In Chancery-Petition of Royal Stewart to prove the will of Sarah Stewart. that plea was argued. And in Fisher v. Mee, 3 Mer. Rep. 45, Lord Eldon discharged an order to elect where the defendant had pleaded in bar to a part of the relief sought by the bill, and answered as to the remainder, and the plea had not been disposed of by the court. For, as was ob. served by Sir Samuel Romilly, in that case the complainant could not except so as to obtain a full answer until the plea was disposed of; and the defendant could not call upon the complainant to elect until he had answered fully. The reasons for refusing an order to elect during the pendency of the question whether the matters of the plea are not sufficient to bar all relief whatever in this court, so as to leave no case for election unless the allega. tions in the plea are denied, apply still more strongly to the case of a demurrer to the whole bill. For, as the order to elect proceeds upon the supposition, that, if the alle. gations in the complainant's bill are true, he has a concurrent remedy in this court, and in the suit at law, it is evident that he should not be called on to elect before an swer, and while the defendant by his demurrer is insisting that he is not entitled to any relief in this court. If the demurrer should be allowed in this case, therefore, the bill will be dismissed and a motion to elect will be necessary. And, if the demurrer is overruled, or the complainant is allowed to amend, the defendant must put in a full and perfect answer before he can call upon the complainant to elect. Motion denied with $10 costs. appointment of real estate under a power in relation to any real estate, which, by the laws of this state, the testatrix was authorized to appoint or dispose of by will under the 110th section of the Revised Statutes relative to powers. THE circumstances under which this application was made sufficiently appear in the adjudication. S. H. Hammond, for the petitioner. THE CHANCELLOR.-This is an application to prove the will of Sarah Stewart, late of Cleveland, in the State of Ohio, deceased, as a will both of real and personal estate. It appears by the testimony that the testatrix was a feme covert, and was domiciled in the State of Ohio at the time of executing her will, and at the time of her death, and that the will was executed there in the presence of two witnesses. She left real and personal property in the County of Onandagua, to which she was entitled from the laws of Ohio, it is established, by the the estate of her deceased father; and by testimony, that the will of a feme covert is valid. There must, therefore, be a decree declaring that the will is duly proved and established as a valid will of personal estate wherever situated, and the decree must be of Onandagua, with directions to him to transmitted to the surrogate of the County grant letters testamentary or of administra. tion with the will annexed thereon, in the same manner as if the said will had been duly proved before him as a will of personal estate. The will, however, is not valid as a will of real property situated within this state. For the devise of such property is In the MATTER OF THE PETITION OF Rox-governed by the lex loci sita. It is valid, AL STEWART TO PROVE THE WILL OF however, as an appointment of real estate under a SARAH STEWArt, deceased.—7th Janin relation to any real estate, power which, by the laws of this state, the dece. uary, 1845. dent was authorized to appoint or dispose LEX LOCI AS TO VALIDITY OF WILLS-WILL of by will, under the provisions of the 110th OF FEME COVERT OPERATING AS AN AP-section of the article of the Revised Statutes POINTMENT. A feme covert made her will, executed in the pre sence of two witnesses, being at the time of the making thereof and of her death domiciled in the State of Ohio. She left real and personal estate in the County of Onandagua, to which she was entitled from the estate of her father. By the law of Ohio, the will of a feme covert is valid. On application to prove the will in this state as a will of both real and personal estate. HELD that the will was valid as a will of per sonal estate wherever situate. HELD, also, that the will was not duly proved as a will of real estate situate in this state; but was valid as an relative to powers, (1 R. S. 735.) If any such an appointment, by devise or will, of the real estate, therefore, was subject to under the will of her father or otherwise, the decree may also declare this will of Mrs. Stewart duly executed for that purpose, and may establish it to that extent, and direct it to be recorded. But, as a feme covert has no power to devise lands here, except in the execution of such power, the decree must declare that the will is not duly proved as a will of real property situated in In Chancery-Lynch v. Clarke and Lynch. State of New York, except so far as it may operate