
    Anne McCormack, Respondent, v. Charles E. Coddington and Others, Appellants, Impleaded with The People of the State of New York and Others, Respondents.
    First Department,
    December, 1905.
    Escheat—when a citizen tracing title through an alien entitled to take — former statutes construed.
    Under the Laws of 1845, chapter 115, section 4, as' amended by the Laws of 1875, chapter 38, an alien who was heir of a citizen of the United States could take and hold real property in this State as if he were a citizen, though he could not hold it as against the State without filing the deposition of his intention to become a citizen required by section 1 of said act.
    Though, under said statutes, no other alien could inherit from such alien, an heir of such alien, who was a citizen was (in the absence of an assertion of title by the State for failure of the alien to file said deposition) entitled to inherit from such alien by virtue of the Statute of Descents, as contained in the Revised Statutes (Pt. 2, chap. 1, tit. 1, § 8, and pt. 2, chap. 2, § 1) which allowed citizens to take by descent.
    Hence, when, during thd period of operation of said statutes, a citizen died intestate, leaving, among others, an alien heir, who, in his turn, died intestate, without an assertion of title by the State, and leaving an heir who was a citizen, such heir is entitled to take, though tracing title through said alien, and although said alien had never filed a deposition of his intention to become a citizen.
    Moreover, the Laws of 1877, chapter 11, section 1, then in force and continued by section 7 of the Real Property Law, providing that the title of any citizen of this State to any lands within the State cannot be questioned by reason of the alien-age of any person from or through whom,such title may have been derived, when taken together with the Laws of 1893, chapter 207, thereafter passed, allowing non-resident aliens to take and transmit lands, must be construed to be a surrender by the State of lands acquired by escheat before the passage of said acts in favor of persons, who, except for alienage of the ancestor, would have, taken by descent.
    O’Brieh, P. J., dissented, with opinion.
    Appeal by the'defendants, Charles E. Coddington and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of New York on the 29th.day of March, 1905, upon the decision of the court rendered after a trial at the New York Special Term.
    
      
      John C. Thomson, for the appellants.
    
      W. W. Thompson, for the Attorney-General, attorney for the People of the State of New York, respondent.
    
      David B. Simpson, for the plaintiff, respondent.
   Ingraham, J.:

This action was brought for the partition of real property owned by one Margaret Clifford, who died on June 21, 1882, leaving her surviving her husband and mother, since deceased, her brothers, Patrick Casey and John Casey, and her sisters, Anne McCormack, Maria Rooney and Ellen Dunn, her heirs at law. Her property, vested in her brothers and sisters, subject to the life estate in her husband and mother, each taking an undivided one-fifth thereof. The only question which is involved upon this appeal is as to the one-fifth of the property which vested in her brother Patrick Casey. It was found by the court below that upon his death the interest in the property of' Patrick Casey escheated to and became vested in the People of the State of Hew York. Patrick Casey, at the time of the, death of Margaret Clifford, was a non-resident alien and continued as such until hiá death, without having become a citizen or filed a declaration of intention to become one.. His mother, Mary Casey, died" on June 23, 1899. The court found that Maria Rooney was the only 'heir at law of Patrick Casey, who was a citizen of the United States at the time of his death; and the defendant Coddington claims, finder a conveyance from Maria" Rooney, that he is entitled to the one-fifth interest of Patrick Casey, and the question'to be determined is whether or not the one-fifth interest which vested in Patrick Casey descended to ■ his heir at law, who was a citizen of the United States, or escheated to the State of Hew York. Margaret Clifford, the owner of the property, died on the 21st day of June, 1882, and-Patrick Casey died unmarried and intestate.in Ireland on May 3G, 1883, less than one year after the death of his sister.

Chapter. 115 of the Laws of 1845 was in force at the time of the death of Margaret Clifford and Patrick Casey. It was entitled An act to enable resident aliens to hold and convey real estate, and for other purposes.” Section 4 of that act, as amended by chapter 38 of the Laws of 1875, reads as follows: “ If any alien resident of. this State, or any naturalized or dative citizen of the United States, who has purchased and taken, or 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, or of. devisees, under his last will, and being of his blood, such persons so answering the description of heirs, or of such devisees of such deceased person, whether they are citizens or aliens, are hereby declared and made capable to taking and holding, and may take and hold, as heirs, or such devisees of such deceased person, as if they were citizens of the United States, the lands and real estate owned and held by such deceased alien or citizen at the time of his decease. But if any of the persons so answering the description of heii's, or of such devisees, as aforesaid, of such deceased person, are males of full age, they shall not hold the real estate hereby made descendible or devisable to them as against the State unless they are citizens of the United States, or in case they are aliens, unless they make and file in the office of the Secretary of State the deposition or affirmation mentioned in the first section-of this act.” Under this provision Patrick Casey, as an heir at law of Margaret Clifford, took and held this interest in real property as if he were a citizen of the United States. He could not hold it as against the State unléss he made and filed in the office of the Secretary of State the deposition or affirmation mentioned in the 1st section of the act of 1845. The interest that he took was a remainder, subject to the life estate of Margaret Clifford’s husband, as tenant by the curtesy, and of Margaret Clifford’s mother. He died before these life estates terminated and before he was entitled to the possession of the property. At the time of his death he had an heir at law who was a resident and citizen of this State.

