THIS was a case certified from the circuit court for the district of Virginia, in which the opinions of the judges of that court were opposed on the following question; viz. Whether the legacy given to Thomas Craig, an alien, in the will of Robert Craig, is to be considered as a devise, which he can take only for the benefit of the commonwealth, and cannot hold; or a bequest of a personal chattel, which he could take for his own benefit?
This question grows out of the will of Robert Craig, a citizen of Virginia, and arose in a suit brought on the equity side of the circuit court for the district of Virginia, by Thomas Craig, against the trustee named in the will of the said Robert Craig, to compel the said trustee to execute the trusts, by selling the trust fund, and paying over the proceeds of the same to the complainant.
The clause in the will of Robert Craig, upon which the question arises, is expressed in the following terms viz. 'In the first place, I give, devise, and bequeath unto John Loslie,' and four others, 'all my estate, real and personal, of which I may die seized or possessed, in any part of America, in special trust, that the afore-mentioned persons, or such of them as may be living at my death, will sell my personal estate to the highest bidder, on two years credit, and my real estate on one, two, and three years credit, provided satisfactory security be given, by bond and deed of trust. In the second place, I give and bequeath to my brother, Thomas Craig, of Beith parish, Ayrshire, Scotland, all the proceeds of my estate, both real and personal, which I have herein directed to be sold, to be remitted unto him accordingly as the payments are made, and I hereby declare the aforesaid John Leslie,' and the four other persons, 'to be my trustees and executors for the purposes afore-mentioned.'
The attorney general of Virginia, on behalf of that state, filed a cross bill against the plaintiff in the original suit, and the trustee, the prayer of which is to compel the trustee to sell the trust estate, so far as it consists of real estate, and to appropriate the proceeds to the use of the said commonwealth by paying the same into its public treasury.
The will of Robert Craig was proved in June, 1811, and the present suit was instituted some time in the year 1815.
Mr. Nicholas, (attorney general of Virginia,) argued, that most, if not all nations, have imposed some restrictions upon the capacity of aliens, to hold property within the territory of the nation. The law of England and the law of Virginia being the same in this respect, there is no want of reciprocity, and there is a peculiar fitness in extending the same rule to British subjects in this country, as is imposed on American citizens in England. By the law of England an alien cannot take a freehold by inheritance; he may take by purchase, but cannot hold: it escheats to the crown upon an inquest of office. Nor is this incapacity confined to a freehold interest: it extends to leaseholds, and any the smallest interest in lands.a The severity of this rule has been relaxed only for the benefit of commerce, and that very partially. An alien merchant may take a lease for years of a house for habitation, but not of lands, &c. And so other alien can even take a lease of a house for habitation.b The rule may be considered as illiberal, and inconsistent with the enlightened spirit of the age; but its wisdom may be vindicated on many grounds; and it can only be dispensed with by the legislative will, or by compact with foreign nations. As Lord Mansfield said of the laws against the Papists, 'whether the policy be sound or not, so long as they continue in force they must be executed by courts of justice according to their true intent and meaning. The legislature only can vary or alter the law.'c The property in question consisted of real estate, which remained in specie, at the time of the devision's death. The devise of a trust in lands cannot operate for the benefit of an alien. No equitable fiction can change the specific quality of the property. It is the settled doctrine of the common law, that an alien cestui que trust can only take for the king's use.d All the reasons of policy which incapacitate him from holding a legal estate in lands, equally apply to disable him from holding an equitable estate in the same species of property; it is the usufruct, of which the law aims to deprive him. Trust estates are governed by precisely the same rules as legal estates. 'The forum where it is adjudged,' says Lord Mansfield, speaking in a court of equity, 'is the only difference between trusts and legal estates. Trusts here are considered, as between the cestui que trust, and trustee, (and all claiming by, through or under them or in consequence of their estates,) as the ownership and as legal estates, except when it can be pleaded in bar of this right of jurisdiction. Whatever would be the rule of law if it was a legal estate, is applied in equity to a trust estate.'e Again; speaking of the case of Banks v. Sutton, he says, 'So that I take it by the great authority of this determination on clear law and reason, cestui que trust is actually and absolutely seized of the freehold in consideration of this court; and that, therefore, the legal consequence of an actual seizure of the freehold, shall in this court follow for the benefit of one in the past.'f The cestui que trust, in the present case, takes an interest which extends to the whole estate, with an election to take it as land. Nobody but he can compel the trustees to sell, and they may hold the trust, and apply it for the benefit of the cestui que trust forever. This is precisely the mode in which the monastic and other ecclesiastical institutions, perverted the invention of uses, in order to evade the statutes of mortmain, and they might be applied in the same manner to evade the disability of aliens to hold a legal estate in real property. Even supposing