Leonard v. Grant

• Decision Date: 15 December 1880
• Citation: 5 F. 11
• Parties: LEONARD v. GRANT.
• Court: U.S. District Court — District of Oregon

5 F. 11

LEONARD v. GRANT.

United States Circuit Court, D. Oregon.

December 15, 1880

C. J MacDougall, for plaintiff.

George H. Durham, for defendant.

DEADY D. J.

This action is brought by the plaintiff, the widow of the late D G. Leonard, against the defendant, as administrator of his estate, to recover the sum of $624.30, with interest, the same being the one-third of the rents and profits of the real property of the deceased, in which the plaintiff was entitled to dower, received by the defendant as such administrator between the death of said Leonard, on January 16, 1878, and the sale of said property by the defendant, on February 22 1879.

The plaintiff alleges that she is a citizen of the republic of Switzerland and an alien, and that the defendant is a citizen of Oregon.

The answer of the defendant denies that the plaintiff is a citizen of Switzerland and an alien, and avers that she is now, and long since, and prior to January 16, 1878, has been, a citizen of the United States and of Oregon.

By the stipulation of the parties the cause was submitted to the court for trial upon the issue made by this plea and the admissions in such stipulation, which are: (1) That the plaintiff is a native and citizen of the republic of Switzerland; (2) that D. G. Leonard was a citizen by birth of the United States, and at his death, and for 20 years prior thereto, was a citizen of Oregon; (3) that the plaintiff was married to said Leonard in Oregon on July 19, 1875, and lived with him therein, as his wife, until his death, and still resides here.

The matter contained in the answer is doubtless intended as a plea to the jurisdiction, but no such or other application is therein made of it. It does not commence with the usual allegation that the court ought not, on account of the fact stated in the plea, to take cognizance of the action, nor conclude with the proper prayer-- si curia cognoscere velit-- whether the court will take cognizance of the action, (3 Chit. 894,) but with a prayer for a judgment for costs and disbursements, which is superfluous and improper in any action, as they are given or withheld as an incident of the action, and according to the final judgment in the case.

One of the admissions in the stipulation is that the plaintiff is a native and citizen of Switzerland. If this be taken as literally true, then there is no doubt but that this court has jurisdiction of the action; but, taken in connection with the rest of the stipulation and the argument of counsel, I suppose it may be regarded as an inadvertence, and as intended only as an admission that she was such citizen by birth and until the time of her marriage.

These preliminary matters being disposed of, the case turns upon the decision of the question, is the plaintiff a citizen of the United States? and this depends upon the construction to be given to section 2 of the act of February 10, 1855, (19 St. 604; section 1994, Rev. st.,) which reads in the latter as follows: 'Any woman who is now or may hereafter be married to a citizen of the United States, and might herself be lawfully naturalized, shall be deemed a citizen.'

The plaintiff being an alien entitled to be naturalized, and having married a citizen of the United States, the defendant contends that she is within the purview of this statute, and therefore a citizen of the United States; to which the plaintiff replies that she was never absolutely a citizen of the United States, but was only 'deemed' to be such citizen by force of the statute; that is, was only taken, considered, or supposed to be one because she became the wife of a citizen, which assumption or supposition ceased with the fact upon which it was based-- the termination of the relation or state of marriage between her and her late husband.

The American statute is substantially a copy of the British one of 7 and 8 Vict. c. 66, Sec. 16, 1844, which provides 'that any woman married, or who shall be married, to a natural-born subject or person naturalized, shall be deemed and taken to be herself naturalized, and have all the rights and privileges of a natural-born subject.'

In Regina v. Manning, 2 Carr. & Kirk. 886, (61 Eng. C.L.,) it was held under this statute that a Swiss woman married to an English subject was not entitled to be tried by a jury de medietate linguae, as provided in the case of aliens, in 28 Edw. III. c. 13, and Geo. IV. c. 50, Sec. 47, upon a charge of murder.

In considering the British statute, Pollock, C. B., after citing it, said: 'The obvious, plain, and natural inference from that appears to me to be that she should be considered exactly as if she had been naturalized by act of parliament, or as if she had been a natural-born subject. ' And Wilde, C. J., in delivering the opinion of the court in the exchequer chamber, whither the cause had been reserved for 'the consideration of the judges upon the question, 'was the female prisoner entitled to a jury de medietate linguae? ' said: 'It appears to me that the general intention of the legislature in this act of Victoria is to make the woman a British subject. * * * With respect, therefore, to the prisoner, we can discover no intention whatever in this act of parliament to do more or less than to make her a British subject.'

The only decisions which have been found under the American act are Burton v. Burton, 1 Keys, 359, and Kelly v. Owen, 7 Wall. 496. In the first case it was held, in the language of the syllabus, that 'the alien widow of a naturalized citizen of the United States, although she never resided in the United States during the life-time of her husband, is entitled to dower in his real estate,' and this, not upon the ground that a state law gave an alien woman, situate as the plaintiff was, dower in the lands of her husband, but because, under and by force of the act of 1855, supra, she became, upon the naturalization of her husband, an American citizen, and was entitled as such citizen to dower in her husband's lands after his death, although she was married in 1823, and her husband was not naturalized until 1840, and she was never in the United States until after his death.

In the second case, it is only expressly decided that an alien woman who marries an alien, who subsequently becomes an American citizen, is within the purview of the act, as well as if her husband had been a natural-born citizen, or naturalized before the marriage, and therefore she is an American citizen from and after the naturalization of her husband.

In delivering the opinion of the court Mr. Justice Field says 'the terms 'married', or 'who shall be married,' do not refer, in our judgment, to the time when the marriage is celebrated, but to a state of marriage. They mean that, whenever a woman, who under previous acts might be naturalized, is in a state of marriage...