It is certain that no alien could inherit Patrick Casey’s interest in this property; but this appeal is not based upon the right of an alien to inherit, but upon the right of a citizen of this State to inherit. The conclusion of the court below was based upon the failure of the act of 1845 to provide that the alien may transmit. This act (as amd. supra) allows an alien to take and hold, but the court held that it gives no power to transmit by inheritance the title which vested in the alien under, the statute, and* therefore, upon his death, without having become a. citizen of the United States, the property escheated to the State. ' Undoubtedly the State could have questioned the light of Patrick Casey to hold this property without having made and filed the deposition required by the 1st section of- the act of 1845, but. no such action was taken.. Patrick Casey had title to this one-fifth in remainder .when he died, as if he were a citizen of the United States. He died leaving an heir at law who was a citizen of the United States. There is nothing in this statute which would affect the right of this citizen, of the United States to inherit. Section 8 of title 1 of chapter 1 of part 2 of the. Revised Statutes (1 R. S. 719; 3 id. [7th ed.[| 2163) provides that every citizen of the United States is capable of holding lands .within this State and of'taking the same by descent, devise or purchase. Maria Rooney was capable of inheriting the property, and section 1 •of chapter 2 of part 2 of the Revised Statutes (1 R. S. 751; 3 id. [7th ed.] 2210) provides that after the chapter took" effect the real estate of every person who shall die without demising the same shall descend in manner following:. First,, to his lineal descendants ; second, to his father; third, to his. mother, and,- fourth, to his collateral relations. Under the act of 1845, as amended by chapter 38 of the Laws of 1875,- upon Margaret Clifford’s death the title to one-fifth of the real estate vested in Patrick Casey. - He was made capable of taking and holding as heir at law as if he were a citizen of the United States. There was vested in him, therefore, under this statute the absolute title to the premises, and being the owner of the premises, upon his death the title that he owned descended to his heirs at láw, being citizens, under section' 1 of the .Statute of Descent (1 R. S. 751) before referred to. If he was entitled to take and hold bv virtue of the provisions of this statute of 1845 (as amd. supra), he came, I think, directly within section 1 of. the Statute, of Descent, which provides that “ the real estate of every person who shall die without devising the same shall descend in manner following.” He was certainly a person and this interest in real estate was Ms, and such real estate, therefore^ descended to his heirs at law being .citizens and entitled to inherit,

I think, therefore, that Maria Rooney inherited from Patrick Casey any real estate of interest therein of which he died seized as his heir at law. If, however, I am wrong in this construction of the statute, I think that the subsequent statutes in relation to aliens have operated to divest the People of the State of any right to question the title of Patrick Casey or the right of Maria Booney as his heir at law to inherit. In Luhrs v. Eimer (80 N. Y. 171) the distinction between the effect of a subsequent statute to affect the right of the People of the State and of the right of a person who had acquired title to real property before the passage of the act was referred to. It was there said: “Theactof 1874 (Chap. 261) could not operate to divest her estate thus acquired: Prior to the passage of that act she had recovered possession of the premises by judicial proceedings against the person in possession, founding her claim upon her title by descent. That act may perhaps operate as a surrender by the State of its title to lands, acquired by escheat before the passage of the act; in favor of persons'who, except for alienage, would have taken them by descent.” Section 1 of chapter 111 of the Laws of 1877, in force at the time of the death of Margaret Clifford, which was substantially continued in force by section 7 of the Beal Property Law (Laws of 1896, chap. 647), provided as follows: “ The right, title or interest of any citizen or citizens of this State in or to any lands within this State now held or hereafter acquired shall not be questioned or impeached by the reason of the alienage of any person or persons from or through whom such title may have been derived, provided, however, that nothing in this act shall affect the rights of the State in any case in which proceedings for escheat have been instituted.” Then chapter 207 of the Laws of 1893 was passed. It provided: “ Any person who would otherwise answer to the description of heir or devisee of a person who, at the time of his death, was a citizen of the United States, shall be entitled to inherit or take from said citizen, and hold, enjoy, convey, transmit and devise any interest in real property situated in this State,-in the same manner and to the same extent and with the same effect as if he was himself a citizen of the United States, notwithstanding the fact that he bé a non-resident alien , and the fact that any person otherwise qualified to take, hold, enjoy, convey, transmit and devise any interest in real property situated in this State is a non-resident alien shall not prevent his taking, holding, enjoying, conveying, transmitting and devising such interest, providing his title or that of some person under whom he claims shall be derived by descent or devise from some person who was, at the time of his death, a citizen of the United States.”

