Littleton W. Tazewell to Martin Oster
Norfolk August 4th 1812.
I have attentively Considered the papers which you submitted, for my opinion—Concerning the rights of Mr & mad. Beauvois to the State of Mr Piernez deceased, the brother of mad. Beauvois, and now beg leave to offer you the result of my examination there of.
Mr Piernez having died without issue, or father or mother and leaving no brother or any other sister than mad. Beauvois. By the law of this Country she is made his sole heir and will be entitled to the whole of Mr Piernez’s states (after the payment of his debts) unless some objection be interposed to prevent her from enjoying this inheritance.
The only objections of this Kind which occur to me as existing in this Case are two.
first: the pretended testament of Mr Piernez. and secondly the alienage of mad. Beauvois.
As to the first; As far as I am informed of this Case, by the documents which You have exhibited to me, I am of opinion, that the testament of Mr Piernez is Void, as it respects his real, that is to Say, his landed or immoveable States, but is good, as it respects his personal or moveable property. the law of this Country making a difference, between the requisites essential to give Validity to a devise of lands and a testament of moveable property. in giving this opinion as to the Validity of this paper, as a testament of goods and Chattels, I must be understood, however, as Confining myself entirely to its form. I mean to say only, that it has all the formal requisites of the law, to give it effect as a testament of moveables. but whether the testator, was of sound mind, at the time of executing this paper or whether it possesses all the other substantial Requisites of a good testament, I Cannot say, because, the facts stated in the papers, do not enable me to form an opinion upon these points. all that Can decide upon this part of the Case, is that there is nothing stated in the papers, warranting an opinion that, this testament is not as Complete in substance as in form. there may be facts existing however, altho’ not Known1 and therefore not Stated, which when Known may suffice to destroy the effects of this pretended testament. if such should, hereafter, be discovered, it will be in the power of Mad. Beauvois at any time to Contest its Validity. at present however, I must regard the testament as good, so far as the moveable property of the deceased is effected by it and therefore must decide, that to this, the legatee Lacy, and not Mad. Beauvois is entitled.
This testament being Void as it relates to the land or immoveable State of the deceased, that will pass, as tho’ no such paper existed, that is to say, to Mad. Beauvois as the heir, of her deceased brother, unless the other objection of Alienage Excludes her from this part of the inheritance.
By the laws of this state, an alien Cannot hold lands in it; but when the heir of one deceased is a foreigner, the State itself becomes entitled to that land which the heir might have Claimed if a Citizen. of Course the rights of Mad. Beauvois even to the landed property of her deceased brother will depend upon the fact of her being a Citizen of Virginia or not.
if Dr Rouelle the former husband of Mad. Beauvois (who is Stated to have been in this Country formerly) ever became a Citizen of Virginia or of any the other united States, Mad. Rouelle, his then wife, who is now Mad. Beauvois, became a Citizen of Virginia of Course, by the naturalization of her husband, and is entitled as such to inherit the lands of her deceased brother. but otherwise she is an alien and not entitled to hold lands here, Since the expiration of the treaty of 1801.
if Mad. Beauvois be a Citizen, the proper remedy, for the recovery of her inheritance, will be by the Common Action of ejectement, which I would advise to be brought in the district Court for Newkent County, that being a Court in which a decision will be obtained probably with more dispatch and Certainty, than in the County Court of Newkent. I do not practice in that Court; but as the action is one very Common, any Counsel who practises there, will be well able to conduct it Correctly and will give the proper directions as to the necessary proof to maintain it.
Should Mad. Beauvois succeed in this action, and receive the lands, she will be then entitled to another action against the occupant, for the rent and profit of the land, since her title accrued. this second action had better be brought in the same Court, for the same reasons, and the same remarks applicable to the action of ejectement will apply to this latter action also with equal truth.
Should the legatee under Mr Piernez’s testament be entitled to his moveable State, he will be Compelled to pay the debts of Mr Piernez, out of this fund, as far as it will extend. for by our laws the moveable property is subject always to the payment of the decedant’s debts, in preference to the immoveable, unless the decedant directs otherwise by his will. So that probably the loss of the moveable will be to Mad. Beauvois but an inconsiderable loss at least, since if she took them at all, she must take them subject to the burden of his debts.
if Mad. Beauvois be a Citizen, then the statutes of the Virginia legislature will not interfere with her Claims, because that statute merely transfers, the right of the state in the lands of Piernez, to Lacy the petitioner, and Mad. Beauvois being a Citizen, the right of the state was nothing.
But if Mad. Beauvois be not a Citizen then it will be impossible for her to recover this lands in any way. for under the law, as it now stands, an alien, as I have before remarked, is incapable of holding lands. and even, Altho’ the legislature, upon her petition might possibly be induced to enact a special law in favour of Mad. Beauvois, Yet this would now be useless; since they have already given away all their interest in the lands of Piernez to Lacy, who having now a Vested interest in this property by Virtue of this Statute, the legislature Cannot Constitutionaly deprive him of it.
Signed Littn W. Tazewell.
Tr (MHi); in a clerk’s hand, with attestation in Oster’s hand at foot of text: “Pour Copie conforme à L’original Oster” (“A true copy from the original Oster”); dateline beneath signature; beneath dateline: “Mr Oster”; at head of text in a clerk’s hand: “Copy of a Consultation given by Mr Tazewell attorney, relating to the States of Peter Piernez deceased at Putney near New Kent State of Virginia.” Enclosed in TJ to Lewis A. Pauly, 18 Sept. 1812.
1. Manuscript: “Know.”
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