Greenheld v. Morrison , 21 Iowa 538 ( 1866 )

Cole, J.

. 1. Aliens : pSsoXai* property. The only question made by the demurrer is, as to the right and capacity of a non-resident alien to take a distributive share of an intestate’s estate in this State. question need arise in the determination of this case, as to the construction of the act of 1858 (Rev., § 2188 to 2193), since, so far as that act relates to personal property, it is probably only declarative of the common law.

At the common law, aliens are capable of acquiring, holding and transmitting movable property, in like manner as our own citizens, and they can bring suits for the i-ecovery of that property. 2 Kent’s Com., 62. Aliens are not deprived of any of these rights by our statutes. The provision of our statute (Rev., § 2122), which provides that personal property “shall be distributed to the same persons and in the same proportion as though it were real estate,” does not prevent aliens from taking distributive shares of personal estate, although non-resident aliens might not take real estate'by descent.

Our statute provides (Rev., § 2436), that the real estate of a decedent, subject to dower, &c., “ shall descend in equal shares to his children.” Yet if any of his children are non-resident aliens (aside from some other statute on the subject), such non-resident alien children would not take any portion, for that he would have no inheritable blood. In other words, both these sections, like all other statutes, are construed, in the light of and with reference to the common law relating to the same subject-matter.

Affirmed.