Currin v. Finn

3 Denio 229 | N.Y. Sup. Ct. | 1846

By the Court, Jewett, J.

At the common law, a feme covert, being an alien, was not entitled to be endowed, nor could she inherit. (Co. Litt. 31, b.; Kelly v. Harrison, 2 John. Cas. 29; Davis v. Darrow, 12 Wend. 65.) The statute allowing dower to the resident widow of an alien husband, (1 R. S. 740, § 2,) has, of course, no application where, as in this case, the husband was a citizen and the widow an alien.

But it is claimed on the part of the plaintiffs, that Mrs. Currin, although an alien, is entitled to dower in the lands of which her former husband died seized, as a purchaser, within the equity of the provisions of the acts of 1802, and 1808, enabling aliens to purchase and hold real estate, she having come into this state to reside prior to the passage of those acts. (2 R. L. 542, 543.) She, however, cannot derive any benefit from these acts. Her husband purchased the premises in 1833, before which time the legislature had passed the act of April, 21,1825, (Stat. p. 427,) which provides, 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. The provisions of that act were substantially re-enacted by the revised statutes. (1 R. S. 720, §5 15,16.) In 1830, the legislature extended the benefits of that provision to aliens who had theretofore purchased lands, provided they filed a deposition in one year; and that period was subsequently extended by several subsequent acts. (3 R. S. 227, 229.)

There is no evidence that Mrs. Currin has at any time taken any steps for procuring her own naturalization, or made the deposition referred to. She could not, therefore, take as a purchaser by means of the conveyance to her husband, under any sound construction of the statutes on that subject. The remark of the late Mr. Justice Cowen, in Connolly v. Smith, (21 Wend. 62,) I think is well sustained by the adjudications on this question, that “ 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 an alien widow of either a natural born or naturalized citizen, unless she file the proper deposition We do not deny her right, because the husband was incapable of taking; but the wife must acquire a capacity of her own.” Her capacity does not follow that of her husband. No deposition having been filed, she had no capacity to take. I think that these principles are well settled by the cases. (Sutliff v. Forgey, 1 Cowen, 89, affirmed on error, 5 Cowen, 713; Mick v. Mick, 10 Wend. 379; Priest v. Cummings, in error, 20 id. 338; Connolly v. Smith, supra.)

New trial denied.