#### *Descottes & O’Driscoll vs. Ann Talvande.*

Where one died intestate, seized and possessed, in fee simple, of a house and lot in the city of Charleston, leaving surviving him, as his next of kin, a wife (the defendant, who is an alien,) and nephews, bom of alien sisters, and a brother, a native born subject of the United States, but ,who has resided in Prance for the last thirty years — in an action of trespass to try titles to the said freehold, between the nephews (sons of the alien sisters of the deceased,) and the wife, it was *luM,*that upon the death of the intestate, the freehold descended upon the brother of the *Intestate;*that he alone could take the estate under the statutes of South Caroliua.

*Before*Richardson, J., *Charleston, January*Term, 1841.

The following able report of his. Honor who tried the case in the court below, is given *in*extenso, that the facts of this important case may be fully understood.

“ Trespass to try title to a lot of land in Charleston, as well as for damages. The freehold was well proved to have been in Andrew Talvande, by deeds of conveyance to himself, and by possession from 1819 to 1834, when he departed this life, leaving the defendant, his widow, an alien bom in St. Domingo. He left, also, several near relations, all aliens, but a brother born in New York, and a resident of France for more than thirty years. Edward and Augustus Descottes,, two of- the plaintiffs, were the sons of his sister, Mrs. Descottes, an alien, still alive; and William O’Driscoll, the other plaintiff, was the son of his sister, Mrs. O’Driscoll, who died before her brother, Andrew Tal-vande, and was an alien at her death. The plaintiffs were citizens.

The premises remained in the possession of the defendant ever since the death of Mr. Talvande. They were proved to be worth $1,000 rent per annum. Mrs. Talvande claimed the premises in her own right — 1st, by possession ; 2d, as a resulting trust, (hen services and money having contributed largely to the purchase;) 3d, as a sole trader, (having carried on a lucrative female school all the time, in her own name;) 4th, as virtually a citizen, under the Act of 1785, and therefore holding as a -tenant in common; 5thj as virtually a denizen, under the Act of 1799, and so capable of holding lands, (fee.; 6th, under the Act of 1807, which confirms the titles made by aliens; 7th, *301trader the Act of 1828, as preventing such lands from being escheated, and rendering the widow, though an alien, capable of taking by virtue of the act of distributions; and under the Act of 1835, as releasing the rights of the state to her. Among these and other grounds against the plaintiffs, it was urged that E. and A. Descottes could not take under the Act of distributions, because they claim through an alien sister of the intestate, their mother being still alive. That the other plaintiff, W. O’Driscoll, could not take, because Armand Talvande, the brother of intestate, being alive, a native citizen, and nearer of kin, as in the case of E. and A. Descottes ; so in this case, the brother native born would take, in exclusion of nephews claiming through the alien sisters of the intestate. That thus, as the right of E. and A. Descottes as distributors, living their alien mother, could not be supported; (see the judgment of the S. O. U. S., 9 Wheaton, 354, *Me Crary vs. Summerville and JRoioe,*54;) so, by parity of reasoning, O’Driscoll could not support his right, through an alien mother deceased, living a native born brother of the intestate.

It is unnecessary to notice further the facts or grounds of this well contested and important case. The grounds of the appeal that followed the verdict are presented.

I charged the jury, that Mrs. Talvande, being an alien born, and having never been made a citizen or denizen expressly, could not have been virtually the one or the other, under any of the Acts relied upon, and therefore could take no part of the land by mere operation of law, though she might hold by purchase. That her long possession, jointly with Mr. Talvande, enured to his benefit as the freeholder, under written titles to himself. That her capacity as mistress of a school, though conducted exclusively in her own name, did not make her a ..sole trader in law. That the fruits and contributions of her highly meritorious exertions belonged to her husband, and would not create such a resulting trust to her as a court of law, at least, could enforce. That it was plain, then, that the conveyance of the lot to Mr. Talvande was unqualified, and he the exclusive freeholder at the time of his death, October, 1834. Who, then,, were his heirs, or distributees, under thé Act of distributions *'l*was the question for the court and jury.

*302Mrs. Talvande, being unfortunately still an alien, could take no part under the Act, or in dower. The plaintiffs might, then, well maintain their action, provided they were the proper distributees, under the Act of 1791. Upon the claim on their part, I charged the jury, that I was bound, by the authority of the decision of the S. C. U. S., in the case of *Me Orary vs.*Summerville, to say that the .law was opposed to the right claimed by E. and A. Descottes, because their alien mother was still alive. I thought this a stronger case; because a native born brother, Armand Tal-vande, stood as undoubted heir to the whole or part, and would prevent the possibility of any escheat of the land to the state. He stood as the heir at. common law, and his rights were not to be infracted but by the unavoidable constructions of the statute. .

That, in regard to the right of William O’Dfiscoll, the nephew, by a deceased alien sister, the brother of intestate being alive, I held the proper construction of the Act questionable. The right of his brother to one half, or the whole of the land, could not be questioned; and standing as he did upon both the spirit and letter of the • Act, there was little room for- a liberal construction in favor of any other party, plaintiff or defendant. Such constructions were misapplied, when they would infract vested rights to property. And; inasmuch as the Act did, in terms, give to the nephew only the share to which his deceased parent would have been entitled if living, it was but by a liberal construction, in virtue of and under the statute of 11 and 12 William 3, that O’Driscoll could be made a dis-tributee at all. Claiming, as he did, through an alien mother, who could have taken no part, I thought it the safer construction of the Act, tó give to the brother, Armand Tal-vande, the whole estate, as the only one clearly entitled.

If the jury thought with the court, they would of course find for the defendant; but if they found for the plaintiffs, they should add such damages as their sound discretion pointed out. That was a question for themselves. They returned a verdict for the defendant, and the plaintiffs appeal.”

