| true that they acquired such lands subject to the right of the legislature to change the law of descents, yet the act of 1851 had not only specifically authorized them "to transmit the same to their heirs," but had provided that upon their decease their lands "should pass and descend in the same manner as if" they were citizens of the United States; and, by the terms of the law, it could not be urged as an objection to them that they were not citizens of the United States, but they were thereby placed upon" the same footing as naturalborn citizens." Accordingly, when the legislature in 1887 repealed the act of 1851, it evidently thought it best to so far continue the privileges of that act to aliens who had acquired lands in Illinois under it and because of it as to confer upon their heirs the right to take by devise or descent a defeasible estate in such lands. We do not think that the embodiment of such a just and reasonable exception in the act of 1887 made it a special law, within the meaning of the state constitution. The observations already made as to the exception of aliens protected by treaties from the operation of the act apply to the exception in favor of the heirs of aliens who had acquired lands before the passage of the act. As to the large class of aliens not embraced in the latter exception, the law is general in its application. Its gen cial in its character by reason of the exception contained in that portion of section 1 which is above quoted. As the exception permits the heirs of aliens, who have acquired lands in the state before the passage of the act, and the heirs of aliens who might acquire lands under the provisions of the act in the manner above stated, to take such lands by devise or descent, and hold them for certain periods, subject to their escheat to the state in case they should not be sold at the end of such pe riods, or in case such alien heirs should not become actual residents of the state at the end of such periods, it is said that a special privilege is granted to the nonresident heirs of aliens which is denied to those who would be the nonresident heirs of citizens but for the disability imposed by the act; that where a citizen of this country, whether such by birth or natu. ralization, dies owning lands in this state, and leaving kindred in a foreign country who are nonresident aliens, such kindred, though coming within the degrees of relationship authorized to inherit under the statute of descents, cannot take such lands by devise or descent under the act, but that, where a nonresident alien, owning lands before the passage of the act, dies still owning them, and leaving kindred who are nonresident aliens, such kindred, il coming within the degrees of relationship authorized to inherit under the stateral character is also seen in the fact that ute, may take such lands by devise or descent, and hold them for a number of years, with the right to sell them In view of this feature of the act, counsel for appellant say: "The legislature is forbidden by the constitution from declaring that certain individuals may inherit from one part of the people, viz. deceased aliens, and may not inherit from another part, viz. deceased citizens." We do not regard the objection thus made to the act as tenable. The object of the exception now under consideration was to save the rights of those aliens who had already “acquired lands in this state subject to the laws thereof, "-that is to say, subject to the provisions of the act of 1851, as above quoted. Rules of inberitance are the creatures of the municipal or civil law, and, except as to rights already vested, may be changed and modified at pleasure. "Nemo est hæres viventis is a well-known legal maxim. The legislature has power to change the course of descent, and such change will operate instantly upon all estates which may subsequently descend. The law existing at the time of descent cast governs the right to inherit. A mere expectation of property in the future is not considered a vested right, and hence "the rules of descent are held subject to change in their application to all estates not already passed to the heir by the death of the owner." Cooley, Const. Lim. (6th Ed.) p. 439; Sturgis v. Ewing, 18 Ill. 176; Crane v. Reeder, 21 Mich. 24; Pilla v. Association, 23 Fed. Rep. 700. It follows that neither citizens nor aliens bave vested rights in the estates of their living kindred. But aliens who had acquired lands in Illinois before the act of 1887 went into force had vested property rights, which could not be confiscated or taken away from them; and, while it is it has reference to future, as distinguished from past, acquisitions of real estate. It was not necessary that citizens should be made capable of inheriting in express terms. Citizens are not deprived of the right to transmit their lands by devise or descent merely, because certain of their kindred, who are nonresident aliens, are declared to be incapable of inheriting real estate. The lawmaking power can direct who shall be regarded as heirs, and where lands shall go in default