10 Wend. 379 | N.Y. Sup. Ct. | 1833
By the Court,
The defendant having been bom in Ireland, and not having been naturalized at the death of her husband, was an alien. As such she was incapable, at the common law, of taking by descent, or other mere operation of law, though she might take by purchase, or devise, which is one species of purchase, and might Hold until office found. 2 Ves. sen. 362. 6 Crunch, 20. 2 Kent’s Comm. 54. But by the revised statutes, 2 R. S. 57, § 4, “ Every devise of any interest in real property to a person who, at the time of the death of the testator, shall be an alien, not authorized by statute to hold real estate, shall be void.” The defendant, therefore, cannot hold as devisee, unless there is some statute which gives her the capacity to take and hold real estate in that manner; neither can she hold her dower at common law, for it is well settled that the alien widow of a natural born citizen cannot be endowed, by reason of her alienism. 1 Cowen, 89, and cases there cited. She cannot take or hold at all, unless by virtue of some statute.
The statutes enabling aliens to purchase and hold real estates within this state are collected in 3 R. S. 341 to 344. The first act was passed April 2d, 1798, and continued in force three years ; by it, conveyances to alien friends were declared to be valid to vest the estate granted, and the grantees were authorized to hold the same, to them and their heirs and assigns forever, provided they should not lease reserving any rent or service whatsoever. This act expired on the 2d April, 1801. On the 26th March, 1802, another act was passed,
I am not aware of any general statute regulation on this subject after 1808, until 1825, when an act was passed on the subject, which is incorporated in the revised statutes, 1
But the legislature, in all their liberality to resident aliens, have never made any provision for the alien widow of a natural bom citizen. She is, and always has been excluded by the common law from dower in the lands of her husband; no statute has ever been passed ameliorating the common law in her behalf. The preceding statutes do not reach her case, unless the act of 1830 can be construed so as to embrace a devise of real estate. She was not entitled to take by the revised statutes, because no deposition had been filed previous to her husband’s death, according to the statute, 1 R. S. 720, § 15. Had that been done, she would have been enabled to take and hold real estate in the same manner as a native citizen, and which might have descended, or been devised or conveyed to her. But no such deposition having been filed, she had no capacity to take in either way above mentioned. Then comes the act of 1830, which declares that any resident alien who has purchased and taken a conveyance for any lands or real estate within this state, before malting and filing the deposition required by the revised statutes, may continue to hold in the same manner as if such deposition had been made, provided such deposition shall be made in one year thereafter. The defendant has filed the required deposition within the year, and therefore had a right to hold any lands purchased by and conveyed to her before the deposition was
New trial denied.