as an appointment of real estate by a feme covert under a valid power for that purpose. Before the Hon. LEWIS H. SANDFORD, Assistant Vice Chancellor of the First Circuit. BERNARD LYNCH V. JOHN CLARKE AND JULIA LYNCH. Heard, July 6, 7, 8, 10, and 12, 1843; and upon briefs as to the question of alienage, May 6, July 19, and September 17, 1844. Decided, November 5, 1844. ALIENAGE-CITIZENSHIP BY BIRTH IN THE UNITED STATES, THOUGH OF ALIEN PARENTS TEMPORAIRLY RESIDING HERE. The defendant, Julia Lynch, was born in the City of New York in 1819, of alien parents, during their temporary sojourn in that city. She returned with them the same year, to their native country, and always resided there afterwards. It was held that she was a citizen of the United States. The rule of the common law, by which aliens are precluded from inheriting lands, still prevails in the State of New York. The right to real estate by descent, is governed by the municipal law of this state, and the legislature may enable aliens to inherit. But while the law remains as it now is, the question on the right to inherit must turn upon the alienage or citizenship of the person claiming to be the heir. The right of citizenship, as distinguished from alienage, is a national right or condition. It pertains to the confederated sovereignty, the United States; and not to the individual states. Under the Constitution of the United States, the power to regulate naturalization is vested in Congress, and since Congress has legislated upon the subject, the states have no power to act in regard to it. Neither the common law nor the statute law of the State of New York, can determine whether Julia Lynch was or was not an alien. The policy and legislation of the American Colonies, from their earliest times until the Revolution, was adapted to foster immigration, and to bestow upon foreigners all the rights of natural born subjects. And this policy continued unchanged in the thirteen original states, while they were united by the Articles of Confederation. The uniform course was, to extend, not to abridge, the right of citizenship. The common law by which all persons born within the king's allegiance, became subjects, whatever were the situation of their parents, became the law of the colonies, and so continued, while they were connected with the crown of Great Britain. It was thus the law of each and all of the states at the Declaration of Independence, and so remained until the National Constitution went into effect, that a child born within their territory and liegeance respectively, though of alien parents, who were abiding temporarily, thereby became a citizen of the state of which he was a native. The Constitution of the United States, as well as those of all the thirteen old states, pre-supposed the existence of the common law, and was founded upon its principles, so far as they were applicable to our situation and form of government. And to a limited extent, the principles of the common law prevail in the United States, as a system of national jurisprudence. The subject of alienage under the national compact, became a national subject, which must be controlled by a principle co-extensive with the United States. And as there is no constitutional or congressional provision declaring citizenship by birth, it must be regulated by some rule of national law; and from the necessity of the case, that rule must have been co-eval with the existence of the Union. The law on this subject which prevailed in all the states, became the governing principle or common law of the United States, when the union of the states was consummated, and their separate legislation on the point was terminated. It is, therefore, the law of the United States, that children born here, are citizens, without any regard to the political condition or allegiance of their parents. Children of ambassadors, are, in theory, born within the allegiance of the sovereign power represented, and do not fall within the rule. By the law as established in Great Britain, as well as in this country, there is of necessity in many cases, a double allegiance. Thus, where the citizens of the one country are naturalized in the other; and where issue are born in the one, of parents who are citizens of the other country. Such is the law of Spain and Portugal. By the common law, children born abroad of English parents, were subjects of the crown. The Stat. 25 Edward, 3 St. 2, De natis ultra mare, was declaratory of the old common law. Semble, that children of citizens of the United States, although born in foreign countries, and not within the provisions of the act of Congress of 1802; are, nevertheless, citizens of the United States. The benign policy of this country in reference to immigrants, traced historically, and its wisdom and justice maintained. The principal point, sustained, by reference to the legislation of the