this to be a personal trust; it is a devise of the profits growing out of land, which would, until a sale, accumulate for the advantage of an alien, and is equivalent to a devise of the land itself to an alien.g There is nothing compulsory upon the trustees to sell, and by collusion between them and the cestui que trust, the sale might be postponed forever, whilst an alien enjoyed the profits of the lands, and transmitted them to his representative. But this devise of the proceeds of the sale of lands was, in effect, a devise of real property. The leading case on this subjecth is strongly fortified by subsequent decisions.i In Roper v. Radcliffe, it was solemnly determined that lands given in trust, or derived to pay debts and legacies, shall be deemed as money in respect to creditors, but not in respect to the heir at law or residuary legatee, in respect to whom they shall be deemed in equity as lands: and that, consequently, the residue, in that case, being devised to persons incapable of holding an interest in lands, the devise was void. The application of this principle to the present case is obvious. Nor can the consequence of forfeiture be avoided by the cestui que trust electing to take the property as money. The exercise of the right of election for such a purpose was denied in Roper v. Radcliffe, and in the Attorney General v. Lord Weymouth. The rights of the commonwealth may be enforced in a court of equity, because the disability of an alien to hold lands for his own benefit is not considered as a penal forfeiture, but arises merely from the policy of the law. It has, therefore, been adjudged in equity, that he cannot demur to the discovery of any circumstances necessary to establish the fact of alienage.j
Mr. Wickham, contra, argued, that this was a mere question as between the heirs and personal representatives. If the property in question be real property in the view of a court of equity, it is admitted that an alien cannot hold it. But, on the other hand, if it be personal property, it cannot be denied that he may take and hold it. If, as between citizens, it be personal property, it must be so as respects aliens. A court of law can only look to the legal quality of the property. At law the interest is vested in the trustee; but a court of equity takes notice of the title of the cestui que trust, as beneficially interested, and regards the quality of the estate as respects his interest only. It is incontestible, that there may be personal trusts of real property. Such are the familiar instances of trusts for the payment of debts and legacies charged on land; trusts for raising portions, and bankrupt's estates; in all of which the property goes to the personal representatives, without any question as to the citizenship or alienage of the cestui que trust. It is an elementary principle, which lays at the very foundation of the doctrine of equity, that land directed to be sold and converted into money, and money directed to be employed in the purchase of land, are considered as that species of property into which they are directed to be converted.k And it is immaterial in what manner the direction is given, whether by will or deed; or in what state the property is found, in land or not.l The argument on the other side, that the alien having the right to elect that the property should not be sold, therefore it must be considered as land, may be answered by another, equally good: That having the right to say it shall be sold, it must, therefore, be considered as money. But it is denied that an alien has an election to make it real property. As an infant cannot make an election for want of capacity;m so an alien cannot elect to take, because he cannot hold real property. The right of election is a benevolent principle, applying for the benefit, not for the injury of parties.n The cestui que trust, in this case has elected to take it as money, by his bill praying for a sale. But, supposing him to have been silent, the elementary writers lay down the rule that it remains personal property. As the party who has his election, may determine to take the property as land to be sold for his benefit, or money to be invested in land, the question can only arise between the heirs and persoual representatives. Some cases, which appear to be exceptions to the rule, confirm it. Such are the cases of a resulting trust to the heir, where the purposes of the trust are fulfilled, or at an end;o the cases where the union of title to the estate, as real and personal, extinguishes the demand,p and the cases where the intention is obscure. The rule extends to all cases where the quality of money is imperatively fixed on land by the will or deed. As to Roper v. Radcliffe, its analogy to the present case is remote; it has always been considered a very questionable case; and it is not to be put in competition with the more direct authorities already cited. By the act of Parliament, under which that case was determined, a Catholic cannot even purchase; but at common law, an alien may not only purchase, but hold against all the world except the crown. That case is not confirmed by Lord Chancellor King, in Davers v. Dewes. On the contrary, he says, that if the point 'were res integra, it would be, indeed, very questionable.'q Its reasoning is also questioned by Lord Mansfield.r The case of the Attorney General v. Lord Waymouths does not fortify it, and has no analogy to the case now before the court. Here is no devise of the annual perceptions of profits, but the cestui que trust is entitled to the proceeds of the sale of the land as a sum in gross; and there is no precedent for confiscating profits of an estate purchased by an alien, which profits were actually received before office found. Nor can the argument, that, by collusion between the trustee and the alien cestui que trust, the latter may go on for ever receiving the profits of land, be supported; because it is arguing against a right from its possible abuse, (always an unsound mode of reasoning,) and, because the same thing may happen between an alien and any ostensible owner of land. All that a court of equity, in any case, would do, would be to refuse to decree the land to the alien, and compel him to relinquish his claim unless he took the money. But equity will not aid to enforce a confiscation. Thus, where the testator directed money to be laid out in land, the money not having been laid out, Lord Rosslyn held, that the crown, on failure of heirs, had no equity against the next of kin to have it laid out in real estate in order to claim by escheat.t
