#### Andrew W. Burnett, and others, *vs.*Wm. P. Noble, adm’r, and others.

Where an intestate leaves heirs entitled to his real estate by descent, and an alien widow, such widow can take no part of the real estate. An alien widow takes under the Act of 1828, only where the intestate leaves no heirs, and the estate is, therefore, liable to escheat.

BEFORE JOHNSTON", OH., AT ABBEYILLE, JUNE, 1855.

The decree of his Honor, the Circuit Chancellor, is as follows:

Johnston, Oh. John Bull died intestate, on the 6th of January, 1855, possessed of a considerable estate, real and personal; and leaving neither father, mother, sister or brother, or lineal descendant, but being survived by his wife who is an alien, and by three first cousins, (plaintiffs in this case,) who are his only next of kin, and who filed this bill the 8th of June, 3855.

The only question proper for decision at this time is, whether the real estate is distributable among these next of kin, to the exclusion of the wife.

There is no doubt that the statutes of 1791(a), 1826(b), and 1828(c), are to be construed in *pari materia,*as the defendants’ counsel contends. But the question is, what effect have they in removing the incapacity of the wife as an alien, to succeed to her husband’s lands ?

The right to the enjoyment of real estate is generally of a political rather than of a municipal character. By the common law, the right of succession was confined to natives, or naturalized subjects, owing allegiance to the government; and as, by the same law, the right of succession accrued through the medium of inheritance by blood, and an alien had no in*59heritable blood, real estate could neither he received nor transmitted by him. Our law of distributions, which is altogether statutory, does not operate upon the principle of consanguinity. Those who take by statute, take simply by virtue of its terms; and their right depends, generally, merely upon their coming within the description given by the statute, (a) They are *hares fctcti per statutam.*Therefore the *want of inheritable*blood, as an incident of alienage, is no impediment under our statute of distributions. But the alienage itself, is a political impediment to the acquisition and retention of land which can be removed only by legislative provision. The statute of 1828,(b) is supposed to have effected this purpose. This Act, which is entitled *“*An Act to *amend the JEseheat Laws*in relation to the widows of citizens of this State,” provides “ That no lands *of which any citizen*of this State shall *die*seized, *possessed,*or *interested*in, shall vest in the State, or be liable to escheat, *where such*person, *shall have left a ividow, a resident of the State,*although such widow shall not have become a naturalized citizen — but *the said land shall pass by will or descent*to such widow, *in the manner already provided by laiv.”*The question is, what interpretation shall be put upon this statute, particularly on the latter words ?

Is the construction to be so affected by the title of the statute as to confine the operation of these latter words exclusively to cases liable to an actual escheat ?

The statute book is full of enactments which go beyond the mere title of the Acts in which they occur; and though the words “ *and for other purposes,”*have not been added to the title, it has never been suggested that these enactments are void, or that, where the words of them are plain and unambiguous, full effect is not to be given to them.

What different provisions shall be included in a statute is merely a question of parliamentary order and practice— *60proper only for the Legislature. We have no such constitutional provisions as exist in Georgia, and possibly in other States, debarring the Legislature from including in a bill matters not described in the title endorsed on it. It is true that when the words of a statute are ambiguous, the construction may be helped by resort to the title; of which we~ have an instance, even in the criminal courts, in the interpretation of the Act(a) relating to the fraudulent or secret taking away of growing o~ standing crops, passed in 1826. The enacting clause of this statute adds nothing in terms to the common law; but by resort to the title, the courts were enabled to discover a newoffence. In all enactments of a remedial character, it is proper to extend (not restrict) the meaning of the words employed, by resort to context and title, and to every other legitimate source~ The spirit of the Act-~its reasons-the evil existing-the remedy proposed-should all be looked into. The Act before us is emphatically remedial. The remedy should be advanced (not restricted,) if the words of the statute will allow of it. The latter words do allow of a construction removing the disability of alienage from a widow in all cases, where widows take interests (either partial or total) by prior statutes. Indeed the words rather imply that the case of actual escheat was not ezclusivel~' within the contemplation of the Legislature. If the •case of total escheat was contemplatecl,-a case in which the only claimant before the State was the widow,-and the State was willing to release to her their entire interests, (which is the necessary assumption in that case,) why did they not vest the whole in her, instead of declaring she might take such interests, partial or total, as were already proyided for her by law? I can conceive of no reason Why the Legislature should have intended to remove the objection of alienage when the widow claims the s~hole estate, and not to remove it when her claim is only to a part of it. Why, when she claims little-because she has little *61to claim, and therefore is in the greatest need — why should we suppose that in such a case a Legislature, willing to give her the whole, was unwilling to give her a part ?