states, by state papers, and, by the opinions of emminent statesmen and judges, and writers on constitutional law. The rule of the national or public law considered. It is derived from the civil law, and is not uniformly held in countries, the jurisprudence of which is founded upon that system; nor is it clearly defined in theory. THE firm of Lynch & Clarke, formerly so well known as dealers in mineral waters in the city of New York, first brought into general notice the celebrated Congress Water at Saratoga Springs. In 1823, a lease of the Congress Spring was obtained in the name of Clarke, and a purchase made of a parcel of land near by. In 1826 and 1829, the title to the spring and several hundred acres of land adjacent, was ob In Chancery-Lynch v. Clarke and Lynch. tained from the Livingston heirs, in the case, is the political condition of the dename of Clarke; and in 1830 another tract fendant Julia Lynch, at the death of her was conveyed the same manner. The pur- uncle, Thomas Lynch. This question chase money in the transaction prior to stands at the threshold of the cause. For, 1830, was paid by Lynch & Clarke. The if, as claimed in her behalf, she were in sale of the Congress water was continued truth a citizen of the United States at that by the firm from 1823, until the death of time, she inherited all the real estate wherethe senior partner, Thomas Lynch, in June of Thomas Lynch was seised, or to which 1833; by which time the property at the he was entitled, either at law or in equity. springs had become of immense value, and Her father died in the lifetime of Thomas. was yielding a large income. The descent to her, (although the other relations of Thomas were aliens,) was not immediate. Jackson v. Fitzsimmons, 10 Wend. 9; Levy's Lessee v. Mc Cartee, 6 Peters', 102. But the Revised Statutes, re-enacting so much of the Act 11 and 12, Will. 3, ch. 6, provide that no person capable of inheriting under our statute regulating descents, shall be precluded from such inheritance by reason of the alienism of the ancestor of such person. 1 R. S. 754, § 22. This applies directly to the case, if Julia Lynch were a citizen when her uncle died. See The People v. Irwin, 21 Wend. 128. T. Lynch left no children. His brother, Bernard, was born and always resided in Ireland. He had a brother Patrick, also an alien, who died before Thomas, leaving a daughter, Julia, living in Ireland. Bernard Lynch came to this country in 1834, was naturalized in 1839, and procured from the legislature a relinquishment of the right of the state by escheat to the lands of Thomas Lynch. Mr. Clarke claiming to own the whole of the Congress Spring and the lands purchased as before mentioned, Bernard Lynch filed the bill in this cause to have his title to an undivided half thereof, under Thomas Lynch, maintained and The difficulty of the subject, and its im established. He alleged that the purchase portance intrinsically as well as in referwas on joint account, and that Clarke was ence to the large amount of property inbound to account for the profits since T. volved in this cause, induced me to solicit Lynch's death, amounting to at least $20,- a further argument on the point, and it has 000 a year. And he avered that Julia accordingly been argued anew. The reLynch had no right or title in the premises. spective counsel have presented their views Mr. Clarke stated in his answer, that the with great ability, and have aided me espurchases were all made on his sole ac-sentially in my investigation. count, and the deeds for that cause taken The facts bearing upon the alienage or in his name. And that the money paid was citizenship of Julia Lynch, lie within a narloaned to him by the firm. He also alleged row compass. Her parents were British that Julia Lynch was a citizen of the United subjects, domiciled in Ireland. They came States, and inherited all Thomas Lynch's real estate. The answer of Julia Lynch insisted upon her right as a citizen, and as the sole heir of Thomas Lynch. There was much testimony relative to the purchase of the property, and the resulting trust set up by the complainant. The case however turned on the citizenship of Julia Lynch. to this country in 1815, remained till the summer of 1819, and then returned to Ireland. Julia was born in the city of New York in the spring of 1819. Her parents took her with them on their return, and she remained in Ireland till after the death of Thomas Lynch. During the sojourn of her father here, Thomas Lynch hired a farm for him and paid the rent. Her father ocH. S. Mackay and S. Sherwood, (with cupied the farm for a time, but it is proved whom was J. Radcliff,) for complainant. that he was not contented here. One witG. M. Speir and Murray Hoffman, (withness testifies that Patrick Lynch (Julia's whom was C. F. Grim,) for defendant Clarke. A. L. Robertson, for defendant Julia Lynch. THE ASSISTANT VICE CHANCELLOR.