
    The People ex rel. Esther J. Griffin, Resp’t, v. Hilyer Ryder, County Treasurer, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 22, 1892.)
    
    Constitutional law—Partition—Code Crv. Pro., § 1583.
    Section 1583 of the Code, as amended in 1891, providing for the distribution of moneys deposited in a partition suit to the credit of unknown-heirs after the lapse of twenty-five years, is unconstitutional, in that it empowers the court to determine the rights of known heirs, although they may not have been parties to the suit, without notice, and in providing for distribution among the known heirs. " their heirs and assigns- and not next of kin, distributees or representatives,” as the heir who was an adult at the time of the sale would take his share as pefsonalty and not realty, and his next of kin or devisee have a vested interest therein of which the legislature could not divest them.
    Appeal from order directing the issuance of a writ of mandamus to the county treasurer.
    
      Clayton Ryder, for app’lt; Abram J. Miller, for resp’t.
   Cullen, J.

—This is an appeal'from an order directing a writ of mandamus to issue to the appellant commanding him to pay over moneys deposited in a partition suit to the credit of unknown heirs in accordance with a decree of distribution under § 1582, Code of Civil Procedure.

There had been made a previous decree of distribution under this section as it stood in 1890. The appellant refused to comply with it, and was upheld in his refusal by the court of appeals, 124 N. Y., 500; 36 St. Rep., 468, which held the provisions of this section unconstitutional and void. This section and § 841, Code, were amended in 1891 (chaps. 364 and 365), and thereupon a new proceeding was instituted and another order of distribution made. The appellant refuses compliance, contending that the provisions of § 1582 are still invalid.

We believe that it is within the power of the legislature in the case of an unclaimed deposit of this character, to .enact that from the lapse of time and failure of any person to appear and make claim it shall be presumed that an unknown was a non-existing class at the time of the decree, and to provide by appropriate proceeding for a distribution of the fund among the persons .who would have been entitled to it if there had been no such unknown persons, if reasonable notice be provided for, and an opportunity be afforded to all persons in interest to appear and protect their rights.

But we think that there are two fatal objections to the validity of the proceedings authorized by the section named. Two classes of persons are described; the unknown heirs and the known heirs. Known heirs are those persons who are known, and whose right to inherit, or the extent of whose right to inherit, is dependent on the non-existence of other persons nearer or as near to the ancestor in the line of descent. In default of appearance by any unknown heir, the court is to order a distribution among the known “heirs, their heirs or assigns, and not next of kin, distributees or representatives * * * of the respective shares or portions of ■or interest in such proceeds to which they are entitled.”

The order or decree therefore determines the rights of the known heirs among themselves. The statute provides for notice of the application to the unknown heirs by publication, but no notice whatever upon the known heirs or their successors in interest is provided for. It is entirely possible that such known heirs may not have been parties to the original suit, and certainly the judgment in partition .did not and could not determine the rights even of the parties to it in the share deposited. The legislature could not empower the court to adjudicate the rights of these persons in any proceeding of which they are to be given no notice .and to which they are not parties. The importance of notice appears in this very case, when we consider the second objection to this statute, the parties among whom it provides the distribution is to be made.

By the statute the distribution is to be to the known heirs, their heirs and assigns, and not to the next of kin, distributees or representatives. ' The only theory on which this proceeding in its main scope and object can be considered a valid exercise of legislative power is, that the known heirs were as a matter of fact and law, at the time of the judgment and sale, entitled to the share deposited ; that the judgment awarded the share to a class of persons which did not exist in consequence of ignorance of such nonexistence, and failed to award to the known heirs what was really their own; that now lapse of time, and the non-appearance of any such class of unknown persons, has proved the fact which did not, then appear, and by the decree of distribution the error of fact in the original judgment is corrected.

Therefore, the interest of any known heir in this fund was his-property and upon his death passed like other property, according to its nature whether real or personal, -either by will or by the-statutes of distribution or descent, and the title of his succéssorsin interest could not be divested by the legislature. If such interest was land, then it would pass by will to the devisees. But this statute directs that it shall be paid to the heir or assignee and creates a quasi estate-tail during the time of the deposit, subject-possibly to be defeated by assignment. The only way to avoid, this objection would be to construe assignee as including devisee. This is not, however, the theory on which the special term proceeded. In the order of distribution- it is recited as to some of the original heirs that they died intestate, but as to the others-merely that they died leaving certain heirs, and the distribution is-to such heirs. But the shares in this fund of the known heiis who were adults at the time of the judgment and sale were not in law realty, but personalty. Sweezy v. Thayer, 1 Duer, 286, opinion 308.

It may be that as to sales subsequent to the statute, or even, where the death of one of the original heirs was subsequent to that time, the legislature could make a rule for the succession upon death of property of this character, sui generis and applicable to such property alone. But surely it cannot divest the next of kin or the devisee of property thitherto vested in them.

The order appealed from should be reversed and the application denied, with fifty dollars costs and disbursements.

Barnard, P. J., concurs; Dykman, J., not sitting.  