132 N.Y. 313 | NY | 1892
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *315
The plaintiff's right to recover is dependent upon her having the legal title to the land in question. Prior to her marriage to Wood, Sarah Ann was an alien, but by her marriage to Wood, who was a citizen, she became a naturalized citizen of the United States. (Luhrs v. Eimer,
At the time of her death in 1871, her sister, the plaintiff, her only heir at law, being an alien was incapable of inheriting the land. (L. 1845, ch. 115.) And assuming that Mrs. Ackley in her life-time made no provision for the disposition of the property, it escheated to the state. The plaintiff had no support for her claim to the premises prior to the passage of the act of 1874 (Ch. 261), so amending section four of chapter 115, L. 1845, as to provide that "if any alien, resident of this state, or any naturalized or native citizen of the United States, who has purchased and taken, or hereafter shall purchase and take, a conveyance of real estate, within this state, has died, or shall hereafter die, leaving persons who, according to the statutes of this state would answer the description of heirs of such deceased person, such persons so answering the description of heirs of such deceased person, whether they are citizens or aliens, are hereby declared and made capable of taking and holding, and may take and hold as heirs of such deceased person, as if they were citizens of the United States, the lands and real estate owned and held by such deceased *318
alien or citizen at the time of his decease." This statute as well as L. 1875 (Ch. 38) by its terms includes within its effect the heirs of those who had died before as well as after its passage and without distinction between citizens and aliens otherwise than in relation to alien males of full age, who are required to make and file in the office of the Secretary of State the deposition or affirmation required by 1 R.S. 720, § 15. And although the land had escheated to the state when the act of 1874 was passed, the legislative purpose is by its provisions quite apparent to surrender the title to lands taken by escheat, and of which the state had not before that time assumed in any manner to make disposition. (Luhrs v. Eimer,
It is contended that by reason of the ante-nuptual trust deed made by her to Edward F. Sanderson in 1846, she had no title thereafter prior to the time of her decease. This would be so if the deed created a trust within the meaning of the statute (1 R.S. 728, § 55), because on the death of the trustee the trust would have become vested in the Supreme Court to be executed by some person appointed by it for that purpose. (1 R.S. 730, § 69). But while the trust deed contained a provision for the receipt by the trustee of the rents and profits and the application of them to the use of the grantor during her life, such power was made dependent on her election to permit him to do so; and she reserved the right which she exercised, of taking and holding the property for her own use and benefit. It would, therefore, seem that the trustee acquired no right by the instrument to take possession and control of it and receive and apply the rents and profits in the sense requisite to a trust having the support for its execution of title in the trustee. The grantor was the sole beneficiary having by the terms of the deed, the right to the actual possession and use of the premises; and, therefore, no title vested in the trustee. (1 R.S. 727, § 47; Id. 728, § 49; Id. 729, § 58.)
If the trust had been within the fifty-fifth section of the statute it terminated with the death of Mrs. Ackley, and in that case the real estate, unless other disposition of it was legitimately directed by her, would have descended to her heirs, if she had any capable of taking it. (1 R.S. 754, § 21; Watkins
v. Reynolds,
The execution of this deed of appointment was neither attested by any witness or acknowledged by the person whose name was subscribed to it. And the referee found that Sarah Ann Ackley did not sign the paper with intent thereby to execute it and give it legal effect as a deed of appointment, and that she did not in her life-time deliver it to Mr. Ackley or to Sanderson or to any other person, but retained it in her possession down to the time of her death. This finding of the referee was permitted by the evidence and for the purposes of this review must be deemed conclusive. And as the inference was warranted that she did not at any time during her life intend to give any legal effect to the instrument as one of appointment for execution by the trustee pursuant to the provision of the trust deed in that respect, the retention of it in her possession in the manner it appears she did up to the time of her death, is accounted for. It may be that the referee would have taken a different view of the intent of Mrs. Ackley in that respect, and of the effect of the paper if it had been executed by her in the manner and as provided in the deed of trust. And here it must be assumed that the questions of fact presented by the evidence were properly disposed of in the court below. *321
These views lead to the conclusion that Mr. Ackley took no title through the release to him by the legislative act of the state in 1876, or by the deed made to him by the new trustee, who was appointed by the court on the assumption that a valid deed of appointment had been made, without which there was no support for the application to the court for that purpose. But that on the passage of the act of 1874, the plaintiff as heir at law of Mrs. Ackley became vested with the title by descent.
The judgment should be affirmed.
All concur.
Judgment affirmed.