
17 U.S. 221 (____)
4 Wheat. 221
ORR
v.
HODGSON and Wife, et al.
Supreme Court of United States.

*224 February 18th, 1819. The cause was argued by Jones, for the defendants and respondents  no counsel appearing for the appellant.
March 11th. STORY, Justice, delivered the opinion of the court. 
The whole merits of this cause rest upon the question, whether the defendants, Portia Hodgson, and Cornelia Hopkins, took an estate in fee-simple, in one moiety of the land stated in the bill, by descent, as nieces and heirs of Lucy Paradise, widow of John Paradise, upon her death in 1814. If they did, then the contract for the sale of the land to the plaintiff ought to be fulfilled; if not, then the contract ought to be rescinded.
Two objections are urged against the title. First, that Lucy Paradise, at the time of her death, was a British subject, and so not capable of passing the land in question by descent; secondly, if so entitled, yet, upon her death, the land escheated to the commonwealth of Virginia, for want of heirs legally entitled to take the same by descent.
It appears, that Lucy Paradise took her moiety of the estate in question; by devise from her father, Philip Ludwell, who was a native of Virginia, where also, his daughter Lucy was born. Sometime before the year 1767, he removed with his family, including this daughter, to England, *460] where he died in *1767. In 1769, this daughter was married in England to John Paradise (a British subject), by whom she had issue a daughter, Lucy, who was born in England, about 1770, and who, afterwards, in 1787, in England, married Count Barziza, a Venetian subject, by whom she had two sons, one born in Venice, in February 1789, and the other in Venice, in August 1796, both of whom are now living. The Countess Barziza died in Venice, in August 1800, leaving no other issue except her two sons, and neither she, nor her husband, nor her sons, were ever in the United States. In the year 1787, John Paradise came with his wife to Virginia, and returned with her to England, in the year 1789, where he died, in 1796. After the death of her husband, Lucy Paradise treated the land in controversy as her own, exercising acts of ownership over it; and about the year 1805, returned to Virginia, where she died intestate, in possession of the land, in 1814, leaving no issue but her two grandsons, the children of the Countess Barziza, and the defendants Portia and Cornelia, her nieces, who would be her heirs-at-law, if no such issue were living.
From this summary statement, it is clear, that the two sons of the Countess Barziza are aliens to the commonwealth of Virginia, and of course, cannot take the estate in question, by descent from their grandmother, unless their disability is removed by the treaty of 1794. For though an alien may take an estate, by the act of the parties, as, by purchase; yet he can never take by the act of the law, as, by descent, for he has no inheritable *461] blood. But the *objection now supposed to exist, is, that under these circumstances, although the grandsons cannot, as aliens, take by descent; yet they answer in some sort, to the description of "heirs," and therefore, prevent the estate from descending to the nieces, who have a legal capacity to take, because, strictly speaking, they are not heirs. The *225 law is certainly otherwise. Where a person dies, leaving issue, who are aliens, the latter are not deemed his heirs-at-law, for they have no inheritable blood, and the estate descends to the next of kin, who have an inheritable blood, in the same manner as if no such alien issue were in existence. 2 Bl. Com. 249; Duroure v. Jones, 4 T.R. 300; Com. Dig. Alien, C, 1. In the present case, therefore, the defendants, the nieces of Lucy Paradise, are her heirs-at-law, entitled to take by descent, whatever estate could rightfully pass to her heirs, unless the British treaty of 1794 enlarged the capacity of her grandsons to take by descent, a point which will be hereafter considered. And this brings us to the other question in the cause, whether Lucy Paradise, under the circumstances of the case, had such an estate in the land, as could by law pass by descent to her heirs?
There is no question that she took an estate in fee-simple, by devise from her father; but it is supposed, that although born in Virginia, by her removal to England, with her father, before, and remaining there until long after, the American revolution, she must be considered as electing to remain a *British subject, and thus became, as well by operation of law, as [*462 by the statutes of Virginia on this subject, an alien to that commonwealth. And if she became an alien, then the estate held by her could not pass by descent, but for defect of inheritable blood, escheated to the government. Com. Dig. Alien, C, 2; Co. Litt. 2 b.
