1 See §§ 179-182 N. Y. R. P. L. - Ed.
I cannot admit, however, that the effect of naturalization under the general acts of Congress, which have not declared what shall be the effect of such naturalization, can retroact so as to divest rights which have been acquired by others previous to such naturalization. It is said by Coke, and other elementary writers, that if a man take an alien to wife, and afterwards aliens his land, and then the wife is made a denizen, and the husband afterwards dies, she shall not be endowed, because her capacity and possibility to be endowed came subsequent to the marriage by the act of denization; but that it is otherwise where she is naturalized by act of Parliament, Co. Litt. 33, b.; Clancy, 202; and it is supposed that the effect of a naturalization under an act of Congress must necessarily have the same effect as naturalization by act of Parliament. That a naturalization here has the effect to give to the naturalized citizen inheritable blood, so as to enable him to take by descent from another citizen, as well as to acquire lands by purchase, I have no doubt. It probably would also have the effect to give to the naturalized wife a capacity to take an inchoate right of dower in lands, of which the husband was seised in fee at the time of her naturalization, so as to give her the right of dower therein at his death. To that extent the husband takes his land, subject to the right of his wife to acquire a title to dower therein, by a subsequent naturalization under a law which was in existence at the time of his purchase, or marriage; and as the wife after her naturalization has an inchoate right of dower in such lands, of which she cannot be deprived except by her own consent, a subsequent purchaser from the husband who neglects to procure her release, take the land subject to such right. But where the husband had parted with all his interest in the land before his wife had the capacity to take even an inchoate interest therein, which could by any possibility be released while the wife was an alien, it would be contrary to every principle of justice and common sense to give her the right to divest or impair the title of the purchaser, by her subsequent act of naturalization. The same objections would also exist to the retroactive operation of a naturalization, where the person thus naturalized had previously been passed over in the descent of real estate, in favor of a more remote lineal or collateral heir who was not an alien. In such cases, if the principle of retroaction contended for here, should be adopted and established, the estate would to a certain extent be rendered inalienable in the hands of the owner thereof. In the first case, the possible right of the alien wife could not be extinguished by any release or common law conveyance; and in the last case, no one could safely purchase from the more remote heir, upon whom the inheritance had descended, until all the intermediate alien heirs and their descendants, who were in existence at the time of the descent cast, were dead, as it could not until then be known to the purchaser whether any, and if any, which of them would become naturalized.
The effect of a statutory naturalization in England, in overreaching previous vested rights, depends upon the omnipotence which has been ascribed to an act of Parliament; in which at some of the earlier periods of English history, a due regard was not always paid to the rights of third persons who had not petitioned for the passing of the act. * * *
I conclude, therefore, that the naturalization of the defendant in error had the same effect as to the rights of property, as letters, of denization had by the common law, and the same effect as to all other rights as an act of Parliament giving her all the rights of a natural born subject, and without any special provisions to give it a retrospective operation. She, therefore, had from that time the capacity to take an estate in dower, of and in any lands of which the husband was then seised of an inheritable estate; to take lands by devise or descent from any person capable of conveying or transmitting lands in that manner to her; and to take any other interest in real estate by gift or otherwise to herself, and to sell, alienate, or bequeath the same, or transmit the same to such of her heirs as were capable of taking by descent, as fully as a natural born citizen might do, but not otherwise. Her naturalization, however, did not retrospect so as to deprive the mortgagees of her husband, or those claiming under them, of any right or interest in his lands which they had acquired previous to her naturalization.1
1 See Burton v. Burton, 1 Abb. Ct. App. Dec. 271 for construction of certain statutes, and see subject of "aliens" in Part V, infra. - Ed.
(5.) Defeating Dower. (a.) Elopement and adultery. Divorce.
24 Wendell (N. Y.), 193. - 1840.
By the Court, Bronson, J. - Adultery in the wife was, at the common law, no bar to her claim for dower, not even where a divorce followed, unless it was a divorce a vinculo. 2 Inst. 436; Co. Litt. 32, a., and note 194; 2 Black. Conn. 130; 4 Kent's Coram. 52, note c, 54. But by the statute Westm. second, 13 Ed. 1, ch. 34, it was enacted, that "if a wife willingly leave her husband and go away, and continue with her advouterer, she shall be barred forever of action to demand her dower that she ought to have of her husband's lands, if she be convicted thereupon, except that her husband willingly, and without coercion of the church, reconcile her, and suffer her to dwell with him; in which case, she shall be restored to her action." 2 Inst. 433. This statute was, in substance, re-enacted in this State in 1787, 1 Greenl. 294, § 7; and it remained in force down to the revision of the laws in 1830. 1 R. L. of 1801, p. 53, and 1 R. L. 58. Under this statute, there can be little doubt that the plaintiff forfeited her claim to dower by living in adultery with Haskins, without being afterwards reconciled to her husband.