#### ELLEN HARMAN, and others v. MARGARET FERRALL and JOHN O’ROURKE.

One who, at the death of the ancestor, had filed *a declaration of an intention*to become a citizen of the United State, but was *naturalized*subsequently to such death, is not capable of inheriting.

Where, at the death of the ancestor, those capable of inheriting were, *two*nieces, children of a brother who had died an alien ; *four*children of another niece, also a child of that brother, who had died after being naturalized ; and a *foiJtiih*niece, a child of a sister of the deceased who had died an alien : *Held,*that the real estate was to be divided into four parts, of which the three nieces took one each, and the fourth was to be divided among the four children of the niece who had died after naturalization.

*(Clement v. Cauble,*2 Jon. Eq. 82, and *Campbell*v. *Campbell,*5 Jon. Eq. 246, approved.)

Civil motion, for the partition of lands, tried before Watts, Jl, at Spring Term 1870, of Wake Court.

The facts were, that John O’Bourke, a citizen of this State, .formerly of Ireland, died in Wake County in the Spring of 1867, seized in fee of the lands in question, and without lineal descendants. The plaintiffs in the action were Ellen Harman, Catherine Cassidy, and Laura, Erederic, Charles and Thomas Hinder. Of these the two first were citizens of the United States, and children of Matthew, a brother of John O’Bourke, who died before him, an alien; the four last were citizens, and grandchildren of Matthew, through his •daughter Jane, a citizen, who died before John O’Bourke. 'The defendants were Margaret Eerrall, a citizen, and child •of John O’Bourke’s sister .Margaret, an alien who died before him; and John O’Bourke, Junior, another child of Matthew, who had duly *declared Ms intention*to become a citizen in 1855, but who was not naturalized until the Eall of 1867.

These were the next of kin to the deceased, and the question was as to the proportions in which the land was to be *475divided, and also, wliether the defendant O’Bourke was entitled to anything.

The plaintiffs insisted that the land was to be divided into four shares, one for the children of Jane Hinder, and one each for Ellen Harman, Catherine Cassidy and Margaret Eerrall. Margaret Eerrall claimed one-half for herself, and that the other half should go to plaintiffs. The defendant O’Bourke claimed that he was entitled to inherit with the others.

His Honor ordered a partition to be made as prayed for by the petitioners.

The defendants appealed severally.

*Battle & Sons,*for the appellant Eerrall.

1. O’Bourke is entitled to nothing, either as a naturalized citizen of the United States, or under the State Constitution of 1776. The declaration of an intention gives no rights. *Campbell y. Gordon,*6 Oranch 176; *Beárd y. Byrne,*3 Wall. Jr. C. 0. Eep.; *White*v. *White,*2 Met. (Ky.) 185.

2. The right of representation as declared in Buie 3, Bev. Code, ch. 38, extends to collaterals in equal degree from ancestor last seized. *Cauble*v. Clements, 2 Jon. Eq. 82; *Haynes*v. Johnson, 5 Jon, Eq. 124.

This right is of universal application; Buie 9, same chapter, extends it to cases like the present: *Campbell*v.. *Campbell,*5 Jon. Eq. 246. See *McCreery*v. *Somerville,*9 Wheat. 354.

*Johnston Jones,*for the appellant O’Bourke.

O’Bourke is to establish, not that he was a fully naturalized *citizen*at the time of intestate’s death, but that he was not an *alien,*within the meaning of the general law excluding aliens from the inheritance of the real estate. At the death of the ancestor, he had declared his intention, &c.. *476and bad also resided in tbe U. S. for seventeen years: See *White*v. *White*(ubi supra) at p. 189, top. At that time, also, be owed no allegiance to any foreign power: See Webster’s and Marcy’s letters in Kozta’s case, U. S. Senate Doc. No. 1, 1853-4.

Tbe title vested in O’Rourke, subject tobe divested by an inquest of office, wbicb cannot take place now, since bis naturalization. In tbe cases cited upon tbe other side, tbe question was as to divesting a title wbicb bad vested *in the State,*and therefore could not be divested by a subsequent naturalization.

