
    Horace G. Douglass, Plaintiff, v. Mary Douglass, The People of the State of New York et al., Defendants.
    (Supreme Court, St. Lawrence Special Term,
    January, 1911.)
    Aliens — Disabilities — In respect to real property: Transmission through alien: Effect of treaties.
    Escheat — Grounds-for escheat — Where some heirs are citizens and others aliens.
    Questions of law and fact — Determining law of foreign country and conflict of laws.
    The courts of this State cannot take judicial notice of the laws of a foreign country, but such laws must be proved as facts.
    Under the provisions of subdivision 2 of section 10 of the Real Property Law, that “Any citizen of a state or nation which, by its laws, confers similar privileges on citizens of the United States, may take, acquire, hold and convey lands or real estate within this state, in the same manner and with like effect as if such person were, at the time, a citizen of the United States,” second cousins of one who dies owning real property in this State, who are themselves aliens and subjects of Great Britain and Spain, cannot be held to have inherited an interest in such real property from the decedent, in the absence of proof that Great Britain and Spain by their laws confer privileges on citizens of the United States to inherit lands in like cases.
    In such a case, second cousins of the decedent who are citizens • of the United States will take an interest in such lands, though their relationship to the decedent must be traced through alien ancestors.
    Where some of the persons who might inherit are aliens, their shares do not escheat to the State, but they are disregarded and the whole estate goes to those heirs at law who are citizens of the United States.
    Action for partition.
    Willis J. Pletcher, for plaintiff.
    Thomas J. Carmody, Attorney-General, for the defendant The People of the State of New York.
   Van Kirk, J.

This is an action in partition. The only question presented to the court for determination is as to the rights and interests of the parties in the real estate in. question. Robert Douglass, the deceased intestate, left him surviving his widow, but no children or descendants. He was the illegitimate son of Bobina Douglass, who is dead. His heirs-at-law are second cousins, all being in the same degree of consanguinity. The plaintiff and the defendants William A. Douglass, John A. Douglass, Jeannette E. Douglass, Mary E. Douglass and Elizabeth D. Grubb are the children of William Douglass, deceased, who was the son of William Douglass, deceased, who was the brother of Bobina Douglass. Said brother William Douglass was a citizen of the Hnited States, as are his said grandchildren. Bobina Douglass had two sisters, Margaret D. Robinson and Elizabeth D. Potter, neither of whom was a citizen of the Hnited States or ever lived in the Hnited States, but were British subjects; and the defendants, their grandchildren, are also British subjects, save one who appears to he a subject of Spain.

Section 86 of the Decedent Estate Law (Consol. Laws, chap. 13) provides that If there be no father or mother capable "of inheriting the estate, it • shall ■ descend in the cases hereinafter specified to the collateral relatives of the intestate; and if there be several such relatives, all of equal degree of consanguinity to the intestate, the inheritance shall descend to them in equal parts, however remote from him the common degree of- consanguinity may be.”

Section 89 provides: “ If an intestate who shall have been illegitimate die without lawful issue, or illegitimate issue entitled to take, under this -section, the inheritance shall descend to his mother; if she be dead, to his relatives on her part, as if he had been legitimate.”

Hnder these provisions of the statute the real estate descends to the second cousins of the deceased William Douglass, if they are capable of taking. The second cousins are the grandchildren of the deceased brothers and sisters of Bobina Douglass, the mother of the intestate. The real question presented is whether the second cousins, who are aliens, can inherit. The general rule under our statutes is that an alien cannot take and hold real estate in the United States. The Beal Property Law (§ 10, subd. 2) provides that “Any citizen of a state or nation which, by its laws, confers similar privileges on citizens of the United States, may take, acquire, hold and convey lands or real estate within this state, in the same manner and with like effect as if such person were, at the time, a citizen of the United States.”

It does not appear in this case whether or not, at the time of the death of the intestate, the laws of Great Britain or Spain conferred upon citizens of the United States the privilege of taking and holding title to real estate; and, therefore, under the evidence in this case, it must be held that the defendants, the descendants of Margaret Bobinson and Elizabeth B. Potter, take no interest in the real estate. The laws of a foreign country will not be judicially noticed by the courts of this State; they are to be proved as is any. other fact in a case. The alien defendants have not appeared or- answered in this ease.

In section 95 of the Decedent Estate Law (Consol. Laws, chap. 13) it is provided that “A person capable of inheriting under the provisions of this article, shall not be precluded from such inheritance by reason of the alienism of an ancestor.” So that, whether or not William Douglass, the brother of Bobina Douglass, was a citizen of the United States, does not affect the right of the descendants of said William Douglass, now living, who are citizens of the United States, from taking title to the real property. The plaintiff, his two brothers and three sisters, citizens of the United States, therefore, take- the said real estate share and share alike, each -being entitled to a one-sixth interest therein. Haley v. Sheridan, 190 N. Y. 331; McCarty v. Marsh, 5 id. 263; McLean v. Swanton, 13 id. 535; Callahan v. O’Brien, 72 Hun, 216.

In the answer of the Attorney-General, it is claimed that the shares of the alien defendants George' Potter, Alfred Potter, John Bobson, George Bobson, Isabella M. Bobinson and Mrs. B. ¡Smith escheated to the People of the State of Hew York by reason of their .alienage. This position is untenable. In Luhrs v. Eimer, 80 N. Y. 171, it is said that, if some persons who answer the description of heirs-at-law -are incapable of talcing by reason of their alienage, they are disregarded and the whole title vests in those heirs competent to take, provided they are not compelled to trace their inheritance through an alien. Where a person dies leaving issue who are aliens, the latter are not deemed the heirs-at-law, for they have no inheritable blood, and the -estate descends to the next of kin who have inheritable blood in the same manner as if no alien i-ssne were in existence. 2 Am. & Eng. Ency. of Law, 73, note; citing Orr v. Hodgson, 4 Wheat. (U. S.) 453; Orser v. Hoag, 3 Hill, 79; Jackson v. Jackson, 7 Johns. 214. The citizens, defendants, therefore, take the title; .and the State of Hew York has no interest therein.

A -decision and judgment may be prepared accordingly.

Judgment accordingly.  