of heirs. Crane v. Reeder, supra. Where a subject or citizen dies intestate, the presumption of law is that he has heirs capable of inheriting. Wilbur v. Tobey, 16 Pick. 177. Our conclu sion is that the act of 1887 does not con. travene the constitutional prohibition of special legislation changing the law of descent. Third. It is urged that the act of 1887 should be liberally construed, and that such liberal construction would have the effect of ex ending the exception named in section 1 to the alien heirs of citizens, as well as to the heirs of aliens; in other words, we are asked to so construe the exception as to give the nonresident alien kindred of citizens the right to take lands by descent or devise, and hold the same for three or five years, so as to make sale, or acquire an actual residence in the state. This would involve the insertion of the words “and the alien heirs of citizens" after the words "except that the heirs of aliens." by such a construction we would make the legislature say what it has not said. It is not the province of the judiciary to make laws, but to construe and interpret them, and pass upon their validity. Counsel cite, as authority for their contention upon this point, the following cases: Kilgour v. Gockley, 83 III. 109; County of Perry v. Jefferson Co., 94 Ill. 214; Walker v. Springfield, Id. 364; and People v. Hoffman, 97 Ill. 234. A careful examination of all of these cases will show that, where the construction given to the words of a statute is variant from their strict and literal meaning, such construction is only justified upon the ground that it effectuates the intention of the legislature as manifestly disclosed by a consider- | ation of the whole context. In the Gockley Case, an act of the legislature relieves persons under 21 years of age from the bar of a statute of limitations, provided they should bring an action within 3 years after the disability should cease; and it was held that females, whose minority is at an end under our laws at 18 years of age, could bring their actions within 3 years after reaching the latter age, because it was the manifest intention of the legislature that the action could be brought within 3 years after the disability of minority should cease, whether it ceased at the age of 21 years or at the age of 18 years. In the Jefferson County Case a mistake was made in a certain location named in the body of an act to change the county line between two counties; and the court resorted to the title of the act as avowing its object, and showing the intention of the legislature. In the Springfield Case the word “said" was rejected, and the word "the" substituted therefor, in a section of a statute, because a consideration of the whole section showed that the real intention of the legislature was expressed by such substitution. In the Hoffman Case it was held that the expression "capias ad faciendum" was used by mistake in a statute for the expression "capias ad respon. dendum," because the context clearly showed that the legislature intended to designate the latter, and not the former, writ. But here the legislature has expressly declared that the heirs of certain aliens shall take and hold land for limited periods, subject to the privilege of avoiding their escheat to the state by a sale of them, or by acquiring an actual residence in the state, within said periods. But the act of 1887 nowhere declares, nor is there anything on its face to indicate, that the legislature intended thereby to declare that the nonresident alien kindred of citizens should so take and hold lands for certain periods. The evident design of the legislature was to prevent the accumulation of landed estates in the hands of nonresident aliens. The latter are permitted to acquire and hold personal property in the same manner, and to the same extent, as natural-born citizens. The act holds out inducements to resident aliens to become citizens by granting them the privilege of acquiring lands and retaining them for certain periods after declaring their intentions to become citizens, and by providing for escheats to the state in case of failure to sell or to acquire citizenship within such period. We cannot say that the failure to provide for the nonresident alien kindred of citizens may not have been in pursuance of the general design to encourage the naturalization of resident aliens, and to discourage the satis | ownership of land by nonresident aliens. Non constat that it was not the intention of the legislature to induce citizens to devise their lands to their resident kindred, or, in case of intestacy, to transmit them to heirs living in this country. We are of the opinion that the exception in section 1 should not be so construed as to embrace others than the class of persons therein specifically designated. Luhrs v. Eimer, 80 N. Y. 171. Fourth. It is claimed that the appellants in this case took such an interest in the lands in controversy as they can hold until the state interferes with them, and that the interest so taken by them must be regarded as valid until it is