#### John H. Halsey, Pl’ff, *v.*Margaret Beer, Def’t.

*(Supreme Court, General Term, Second Department,*

*Filed May 13, 1889.)*

Liens—Descent and distribution.

Any woman possessing the natural capacity or power to enter upon the path leading to judicial naturalization, such as race and hlood, becomes, bjr marriage with an American citizen, invested with his citizenship, and with all the rights and privileges incident thereto, although she never resided in the United States.

*714
      *Robert E.*Topping, for cleft *(Thomas F. Bisgood,*of counsel); *M. H. Topping,*for pl’ff.

Dykman, J.

This is a submission without action to determine the succession to real property in the county of Suffolk, described in the statement printed in this case.

David E. Pierson died seized and possessed of the property in question, on the 16th day of February, 1888, intestate as to this real estate. He was twenty-one years of age at the time of his death, and this property was devised to him by the last will and testament of his father, David Pierson, who died on the 14th day of October, 1871, who was the only child of his father, who had owned this property many years before his death, and who was the grandson of Captain David Pierson, who died February 25th, 1829, seized and possessed of the lands in question.

David E. Pierson left him surviving no lather or mother, brother or sister, or descendant of any brother or sister, no uncle or aunt on his father’s side, or descendant of any uncle or aunt on the side of his father.

On the side of his mother, Susan A. Pierson (formerly Susan A. Poweles), who died June 20, 1881, David E. Pierson left two aunts, Margaret Beer, wife of John Beer, and Catharine Powles, and two cousins, children of a deceased aunt, all of whom are of English parentage, and reside in England, and none of whom, or their parents, had ever been in the United States previous to the death of David E. Pierson.

John Beer, the husband of Margaret Beer, the maternal aunt of David E. Pierson, came to this country in the year 1833, and was naturalized as a citizen of the United States, on the 12th day of October, 1840. He subsequently returned to England, and married Margaret on the 4th day of July, 1876, at Southampton. Margaret was a woman of English birth and parentage, and has resided with her husband in England since her marriage, and has never been in the United states. •

John H. Halsey is a collateral relative of David E. Pier-son, on his father’s side, who is entitled to succeed to the lands in question, provided Margaret E. Beer is deprived of such succession.

Our conclusion is in favor of Margaret Beer. The only obstruction in the way of her inheriting the property by descent, is her disability to inherit by reason of her alienage, and such disability was removed by the act of congress of February 10, 1855, which reads as follows: “ And be it

, further enacted that any woman who might be lawfully naturalized under the existing laws, married, or who shall be married to a citizen of the United States, shall be deemed and taken to be a citizen.”

The language employed in this law to denote the intention of its makers, refers to the inherent capacity of the *715woman, and not to her present qualifications. It is language of potentiality, capacity or power as distinguished from actuality. Any woman possessing the natural capacity or power to enter upon the path leading to judicial naturalization, suchas race and blood, becomes by marriage with an American citizen invested with his citizenship, and with all the rights and privileges incident thereto.

Margaret Beer might have become lawfully naturalized at any time, and therefore she falls under the protection of the law of congress which was evidently designed to include all such cases. We have thus far based our conclusion upon principle and reason, but so far as judicial opinion has found expression, it seems to be in the same direction, and although much that has been said upon the subject in written opinions has been unnecessary to the determination of the case in which it was said, yet it discloses the opinions of eminent judges, and is entitled to great weight and consideration.

In the case of *Burton*v. *Burton*(1 Keyes, 359), it was decided by our court of appeals that the alien widow of a naturalized citizen of the United States, although she never resided in the United States during the lifetime of her husband, was entitled to dower in his real estate, and Judge Wright, who wrote the prevailing opinion, said in speaking of the act of congress, quoted above: “ The effect of the act was to grant the privileges of citizenship to women married to citizens of the United States, without regard to the fact whether the ceremony of marriage had preceded the ceremony of naturalization in the case where the husband was a naturalized citizen, provided the woman herself ‘might lawfully be naturalized under the then existing laws.’” In reference to the requisites for naturalization, he further said: “ The existing naturalization act required no more than that the person claiming its benefits should be a free white person, and not an alien enemy. Such a person might lawfully be naturalized.” Upon the question of residence, he said: “It is true that from some cause she never actually resided in this country, but the act does not require that the woman claiming its benefit shall have resided within the United States.”

In the case of *Luhrs*v. *Eimer*(80 N. Y., 177), Judge Andrews, in writing the unanimous opinion of the court of appeals, said: “ Barbara Eimer, by her intermarriage with G-ottfried Baur, in 1857, who was a citizen, became herself a citizen, by virtue of such mrrriage, and capable of taking and holding lands in this state by purchase or descent;” and he cites the act of congress of 1855, *Burton*v. *Burton*(1 Keyes, 359), and *Kelly*v. *Owen*(7 Wall., 496).

In this last case Mr. Justice Field, in writing the opinion of the court, said, in reference to the act of congress in question:, “ As we construe this act it confers the privileges of citizenship upon women married to citizens of the United *716States, if they are of the class of persons for whose naturalization the previous acts of congress provide. * * * The terms, ‘ who might lawfully be naturalized under the existing laws/ only limit the application to free white women.”

We, therefore, record our determination that Margaret Beer, as heir-at-law of David E. Pierson, is entitled to take the lands and property in question, and judgment should be rendered in her favor for the possession of such lands, with costs.

Pratt, J.

The rule seems to be that an alien woman, who intermarries with a citizen of the United States is to be regarded as a citizen of the United States, within the meaning of the act of February 10, 1855, though she may never have resided in this country. That the marriage, *“per se,”*invests the woman with the citizenship of her husband in the place and stead of her former allegiance.

The act of Congress is as follows: “And be it further enacted: That any woman who might be lawfully naturalized under the existing laws, married or who shall be married to a citizen of the United States shall be deemed and taken to be a citizen. It would be a very restricted meaning to the words, “who might be lawfully naturalized under existing laws,” to hold that they must include at the time of marriage all the qualifications necessary for a judicial naturalization, such as residence, good character, declaration of intention, etc. The whole intent of the law would be nullified. To avail herself of the benefits of the law under such a construction, an alien woman would be obliged to comply with all the requirements of becoming a citizen except obtaining a judicial decree.

The more reasonable construction seems to be that these words refer to the inherent and natural capacity of the woman to be naturalized by reason of race without reference to residence or any other qualification required by the naturalization laws.

Unless this construction prevails, all her rights of citizenship under the statute by reason of marriage remain suspended until she can qualify herself to become a citizen by complying with all the requirements of the laws relating to naturalization.

The authorities all seem to hold that the instant marriage takes place the woman becomes invested with the citizenship of her husband. Yol. 14, Opinions of Attorneys-General, page 402, and authorities therein cited.

The act of congress referred to, seems to conform to the act (7th and 8th Yic.), passed in 1844, which declares that an alien woman marrying a British subject became naturalized by the act of marriage. *Regina*v. *Manning,*2 Can & Kir., 887; 61 English C. Law Rep., 887.

The word, “'might” in the act of congress must refer to *717the time of marriage, and must refer to the inherent capacity to take the initial step towards naturalization, to wit, of the proper race or blood to bring her within the naturalization laws.

Margaret Beer at the time of her marriage met this requirement and must, therefore, be held entitled to recover in this proceeding. 7 Wall., 496; 6 Sawyer, 603, referred to in the attorney-general’s opinion.