As tbe declaration, &c., imposed upon O’Rourke tbe burdens of citizenship, be ought with them to receive tbe benefits, excepting such as are political merely.

*Rogers & Batchelor, contra.*

1. Naturalization does not *relate*to tbe time of tbe declaration. At tbe death of tbe ancestor tbe defendant O’Rourke was not entitled, and be could not become so after-wards ; 2 Nott and McCord, 187, 20 Pick. 121. He is not within tbe principle of *Ronche*v. *Williamson,*3 Ire. 141.

2. Tbe land is to be divided *per capita,*among tbe nieces, giving tbe share of tbe deceased niece to her children; *Clement*v. Ccmhle, 2 *Jon.*Eq. 82; *Campbell*v. Campbell, 5 Jon. Eq. 246; *Rutherfords heirs*v. *Wolf*3 Hawks, 271, Compare act of 1801, c. 575, *§2,*wbicb governs this case, (Rev. Code, c. 38, §'§8 and 9,) with act oí 1808, (Rev. Code c. 38.)

Diok, J.

Tbe rules regulating tbe descent of real estate to collateral relations, were fully considered and defined in tbe two recent cases of *Clement*v. Cauble, 2 Jon. Eq. 82, and *Campbell*v. *Campbell,*5 Jon. Eq. 246; and it is *477only necessary for us to apply these rules to the case before us.

John O’Eourke died in the Spring of 1867, intestate, and without any lineal descendants. Ele left surviving him a sister, Bridget O’Eourke, who resided in Ireland, and was an alien, and as such was incapable of inheriting the lands of the intestate. The plaintiffs and defendants are the collateral relations of the intestate, living in this country, and the •objects of these proceedings is to ascertain the rights of the parties. The plaintiffs, Mrs. Harman and Mrs. Oassidy, are naturalized citizens, and daughters of Matthew O’Eourke, who was a brother of the intestate, and died many years ago without being naturalized. The infant plaintiffs, Laura, Frederick, Ohailes and Thomas, are natives and children of •Jane Hinder, a daughter of Matthew O’Eourke. She was a naturalized citizen, and died before the intestate.

The defendant Margaret Eerrall is a naturalized citizen, and a child of Mrs. Fanning, who was a sister of the intestate, and died many years ago in Ireland, and was never naturalized. The defendant John O’Eourke, Jr., is a son of the aforesaid Matthew O’Eourke. In 1855, he filed his declaration of an intention to become a naturalized citizen of the United States* but did not take the final oath of naturalization until after the death of the intestate. He was not a citizen of the United States until he had complied with • all the requirements of the naturalization Acts of Congress, and the disability of alienage was not removed, so that he could take lands by descent. Not being capable of taking by descent at the time of descent cast, he had no title, to be confirmed by relation, and his subsequent naturalization did not operate to invest him with the title, which in the meantime had become vested elsewhere: *White*v. *White,*2 Metc. (Ky.,) 185.

In determining the rights of the other parties, Matthew *478O’Rourke and Mrs. Fanning are to be considered as if they bad never existed, except for the purpose of counting rela-. tionship. Their children take in their own right, as they derived no inheritable blood from their ancestors. As such ancestors at the time of their death, were not callable of taking the inheritance, the doctrine of representation does not arise as to Mrs. Harman, Mrs. Cassidy and Mrs. Ferrall, and they take *per capita.*The children of Mrs. Hinder take *per stirpes,*as representing their mother, who, if living, would have taken one-fourth of the estate.

In the case of *Campbell*v. *Campbell,*there were four classes of children, all in equal degree to the *propositor.*As to two classes the doctrine of representation- applied, as their ancestors, if living, would have been capable of inheriting, and each class took one-fourth. As to the other two classes, they took' *per capita,*as their ancestors were aliens. As there were three children in each of' these last mentioned classes, the result would have been the same, whether they took *per stvrpes*or *per capita,*and it was not necessary to point out the distinction. Where the doctrine of representation applies, the claimants affected by it always take *per stvrpes.*

There is no error in the ruling of his Honor.

Per Curiam. Judgment affirmed.