-The first question which I will examine in this father) always wished to return to Ireland, and that he thought this country did not agree very well with his health. It does not appear that he ever declared his intention to become a citizen under the act of Congress; or ever expressed any intention to reside here permanently. Some years In Chancery-Lynch v. Clarke and Lynch. after he returned to Ireland, he came here | without reference to the status or condition on a visit, without bringing his wife or any of their parents. So if a Frenchman and of his family; remained short of six months; his wife, came into England, and had a son and then returned to Ireland, where he and during their stay, he was a liege man. his wife continued to reside until their This was settled law in the time of Littledeath. ton, who died in 1482. Litt. Tenures, § The presumption of Patrick's having had 198. And its uniformity through the inany animum manendi, arising from his resi-tervening centuries, may be seen by referding here three or four years, is very much ence to the authorities, which I will cite weakened if not overcome, by his speedy without further comment. Dyer's R. 224, return to Ireland, his constant wish to re-a; and S. C. in Jenkin's Cent. Cases, 5 turn during his stay, and the absence of any proof of his expressing an intention or even expectation of remaining here, or of his taking any step towards acquiring the character of a citizen of the country. Cent. Case 91; Calvin's Case, 7 Reports, 16, 17, 18, 25, 27; Co. Litt. 8, a, 129, a; Bacon v. Bacon, Cro. Car. 601; Comyn's Digest Alien, B. 1; Bac's. Abridg. Aliens, A; 1 Black. Comm. 366; Doe v. Jones, 4 Term Rep. 300; Doe v. Ackland, 2 Barn & Cres, 779; Chitty's Law of Descents, 33. Hallam's Constitutional History of England, 422, note 1. My conclusion upon the facts proved is, that Julia Lynch was born in this state, of alien parents, during their temporary so-1 journ. That they came here as an experiment, without any settled intention of Mr. Chitty, ubi supra, says that by the abandoning their native country, or of ma- common law, all persons born out of the king the United States their permanent king's dominions and allegiance were deemabode. They never concluded to remained aliens; and whatever were the situation here permanently, and after trying the of his parents, the being born within the country, they returned to their native land, allegiance of the king, constituted a natural and there ended their lives many years af- born subject. terwards. They took Julia with them to Ireland; she continued to reside there, and when Thomas Lynch died, she was about fourteen years of age, and a resident of Ire land. Her right to inherit as the heir of Thomas Lynch, must be tested by the state of allegiance existing at his death, when the descent was cast. It is evident, therefore, that the right depends upon her alienage or citizenship at the time of her departure from this country in her mother's arms in the year 1819; for no act intervened between that time and the death of Thomas, which could alter her political state or condition. First. It is insisted by the defendants that the rule of the common law is to govern this case on the point of alienage. It is an indisputable proposition, that by the rule of the common law of England, if applied to these facts, Julia Lynch was a natural born citizen of the United States. And this rule was established and inflexible in the common law, long anterior to the first settlement of the United States, and, indeed, before the discovery of America by Columbus. By the common law, all persons born within the ligeance of the crown of England, were natural born subjects, He states no exception to the latter proposition; although there are some exceptions to the former, in favor of children of British subjects who are born in foreign countries Whether the foreign parents were in England, in itinere, or for occasional business, their children born during their stay, were natural born subjects. Second. Such being the rule of the common law, in the absence of express legislation, the difficult question is presented for decision; is the common law in this respect, the law of this state, or of the United States? If it be the law here, then Julia Lynch was a native born citizen, and inherited the property in controversy; assuming that it was the property of Thomas Lynch, as alleged in the bill of complaint. It is undoubtedly true that the right to real estate by descent in this state, must be governed by the municipal law of the state. And by the law of this state, which in this respect, is the common law, aliens cannot inherit land. But this does not relieve the case from its difficulty, because we have no state law which in express terms declares who are aliens and who are citizens, either in general, or for the purpose of inheriting land. It