#### Den *ex dem. of the*Trustees of the University *v.*Joshua Miller.

The treaty of 1782 between the united States and the Netherlands provides, that the subjects of either party may dispose of their *effects by*testament, and that their heirs shall receive such succession *ub intestate,*although not naturalized. It was held, that the word *effects*includes real as well as personal estate.

Ejectment, in which the lessors of the plaintiff claimed the lands in dispute, as being late the property of *Ca-*
      *189
      *tharine Haslin,*who had died without leaving heirs; and in order to determine the question between the parties, the following facts were submitted to the court in the form of a case agreed :

*Wilson Blount*being seized in fee of the land in question, on the 25th of February 1799, conveyed it to *Edward, ICean,*upon trust that *TCea n*should at any time, upon the request of *John Haslin,*of Demorara in South America, or of *Catharine H. Haslin,*wife of said *John,*in case she sould 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 *Cath-arine*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 the 21st of 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 Justi- “ cos’ Court in and for the city and county of New York, “ at the city hall 'of the said city, that on the 21st day of “ May, A. D. 1805, *Catharine Henrietta Haslin*was na- “ turalized in the Justices’ Court of the said city, as ap- “ pears from the records of the said court, and that a true “ copy of the certificate of such naturalization was gran- “ ted on the day and year, afores aid” ; which certificate is the only evidence that *Catlumne H. Haslin*ever was naturalized. Directly after the 21st of May, 1805, the said *Catharine II. Haslin*removed to France, and there resided until her death. Soon after her arrival in France, the said *Catharine II 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 thesurvivingheir of *Kean*was directed, within six months *190a|'tcr his arrival at full age, to convey the said land ac-cor(jjn j.i,0 saj(] appointment, unless upon being ser-*Xí x*° vecl 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 the 4th of August, 1819, the said *Catharine*at Paris in B'rance, 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 *Jinn Caroline,*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.

*Jinn Caroline Lefebre*was born in the year 1787, within the dominion and a subject of the United Netherlands, resided in Bemerara until the death of *John Haslin,*accompanied *Catharine JI. Haslin*to the United States in the year 1805, and in the same year removed with her to France, where on the 5th of July, 1807, she married *Frauds 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 thc21st of December, 1820, *Thomas ICcan,*the surviving son of *Edward Fean,*having attained his full age, and being required under the before mentioned decree, duly *conveyed the premises in*dispute to *Catharine H. Hastia.*

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, *Jo-hannis William Laurisant,*who was born within the do*191minions 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 liad taken place in the United Netherlands, which it is unnecessary to present, and proceeded as follows : The treaty concluded at thtí Hague on the 8th of 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 infull fore© between the United States and the king of the Netherlands. 'The convention of navig ition and commerce, concluded at Washington on the 24th of June, 1822, is the only treaty between the United States and the king of France, which is considered by the executive of the United States to bo in force.

An alien ( hold lands agí the soverejs until his estat divested by inquisition ¡ certaining his lienage.

If upon these facts the lessors of the plaintiff had title at any timo before the 1st of May, 1825, judgment was to he-entered for the plaintiff — if otherwise, for the defendant.

His Honor Judge Martiw, at Craven, on the spring circuit of 1828, at the request of the counsel, and to enable the cause to ho. brought to this court, gave judgment *pro forma*for the plaintiff, and the defendant appealed.

The ease was argued at June term, 1831, by

Gaston, for the defendant.

*Itevercux,*for the plaintiff.

HesdersoN, Chief-Justice.

