
    In the Matter of the Application of Harold P. Clarke, an Infant Over the Age of Fourteen Years, and Mary J. Naughton, His Relative, for Leave to Sell Said Infant’s Real Estate. Martin Dickemann, Purchaser, Appellant; Mary J. Naughton, Special Guardian, Respondent.
    First Department,
    April 8, 1909.
    Beal property — escheat — presumption as to heirs — vendor and purchaser—when title to lands released from escheat not marketable.
    There is a presumption that a decedent leaves heirs, but not necessarily a presumption that such heirs are competent to inherit, as they may be aliens incompetent under the statute.
    The presumption that there are heirs is not conclusive, and may be overcome by circumstantial evidence, or by a great lapse of time with proof that no heir appeared to claim the property.
    A vendor who bases his title on a claim that the lands had escheated to the-State and been released to his predecessor in title, the decedent's husband, cannot compel his vendee to perform specifically without showing by satisfactory evidence that the original owner left no heirs competent to take by descent, where twenty years have not elapsed since the death of the original owner.
    
      Such title is not rendered marketable because one claiming to be an adopted daughter of the original owner instituted proceedings in the Surrogate’s Court for the probate of her heirship, alleging that if the decedent left other heirs they were unknown, and a decree establishing the heirship of the adopted daughter was entered after the publication of citations against unknown heirs, if the decedent’s husband through whom the vendor claimed title was not a party to that proceeding, and the judgment in a subsequent action of ejectment by the adopted daughter against the husband was reversed upon the ground that the proceedings in the probate of heirship were not binding upon him and that action is still pending.
    Although the probate of heirship might be binding between the adopted daughter and unknown heirs, the decedent’s husband, or one claiming under him, derived no right thereunder.
    Appeal by Martin Dickemann, purchaser, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of ¡New York on the 8th day of December, 1908, directing the purchaser to perform his contract and complete his purchase in a proceeding for the sale of an interest of an infant in real estate.
    
      William B. Aitken, for the appellant.
    
      Francis J. Kuerzi, for the respondent.
   Laughlin, J.:

¡No question is raised with respect to the regularity or validity of the proceedings in this special proceeding. The special guardian of the infant was duly authorized to enter into a contract for the sale of the interest of the infant in the real estate described in the petition and she duly contracted with the appellant for the purchase thereof and the sale was duly approved by the court. Upon tender of the deed of the special guardian, however, the appellant refused to complete his purchase upon the ground that the infant had no marketable title or interest in the real estate. The facts upon which this objection was based were then presented to the court in a report made by the special guardian. The objections of the purchaser were overruled and he appeals from the order directing him to complete his purchase. The infant claims title upon the ground that one Elizabeth Collins, who died on the 3d day of April, 1893, intestate, was seized of the premises in fee simple absolute; that she left no heirs at law and that the premises escheated to the People of the State; that the right, title and interest of the State was released on the 30th day of March, 1895, to Thomas Collins, the surviving husband of said Elizabeth Collins, and that by mesne conveyances the right, title and interest of Thomas Collins passed to the infant prior to the commencement of this proceeding. The claim that Elizabeth Collins, the former owner of the premises, left no heirs, is founded solely upon a verified petition presented to the Surrogate’s Court of the county of Westchester on the 8th day of April, 1893, by her surviving husband for the probate of her alleged last will and testament. That petition set forth that her heirs were her husband and one Mary Tracy who claimed to be her adopted daughter, and that she left her surviving no child or children, adopted child or children, the issue of any deceased child or children, or the issue of any deceased adopted child or children, or any father or mother, or any deceased child’s husband or wife, or brother or sister of the half or whole blood, or the issue of any deceased brother or sister or any deceased brother’s wife or any deceased sister’s husband,” except as therein stated. The probate of the will was refused on the ground that it was revoked by the subsequent marriage of the decedent. The petition for the probate of the will having been denied upon the ground stated, it became unnecessary for the court to adjudicate upon the other facts presented, and it does not appear that the court made any decision thereon. The allegations of the petition in these circumstances do not constitute satisfactory proof of the facts. The presumption is that' no person dies without leaving heirs, but there doubtless is not in all cases a presumption that one leaves heirs competent to inherit, for it might appear that the heirs were aliens, and under the law aliens might not be capable of inheriting. There is nothing in the record, however, to indicate that the heirs which the law presumes the decedent left were not capable of inheriting. This presumption, of course, is not conclusive, and it may be overcome by circumstantial evidence or by great lapse of time, with proof that no heir appeared to claim the property. (22 Am. & Eng. Ency. of Law [2d ed.], 1291; Ettenheimer v. Heffernan, 66 Barb. 374; Bradley v. Dwight, 62 How. Pr. 300; Pitkin v. New York & New England R. R. Co., 64 Conn. 482; Harvey v. Thornton, 14 Ill. 217; Lawson Presump. Ev. [2d ed.] 249; Bell v. Hall, 76 Ala. 546; John v. Hunt, 1 Blackf. [Ind.] 324.) The purchaser, however, is entitled to a marketable title, and it was incumbent upon the respondent to show by satisfactory evidence that the decedent left no heirs at law competent to take this land by descent. The facts give rise to no presumption to that effect. It is not even twenty years since the death of the party who concededly owned the premises in fee simple absolute, and through whose death title is claimed on the theory that it escheated to the People of the State for want of heirs competent to take. It is also claimed in behalf of the respondent that the marketability of this title may be sustained upon another theory. Mary Tracy, who claimed to be the adopted daughter of the decedent, on the 6th day of May, 1895, instituted a proceeding in the Surrogate’s Court of the county of Westchester for the probate of her heirship as the sole heir of the decedent. In her petition she alleged that if the decedent left any other heirs, their names and places of residence were unknown to her and could not be ascertained with due diligence, and that she believed that there were no such heirs. In that proceeding a citation was issued and published as required by the Code, addressed as follows: To the heirs of Elizabeth Collins, formerly Carroll, deceased, late of the Village of Unionport, County of Westchester and State of New York, the names of such heirs being unknown and unascertainable.” After proof of the due publication of the citation, a decree was made by the Surrogate’s Court on the 23d day of September, 1895, to the effect that the decedent left no other heir, and that said Mary Tracy was her heir. Collins, through whom the respondent claims title, was not a party to that proceeding. Thereafter and on the 13th day of May, 1895, an action in ejectment was brought in the Supreme Court of this State in the county of Westchester by said Mary Tracy against said Collins, to recover the possession of the premises in question, and on the sixteenth day of December thereafter she recovered judgment therein. This judgment, however, was reversed on appeal upon the ground that the proceedings in the probate of heir-ship were not binding upon Collins (Carroll v. Collins, 6 App. Div. 106), a,nd the action is still pending, without a retrial having been had. The opinion delivered by the Appellate Division on reversing the judgment in that action indicates that the court was of opinion that the proceedings for the probate of heirship were void upon the ground that the proof was wholly insufficient to show that the petitioner was legally .adopted. The learned counsel for the respondent argues that the effect of the decision in the action of ejectment merely is that the proceeding for probate of the heirship was not binding upon Collins because he was not cited to appear, and not being an heir, he could not be cited to appear. That, of course, was the only point decided, although the observations of the court, as already stated, appear to go much farther. The learned counsel for the respondent also claims, as we understand his argument, that although the probate of heirship was not a binding adjudication as against Collins, it was a binding adjudication against any other heir who may have survived the decedent, for the reason that all other heirs were duly cited to appear. That may be so as between such other heirs, if any there be, and Mary Tracy who instituted the proceeding, but it is difficult to see how Collins derived any right under that adjudication or upon what theory it would establish the fact in a litigation between other heirs and Collins or any one claiming under him. It is, therefore, quite manifest, I think, that upon no theory is the title of the respondent shown to be marketable.

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the appellant should be released from his contract for the purchase of the premises.

Patterson, P. J., Ingraham, McLaughlin and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  