1st. That his Honor erred in charging the jury that the *303children of Madame Descottes could take no share of the real estate of Andrew Talvande.

2d. That the court erred in stating to the jury that Mr. O’Driscoll, the nephew of Mr. Talvande, had no share in his estate.

3d. That consequently there was error in the charge that the entire fee simple of the estate vested in Armand Talvande, supposed to be absent.

4th. That in other particulars the Judge erred, especially in stating that the jury were authorized to give nominal damages, in face of the un contradicted testimony that the premises were occupied by the defendant, and that a reasonable rent for the premises was one thousand dollars per annum. Plaintiffs insist that where mesne profits are distinctly proved, the jury is not authorized to disregard the evidence, and, in violation of their oaths, “true verdict to render,, according to evidence,” to give nominal mesne profits, Where actual rent has been enjoyed by defendant.

Bentham <fe Hunt, solicitors for appellants.

Petigru *&.*Lesesne, 'contra.

*Curia, per*

O’Neall, J.

The 4th section - of the Act of ’91, 1st Faust, 24, provides, “If the intestate shall not have a lineal descendant, father or mother, but shall have a widow, and brothers arid sisters, or brother or sister, of the whole blood, the widow shall be entitled to one moiety of the estate, and the brothers and sisters, or brother or sister, to.the other moiety, as tenants in common. *The children of a deceased brother or sister*shall take among them, respectively, the share *which their respective ancestbrs would have been entitled to, had they survived the*intestate.”

The Act of ’97, amending the Act of ’91, provides for the case where the wife be dead, and lets in the brothers and sisters, in that case,' to participate in the inheritance, and prescribes “ that *the issue,*if any, of *any deceased brother or sister,*if more than one, shall take among themselves the same share *which their father or mother, if living,*would have taken.; and *if but one such issue, then he or she shall take the share which his or her father or mother would have taken if living.'”*1st Brev. Dig. Tit. 101, sec. 20, p. 427.

*304Considering the, plaintiffs's case under these Acts alone, and giving to the alienage of the wife the same effect as her death, (as to the correctness of which I think there is great room to doubt, but as that is the best view for the. plaintiffs, it may be conceded for the present,) it would be plain that they could not recover; for the Descotte~ are not the children of a deceased brother or sister, their mother being still alive, but an alien; and O'Driscoll could not recover, because his mother died an alien, and if alive could not take any portion of the intestate's estate.

It wa~s, however, ably contended, that under the Stat. 11 and 12 W. 3, c. 6, which is of force in this State, the plaintiff O'Driscoll might take with the brother of the deceased. It provides, "whereas, divers persons born within the King's donuinions are disabled to inherit, and make their titles by descent from their ancestors, by reason that their fathers or mothers, or some other ancestor, (by whom they are to derive th~ir descent,) was an alien, and not born within the King's dominions: for remedy whereof; be it enacted, that all and every person or persons~ being the King's natural born subject or subjects, within any of the King's reaiths~ or dominions, shall and may hereafter lawfully inherit and be inheritable as heir or heirs t~ any honors, manors, lands, tenements, or hereditaments, and make their pedigrees and titles by descent from any of their ancestors, lineal or collateral, although the father and mother, or fathers and mothers, or other ancestors of such person or persons, by, from, through or under whom he, she or they shall or ina,y make or derive their title or pedigree, were or was or is or are or shall be boin out of the King's allegiance, and out of hisç Majesty's realms and dominions, as freely, fully and effectually, to all intents and purposes, as if such father or mother, or fathers or mothers. or1their ancestor ~r ancestors, by, from, through or under whom he, she or they shall make or derive their title or pedigree, had been naturalized or natural born subjects within the King's dominion-any law or custom to the contrary notwithstanding."~ ., .~, . .. , , . .

This statute, it seems to me, wIll not help tile plaintills; for it only intends to remove the obstacle to the title of one claiming as heir to the person last seized, thattheis obliged *305to trace his descent through an alien ancestor. If the intestate had not left a brother, a native born citizen of the United States, then the plaintiif, O’Driscoll, might very-well have claimed as heir, tracing his title by descent, as next of kin, through his mother, and being preferred on account of his citizenship before the alien sister of the deceased. But he cannot now so claim, because there is one nearer in blood, who is able to take the inheritance. The title of O’Driscoll is dependant upon the capability of his mother, and is wholly derived from her. *Levy vs. McCar*ter, 6 Peters, 102. He does not come in as heir, but *as one*who, on account of the equity of the statute, is permitted to represent his mother. As she could not be entitled to any part of the inheritance, it follows that her representative can be entitled to nothing; and when he is allowed to trace his descent through her, under the statute of Win. 3, he cannot claim, as next of. kin, on account of the brother being nearer in blood than he is. This is, it seems to me, the true construction of the Acts of ’91 and ’97, and the stat. 11 and 12 W. 3, c. 6, when construed together, and *in pari materia.*But, if there be any conflict between their provisions, then, so far as they do conflict, the Acts of ’91 and ’97 are to prevail.

If, however, O’Driscoll was entitled, still the plaintiffs must fail in this case; for the Descottes are not, in any «vent, or in anywise, entitled; and hence, too many plaintiffs being before the court, they cannot succeed. In Hammond’s N. P. 223, it is said: “ the consequence of inattention to these rules, where it consists in joining too many as plaintiffs, are the same in all forms of action. Where the defect is apparent upon the record, the defendant may demur, arrest the judgment, or reverse it by error, or he may plead the general issue, and thereby succeed at the trial.”

The motion is dismissed.

This case was argued in the Appeal Court, at Charleston, first, February Term, 1841. It was held under advisement until February Term, 1842.

Richardson, Evans, Butler, Earle and Gantt, JJ., concurred.