The provisions of this act removed the disability which had prevented aliens from either inheriting or transmitting real property. ■ When it was passed Patrick Casey was dead, but Maria Booney as his heir at law was entitled to inherit from him his title to his property but for his being a .non-resident alien ■; and the provisions of the statute of 1877, read in connection, with the statute of 1893, clearly indicated an intent to remove all disability and to allow an alien to inherit' and transmit real property with the same' effect as if he was a citizen of the United States; and this act of 1893, as was said in Luhrs v. Eimer (supra), Would, therefore, “ operate as a surrender by the State of its title to lands, acquired by' escheat before the passage of the act, in favor of persons who, except for alienage, would have taken them by descent.” It is true that.this act of 1893 was,repealed by the Beal Property Law (Laws of 1896, chap. 547, § 300), but its enactment operated as a surrender by the State of its right to enforce this escheat, and its effect was, I think, to prevent the State from claiming that this property had escheated and that Patrick Casey had not the power to transmit,- as well as to take and hold it as. heir at law of Margaret Clifford,

It follows that the interlocutory judgment appealed from should be modified by adjudging that the defendants the People of the State of Hew York are entitled -to no interest in the property, and that the defendant Charles E. Coddington is seized in fee simple absolute in-and entitled to four-fifths of the said real property, instead of three-fifths, as provided in said judgment, subject to the inchoate right of dower therein of his wife; and as so modified the judgment should be affirmed, with costs to the defendant Charles E. Coddington against the People of the State of .Sew York.

McLaughlin and Clarke, JJ., concurred; Patterson, J., concurred in result; O’Brien, P. J., dissented.

O’Brien, P. J. (dissenting):

I dissent from the conclusion reached by the majority of the court.

Margaret Clifford acquired the land in question hy purchase, and at the time of her death in 1882, section 4 of chapter 115 of the Laws of 1845 (as amd. by Laws of 1875, chap. 38) was in force. This statute gave to her alien heirs, whether resident or non-resident (Smith v. Smith, 70 App. Div. 286; Goodrich v. Russell, 42 N. Y. 177), the right to take and hold their share of her real property, subject to escheat at the instance of the State in an appropriate action brought by it for that purpose, unless the alien filed an announcement of his intention to becoriie a citizen.

It is undisputed that upon the death of Margaret Clifford the land passed to her mother for life, with remainders to her three sisters and two brothers (3 E. S. [7th ed.] 2211, § 6), one of whom was Patrick Casey, a non-resident alien, who so remained up to the time of his death and who did not file the statutory certificate annoxxncing his intention of becoming a citizen. As already indicated, under the law of 1845 (supra), as amended, he was entitled to take and hold as heir of Margaret Clifford his share of the latid, subject to the rights of the State. Although he did not file the certificate mentioned, the State brought no action to have his interest declared escheat, and he held the sarne up to the time of his death. But the ■statute of 1845 above cited, while it gave him the right to take and hold an interest in the land, did not give him the right to transmit that interest by descent. (Renner v. Muller, 44 N. Y. Super. Ct. 544.) Nor was that right conferred upon lxi-m by chapter 111 of the Laws of 1877, as that statute only empowered an alien to convey land.

By the commo.n-law rule applicable to this State an alien has no inheritable blood. He can neither take land by inheritance nor transmit it by descent, and upon his death it escheats to the State. (Goodrich v. Russell, supra; Jackson v. Adams, 7 Wend. 367; People v. Irvin, 21 id. 128; Mooers v. White, 6 Johns. Ch. 360.) Therefore, before the court can properly hold that an alien is relieved from this disability it is necessary that some statute be found which specifically changes the common law in this respect. I do not find any statute conferring upon Patrick Casey that x’ight, and as the State during his .lifetime could have successfully prosecuted an action to have his interest in the property declared escheat, my conclusion is that his interest must be so declared in this action, to which the State was a party and wherein it prayed for this judgment.

The further claim of appellants that they are ■ entitled to all the property b'y. adverse possession, I think was correctly decided against them by the trial court. Adverse possession did not begin ■ to- run as to the remaindermen until after the death of the life tenant in 1899 (Snow v. Monk, 81 App. Div. 206, 211) and, therefore, a sufficient time has not elapsed to enable the appellants to. acquire title in this way.

I think, therefore, the judgment should be- affirmed, with costs.

Judgment modified as directed in opinion, and as modified affirmed, with costs to defendant Coddiügton as against the People. ■ 
      
       Amending Laws of 1845, chap. 116, § 4.— [Rep.
     