assailed in a direct proceeding instituted by the state. We are unable to yield our assent to this proposition. At common law, though aliens could not take by operation of law, they could take by the acts of parties; not taking by descent, they yet could take by grant or devise until “office found;" that is to say, an alien could hold lands conveyed or devised to him, until it was ascertained by inquiry or inquest of office whether or not such lands belonged to the sovereign by reason of the alienage of the holder. Hauenstein r. Lynham, supra; Cross v. De Valle, 1 Wall. 13; 3 BI. Comm. 258; 1 Washb. Real Prop. (5th Ed.) p. 79; 1 Amer. & Eng. Enc. Law, 458460. Hence it has come to be generally held that, in the absence of express statu. tory provisions to the contrary, an alien's title to land purchased by bim or devised to him is valid against everybody but the state, and can be diverted only by "office found," or by some other act or proceeding taken by the state for the purpose of acquiring possession. 1 Devl. Deeds, § 127; Jackson v. Adams, 7 Wend. 368; Goodrich v. Russell, 42 N. Y. 177; Heeney v. Trustees, etc., supra; Ettenheimer v. Heffernan, supra; Airhart v. Massieu, 98 U. S. 491. So it has been decided that, where lands are conveyed to a corporation forbidden by its charter to hold real estate, the title of the corporation cannot be collaterally attacked, but can only be questioned in a direct proceeding by the state. In many of the cases, however, where it has been thus decided, it appears that the corporation was permitted to hold land to a certain extent, or for certain purposes, as, for instance, for the purpose of its business, or that it was forbidden to "purchase and hold," and not forbidden to either purchase or hold. Barnes v. Suddard, 117 Ill. 237, 7 N. E. Rep. 477; Hamsher v. Hamsher, 132 III. 373, 23 N. E. Kep. 1123; Leazure v. Hillegas, 7 Serg. & R. 313; Runyan v. Coster, 14 Pet. 122; Hickory Farm Oil Co. v. Buffalo, N. Y. & P. R. Co., 32 Fed. Rep. 22. In Bone v. President, etc., (Pa. Sup.) 5 Atl. Rep. 751, the opinion fails to state the facts of the case, but it would appear from the syllabus and notes that the corporation was entitled to hold land to a certain extent. In Carlow v. C. Aultman & Co., 28 Neb. 672, 44 N. W. Rep. 873, where a ponresident corporation had bought property at a judicial sale in order to protect its lien under a judgment in its favor, it is not stated what the provisions of the corporate charter were; but the language of the Nebraska statute there quoted is difterent from the language of the act of 1887, now under consideration. Here the nonresident alien is not merely forbidden to "acquire or own, hold or possess," but it is expressly declared that he "shall not be capable of acquiring title to, or taking or holding," etc. This language cannot be construed as permitting the nonresident alien to hold a defeasible title, subject to be divested only by forfeiture in favor of the state. The act specifies what aliens may hold defeasible titles, such as the heirs of aliens who had theretofore acquired lands, and resident aliens declaring their intentions to become citizens, and creditor aliens seeking to enforce liens or judgments. The legislature, having thus conferred the right to take and hold a defeasible title upon certain specified classes of aliens, must be presumed to have intended to withhold such right from the aliens who are not embraced in those classes, and who are declared to be incapable of taking or holding. Whether or not the act of the legislature approved June 19, 1891, in force July 1, 1891, amending section 3 of the act of 1887, by adding a second proviso thereto, had the effect of so changing section 1 of the act of 1887 as to confer upon nonresident aliens the right to take a defeasible title in lands conveyed to them by deed, is a question which we are not called upon to decide in this case, as the appellants here claim to take by descent and not by deed. As, under act of 1887, the lands of a deceased intestate in this state cannot descend to his nonresident alien kindred, they will escheat to the state or county if he leaves no resident kindred capable of inheriting. The common law of England, so far as the same is applicable and of a general nature, and all statutes or acts of the British parliament made in aid of, and to supply the defects of, the common law, prior to the fourth year of James the First, are in force in this state, except so far as they are changed or repealed by legislative authority. Rev. St. c. 28, § 1. If, therefore, the act of 1887 had done nothing more than simply repeal the act of 1851, the common law, which forbids an alien to take or hold real estate by descent, would have been in force in this state. It follows that the act of 1887, in enacting that "a nonresident alien shall not be capable of acquiring title to or taking or holding any lands or real estate in this state by descent," is merely declaratory of the common law. By that law, "if a man leaves no other relations but aliens, his lands shall escheat to the lord." 