From these observations, it will be perceived that, if this statute of 1828 were open to my construction, I should 'much incline to a liberal construction in favor of the widow. It is true that in the many cases which have arisen since its enactment, it has seldom been brought to the view of the Court; in none, indeed, that I remember, except the case of *Keenan*vs. *Keenan**(a)***Therefore there is no case, that I know of hut that, which authoritatively imposes an interpretation on the statute.

In that case it is to be observed, this Act came under review only incidentally, and under circumstances little fitted to secure it a full consideration. The very question before me was put out of the way by concession of counsel. It was *conceded,*says the Court, that the alienage of the wife destroyed her right of distribution, unless it was removed by a subsequent naturalization.

Accordingly, the few observations made by the Court upon the statute, evince that its attention rvas not drawn to a full'examination of its provisions. It is dismissed with the observation that the plain intent (as shown, by the title) w7as to release escheats, and to *enlarge the capacity of the wife to take.*The latter branch of this observation' was the proper subject of examination, and it seems to me that if the question had been discussed -by counsel, the Court would probably have examined *how far*the Act enlarged the capacity of the widow.

But by the settled rule of this Court I am to follow the decision of law courts upon points of law; and I am bound by the case of *Keenan*vs. *Keenan.*

It is therefore adjudged that the plaintiffs, as next of kin, are exclusively entitled to the real estate of the intestate, described in the pleadings. On the other points of the case, it is *62ordered, that the hill stand until the expiration of nine months from the death of the intestate, and that then a ■writ issue for the partition of the personalty, and that the commissioner inquire into and report upon the matters of account.

The defendant, Sarah Bull, appealed and moved for a reversal of so much of the Chancellor’s decree as declares her not entitled to a partition of the real estate of her deceased husband, on the ground:

That a proper construction of the Acts of Assembly of this State allows an alien widow to take real estate by descent from a deceased husband, in like manner as a widow who is a native.

Thomson, *MeGowen,*for appellant.

*JRhett, Burt,*contra.

(a)

**5 Stat. 162.

(b)

6 Stat. 284.

(c)

 lb. 363.

(a)

 See the authorities quoted in -Bitisiand *Dawes.*

(b)

6 Stat. 363.

(a)

6 Stat. 284.

(a)

*1*Rich. 34.5,

The opinion of the Court was delivered by

DaRgan, Ch.

John Bull, the intestate, died seized of real estate. He was a native citizen. He left surviving him, his wife, who at the time of his death was, and still is a resident of the State, but who is an alien. Besides her he left no nearer relations, than his three cousins german, who are native born citizens, and are plaintiffs in this cause.

The only question submitted, .either on circuit, or in this court, is, whether the widow is entitled to take under the provisions of the Act of 1828, (6 Stat. 363,) such a portion of the intestate’s estate, as she would have been entitled to take if she had been a citizen.

The Act of 1828 is entitled “ An Act to, amend the escheat laws in relation to the widows of citizens of this State.” It enacts, *“*that no lands of which any citizen of this State shall die seized, possessed, or interested in, shall vest in the State, or be liable to escheat, where such person shall lea've a widow, *63a resident of the State, although such widow shall not have become a naturalized citizen; hut the said land shall pass by will or descent, to such widow in the manner already provided by law.”

It is said, that this Act is to be construed in *pari materia*with the Act of 1791, (5 Stat. 162,) which is a general law of distributions, and the Act of 1826, (6 Stat. 284,) which is emendatory thereof, and which gives the widow the whole of her intestate husband’s real estate under certain circumstances. The rule of construction which has been invoked is too familiar for comment; it is its application to this case, which is questionable. The subject matter of the two Acts last referred to relates to the distribution of intestate’s estates, while the purpose of the Act of 1828 is to amend the escheat laws. The subjects are as diverse as it is possible for them to be. But if the Act of 1828 were to be construed in the manner contended for, it would afford us no aid in its interpretation. There is no difficulty, or doubt, as to what the widow of the intestate would be entitled to take under our Acts of distribution, if she is entitled to take at all. The question is, whether the fact of her being an alien, and not naturalized, does not exclude her altogether under the circumstances of this ease.

