
    Anne McCormack, Plaintiff, v. Charles E. Coddington et al., Defendants.
    (Supreme Court, New York Special Term,
    March, 1905.)
    Real property — Descent — Nonresident alien — L. 1845, ch. 115, § 4, as amended—L. 1877, ch. in, § 1 — Adverse possession — Death of life tenant.
    In 1882 a resident of this State died intestate, seized of certain real estate in the city of New York, leaving her surviving her husband (since deceased), her mother, and two' brothers and three sisters. Both of the brothers were nonresident aliens, one of whom died intestate in 1883 leaving him surviving his mother, who died in 1889, a resident of Ireland, and his brother and sisters aforesaid. One sister, the plaintiff herein, is a nonresident alien, another sister for some time prior to the death of her sister, the intestate herein', was and now is a resident of the United States. The remaining sister became a citizen of the United States in 1867 and is now a resident of the United States. In an action for partition, held: That upon the death of the intestate sister, the inheritance descended to her mother for life, with remainder to her brothers and sisters in equal undivided one-fifth shares, but that her male heirs could not hold their shares as against the State, not having filed the deposition provided by the statute (Ir. 1845, ch. 115, § 4, as amended L. 1875, ch. 38) which applies to both resident and nonresident aliens.
    That the interest of the living nonresident brother in' said premises conveyed by him to a sister and defendant herein, legally vested in one to whom she in turn conveyed the same (L. 1877, ch. Ill, § 1).
    That the interest of the nonresident brother who died in 1883, at which time there was no statutory provision authorizing either a nonresident or resident alien, or a citizen, to take by descent from a nonresident alien who had himself acquired title by descent and not by purchase, became the subject of absolute escheat by reason of his dying a nonresident alien owner of an escheat acquired by descent, and vested at once in the People of the State of New York.
    That adverse possession did not begin to run against the remaindermen until the death of the life tenant and was not available as a defense to an action for partition brought in 1905.
    Action for partition. The opinion states the case.
    
      David B. Simpson, for plaintiff.
    J. C. Thompson, for defendant Coddington.
    William C Orr, for defendant Emigrant Bank.
    Julius M. Mayer, Attorney General (Edward M. Bassett, of counsel), for defendant State of New York.
   Dowling, J.

Margaret Clifford died in the city of ew York, intestate, on June 21, 1882, seized of the premises Ko. 130 West Forty-seventh street, in said city, and leaving her surviving l^er husband (since deceased) and Patrick Casey and John Casey, her brothers, and Anne McCormack, Ellen Dunn and Maria Rooney, her sisters. Patrick Casey died unmarried and intestate, at Biskopstown, Ireland, on May 30, 1883, leaving him, surviving his mother, Mary Casey (deceased June 23, 1899), and his brother and sisters aforesaid. During the entire period of his life and at the time of his death he was a resident of Ireland, and a citizen of the Kingdom of Great Britain and Ireland, as was his mother, Mary Casey; his brother, John Casey, is and always has been a resident of Ireland and a citizen of the Kingdom of Great Britain and Ireland, and the same is true of his sister, the plaintiff herein. Ellen Dunn was a citizen of the Kingdom of Great Britain and Ireland, but for so.me time prior to the death of Margaret Clifford she was and now is a resident of the United States. The remaining sister, Maria Rooney, became a citizen of the United States on October 16, 1867, and still is such citizen, and is a resident of the State of New York. Through various conveyances the defendant Charles E. Coddington has become possessed of the shares of Ellen Dunn, Maria Rooney and John Casey in said premises, and he claims title to the entire property by reason of the transfers to him; while the plaintiff claims to own a one-fifth share in said premises as the sister of Margaret Clifford, and the People of the State of Kew York claim a similar share, by escheat, by reason of the death of Patrick Casey, a nonresident alien. Upon the death of Margaret Clifford, in 1882, she being a resident of this State, and seized of the premises in question, the inheritance descended to her mother, Mary Casey, for life, with remainder to her brothers Patrick and John and her sisters Anne, Ellen and Maria, in equal undivided one-fifth shares. Chap. II, § 6, 2 Rev. Stat., (7th ed.) 221. Whether Margaret Clifford was a naturalized citizen or a resident alien, her heirs were capable of taking; but the male heirs could not hold their shares as against the State unless they either were citizens, or, if aliens, made and filed in the office of the Secretary of State the deposition provided for by law. Laws of 1845, chap. 115, § 4, as amended by Laws of 1875, chap 38. This statute applies to both resident and nonresident aliens. Goodrich v. Russell, 42 N. Y. 177; Smith v. Smith, 70 App. Div. 288. John Casey, a nonresident alien, conveyed his interest to Maria Rooney, a citizen, who reconveyed to defendant Coddington in 1903. This vested John Casey’s one-fifth interest legally in said Coddington. Laws of 1877, chap. Ill, § 1. Patrick Casey, a nonresident alien, died intestate and unmarried, in Ireland, in 1883. He had never made the deposition required by law. Under the common law, when an alien who holds land dies, it instantly, and of necessity, without any inquest of office, escheats and vests in the State, because the freehold cannot be kept in abeyance, and he is incompetent to transmit by hereditary descent. Jackson v. Adams, 7 Wend. 368. By section 10, article I of the State Constitution it is provided that the People of the State, in their right of sovereignty, are deemed to possess the original and ultimate property in and to all lands within the jurisdiction of the State, and all lands, the title to which shall fail from, a defect of heirs, shall revert or escheat to the People. At common law, as an alien could not transmit by hereditary descent, no-one could take by inheritance when he must deduce his title through an alien, who has not inheritable blood. Mooers v. White, 6 Johns. Ch. 360. There was as well no statutory provision in 1883 authorizing either a nonresident or resident alien, or a citizen, to take by descent from a nonresident alien who had himself acquired title by descent and not by purchase. Branagh v. Smith, 46 Fed. Rep. 517. The one-fifth share of Patrick Casey, therefore, having been subject to escheat in an action by the State during his lifetime for failure to file the required deposition, at his death became the subject of absolute escheat by reason of his dying a nonresident alien owner of an estate acquired by descent, and vested at once in the People of the State of New York. Anne McCormack, as sister of Margaret Clifford, is the owner of a one-fifth share in the premises in question. Being a female she is not required to make or file the deposition referred to in the statute. As adverse possession did not begin to run against the remaindermen until the death of the life tenant, June 23, 1899, that defense is not available here. Jackson v. Mancius, 2 Wend. 357; Devyr v. Schaefer, 55 N. Y. 446; Snow v. Monk, 81 App. Div. 206; Thompson v. Simpson, 128 N. Y. 270. The defendants Rummey and Rooney have no interest in the premises, as Patrick Casey’s share went direct to the State. The shares in said premises are, therefore, owned as follows: By Charles E. Coddington, three-fifths, subject to the dower right of his wife and to the $10,000 mortgage thereon held by the Irish Emigrant Society; by plaintiff, one-fifth; by the People of the State of New York, one-fifth.

Judgment accordingly.  