Sutliff v. Forgey

1 Cow. 89 | N.Y. Sup. Ct. | 1823

Woodworth, J.

It is well settled, that, if a woman alion marry a subject, she shall not be endowed; because, by the policy of the common law, all aliens are disabled from acquiring a freehold. (1 Bacon, tit. Aliens, 136. 2 Black. 131. 7 Coke, 25. Co. Lit. 31.) Naturalization merely

removes the disability of the alien to hold: it leaves, unimpaired, the right of the government to enter, if the person naturalized die without heirs, or leaving alien heirs only.

It is laid down, in 1 Bacon, 130, tit. Aliens, b. and 2 Black. 250, that, if a man be naturalized by act of parliament, he, in all things, inherits, like a natural born subject. Sir William Blackstone, (1 vol. 374,) considers, that, by naturalization, the alien is put in exactly the same state, as if he had been born in the king’s legiance. It is, therefore, manifest, that the naturalization of the husband does not remove the disability of the alien wife to be endowed. Her right cannot be greater than it would have been had the husband been a natural born citizen.

By the act of Congress, of April 14, 1802, the children of persons naturalized, being under 21 years, and dwelling in the United States, are considered as citizens ; but there is no provision in favour of the alien wives of such persons.

But, it is contended, that the demandant is protected by the act to enable aliens to purchase and hold real estates within this state, passed April 26, 1802, and the act to extend the same, passed April 8,1808, (2 vol. R. L. 541, 543.)

The first act declares, that all purchases of land, made or to be made, by any alien, who has come to this state, and become an inhabitant thereof, shall be deemed valid, to vest the estate to him granted ; that he may dispose of and hold the same to his heirs or assigns.

By the last act, all persons authorized, by the act extended, to acquire real estate, by purchase, may, also, take and acquire by devise or descent. When the premises, in question, were purchased, in 1804, the demandant, although an alien, had the capacity to take. If the premises had been conveyed to Richard Sutliff and his wife, they would have taken, not as joint tenants, nor as tenants in common, (for being considered as one person, in the law, they cannot take by moieties.) but both would have been seised of the entirety *. so that neither of them could have disposed of any part, with - out the assent of the other: the whole would have gone to the survivor. (16 John. 115. 2 Black. Com. 183. Co. Litt. 187, 2 Ver. 120.) But the conveyance was made to the husband, only; and the question is, whether this can be considered, within the meaning of the act, a purchase made by the wife, so as to secure her claim of dower. By the act of 1808, all persons authorized to purchase, are allowed to take by devise or descent. These words will not include the claim of dower. No devise appears to have been made, and the wife cannot take, by right of representation, as heir at law to her husband. The demandant was authorized to purchase, but a purchase cannot be effected by her, except through the medium of her husband. The act must have intended this mode of acquiring, or, as to her, it becomes a dead letter. The intention of the legislature was to encourage aliens to settle in this state, by removing the disability of alienism. The property purchased, is secured to the alien purchaser, his heirs and assigns: he is allowed to take by devise or descent. The claim of dower Was entitled to equal favour; and, no doubt, it was intended by the ■act to protect it. This intent, I admit, is to be collected from the act itself—unless that will sanction the claim, however hard the case, it cannot be allowed.

The right to dower, is an interest in lands. When the conveyance was made to the husband, in 1804, this interest was contingent, it is true, but it was a right known and recognized by the law, and became absolute on the death of the husband. It is a right resting in action only, and cannot' be so aliened as to enable the, grantee to bring an action, in his own name, although it may be released. (17 John. 169.) It cannot, I think, on any principle of sound construction# be said, that the demandant is not a purchaser of this right of dower, as clearly as that her husband became seised of the fee. The deed, to the husband, necessarily enured to the benefit of the wife, so far as to secure to her such right, in the premises, as she would have taken had she not been an alien.

The right to dower is incident to, and inseparable from the estate acquired by the husband. My conclusion is, that the purchase by, and conveyance to the husband, constituted the wife a purchaser, within the meaning of the act, and, consequently, that the demandant is entitled to judgment*

Savage, Ch. J. If a man, seised of lands, take an alien to wife, and die, the widow cannot be endowed.^(p) And as the laws, authorizing the naturalization of aliens, give no greater privileges to the naturalized alien, than the natural born citizen enjoys, it seems to follow, that the alien widow of a naturalized husband cannot be endowed. The naturalization of the husband does not naturalize the wife, nor such ehildren as are above the age of twenty-one, at the time of the naturalization of the father.

But the statute of this state, passed March 26 th, 1802, ^(q) enacts, “ that all purchases of land made, or to be made, by any alien or aliens, who have come to this state, and become Inhabitants thereof, shall be deemed valid to vest the estate to them granted; and it shall and may be lawful to, and for such alien or aliens to have and to hold the same, to his, her or their heirs or assigns forever, and to dispose of the same, any plea of alienism to the contrary thereof notwithstanding; provided, that any purchase hereafter to be made, by any such alien, does not exceed one thousand acres.” The premises in question were purchased by the husband of th© demandant, in January, 1804. I am satisfied, that this purchase enured to the benefit of the demandant, within the equity and spirit of the act. She then had capacity to take an estate. That capacity has never ceased to exist. Her right to dower attached when her husband made the purchase, and she has done no act to divest herself of it. She as, therefore, entitled to recover.

Sutherland, J. concurred.

J udgment for the demandant.

(p) 1 Inst. 31 b. 2 John. Cas. 29

(q) Sess. 25, ch. 49, s. 1, 2,R.L. 442. ’