Tlie trustees claim the land in question, as an escheat upon the death of *Catha-rine Saslin*without *heirs;*and they insist, that the certificate of naturalization, which *Mrs. Ilaslin*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- ail but the sovereign ; and even against the sovereign, until her estate was divested by an office found, establishing the fact of *192her alienage, or by some sovereign act declaring that fact, as by an act of the legislature, or hy seizing these lands, (in the same capacity,) as forfeited by it; and perhaps by other means. But 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 *by "witnesses,*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 thé 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 the fact that she died seised. 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 al- •. though 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 es-clieatfor want of heirs to *Mrs. Haslin.*For as was said he-*193fore, 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 he the same

*192The sovereign cannot seize lands, and prove the alienage *in pais*upon the trial of an ejectment. It can be proved only by an office found. So in cases of forfeiture for felony, the record of the attainder of the tenant must be produced.

The native born child of an alien succeeds asheir, where the estate of the ancestor has not been divested by an office found in his life time. An office found after -his death does not affect the estate of the heir.

*193The law will ^ cast a» es-who cannot hold d s and for dus quest of office is not necessary to prevent an alien from succeeding1 t0 an estate'

' CourtB cannot judicially notice countries are question must3 be determined by the executive,

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 ivhere *the heirs*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 *laxo*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 lias undergone, and its present form ; nor attempt to support by reasoning, why treaties arc, 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 *ah in-testato,*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 it is, in a treaty between powers having no common technical terms, in fact not a *194common language, that it included things immovable as wejj as m0Vablc. in the first place, the instru-1 ment is to receive an extended and liberal construction; not ijiie 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 tilings 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 succession *ab intestate.*And so I presumo 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*intestalo, are. a well known term of the civil law ; a law, on which the laws of continental Europe, may be said to he based. *By*that law, it includes successsion 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 coniine 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 word *effects*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 estates. 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*
      *195and the word *inheritances*are used. How shall they be *understood;*according to our laws or theirs ? If by our laws, and goods only are to he included, we shall hare in our legal phraseology, new to be sure, *heirs claiming money and other personal goods, descending from their ancestor as their inheritance.*It is Arery plain, I think, that it was intended to embrace all kinds of property by the *treaty;*and therefore tjie 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 her, she removed to France, and devised to *Mine. 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 *Sane’Caroline Louisa*was born within the dominion •of the United Netherlands. That *Mrs. Muslin,*in France, where they both resided, adopted her as her daughter and heir according to the laws of France. That the said *Mine 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, docs 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 *Mine 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 pre- • ini» *Qvia*-i/i jO/iaio/o ti /i *T/inaort*/1i/l iia! ■fair a 'fli aca *196c(] the ]cgal 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 *Jlnne Caroline*do not take, the Dutch heirs will. For an alien child does not exclude a more remote heir. It it is the *jieir*w}10 can ant| not *he who cannot take,*which excludes 1 . vT[ _ _ . . _ another heir. When I say *can,*I mean who once could. w^)0 once could have taken, but loses his-capacity by a *personal*disqualification does exclude *others;*as an at-tainted son excludes a brother : oran elder attainted son excludes a younger son. But not so with those who never col,p] take. It is therefore unnecessary to. consider this or any other question, as to who is the heir of' *^rs' Haslin.*For the plaintiffs have no interest in them, If 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, tbe 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.

If th 1 ' b unable to take by reason °f any disqualification, which is not per-alienagef btíielHS next in’degree succeeds, topre-vent an escheat. But where the disability is per-soiicilj fis by fin attainder, the cannot.1 succeed^ but the estate will escheat.

Although our lexicographers, and Dr. *Johnson*at their head, give to the word *effects*the meaning of things mow; able, yet one of the instances, which he adduces to show that the word is used according to his exposition, proves, I think, the contrary.

*“*SMUE-lsss«tbe. *eff- cts*for which I did the murder,

*“*My *crowr,*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 *197lie reigned. However this may be, by the words of the treaty *Vie effects*are the *inheritances*which are to descend to the *heir.*This gives to the word a 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 dr hold. Of those who can take and cannot hold is an at-tainted 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 1 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. Easlin*did not take, the estate is still in *Kean’s*heirs. If so, they have no shadow of right. If *Mrs. Easlin*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, own-ning 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 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.