The Attorney-General, in reply, admitted, that in considering the legal operation of the devise, the national character of the devisee was to be laid out of view; and that the estate, which its terms would pass could not be varied by any consideration of that character. As an alien is capable of taking (though not of holding) a direct fee in the lands, he is also capable of taking any lesser estate than a fee, under any modification of trust, express or implied. There is nothing, therefore in the character of an alien to repel, or even to narrow, the legal operation of the terms of the devise. Whatever estate they would pass to a citizen, the same they will pass to an alien. What estate then would pass to a citizen? It is said, a personal estate only, because, the testator having directed the land to be sold, has stamped upon it the character of personal property. But this is not the whole effect of the terms of the devise. They give to the legatee the option of taking the land; and in so doing, they give him an interest in the land itself. This option thus cast upon the legatee is not the effect of any act to be done by him. To create the right of election, it is not necessary that he should actnally elect, or that he should be able to elect. The mistake on the other side results from confounding the right of election with the exercise of that right. The right to choose is the legal effect of the devise, and stamps a character on the estate. The fact of electing is a subsequent act, which may or may not take place; but which, whether done or not, cannot alter either the character of the devise, or the option which it casts upon every one capable of taking under it, or the legal estate in the lands which this option creates. The option thus given to the devisee by the terms of the will is an operative principle, which, whether exercised or not, still gives eo instanti that the will takes effect, an interest in the lands, which, if the devisee be incapable of holding, they pass to the commonwealth. So far is the effect of this option from awaiting an act of election to be done by the devisee, and depending on such act, that it has been decided where a subsequent election had been made to take as money, by persons disabled to hold the interest in land, that the act of election came too late to change the character of the devise, which, by virtue of the option it carried with it, had thrown upon the devisee an estate in the lands the instant the will itself began its operation. It is true that the decision in Roper v. Radcliffe is founded on a particular act of parliament against papists; but this is no objection, if the act of parliament creates precisely the same disabilities in respect to the Catholics which the common law had created in relation to aliens. For if their respective disabilities as to the land be the same, a devise of lands to one, will receive precisely the same construction as a devise of lands to the other. The object of the stat. of 11th and 12th of William III. ch. 4. was to render Papists aliens, in regard to lands in England. The stability of the government being supposed to depend upon this policy, 'the design of the maker of this law,' says Lord Chief Justice Parker, 'was, first, to get the lands of this kingdom out of the hands of Papists.'-'And, secondly to prevent them from making any new aquisition.'u The first objection does not relate to aliens; but the second applies precisely to them, and the provisions of the act, as to Papists, are substantially the same with those of the common law as to aliens. It is not, however, the disabilities of either which are to affect the construction of this devise: that construction is first to be made on the terms of the devise itself, and then whatever legal consequence would result from the disability of the one, will equally result from that of the other. In Roper v. Radcliffe, it was held that, though lands devised to be absolutely sold for the payment of debts and legacies, were to be considered as money, so far as creditors and legatees were concerned, yet, as to the residuary devisee they were to be considered as lands, because of his option to prevent the sale by paying the debts and legacies or his option to have a decree for the sale of so much only as the debts and legacies should require; and, it was determined in that case, that the residuum devised to the Papists should be considered as land, and, therefore, within the prohibition of the statute. The authority of this case has been repeatedly recognized in subsequent decisions, all of which concur to show that, though a devise of lands to be sold is considered as personal estate, as to creditors and specific legatees, yet it is considered as land in respect to the heirs and residuary legatees.v And where none of it is wanting for the payment of debts and legacies, the whole may be retained as land. This doctrine is founded on the right of election, resulting from the devise. But no actual election need be made to produce the legal effect; it is the same, though the parties are disabled to elect: they cannot defeat its operation by electing to take as money; and where nothing is done indicative of an election, the principle still operates.
Mr. Justice WASHINGTON delivered the opinion of the court.