M'Creery's v. Somerville
ERROR to the Circuit Court of Maryland.
The case agreed, stated, that William M'Creery was seised and possessed of a tract of land in Baltimore county, in the State of Maryland, called Clover Hill, and died possessed thereof about the 1st of March, 1814. He had previously executed an instrument of writing, purporting to be his last will and testament, by which he devised the above tract of land to those under whom the defendant, Somerville, claimed; but it was witnessed by two persons only, and was, therefore, inoperative to pass lands in Maryland, the laws of which require three witnesses to a will for that purpose. W. M'Creery left at his death no children, but a brother, Ralph M'Creery, a native of Ireland, who is still living, and who has not been naturalized, and three nieces, Letitia Barwell, Jane M'Creery, and Isabella M'Creery, the latter being the lessor of the plaintiff, who are the daughters of the said Ralph, and native born citizens of the United States. The devisees under the will applied by petition to the Legislature of Maryland to confirm the will, and the Legislature, accordingly, without the knowledge or consent of the lessor of the plaintiff, passed an act for that purpose; saving, nevertheless, the rights of all persons claiming title to the lands devised, by conveyance from any of the heirs of W. M.'Creery. The action was brought to recover an undivided third part of Clover Hill.
Upon this case, judgment was rendered by the Court below for the defendant, and the cause was brought by writ of error to this Court. March 14th, 1823.
The cause was argued by Mr. Winder, [a] for the plaintiff in error, and by Mr. D. B. Ogden, for the defendant, and continued to the present term for advisement. Feb. 3d, 1824.
Mr. Justice STORY delivered the opinion of the Court.
^a He cited Co. Litt. 3 b. 1 Sidif. 193. 2 Bl. Com. 226. 249, 250. 257. Bac. Abr. Alien, C. 132. 4 Wheat. Rep. 453, 2 Mass. Rep. 179. to be in force in Maryland; and that statute, beyond all controversy, removes the disability of claiming title by descent, through an alien ancestor. The only point, therefore, is, whether the statute applies to the case of a living alien ancestor, so as to create a title by heirship, where none would exist by the common law, if the ancestor were a natural born subject.