Connolly v. Smith

21 Wend. 59 | N.Y. Sup. Ct. | 1839

By the Court,

Cowen J.

The ground taken in favor of ¡a reversal is, that the alien widow of a citizen, (she not being a resident till 1822,) is not entitled to dower. And this I understand to have been distinctly held in Mick v. Mick, 10 Wendell, 379. The widow, in that case, having been married and emigrating after 1808, the late chief justice, who delivered the opinion of the court, said she had no capacity to take either way—that is, as dowager or as devisee ; and she therefore lost the whole land. He said that the .legislature, in all their liberality to resident aliens have never made any provision for the alien widow of a natural born citizen ; and it is not now denied that the alien widow of a naturalized citizen must stand on the same footing. 'V

The acts within which the widow took in Sutliff v. Forgey, 1 Cowen, 89, 5 id. 715, S. C. on error, were expressly confined to such aliens only as came here to reside previous to the close of the legislative session of 1808. 3 R. S. 226, 228, 2d ed. They might purchase lands not exceeding in quantity 1000 acres. This was the only restriction; and the recital indicating a strong disposition in the legislature to give them general countenance, and especially by means of a power to make purchases, this court, and afterwards the court of errors, in Sutliff v. Forgey, extended the acts to the alien widow, who became a settler and married a man capable of holding. They held that she took as purchaser, not within the words but the equity of those acts. In short, they placed this acquisition by marriage on the same footing as if the contingent interest of the wife had been conveyed to her by deed, instead of taking effect by operation of law. The view is confirmed by Mick v. Mick, and the later case of Priest v. Cummings, 16 Wendell, 615. Had the plaintiff below, therefore, emigrated before 1808, and been married before 1825, she would have been entitled as a purchaser. But we are without further legislation on the subject till the act of April 21, 1825, p. 427, which provides expressly that no alien shall be capable of taking or holding lands or real estate, unless he shall have made and filed with the secretary of state a deposition, showing that he has taken the incipient steps to be naturalized, pursuant to the laws of the United States, &c. In this he must, among other things, depose that it his intention to continue his residence and become a naturalized citizen. Pending this act, the provisions of which were substantially re-enacted in 1830, 1 R. S. 715, 716, 2d ed. the plaintiff below intermarried with Patrick Smith, who had filed the proper deposition ; and it is onot denied that he was capable of taking. In 1829 he was naturalized, and died after the passage of the revised statutes, the plaintiff below still being an alien and not having taken any steps for procuring her own nnturalization. Section 17 of the revised statutes, 1 R. S. 716 2d ed., provides that any “alien shall not be capable of taking or holding any lands or real estate which may have descended or been devised or conveyed to him previously to his having become such resident and made such deposition,” &c. And the only direct provision giving dower to an alien widow is contained in id. 733, § 2, which is merely that “ the widow of any alien who, at the time of his death, shall be entitled by law to hold any real estate, if she be an inhabitant of this state at the time of such death, shall be entitled to dower of such estate, in the same manner as if such alien had been a native citizen.” Now the plaintiff below was not entitled under this act, because she was not the widow of an alien, but of a naturalized citizen. By the act of 1825, during the existence of which she intermarried, she was expressly cut off from taking or holding. By the revised statutes, $ 17, she was also cut off." She must take as purchaser or. not at all, and that she cannot do for want of the deposition. Thus both points made in her behalf fail. She never acquired any contingent right as the alien widow of an alien purchaser, for under the act of 1825 she had no capacity to take or hold any right. I agree with her counsel, that had she come here before 1808, and intermarried while the acts of 1802 and 1808 were in force, there would be great difficulty in saying that the act of the husband in afterwards becoming naturalized, even under a statute like that of 1825, it being passed subsequent to the marriage, should divest her right. But this point assumes what never existed, in two particulars: 1. she was not here previous to 1808, and 2. if she had been, the acts under which she could once have taken and holden real estate, were previous to her intermarriage, repealed by the act of 1825, or rather it demanded a farther condition, never complied with by her, in order to confer a capacity. The course of legislation has been such, that while it has conferred a right of dower on the resident alien widow of an alien purchaser, it has denied the same right to the alien widow of either a natural horn or naturalized citizen, unless she file the proper deposition.

We do not deny her right because her husband was incapable of taking ; but the wife must acquire a capacity of her own. It never has been supposed since Sutliff v. Forgey, that her capacity followed that of her husband. Such a consequence was expressly denied in that case by all the judges. We adopt the remark of Savage, C. J., in Mick v. Mick, “ No deposition having been filed, she had no capacity to take in either way ; i. e. as dowager, or as devisee.

The result is that the judgment of the court below must be reversed, and a venire de nova must issue; the costs to abide the event.^*

* See Priest v. Cummings, 20 Wendell, 338, in the court for the correction of errors, where the rights of alien xvidaws under the enabling statutes in respect to aliens purchasing and holding real estate are fully considered.