
    Wadsworth and others against Wadsworth and others.
    By the common law an alien can take real estate by devise, although he cannot hold it as against the state.
    The statute (2 B. S., 57, § 4), which declares that every devise of real property to a person who, at the time of the death of the testator, shall be an alien not authorized by statute to hold real estate, shall be void, does not apply to an alien devisee, born after the death of the testator.
    Accordingly where the testator devised lands in trust for the use of his daughter, who was an American citizen, during her life, with remainder in fee to her issue, and she subsequently died leaving an alien son, born after the death of the testator; Seld, that he took under the will as against the heirs of the testator.
    In 1844, James Wadsworth, of Geneseo, in the county of Livingston in this state, died, leaving a will duly executed by him to pass real, estate. By the will, after devising specified portions of his lands to his children, he devised one equal fourth part of all the rest and residue of his real estate (being lands situate in this state) to trustees to receive the rents and profits thereof and pay the same to Ms daughter Elizabeth annually,. during her life, with remainder in fee to the issue of the said Elizabeth, her surviving ; and in case of no such issue, then to the heirs at law of the testator. The other three-fourths were devised, one-fourth each to James S. and William W. Wadsworth, the sons of the testator, and one-fourth for the benefit of Martin Brimmer, junior. The will contained no residuary-devise of any part of his real estate. In December, 1850, Miss Elizabeth Wadsworth intermarried in Scotland with Charles Augustus Murray, then and since an alien subject of the Queen of Great Britain. She and her husband resided abroad until the birth of her son, Charles James Murray, who was bom in Egypt, on the 29th of November, 1851. Mrs. Murray died on the 8th of December following, leaving the son Charles James her sole issue surviving. In April, 1852, an act was passed by the legislature of the state of New-York (Laws of 1852, p. 437), by which the title of the people of the state in and to the real estate devised by James Wadsworth to the issue of his daughter Elizabeth was released to her son Charles James Murray, and he was authorized to take and hold the same, in the same manner and with the like effect as if he had been a natural born citizen of the United States, subject to the conditions specified in the act.
    Prior to the death of Mrs. Murray, the one-fourth devised to William W. Wadsworth was set apart to him; the other three-fourths were held in common by the devisees thereof at the time of the death of Mrs. Murray. In July, 1852, William W. Wadsworth died, leaving infant children, Ms heirs. Subsequently to the passage of the act of the legislature above referred to, James S. Wadsworth and Martin Brimmer, jr., and the trustees of the latter, instituted proceedings in the supreme court for the partition of the real estate devised, which was held in common at the death of Mrs. Murray, alleging in their petition the facts above stated and insisting that they and Charles James, the son of Mrs. Murray, were respectively the owners of an undivided one-third thereof in fee. The petition suggested that as there might be a question whether the legal title to the one-third vested in Charles James Murray, on account of his being an alien, and as it was desirable that his title should be established, and as the petitioners and the infant children of William W. Wadsworth, were the only heirs, of James Wadsworth the testator, these infant children were made parties to the proceedings, and they appeared by guardian and submitted their rights to, the court, admitting the facts to be as above stated. Charles James Murray also appeared by the late John C. Spencer, as his guardian. On the facts above stated, the supreme court decided that Charles James Murray was the owner in fee of the premises devised as aforesaid to the issue of his mother, and awarded partition accordingly. On an appeal on behalf of the infant children of William W. Wadsworth, this judgment was affirmed by the supreme court, in the 7th district, at a general term. The guardian of these infants appealed to this court. The cause was submitted on printed briefs.
    
      Scott Lord, for the infants, appellants
    
      John C. Spencer, for Charles James Murray, respondent.
    
      
       The Reporter has heen requested to state, that the adult heirs of james Wadsworth, deceased, were willing to confirm the title of the son of Mrs. Murray under the will, by release to him; hut as there was no one legally authorized to execute such release on behalf of the infant children of William W. Wadsworth, deceased, the appeal was prosecuted on their behalf nt the suggestion of the guardian of Charles James Murray, that the question as to his title might he adjudged by the court of last resort.
    
   Gardiner, Ch. J.

The single question presented is, whether the title to the lands devised to the issue of Mrs. Murray vested in her son Charles James, the respondent, or whether it descended to the heirs of the testator, there being no residuary devisees.