thus becomes necessary to inquire who is an alien, according to the In Chancery-Lynch v. Clarke and Lynch. law which must control that subject in this | universal comity we are distinguished from state. No one can dispute the power of the citizens of other Republics on this conthis, or any other state in the Union, to tinent, that he would be regarded abroad, or regulate the subject of inheritance. The received as entitled to the rights and imstate legislatures, may enable aliens to hold munities secured to him by the government and inherit lands unconditionally, in their of his country. I speak now of the relarespective states. But where they have tionship of a citizen in its general and enomitted to legislate, and the common law larged sense. In its particular sense, it is disability is left to operate against aliens; applicable to the rights and duties of our the right to inherit, when disputed on this people in and towards the states in which ground, must be determined on some gen- they reside. And in this sense, while a eral principle or rule of law which ascer- citizen of one state may hold lands in antains who are aliens and who are citizens. other state, yet he cannot interfere in the I think that this general principle is not elections of the latter, or in any of those to be obtained from the mere local or mu- rights which from the nature of government nicipal law of the State of New York. belong exclusively to the citizens of such This state is a member of a confederation state. As citizens, we owe a particular alof states, having a common federal execu-legiance to the sovereignty of our state, and tive head, and for many purposes affecting a general allegiance to the confederated the general interest and convenience of all sovereignty of the United States. the states, a national legislature and judiciary. Our internal affairs and government, are almost exclusively reserved to the control of the people of the states. Amongst ourselves, we are twenty-six sovereign and independent states, confederated under a compact or constitution, for limited and prescribed objects of government. But in reference to all foreign nations, we stand as one single and united people, The United States of America. The right of citizenship, a right which is not only important as between the different states, but has an essential bearing in our intercourse with other nations and the privileges conceded by them to our citizens; is therefore, not a matter of mere state concern. It is necessarily a national right and character. It appertains to us, not in respect to the State of New York, but in respect of the United States. The provisions of the Constitution of the United States demonstrate that the right of citizenship, as distinguished from alienage, is a nationai right or condition, and does not pertain to individual states. And while the constitution recognizes the particular citizenship which I have mentioned, (Cooper's Lessee v. Galbraith, 3 Wash. C. C. R. 546,) it is evident that the subject of alienage, must be controlled by the general, and not by the local allegiance. The constitution declares that the citizen of each state shall be entitled to all the privileges and immunities of citizens in the several states. (Article IVth, Sec. 2.) The effect of this clause in the first instance, was to bring within the fold of citizenship of the United States, and thus of each and every state, all who at the time of the adoption of the constitution, were by birth, adoption or any of their discordant laws of naturaliIn speaking of this right in its proper and zation, citizens of any one of the thirteen enlarged sense, we never say of any one, states. (See 3 Story's Comm. on the Conthat he is a citizen of the State of New stitution, 674, 5, §. 1800.) It made all York; we say he is a citizen of the United alike, citizens of the newly organized naStates. Our own constitution recognizes tion, and in this respect a homogeneous the propriety of this mode of expression, in people. And the very necessity for such a declaring that no person except a native provision to bring all upon a common platcitizen of the United States, shall be eligible form, exhibited in the strongest light the to the office of governor. A merchant tra- absolute need of guarding against different ding in Europe and having occasion to re- and discordant rules for establishing the sort to treaty stipulations with foreign pow-right of citizenship in future. We thereers, would neither be recognized or under-fore find that one of the first powers constood, if he should declare that he was a citizen of the State of New York. It is only in his character as a citizen of the United States, an American citizen, as by ferred upon Congress, was "to establish an uniform rule of naturalization throughout the United States." (Article I. Sec. 8; § 4.) A few brief considerations, out of many |