2 Bl. Comm. 249. In such case the land escheats to the state without office found, (Crane V. Reeder, supra,)-that is to say, a proceeding in the nature of office found is not necessary to vest in the sovereignty the title to lands escheating for want of heirs: but a proceeding may be required, not to give title, but "for information of title already passed," (Id.) Such a proceeding is the Illinois statute in regard to escheats, the first section of which declares, among other things, that the estates of persons dying seised of real estate without any devise, or heirs capable of inherit ing the same, shall escheat. Rev. St. c. 49, § 1. We have held that titles by escheat must be established in accordance with the provisions of this statute. Wallahan v. Ingersoll, 117 Ill. 123, 7 N. E. Rep. 519. Accordingly, if Alexander Wunderle had died leaving no other kindred than nonresident aliens, or, in other words, no heirs capable of inheriting, a proceeding under the escheat law might be necessary to establish the right of the state or county to take possession of the property in question. But it was also a principle of the common law that, where there was a failure of immediate heirs by reason of alienage, the lands did not escheat, but went to the next heir or the next of kin capable of inheriting. Jackson v. Green, 7 Wend. 335; Orr v. Hodgson, 4 Wheat. 453; Jackson v. Jackson, 7 Johns. 214; Luhrs v. Eimer, 80 N. Y. 171; Crane v. Reeder, supra. The rule is thus stated by Chancellor Kent: "If a citizen dies, and his next heir be an alien who cannot take, the alien cannot interrupt the descent of others, and the inheritance descends to the next of kin who is competent to take, in like manner as if no such alien had ever existed." 2 Kent, Comm. 560. Inasmuch, therefore, as the appellants cannot inherit from their deceased brother by reason of their alienage, the interest in the land, which would otherwise have gone to them, descends to the next of kin competent to take under the statutes of Illinois. are of the opinion that the appellee must be regarded as such next of kin. Our statute of descents provides that "if any intestate leaves a widow or surviving husband, and no kindred, his or her estate shall descend to such widow or surviving husband.' Rev. St. c. 39, § 1, cì. 6. The kindred here referred to are evidently such kindred as are capable of inheriting. It not appearing that the deceased had any other kindred than his nonresident alien brother and sister, his widow is entitled to take the whole of the land in controversy. Our conclusion upon the whole case is that the act of 1887 is a valid law in the respects herein indicated, except as to those aliens who are relieved from the effect of its operation by existing treaties between the United States and the countries of which such aliens are citizens or subjects. The decree of the circuit court is accordingly affirmed. We years to dispose of the same." Held, that citizens of Bremen, being heirs of one who died intestate, seised of land in Illinois, after passage of the Illinois act of June 16, 1887, making nonresident aliens incapable of inheriting land, were entitled, in spite of said act, to the privilege of selling within three years the interest which they would have inherited but for their alienage. 2. The right of a nonresident alien to sell within three years his interest in land of his ancestor is a fee determinable by the failure to sell during that time, and he is therefore entitled to a partition of the land. 3. Where the land would not in any event escheat to the state because of the existence of resident heirs, the state is not a necessary party to a suit to partition such land. Appeal from circuit court, Cook county. Bill by Louisa N. A. Schultze against Albert Schultze and others for partition. Complainant obtained a decree. Defendant Albert Schultze appeals. Affirmed. Arthur Schroeder, for appellant. William Vocke and Julian W. Mack, for appellees. MAGRUDER, J. This is a bill, filed on December 11, 1891, in the circuit court of Cook county by Louisa N. A. Schultze, the complainant below, who is one of the appellees here, against Albert Schultze, one of the defendants below and the appellant here, and Anna Schomberg, one of the defendants below and one of the appellees here, for the partition of certain land in that county. The bill alleges that George Ludwig Schultze died intestate and without issue on July 5, 1891, owning the premises in controversy, and leaving, him surviving, the complainant, his widow, and Albert Schultze, his brother, and Anna Schomberg, his sister, as his only heirs at law; that the deceased was a citizen of the United States; that the defendant Albert Schultze is also a citizen of the United States, residing in Illinois; that the complainant is a resident of the Hanseatic Republic of Bremen, in the empire of Germany; that the defendant, Anna Schomberg, resides in Bremen, Germany; that no other persons except the complainant and the defendants have any interest in said premises; that by the death of said George they became seised