Leary v. Leary

50 How. Pr. 122 | N.Y. Sup. Ct. | 1874

Van Brunt, J.

It will he noticed that, at the time of the death of the last of Matthew Leary’s children, none of the brothers or sisters of Matthew Leary were citizens, except John. Consequently, the whole of the estate descended upon him, and he became vested with the whole title. The title certainly did not escheat to the state, because there was a naturalized heir who could inherit. It is, also, very clear that the subsequent naturalization of Gilbert Leary, Bernard Leary and Mary Blake, did not divest him, John, of any portion of this estate; and, for aught that I can see, he is entitled to the whole estate, to the entire exclusion of all the other defendants.

Even if Gilbert had been in exclusive possession since 1852, claiming title, his claim would not have ripened into such a title as to defeat John’s, because he could not found an adverse possession by a claim of title for twenty years, when, during five of those years, he was an alien, and could not hold real estate.

It is also clear that, if John did not, and could not, inherit, there was an escheat to the state; and from 1852 to 1867, Gilbert, Bernard and Mary Blake were ;in possession ; and that, in 1867, Bernard Leary, having died, his share was represented by his widow, and Bernard and Thomas Leary, his two sons, then minors. In 1868, the state released to all parties in possession, any lands which it might have claimed had escheated to them, because of the alienage of any person through whom they derived title. This would confirm the title of Bernard Leary and Thomas Leary, because they claimed through their father, who was an alien at the time the descent was cast, but would not apply to any of the others, as it was their own alienage at the time the title descended, which affected their title. Catherine McCabe cannot be said to be holding adversely to the other parties, as her claim to the exclusive possession is so recent that' it could not be claimed to have ripened into an adverse possession.

Until 1871, Gilbert Leary, Mary Blake, and the heirs of Bernard Leary, were all in possession'; and," almost immediately, when Gilbert refused to account for the rents, as he had formerly done, this action 'was commenced.

As I have before said, John Leary, being the only citizen, upon the death of the children of his brother Matthew he inherited the whole of the estate. The suggestion that, under the will of Matthew Leary, there was a conversion of the real estate into personalty, is not sustained by the, terms of the will, because the power of sale of the executors was gone because it was not exercised in three years.

I think, therefore, that this action cannot be maintained, and the complaint must be dismissed.

It is a hard case for the other brothers and sister of Gilbert Leary, because it is clear that he has formed the intent to deprive them of what they are, as much as he, entitled to.