Robert Swanton made his will and codicil in 1835, and by it devised certain lands to T. Roycraft and his heirs forever; by a codicil, made in 1840, he directed that if Roycraft should die without issue, the property should pass to five other persons in certain proportions. Swanton died in 1840, and Roycraft died in 1846, without *Page 541 leaving any issue surviving him. The five persons to whom, in this event, the estate was to pass, were, at the time of the death of Roycraft, and still are all aliens, resident in Ireland. Mary McLean, one of the plaintiffs, and her sister, are the nearest relatives of the testator, of those who are not aliens; but their mother is a nearer relative, and was living at the death of the testator, and is still living, and is an alien.
Before the Revised Statutes, the plaintiff, Mary, could have had no title: 1st. Because her mother was living and was a nearer relative; and 2d. Because Mary must trace her title through her mother, and the alienism of any person through whom she must trace her title, and who, but for the alienism, could, if living, inherit, was a bar to the claim of the one thus tracing title. If her mother had been dead, the last objection would have effectually prevented any title coming to Mary, the rule of the previous law being that in tracing title, if you come to one who is a nearer relative than any other, and he is an alien, he and all his descendants are passed by as if they had never existed, and that the alienism of an ancestor, even although he be deceased, is a bar to all his descendents; the taint of alienism affecting the blood of all who claimed through him. This taint of alienism in the deceased ancestor of one who was the nearest relative, and otherwise entitled to the estate, was deemed a harsh rule (3 R.S., 605); and it was enacted in the Revised Statutes that "no person capable of inheriting, under the 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, § 22.) This section only removes the disability of alienism in the ancestor; it made no other alteration in the law of descent, and it expressly made it only in favor of one capable of inheriting under the provisions of that chapter. That chapter made no provision by which a child, while his parent was living, could inherit from a relative of the *Page 542 parent, where the child must trace his title through the parent; neither did the common law. Both rules of descent confer title on the one nearest to the deceased, who is otherwise capable of inheriting; neither of them confers it on a descendant of a living person, except in the case of what is called an immediate descent, as from brother to brother, where the parent is not noticed in the chain of title, as by the common law, he could in no event inherit from his child.
For these reasons, even if the term ancestor may include a living parent in some cases, the plaintiff could not recover. Ancestor may sometimes be thus used, but not in a statute of descents, or where accuracy of language is studied, unless it be for the purpose of distinguishing between the living and the deceased.
This opinion conforms to that given in The People v. Irvin, 21 W., 128.
The judgment should be affirmed.
Judgment affirmed.