in fee, as tenauts in common by descent, in the proportions provided by law, (the widow of one half and dower in the other half, and the brother and sister of one half subject to the widow's dower;) that the dower has not been admeasured, etc. The defendant Schomberg filed an answer substantially admitting the allegations of the bill. The defendant Albert Schultze filed a plea setting up that the deceased was a citizen of the United States at the time of his purchase of the land and up to his death; that the complainant is, as to the United States, a nonresident alien, and before filing her bill resided and still resides in the Hanseatic Republic of Bremen, in the German empire, and was, at the time of said death, and still is, a citizen of said republic; that by an act of the legislature of Illinois in force in July, 1887, and at the time of said death, it was provided that nonresident aliens, etc., shall not be capable of acquiring title to or taking or holding any lands in this state, either by descent, devise, purchase, or otherwise, except, etc., reference being made to said act for its provisions; that the defendant pleads said act, and prays judgment, etc. The cause was heard upon the bill and answer of Anna Schomberg and the replication thereto, and upon said plea. The court held that the plea was not sufficient in law to bar complainant's right to the relief prayed, and overruled the same, the defendant Albert Schultze excepting to said ruling, and praying an appeal. After hearing testimony, the court found the allegations of the bill to be true; that partition should be made and dower assigned; that commissioners be appointed, etc. The case is brought by appeal to this court, and by consent to the central grand division. The main questions involved in this case are settled by the opinion filed at this term of the case of Wunderle v. Wunderle, 33 N. E. Rep. 195. In that case the nonresident aliens claiming to take lands by descent in Illinois were held to be incapяble of inheriting under the act of 1887, there being no treaty permitting them to acquire or hold lands in this country, between the grand duchy of Baden, of which they were subjects, and the United States of America. Here, however, the appellees, who are nonresident aliens, are citizens of the Hanseatic Republic of Bremen, between which republic and the United States a convention or treaty was concluded on December 20, 1827, and afterwards ratified and proclaimed. Article 7 of said treaty is as follows: "The citizens of each of the contracting parties shall have power to dispose of their personal goods within the jurisdiction of the other by sale, donation, testament, or otherwise; and their representatives, being citizens of the other party, shall succeed to their said personal goods, whether by testament or ab intestato, and they may take possession thereof, either by themselves or others acting for them, and dispose of the same at their will, paying such dues only as the inhabitants of the country wherein said goods are shall be subject to pay in like cases; and if, in the case of real estate, the said heirs would be prevented from entering into the possession of the inheritance on account of their character of aliens, there shall be granted to them the term of three years to dispose of the same as they may think proper, and to withdraw the proceeds without molestation, and exempt from all duties of detraction on the part of the governments of the respective states." The language of this article is not as clear in its meaning as the provision quoted in Wunderle v. Wunderie, supra, which allows a reasonable time to remove and sell the proceeds "where, on the death of any person holding real estate within the territories of the one party, such real estate would, by the laws of the land, descend on a citizen or subject of the other, were he not disqualified by alienage," etc. But the rule laid down by the supreme court of the United States is that, "where a treaty admits of two constructions, one restrictive as to the rights that may be claimed apart in severalty. The right to bring such a suit is involved in the ownership of the determinable fee, and the partition of the property will make it easier to dispose of it in accordance with the permission granted by the treaty. An undivided interest in land is always less salable than a definite portion thereof, as fixed by a division. The effect of the treaty is to suspend, during the period of three years, the operation of the alien law of this state, which makes nonresident aliens incapable of taking land by descent. The rights of the resident heirs or of the heirs capable of tak under it, and the other liberal, the latter | is to be preferred." Hauenstein v. Lynham, 100 U. S. 483. If the language of article 7 be given a liberal construction, it may be held to mean that, where a citizen of the United States dies intestate, owning land, and leaving nonresident alien kindred residing in and citizens of Bremen, who would be his heirs but for their alienage, there will be granted to such kindred the term