74 N.Y.S. 967 | N.Y. App. Div. | 1902
The question presented by this record is, could a non-resident alien in July, 1892, take an interest in lands situated in this State through a devise by a citizen % The answer to the question depends upon the proper construction to be given to the law of 1875 (Ohap. 38). For political reasons the common law created a barrier against the ownership by aliens of lands situated here. Aliens, resident or nón-resident, could not take by inheritance, but they
The statute of 1:845 removed a class of aliens from the effect of this Statute of Wills, and that class were all “ resident aliens,” as to property acquired by purchase (including property acquired by devise); as to property of resident aliens acquired by descent this -statute of 1845 gave no relief. - (Callahan v. O'Brien, 72 Hun, 216.) One relief given by this statute was the right to inherit which the common law denied to aliens. The statute of 1874 (Chap. 261) further enlarged this class, but did not give to any alien ■ the right to take b.y devise, which the common law did give and which - the Statute of Wills cut off. The statute of 1875 (Chap. 38) seems to have been passed expressly to give the same right to alien devisees
In this case the important feature of the statute of 1875 (Chap. 38) is the clear intention of the Legislature to place the alien heir and the alien devisee upon the same footing as to the right to take and hold realty in this State. This is a clear modification of the Statute of Wills, or, rather, it takes the alien devisee of the blood of the testator out of the class referred to in the Statute of Wills, “ an alien not atothorised by statute to hold real estate.”
So far as I have been able to discover, no court in this State has held that under the statute of 1845, and the amendments of 1874 and 1875, a non-resident alien could not take and hold lands in this State by descent from resident aliens or resident citizens. The
The case of Marx v. McGlynn (88 N. Y. 375, 376), cited by' the learned counsel for appellant, is not an.authority against this proposition. In that case the devisee was not of the blood of the testatrix and for that reason alone his disability to take is not removed by the act of 1875. ■ The court, at the pages cited,, in its opinion said, ^ In the first clause the devise of the house to Bradley, who is shown to be an alien, is void, as an alien cannot take real estate by devise,” is not to be questioned as the law.so far as Bradley or that case is concerned. But the broad statement that “ an alien cannot take real estate by devise ” nullifies the provisions of the statute of 1875 as we have seen. It is quite likely that this statute was not presented to the court’s attention, for by it Bradley, being* not of the blood of the testatrix, could obtain no relief under it.
The case of Parker v. Linden (113 N. Y. 28) shows a will of real estate in New York to certain relatives of the half blood, nonresident aliens, and the decease of the testator after the passage of the act of 1875. In the General Term, Van Brunt, P. J., writing in this case, said, “ But it is to be remembered that the testator knew that these half-brothers and half-sister, being aliens, British subjects, could not take real estate by devise,” and to save the testator’s intention the court construed the will by reason of the power of conversion contained in it as a will of personalty. (44 Hun, 518.) When this case was considered in the Court of Appeals, Danforth, J., writing for the court said, as to this forced construction to save the interest of the half brothers and sister, “ It was, in fact, unnecessary to accomplish that object; as to all others, except the State, they could take ■ and hold as hews or devisees (Chap. 38, Laws of 1875).” Whether the General Term or the Court of Appeals regarded a half brother or half sister as coming within the requirement of the act “ and being of his blood ” is not disclosed. The Court of Appeals, by reference to the law of Í875, declares that being non-resident aliens, these half brothers and half sister could take either as heirs -or devisees. If they could take only as heirs, as plaintiff contends, the statement that they could take as devisees is erroneous.
It -is also unnecessary to consider what may be the exact nature of the title or interest of defendant Mary Rose Reilly in the estate of her father, Thomas Smith. It is enough for all the purposes of this action to determine, as we do, that Thomas Smith took as devisee a title to the realty defeasible only by the State, and that plaintiff as heir at law of Owen Smith acquired no title.
The judgment should be affirmed, with costs.
All concurred.
Judgment unanimously affirmed, with costs.