The 4th section of the act “ Of Wills and Testaments” provides, that “ every devise of any interest in real property to a person who, at the time of the death of the testator, shall be an alien not authorized by statute to hold real estate, shall be void. The interest so devised shall descend to the heirs of the testator ; if there be no such heirs competent to take, it shall pass, under his will,, to the residuary devisees therein named, if any there be competent to take such interest.” (2 R. S., 57, § 4.) As Mrs. Murray was unmarried at the death of the testator, her son was not at that time an alien, and of coinse not within the terms of the act nor within its spirit, if its object, as the revisers intimate, was to discourage devises to aliens, by a knowledge upon the part of the devisor that they would be ineffectual. Whatever might be the purpose of the legislature, they have not said that the devise in this case shall be void; and as the testator intended the gift for the issue of his daughter, his heirs have no claim to an enlarged or equitable construction of the statute in their favor as against the state.

According to the common law this devisee could take, although he could not hold the lands against the paramount right of the people. (Coke Litt., 2; Comyn's Dig. Alien; Bacon's Ab. Aliens.) Here the state, in April, 1852, released and conveyed its right accruing by escheat, to the devisee, who thereby acquired a perfect title.

The judgment of the supreme court should be affirmed.

Crippen, J.

It is insisted on the part of the appellants that the real estate devised in trust for the benefit of Elizabeth Wadsworth, during her life, and after her death to her issue in fee, descended upon her death to the heirs at law of the testator, on the ground that her child was an alien and consequently incapable of taking and holding real estate in the State of New-York.

It is undoubtedly true that, at common law, an alien can take and hold real estate'either by devise or purchase, until office found. It is laid down in Coke on Littleton, that if an alien purchase lands and tenements, he is of capacity to take and hold the fee simple until office found, when the king shall have it by virtue of his prerogative. (Coke on Littleton, 2 a, b.) The same doctrine is found in Comyn’s Digest (Aliens, C. 2), and in Bacon’s Abridgment, (Aliens, C.) Blackstone says, that though an alien may take real estate by purchase, yet he cannot by descent, by dower or by the curtesy, which are the acts of the law (2 Blackstone's Com., 249), for the law giveth the alien nothing. Though an alien may purchase land or take it by devise, yet he is exposed to the danger of being divested of the fee and of having the land forfeited to the state upon an inquest of office found. (2 Kent's Com., 53, 1st ed.) His conveyance is good as against himself, but the title is still voidable by the sovereign. The following authorities establish the same common law rule. (Fox v. Southack, 12 Mass., 143; Fairfax v. Hunter, 7 Cranch, 619, 620; Governeur v. Robertson, 11 Wheaton, 332.) The remainder in fee, therefore, devised to the issue of Mrs. Murray, if such issue be an alien, by the common law, escheated to the people. (The People v. Conklin, 2 Hill, 73.) It would not descend to the heirs of the devisor by reason of the alienism of the devisee of such remainder.

The doubt that rests upon the law of this case, as I infer from the briefs of counsel, arises out of the 4th section of chap. 6, part 2 of title 1 of the Revised Statutes. (2 R. S., 57, § 4.) It is there enacted, that “ every devise of 'any interest in real property to a person who at the time of the death of the testator, shall be an alien not authorized by statute to hold real estate, shall be void. The interest so devised shall descend to the heirs of the testator; if there be no such heirs competent to take, it shall pass under his will to the residuary devisees therein named, if any there be competent to take such interest.”

It appears from the case, that the testator died prior to September, 1844. Elizabeth, his daughter, was married in the month of December, 1850 ; her only child was born in November, 1851, and she died the following December, leaving such child surviving her. At the time of the testator’s death, his daughter Elizabeth was capable of taking under the will; she was not an alien. Her child, the devisee of the remainder in fee, was not born until several years after the death of the testator.

The language of the statute is definite and certain, and 1 am unable to discover any reason for extending it further than the natural import of the words will authorize. How then can it be applied to a case where the devisee was not an alien at the time of the testator’s death? The plain reading of the act clearly shows to what case it applies. Unless the devisee was an alien at the time of the death of the testator, the act has no application. I have no doubt that this case must be governed by the common law rule. By this, as I have already shown the son of Mrs. Murray was capable, although an alien, to take the remainder in fee under the will and hold it until office found. The legislature in 1852, passed an act authorizing him to take and hold the lands situate in this state, which were devised to him by the last will and testament of his grandfather, James Wadsworth, deceased, in the same manner and with the like effect as if he had been a natural born citizen; and releasing to him all the interest of the state in such lands.

This statute, with the aid of the common law, confers upon him the title of the property. The judgment below must therefore be affirmed.

Judgment affirmed.  