs. Haslin the legal estate in the lands in question, and that Mrs. Haslin afterwards died. That Anne Caroline Louisa was born within the dominion of the United Netherlands. That Mrs. Haslin, in France, where they both resided, adopted her as her daughter and heir according to the laws of France. That the said Anne Caroline married, and was domiciled in France. That she died after Mrs. Haslin, leaving two children, born in France, who are still alive. That Mrs. Haslin left surviving her an only sister, residing at The Hague, born in the United Netherlands, and a citizen thereof.
An intricate question, intended to be presented, does not arise for two reasons, which I will presently give. The question is, whether a child of a Netherlander, who was born in France, is within the protection either of the French treaty or the Dutch treaty, or both combined, and if either, which? For Anne Caroline Louisa, the adopted daughter and devisee of Mrs. Haslin, was a Netherlander, married and domiciled in France, where she had two children, and died. This question is not presented, for Anne Caroline Louisa did not take these lands by devise, as at the date of the will Mrs. Haslin had no estate in them. She had only a right to call for an estate. And at the time of her death, (196) she had obtained the legal estate from the heirs of Kean. If the estate had remained as it was at the date of the will, that is, a right in Mrs. Haslin to call for it, it would have passed; that is, a right to call for it would have passed to the devisee. The estate being changed at Mrs. Haslin's death, neither passed; not the first, for it was extinguished by the deed; not the last, because it was not in Mrs. Haslin when she made the will. If such reasons as these satisfy the makers of the law, it is not for me to complain. It would disgrace those who are emphatically called lawgivers. But the law is so written, and I cannot alter it. The other reason is, that the plaintiffs are not interested in the question, nor were they in the other. For if the French children of Anne Caroline do not take, the Dutch heirs will. For an alien child does not exclude a more remote heir. It is the heir who can, and not he whocannot take, which excludes another heir. When I say can, I mean who once could. He who once could have taken, but loses his capacity by a personal disqualification, does exclude others, as an attainted son excludes a brother, or an elder attainted son excludes a younger son. But not so with those who never could take. It is therefore unnecessary to consider this, or any other question as to who is the heir of Mrs. Haslin. For the plaintiffs have no interest in them. If *Page 169 she had any heir, it excludes them. As it appears that Mrs. Haslin left a sister, a subject of the States General, and as by the treaty the sister is heir to her, if no other is found, Mrs. Haslin is not dead without heirs capable of succeeding to her estate in these lands. There is, therefore, no escheat, and the plaintiffs are not entitled to recover.
Although our lexicographers, and Dr. Johnson at their head, give to the word effects the meaning of things movable, yet one of the instances, which he adduces to show that the word is used according to his exposition, proves, I think, the contrary.
"Shall I lose the effects for which I did the murder, My crown, my own ambition, and my queen."
By the word crown the speaker meant not the crown or cap, which encircled his brow, but the realm over which he reigned. However this may be, by the words of the treaty the effects are the inheritances which are to descend to the heir. This gives to the word a (197) meaning which cannot be misunderstood.
Lord Coke, in treating of the capacity of grantees, says that prima facie all can take and hold estates, but some can take and cannot hold, some can take and hold until the estate is divested, and some cannot either take or hold. Of those who can take and cannot hold is an attainted person. He takes, but instanter the estate is in the king. An alien can take and hold until office found. In both these cases, the estate passes out of the grantor, and becomes vested in some one; while a monster, not having human shape, can neither take nor hold, and is not recognized as a human being. The grant might as well be to a horse, or any of the brute creation. In such case, the estate never passes from the grantor. It remains where it was. So it is, I believe, with a person professed, who is dead in law. He may make his executor, and his estate descends on his heirs. But why argue this point? The plaintiffs themselves affirm it. For if Mrs. Haslin did not take, the estate is still in Kean's heirs. If so, they have no shadow of right. If Mrs. Haslin took the lands, they descended to her heirs, whether pointed out by the common or statute law, or by treaty. The only effect the treaty has, or was intended to have in such case, was to do away the objection of alienage, not to prescribe to us who should be the heirs. If a Dutch subject was to die now owning lands in this State, those who are his heirs under our Act of 1808 would succeed; not those who would have succeeded by the common law in 1782, when the treaty was made; nor those who are his heirs by the Dutch law. These observations are made in opposition to the claim of Anne Caroline, the adopted daughter, and *Page 170 heir by the laws of France. But this question, as has been said before, is immaterial to the plaintiffs. For any heir will exclude them, and the adverse claims of the others are not now in litigation.
PER CURIAM. Judgment reversed.
Cited: Rouche v. Williamson, 25 N.C. 147; In re Wolfe, 185 N.C. 566.
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