Kennedy v. Wood & Smith

20 Wend. 230 | N.Y. Sup. Ct. | 1838

By the Court, Co wen, J.

If James Kennedy took as an alien under the act of 1808, 3 R. S. 344, lst ed., in connection with the act of March 26, 1802, id. p. 343, § 1, and the act of 1808 has continued unrepealed, in respect to these plaintiffs it is not denied that they are entitled to recover.

It is contended that the contract of purchase raised an equitable estate descendible, in 1810, (before the naturalization,) to which the subsequent deed of 1824 related. That is denied ; but if the doctrine of relation might have availed, it is contended that the plaintiffs continuing aliens, they were not entitled to inherit without complying with the requisites of the statute of 1825. Stat. Sess. of 1825, p. 427, re-enacted, 1 R. S. 720, lst ed.

By the act of March 6, 1802, 3 R. S. 1st ed., 343, § 1, in connection with the continuing and enlarging act of April 8, 1808, id. 344,5, aliens were enabled to purchase lands, and hold and transmit such lands to their alien heirs, provided they had respectively become inhabitants of this state previous to or at the close of the legislative session of the latter year. These acts continued in force until the act of April 21, 1825, and the corresponding provisions of theRevised Statutes, Stat. Sess. of 1825, p. 427,1 R. S. 720, lst ed., which provided that no alien who had become or should thereafter become an inhabitant, should take or hold real estate unless he should first make a deposition, as required by the act, that he was a resident, and intended always to reside in the United States, and to become a naturalized citizen, and had taken the incipient steps for naturalization. Subject to these provisions, the statute enacted that aliens might take and hold any real estate of any kind whatsoever to them, their heirs and assigns forever. The act of 1802, provided that all purchases by aliens shouldbe deemed valid to vest the estate to them granted. This is the provision continued by the subsequent acts, within which every conventional purchaser must come. James Kennedy and the plaintiffs are within these statutes in respect to inhabitancy; but the former is without them in several other respects. First, the acts contemplate a purchase by grant or transmission of title, so as to create a legal estate, and not a mere executory contract to purchase, which creates at most, but an equitable estate. Secondly, if this were not so, he became a naturalized citizen in 1810, and, from that time, held as such, whatever his estate might be, whether equitable or legal. Spratt's Lessee v. Spratt, 1 Pet. 343. Thirdly, as a naturalized citizen, he, in 1824, took a deed from Champion, by which the former contract was satisfied and extinguished; thus, he took and, at the time of his death, held a vested estate as a naturalized citizen. He took previous to the act of 1825, and held till his death in 1833, when clearly, if the plaintiffs were entitled to inherit at all, it was because they had complied with the conditions of the act of 1825, and the Revised Statutes. This is not pretended. They all continued mere alien residents, without either of them having ever made the deposition, or taken the incipient steps required by this act. They are disqualified by its very words; and there is no color for the suggestion that they had acquired such vested rights under the former statutes as were intangible by the subsequent one. Certainly they had nothing more than a contingent right of descent, like a kinsman who might inherit at the common law. It was never doubted that the legislature had power to alter or abolish the law of descents, even the statute de donis, which has been repealed in this state, and I presume, by nearly every other state in the union. It was said by the counsel for the plaintiffs, that the statute of 1825 was not intended to affect aliens who had settled and continued here under the old statutes. Looking at the whole of the act, I take the contrary to be quite clear. The first section shows that the legislature had former as well as future residents in their minds. They say any aliens who have come, &c., or may hereafter come, &c., may take, &c., provided that no alien shall be capable, &c. unless he shall first take the qualifying steps. Then in subsequent sections certain duties are imposed on aliens within the act, and forfeitures provided, from which aliens who took under the former statutes were exempt. I have no doubt the statute intended to place all alien residents on the same footing, without any distinction arising from the time at which they immigrated and settled. The re-enactment in the Revised Statutes is to the like effect.

The difficulty is, in short, not that James Kennedy, was incapable of taking and transmitting by descent, but that the plaintiffs were incapable of inheriting at the time of his death, by reason of having omitted to comply with the conditions imposed by the act of 1825.

A new trial must therefore be granted j the costs to abide the •event."