of three years within which they may dispose of such lands and remove the proceeds. The word "representatives" in the second clause of the article must refer to all who take by willing under the state law, and the right of or descent, including devisees and heirs, as well as executors and administrators; otherwise, there would be no antecedent to which the word "said" before the word "heirs" in the third clause could be made to refer. The second clause can be construed to mean that the representatives or heirs of American citizens being citizens of Bremen shall succeed to personal goods. It follows that by the terms of the third clause the heirs of American citizens who are citizens of Bremen shall have the prescribed term of three years to dispose of real estate, etc. The appellees are therefore entitled, under said article 7 of the treaty, to the privilege of selling the interest in the land in controversy which they would have inherited from the deceased, George Ludwig Schultze, under the laws of Illinois, but for their alienage, and of removing such proceeds of sale, provided they do so within three years. The question then arises, what interest in the land is vested in nonresident aliens by the grant to them of a term of three years within which they can sell such land and remove the proceeds? It would seem that in such case the alien heirs take a fee determinable by the nonexercise of the power of sale within three years. Kull v. Kull, 37 Hun, 476. By the terms of the treaty the power to dispose of the land and appropriate its proceeds is granted in positive terms. Such a power to sell cannot be exercised unless the donee is vested with the fee, or, in other words, the complete ownership. It has been said that "it is an affront to common sense to say that a man has no property in that which he may sell when he chooses, and dispose of the proceeds at his pleasure." Kull v. Kull, supra. In the case of Kull v. Kull, supra, where the proceeding, like the present one, was for partition, the precise question now under consideration was involved, and it was there held that the fee vested in the nonresident alien; that the treaty intended to confer upon him the rights of ownership in the property, and the advantages of its use and possession, for the purpose of making the sale; that under the provisions of the treaty the alien heir was clothed, for the period granted for the purpose of making the sale, with the same rights he would enjoy if he were a resident heir, being subject simply to the obligation to sell and convey the fee to some other party capable of holding. It follows that the nonresident aliens, thus vested with the power of sale under the treaty, can bring a partition suit for the purpose of having their interests set the state or county to take the land by escheat in default of heirs capable of bolding the same, are also suspended during the term of three years named in the treaty. Kull v. Kull, supra. If at the end of the three years no sale is made by the nonresident aliens, the state law again comes into force, and directs the disposition of the property. Laws Il. 1887, p. 5. In the case at bar, upon the showing made by the present record, the land could not escheat to the state or the county, because appellant, the brother of the deceased, is a citizen of the United States, and a resident of Illinois, and therefore capable of inheriting according to the views expressed in Wunderle v. Wunderie. By clause 2 of section 1 of the statute of descents in this state, it is provided that estates shall descend, "when there is no child of the intestate, nor descendant of such child, and no widow or surviving, husband, then to the parents, brothers,' and sisters of the deceased," etc. Rev. St. c. 39, § 1. It being alleged in the bill, and also in the plea, that the widow, Louisa N. A. Schultze, one of the appellees herein, is a citizen of Bremen, no ques. tion as to the effect of the citizenship of her deceased husband upon her alleged alienage is presented in this case. The statute evidently refers to cases where the surviving widow or husband is capable of taking, and not to cases where there is incapacity by reason of alienage. Hence it is manifest that appellant would take the whole of the land under the state law if the treaty were not in the way. As the appellant is a party to the partition proceeding, he will be bound by it. As it is not shown that the land will escheat for failure of heirs capable of inheriting, it cannot be said that the state or county is a necessary party. For the reasons here stated, we think that the plea of the appellant was not sufficient to bar the right to the relief prayed for in the bill. Accordingly the decree of the circuit court is affirmed. INGALLS v. ALLEN.' (Supreme Court of Illinois. Jan. 19, 1893.) APPEAL-REVIEW-DAMAGES-SPECIAL VERDICT. 1. Where the jury have been properly instructed, the assessment of damages will not be reviewed by the supreme court on appeal from the appellate court, since the measure of 'Reported by Louis Boisot, Jr., Esq., of the Chicago bar. |