
    Edward Stamm, Resp’t, v. George H. Bostwick, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed October 7, 1890.)
    
    1. Aliens—May inherit real estate acquired by devise.
    A resident alien, who would answer the description of heir of a deceased citizen, can inherit and hold real estate owned and held by such deceased citizen at the time of his death, although the same was acquired by devise and not by deed. The word "purchase” in the statute includes land acquired by devise.
    2. Same.
    Certain land was devised to plaintiff’s wife, who was a native-born citizen, for life, with remainder to her lawful issue. Upon the death of the wife her only child, a daughter, took possession, and upon her death, intestate and without issue, plaintiff entered into possession of the land. Held, that the daughter held the land as purchaser and that plaintiff had capacity to inherit as her heir.
    Appeal from a judgment of the general term of the first judicial department, affirming a judgment entered upon a decision of the court without a jury.
    This action was brought under § 1663 of the Code of Civil Procedure, to determine the title to real estate in the city of New York.
    Eliza Anderson, a native-born citizen of the United States, died in the year 1867, seized and possessed of the property in question, leaving a last will and testament, by which she devised the said premises to her niece, Eliza Anderson, for the term of her natural life, remainder in fee to her lawful issue. Eliza Anderson, the niece, was a native citizen, and at the time of her aunt’s death was the wife of the plaintiff. The only issue of the niece was Elizabeth Stamm, who survived her mother. Upon the death of her mother Elizabeth entered into possession of the premises and continued in the actual possession thereof until her death, in September, 1881. She was a native citizen of the United States and died intestate, unmarried and without issue, leaving her father, the plaintiff, surviving her. Upon her death the plaintiff took possession of the premises and occupied them until the commencement of this action. The plaintiff was born in the Electorate of Hesse, in 1846. He came to the United States in 1860 and has since resided here. He filed his declaration to become a citizen in October, 1881, and was naturalized in 1884. The defendant is a brother of the plaintiff’s wife, a native citizen and of full age, and was entitled to said premises as heir-at-law of said Elizabeth Stamm, unless the plaintiff has the capacity to inherit and hold real estate within the state.
    
      Edward W. S. Johnston, for app’lt; Coudert Brothers, for resp’t.
    
      
       Affirming 40 Hun, 31
    
   Brown, J.

The single question involved in this appeal is whether a resident alien who, according to the statutes of this state, would answer the description of heir of a deceased citizen can inherit and hold real estate owned and held by such deceased citizen at the time of his death.

By chap. 38, Laws of 1875, it is provided as follows: “If any alien resident of this state, or any naturalized or native citizen of the United States, who has purchased and taken or who 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 ana 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 land and real estate owned and held by such deceased alien or citizen at the time of his death.”

The appellant contends that this statute has no application in as much as Elizabeth Stamm, the decedent, had not purchased and taken a deed of the lands in question, but acquired them as devisee under her mother’-s will.

The popular and commercial meaning of the word, “to purchase,” is doubtless “to buy,” but in general in law the word has a more extended meaning and includes every mode of acquiring land except by descent.

“ There are two modes only, regarded as classes, of acquiring a title to land, namely, descent and purchase; purchase including every mode of acquisition known to the law except that by which an heir on the death of an ancestor becomes substituted in his place as owner by the act of the law.” Washburn on Real Property, vol. 3, p. 290 ; James v. Morey, 2 Cow., 246; McCartee v. Orphan Asylum Soc., 9 id., 437-507; Hoyt v. Van Alstyne, 15 Barb., 568-572.

Many cases could be cited where courts have given the restricted meaning to the word in the construction of statutes and to carry out the intent of the legislature, but we are of the opinion that in this case the intention of the legislature is best effectuated by giving to the word its most extensive signification.

The act of 1875 was an amendment of chap. 261, Laws of 1874, which amended § 4, chap. 115, Laws of 1845.

In the principal act the legislature dealt with the acquisition and disposition of real property by resident aliens. The act is entitled “An act to enable resident aliens to hold and convey real estate and for other purposes.’’ Section 1 empowered resident aliens to hold real estate acquired by grant or devise. Section 2 gave dower to wives of such aliens. Section 3 gave dower to alien wives of citizens. Section 5 confirmed grants and devises made by resident aliens, and section 6 empowered such aliens who had acquired or who should thereafter acquire real estate by grant- or devise to grant and devise the same to any citizen or resident alien.

These and other sections of the act indicate clearly the scheme of the legislature.

Resident aliens who made and filed the deposition required by the first section of the act were made capable of taking and holding real estate and disposing of it in the manner stated the same as if they were citizens.

Every mode of acquisition and disposition of land of resident aliens was provided for except that by descent. We find that covered by the fourth section of the act. If, however, the appellant’s construction of that section is to prevail, alien heirs would not inherit unless the intestate had. acquired some or all of his property by deed. If the intestate’s land had come to him by devise the fourth section of the statute would be inoperative. On the other hand, if he had at some time during his life acquired some land by deed, then all the land owned at the time of his death, that which he held by devise as well as that held by deed, would pass under § 4, and it would be no bar to the operation of the statute that the land acquired by deed was not owned at the time of his death. A purchase by deed of some land, no matter how insignificant the quantity or how remote from the time of the ancestor’s decease, would be in the nature of a condition precedent to inheritance by alien heirs.

There is certainly no public policy which dictates such a reading of the statute and no reason is apparent why the legislature, intending as it did that aliens should inherit and hold real estate within the state, should have made the inheritance depend upon a purchase by deed by the ancestor, a fact which in the general operation of the statute would bo of no importance.

The intention of the legislature is clearly expressed that resident aliens may grant and devise all land that they are made capable of holding by the act in question, and I think it was equally the intention that if they failed to dispose of it by deed or will it should by section four pass to those there made capable of taking and holding it. There is no particular signification in the expression “ take a conveyance,” as the term conveyance is as applicable to the will in the case of a devise as it is to a deed in a case of a grant.

These views require that the word “ purchase ” should be given its broadest meaning, which would include all land acquired by devise.

The act of 1874 added naturalized and native citizens to the class of persons from whom aliens might inherit, and the act of 1875, permits aliens to take as devisees as well as' heirs.

Our conclusion is that Elizabeth Stamm held the land in question as purchaser and the plaintiff had the capacity to inherit as her heir.

As against every person except the state he could hold the land without making the deposition required by the first section of the fact, and whether or not his title was good against the state is a question with which the defendant has no concern.

The judgment should be affirmed, with costs.

All concur.  