
    SMITH against MULLIGAN.
    
      Supreme Court, Second Department, Second District;
    
      General Term, November, 1871.
    
    Partition. —Descent.
    A purchaser in partition cannot refuse to take title on the ground of the alienage of the father of two brothers, one of whom inherited from the other, and that therefore the estate escheated, and the people should have been parties.
    The fact of the alienage of a common father will not impede the inheritance between brothers who are citizens. The inheritance between brothers is immediate.
    The case of McLean v. Swanston (13 N. Y. [3 Kern.],535),—explained.
    Appeal from an order.
    This was an action for partition, brought by Rose Smith, against Margaret Mulligan and others. The facts are these : .John Mulligan, a citizen of the United States, died intestate, at the city of Brooklyn, December 4, 1868, seized and possessed of certain real .estate in that city. He left surviving him, his sister, Rose Smith, the plaintiff, his widow, Margaret Mulligan, one of the defendants, and several nephews and nieces, the children of deceased brothers and sisters, who were also defendants. All these were citizens and residents of the United States.
    He also left surviving him, a father, and several brothers and sisters who were aliens, residing in Ireland.
    The plaintiff, in her suit for partition, obtained a decree of sale. Under this decree the property was sold and bought in at the sale by the defendant, Margaret Mulligan. She afterward refused to complete her purchase and take a deed, on the ground that the title escheated to the State,—the intestate, a citizen, having left his father a living ancestor who could not inherit,—and that the people were not made parties.
    An order was made to compel her to complete the purchase within a fixed time, or in default thereof that the referee in partition should re-advertise and resell, that Margaret Mulligan should be liable for the expenses of such proceedings, and for any deficiency which should arise on the sale.
    From that order the defendant, Margaret Mulligan, appealed to the general term.
    
      J. M. Greenwood, for defendant, appellant.
    I. John Mulligan having died intestate and without issue, his father is, at the death of John, seized in fee of the premises, was so seized at the moment of his death, and still is, unless barred by having no inheritable blood, being an alien (2 Rev. Stat., ch. 2, § 5, subd. 2).
    II. At time of John Mulligan’s death, intestate and without issue, "therefore, the fee vested immediately somewhere. It could not vest in an alien. But it went by our laws, to the father who was and is still living, unless he was an alien. He was an alien.
    
    III. The property, therefore, escheated to the State. The statute (1 Rev. Stat., 752, § 8) refers to heirs inheriting through a deceased ancestor. Certainly, whilst the father lives and is an alien, the collateral relatives cannot claim it. The title cannot pass through a living resident alien (Jackson v. Green, 7 Wend., 333). Opinion of Savage, J., p. 339, says: “The statute (11 & 12 Wm. III., ch. 6), intended to apply to such a case by enabling natural born subjects to inherit the' estate of their ancestors either lineal or collateral, notwithstanding the ancestors through whom they derive were aliens; but this statute has (1831) never been adopted here, until the last revision of our statutes, which cannot affect this case ; and if adopted, would not authorize the deduction of title through an alien ancestor still lining. In People v. Irwin (21 Wend., 128), opinion of Nelson, J., is conclusive on this point, as to distinction of lining or deceased ancestors. “The only remaining question is, as to whether defendant is brought within the statute (1 Rev. Stat., 754, § 22), ameliorating the law in respect to heirs claiming through alien ancestors.” He recites language of section, and says it was taken from English statutes, quoted, then says, “ which is understood to apply only to cases of deceased, not of lining ancestor s,” quoting 9 Wheat., 354; 2 Kent Com., 55, 3 ed. ; 7 Wend., 339. In the case of McLean v. Swanston (13 N. Y. [3 Kern.), 535), Judge Demo, giving opinion of court, says: “ The claimant must make out his title independent of the alien, as title cannot be transmitted through him. In the case in point, Mary McLean, one of the plaintiffs, and her sister, were nearest relations of testator of those not aliens. But their mother was a nearer relation, and was living at death of testator and is still lining, and an alien, and (see bottom of page 541 of same case), “that chapter (section of Revised Stautes referred to) made no provision by which a child, while his parent was lining, could inherit from a relative of the parent, where the child must trace his title through the parent; neither did the common law.” The distinction between ancestor lining and those dead is set forth, and People v. Irwin quoted. By the laws of New York, relating to descent, the father was the heir.
    
      Morris & Pearsall, for plaintiff, respondent.
    I.Descent from brother to brother and sister is immediate and not mediate through the common father. As between brothers, a father although a medium sanguinis 
      is not a medium hereditatis (Jackson v. Green, 7 Wend., 333; Parish v. Ward, 28 Barb., 328, 331; McGregor v. Comstock, 3 N. Y. [3 Comst.], 408; Collingwood v. Pace, 1 Keble, 65 ; 1 Ventries, 413; Bingh. on Descent, 490).
    II. Descent from uncle to the children of his brothers and sisters is mediate, but through the brother or sister only (McGregor v. Comstock and Jackson v. Green, cited above; Jackson v. Fitzsimmons, 10 Wend., 9 ; People v. Irwin, 21 Id., 128 ; McLean v. Swanston, 13 N. Y. [3 Kern.], 535; Gray’s case, Dyer, 274).
    III. Where several persons alike answering to the description of heirs, are some of them capable and others by reason of alienage incapable, those who are capable take the whole (Parish v. Ward, 28 Barb., 328; Jackson v. Green, 7 Wend., 339; Jackson v. Fitzsimmons, 10 Id., 9).
    IY. The alienage of the next heir does not impede the descent to remoter heirs, who do not trace their descent through him (Jackson v. Jackson, 7 Johns., 214 ; Jackson v. Fitzsimmons, 10 Wend., 9; Oxser v. Hoag, 3 Hill, 79 ; Hardwick on Law of Forfeiture, 72).
   By the Court.—J. F. Barnard, J.

The deceased John Mulligan was a citizen, and therefore could hold and transmit property. If an heir capable of taking can be found, the estate will descend to such heir (Parish v. Ward, 28 Barb., 328). .

The fact of the alienage of a common father, will not impede the inheritance between brothers; the inheritance between brothers is immediate (McGregor v. Comstock, 3 N. Y. [3 Comst.], 408).

This doctrine is not questioned in McLean v. Swanston (13 N. Y. [3 Kern.], 535). In that case, the title, to have reached the plaintiff, must have passed through an alien. In this case the father is not a medium heriditatis.

Order affirmed with costs. 
      
       Present, J. F. Barnard, P. J., and Gilbert and Tappen, JJ.
     