Admitting that Lucy Paradise did so become an alien, it is material to inquire, what effect the treaty of peace of 1783 had upon her case; and upon the best consideration that we can give to it, we are of opinion that the sixth article of that treaty[(a)] completely protected her estate from forfeiture, by way of escheat for the defect of alienage. That defect was a disability solely occasioned by the war, and the separation of the colony from the mother country; and under such circumstances, a seizure of the estate by the government, upon an inquest of office, for the supposed forfeiture, would have been a confiscation of the property, in the sense in which that term is used in the treaty. When the 6th article of the treaty declared, "that no future confiscation should be made," it could not mean to confine the operation of the language to confiscations jure belli; for the treaty itself *extinguished the war, and with it, the rights growing out of war; [*463 and when it further declared, that no person should, on account of the part he had taken in the war, suffer any future loss or damage, either in his person, liberty or property, it must have meant to protect him from all future losses of property, which, but for the war, would have remained inviolable. The fifth article of the treaty also materially illustrates and confirms this construction. It is there agreed, that congress shall recommend to the state legislatures to provide for the restitution of all estates of British subjects, &c., which had been confiscated. Yet, why restore such estates, if, eo instanti, they were forfeitable on account of alienage? This subject *226 has been heretofore before us, and although no opinion was then pronounced, it was most deliberately considered. We do not now profess to go at large into the reasoning upon which our present opinion is founded. It would require more leisure than is consistent with other imperious duties; and we must, therefore, content ourselves with stating, that the doctrine here asserted is the decided judgment of the court.
If the case were not protected by the treaty of 1783, it might become necessary to consider, whether it is aided by the ninth article of the treaty of 1794, which declares, that British subjects, who now hold lands in the United States, shall continue to hold them, according to the nature and tenure of their respective estates and titles therein, and that as to such lands, and the legal remedies incident thereto, neither they, nor their heirs or *464] assigns, *shall be regarded as aliens. It does not appear, by the bill in this case, that Lucy Paradise was in the actual possession or seisin of the land, at the time of the treaty. Nor is it necessary, because the treaty applies to the title, whatever it is, and gives it the same legal validity as if the parties were citizens. Harden v. Fisher, 1 Wheat. 300. But although it does not directly appear by the bill, what the title of Lucy Paradise was, at the time of the treaty; yet, as the title is asserted in her, both before and after the treaty, and there is no allegation of any intermediate transfer, it must be presumed, in this suit, that she never parted with her title. It follows, that in this view also, her title was completely confirmed, free from the taint of alienage; and that by the express terms of the treaty, it might lawfully pass to her heirs.
And here it becomes material to ascertain, whether the treaty of 1794, under the description of heirs, meant to include any other persons than such as were British subjects or American citizens, at the time of the descent cast; and it is our opinion, that the intention was not to include any other persons. It cannot be presumed, that the treaty stipulated for benefits to any persons who were aliens to both governments. Such a construction would give to this class of cases, privileges and immunities far beyond those of the natives of either country; and it would also materially interfere with the public policy common to both. We have, therefore, no hesitation to reject any interpretation which would give to persons, aliens to both *465] *governments, the privileges of both; and in this predicament are the children of the Countess Barziza. The rule, then, of the common law, which gives the estate to the next heirs having inheritable blood, must prevail in this case.
We have not thought it necessary to go into an examination of the articles for a marriage settlement, entered into between Lucy Paradise and John Paradise, on their marriage, for two reasons: first, the articles were merely executory, and being entered into by Mrs. Paradise, when under age, and not afterwards ratified by her, they were not binding upon her; secondly, if they were binding, yet, inasmuch as the only persons in whose favor they could now be executed, are aliens, incapable of holding the estate to their own use, no court of equity would, upon the general policy of the law, feel itself at liberty to decree in their favor.
Decree dismissing the bill affirmed, with costs.[(a)]
NOTES
[(a)]  Which provides, "that there shall be no future confiscations made, nor any prosecutions commenced, against any person or persons, for, or by reason of, the part which he or they may have taken in the present war; and that no person shall, on that account, suffer any future loss or damage, either in his person, liberty or property; and that those who may be in confinement on such charges, at the time of the ratification of the treaty in America, shall be immediately set at liberty, and the prosecutions so commenced be discontinued."
[(a)]  MARSHALL, Chief Justice, did not sit in this cause.
