Kennedy's heirs v. State , 11 Tex. 108 ( 1853 )

Wheeler, J.

The plaintiffs appear to rest their claim to the land they seek to recover, on the provision of the 10th Section of the General Provisions of the Constitution of the Republic, which is as follows: “ Orphan children, whose parents “ were entitled to land under the Colonization Laws of Mex- “ ico, and who now reside in this Republic, shall be entitled to all the rights of which their parents were possessed at the “ time of their death.”

Two questions arise upon the facts of this case, 1st, Whether the deceased was entitled to land under the Colonization Laws; and 2nd, Whether the plaintiffs come within the description of “ orphan children” within the meaning of the law. Both questions, it is conceived, must be answered in the negative.

It does not appear that the deceased was introduced into the the country as a colonist, or that he was received or admitted as such in any colonial enterprize. Nor does it appear that he conformed in any respect to the laws relating to the distribution of lands, or that he was one of any class of persons entitled to claim the benefits, conferred by those laws. It appears, simply, that he came to the country in 1827, and remained until his death in 1829. We have been referred to no law, and wo are aware of none, which entitled a party to land, upon proof of these facts simply; or, without proof of other facts and qualifications on the part of the applicant, than those disclosed by the record in this case: and we are of opinion that the plaintiffs have failed to bring themselves within the provision of the law, as persons whose ancestor was entitled to land under the Colonization Laws. (See Administrator of Creth v. The Republic, 1 Tex. R. 83.)

This opinion dispenses with the necessity of passing upon the remaining question presented. If material, however, I apprehend it must be held, that the words “ orphan children,” as used in the law, were intended to include, and consequently do include, only the ancestor’s own children, or at most his grand children and descendants, and can by no just interpretation be held to include his collateral relations or heirs.

We are of opinion that the judgment be affirmed.

Judgment affirmed.