267 A.D. 575 | N.Y. App. Div. | 1944
Saverio George, father of plaintiff John George, died on the 3rd day of February, 1942, a resident of this State but a subject of the Kingdom of Italy, leaving a will made on the 31st day of July, 1941, which was admitted to probate on the 20th day of February, 1942. Judicial notice was taken at the trial that war between this country and Italy was declared on the 11th day of December, 1941. Defendant asserts that the sole issue in this case is whether or not the real property of which Saverio died1 seized escheated to the State upon Saverio’s death, and seeks judgment declaring such escheat. This issue was not presented by the answer. Judgment for plaintiffs was properly made, in the light of the pleadings and the proof.
Even if it may be assumed that defendant presented the issue of its own good title, it failed to sustain the burden of proving it. Statutes in this State dealing with alienage and escheat always have been specific. (See summary in Weed on New York Real Property [3d ed.], pp. 107-116.) Pertinent statutes were repealed in 1913 (L. 1913, ch. 152, 153), at which time they were replaced by the following (now Real Property Law, § 10, subd. 2): “ Alien friends are empowered to take, hold, transmit and dispose of real property within this state in the same manner as native-born citizens and their heirs and devisees take in the same manner as citizens; * # The
omission of statutory provision as to alien enemies relegated them to “ such rights and such only as were theirs at common law.” (Techt v. Hughes, 229 N. Y. 222, 228, certiorari denied 254 U. S. 643.) The primary rule at common law, which makes no legal distinction between alien friends and enemies, is that
We are of opinion, therefore, that the devise of Saverio George served to convey a fee, defeasible only to the extent of the interest of the devisee Antonia by reason of the fact that she, too, was an Italian subject, which became absolute by reason of the conveyance to plaintiffs by Sabino and Antonia. In so holding, we have considered sections 10 and 11 of the Decedent Estate Law and have concluded that, like the statutes of descent, they are inapplicable. (Jackson v. Fits Simmons, 10 Wend. 10, 13.) If they were applicable and an enemy alien may be considered as witMn the purview of the term “ persons ” as employed in section 10 (Decedent Estate Law), the devise of Saverio'would thereby be rendered effective. The complete removal of disabilities of alien friends (Real Property Law, § 10 ) would not preclude, by implication, partial removal of disabilities of alien enemies otherwise accomplished by statute. The recent amendment of section 10 of the Real
. The judgment should be affirmed, with costs.
Cabswell, Adel, Lewis and Aldbich, JJ., concur.
In an action for the determination of a claim to real property, judgment in favor of plaintiffs unanimously affirmed, with costs.