This case is brought before this court, by an appeal from the decree of the circuit court of Georgia.
From the evidence in the case, it appears that Archibald McLearn purchased a tract of land in the state of Georgia, on which he established a rice plantation, paid a part of the purchase money, and suffered a judgment to be obtained against him for the balance: that he afterwards died, leaving James H. McLearn, his only son and devisee: that the property of the deceased consisted chiefly of the rice plantation, and the slaves by which it was cultivated; and that under the laws of Georgia, personal as well as real property is bound by a judgment. That the devisee, to obtain possession of the property, gave his own bond, secured by a mortgage on the land and slaves, for the balance of the judgment: he afterwards died, leaving a part of this debt unsatisfied; and that afterwards the mortgage was foreclosed and paid by a sale of the land.
The complainants are aliens, and being nearest of kin to the deceased, claim as heirs, under the law of Georgia, the personal property; and also the proceeds of the real estate, after the mortgage shall have been paid.
The defendants, McLellan and wife, who are more remotely connected with the deceased, being citizens, claim the real estate as heirs, and contend that the debts should have been paid by a sale of the personal property; and that, as the real estate has been sold for this purpose, they insist that the proceeds of this sale should be paid to them out of the personal property.
It appears that after the sale of the land, on application of James Wallace, the administrator, the personal property was sold; and the moneys arising from this sale, as also a surplus, after paying the mortgage, from the sale of the real estate, remain in his hands; and which he is ready to pay over, as the court shall direct. The relationship of the respective parties to the deceased, as set forth in their pleadings, is not disputed.
On the part of the complainants it is contended, that being next of kin to the deceased, under the laws of Georgia they inherit the personal property and are entitled to the proceeds on the sale of the lands. That the personal property goes to them, notwithstanding their alienage is not controverted by the defendants; but they insist that the complainants are not entitled to the proceeds of the real estate.
By an act of the legislature of Georgia, entitled an act to explain and amend the escheat laws, passed the 15th December 1810, it is provided, 'that in all cases where a citizen of this state or of the United States, shall die, or may have died, possessed of or entitled to any real estate, and shall leave no heir who can inherit the same, because of him or her being alien; that in such case the said real estate shall not be held or considered subject to escheat, but the executor or administrator of such deceased citizen shall and may proceed, in the manner pointed out by law, to make sale of such real estate, and pay over the proceeds of such sale to the devisee or devisees named in the will of such deceased citizen,' &c.
The preamble of this act refers only to the estates of citizens of Georgia who bequeath their property to persons residing in foreign parts; but the first section seems to refer as well to cases of intestacy, as where wills have been made.
The complainants contend, that the words in this statute, 'shall leave no heir who can inherit,' should be construed to mean, shall leave no heir next of kin, or devisee, who can inherit, by reason of alienage; that then the real property shall be sold and the proceeds paid over as by the act is required. And that this construction will give effect to the intention of the legislature; which was, to remove the disability of alienage from the next of kin or devisee of a deceased citizen.
It does not appear that a construction of this statute has been given by the supreme court of Georgia; and we think the construction contended for is not authorized by the words of the statute. Where a citizen shall die leaving no heir, must mean not the next of kin, but an heir that may inherit the real estate under the laws of Georgia.
In the present case, the wife of McLellan, though remotely connected with the deceased, is within that degree of consanguinity which may claim the inheritance under the law of descents; and of course the land in question descended to her, and consequently it cannot be sold under the law of escheats, for the benefit of the foreign heir.