If the intestate had left no kindred entitled to take his estate under the provisions of the Act of 1791, then the Act'of 1828 would have operated, and the widow would have taken the whole, notwithstanding her alienage, she being a resident of the State. The purport of the argument on this appeal is, to give the Act of 1828 a liberal and enlarged construction, and to extend its operation to cases which do not fall within its terms. The Chancellor himself, who presided on the circuit trial, has adopted the reasoning which supports this construction, though he felt himself constrained to decide in a manner different from what would otherwise have been his judgment, on the authority of the law case of *Keenan*vs. *Keenan,*(7 Rich. 845.)

It is said, that in the construction of the Act of 1828, we *64are not to be restricted by its title, which would seem to con-iine its purview to the subject of escheats. This I admit, or rather, I admit the doctrine on which the proposition rests. The title, or preamble of an Act, or both together, may be resorted to in aid of a doubtful interpretation, or for the explication of an ambiguity. It is too clearly settled to admit the shadow of a doubt, that the title or preamble of a statute, singly or together, is not to prevail against the plain language or manifest import of the enacting clause's; even though they contain provisions entirely different from the subject matter of the statute, as set forth in the title and. preamble.'

But in the Act of 1828, there is the most perfect harmony between the title and the enacting clause. The former declares it to be an Act to amend the escheat laws; and the latter provides,.not for the distributive share which a widow shall take of her intestate husband’s estate, (which had been already effectually done by previous Acts,) but to remove under certain circumstances set down in the Act, the disability of an alien widow to take at all; and to declare, that on certain conditions, the lands of the intestate should not escheat, where otherwise, and before that Act, they would have escheated.

The next inquiry will be, in what cases, according to a proper construction of the Act of 1828, is an alien widow entitled to a widow’s share of an intestate husband’s estate. The first and most conspicuous condition is, that she must be a resident of the State, which condition is fulfilled in this case. The second condition is, (and here is the difficulty, though to my mind it is equally plain,) that the title to the land must otherwise vest in the State, or lie liable to escheat. *Alienage*is the same as nonexistence, as to the right or capacity of taking real estate by descent. Therefore, if an intestate has many children who are aliens, and one who is a native, or naturalized citizen, the latter would take the whole estate, as if he were the only child; the existence of the others, as to the right to inherit, not being recognized. And so of any other given case *65on the same principle; which has been clearly settled by a series of decisions. The plaintiffs, who are. legally the next of kin of the intestate, would on this principle, be entitled to take under the Act of distributions, the whole of the intestate’s real estate, though he had left other relations nearer in propinquity of blood, (even children,) who were aliens. The intestacy of John Pull did not, therefore, give rise to a case of escheat, either as to the whole or a part of his real estate. The title *did not vest in the*State, nor was in any way *liable to escheat.*Now the manifest import, nay the plain language of the Act of 1828 is, to give to the alien widow who is a resident of the State, the lands of her intestate husband, where the same would otherwise *vest in the State*or *be liable to escheat.*By the provisions of this Act, the State merely intended to grant to a resident widow the escheated property' of her deceased husband’s estate, without an intention to interfere with the claims of other persons having a right under the existing laws. Suppose that after the death of the husband in this instance, the State had by an Act granted to the widow, all the lands of the intestate, the title of which had vested in the State, or which were liable to escheat: — the widow could take nothing under such a grant, for the obvious reason, that there were no lands of the intestate, the title of which had vested in the State, or which were liable to escheat; said lands having already vested in the plaintiffs as next of kin, they being under no disability of alienage, or otherwise. The only difference between the Act supposed, and that of 1828 is, that one is general and the other special. Couched in the same language, they would, be construed in the same manner.

I have already adverted to the case of *Keenan*vs. Keenan, decided by the law Court of Appeals. The conclusion at which I have arrived by the foregoing reasoning is in harmony with the judgment of the law Court "in that case. This being a question of law, I cannot but regard that decision as authoritative ; though the question does not seem from the report to *66have been much discussed. For this reason, the Chancellor ■who tried this cause, did not consider himself so much bound by the decision, as he would otherwise have done. Yet he considered himself so far constrained, as to follow it against his own convictions.

.Upon the whole, I am satisfied that the judgment of this Court which I am now to announce, is supported by reasons whose cogency'cannot be resisted, as well as by an authority we are bound to respect.

It is ordered and decreed that the circuit decree be affirmed, and the appeal be dismissed.

DtmiaN, Oh., concurred.

WARDLAW, Ch., absent from indisposition.

*Appeal dismissed.*