
    John Stewart, Appellant, v. Horace Russell and Edward D. Harris, as Executors of and Trustees under the Last Will and Testament of Henry Hilton, Deceased, Respondents.
    
      JLction of ejectment—the plaintiff must establish an affirmative title—proof as to the title of others — capacity of an alien to inherit real property — the word ‘ ‘ purchase ” excludes land acquired by descent—a devise is a purchase—escheat, operative only after “ office found.”
    
    In an action of ejectment the plaintiff must recover on the strength of his own title, and the weakness of the title of his adversary, who is in possession of the premises, will not aid him.
    The capacity of an alien to take by descent must exist at the time when the descent is cast, and is determined by. the statute in force at that time.
    Under chapter 115 of the Laws of 1845, as amended by chapter 261 of the Laws of 1874, and chapter 38 of the Laws of 1875, an alien cannot inherit real property from an alien, where the property came to such latter alien by descent from a person who died in 1876.
    The words “purchase and take a conveyance of real estate,” contained in the( act, exclude from the operation of the statute lands acquired by descent. Semble, however, that a devise of real estate is a “purchase” thereof, within the meaning of the statute.
    
      Semble, that the question ,of escheat is a matter resting solely between the State and the heir, and that the heir is entitled to hold until “ office found ” and the declaration of the escheat.
    
      Semble, that a person who, as one of the heirs at law of a decedent, brings an action in ejectment to recover an undivided interest-in real estate, is not obliged to show all of the heirs at law who aré entitled to take, but only that he himself is so entitled.
    Appeal by the plaintiff, John Stewart,, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 14th day of February, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term.
    
      Ira Leo Bamberger, for the appellant.
    
      David McClure, for the respondents.
   Hatch, J. :

The action is in ejectment and- the plaintiff seeks to recover a sixtieth interest in premises known as 726, 728, 73Ó Broadway in the borough of Manhattan, city of Hew York. The premises in question were formerly owned by Alexander T. Stewart, who died seized thereof on the 10th day of April, 1876. This action was begun July 29, 1901, more than twenty-five years after the death of Alexander T. Stewart, and proceeds upon the theory that he died intestate. The complaint avers that documents purporting to be the last will and testament, with codicils attached thereto, of Alexander T. Stewart were admitted to probate by the Surrogate’s Court of Hew York county on April 13, 1876, but that said documents and codicils, so admitted to probate, were not the last will and testament of Alexander Tv Stewart, and it is averred that he died intestate. It was claimed upon the trial and is insisted upon on this appeal that the evidence of relationship of the plaintiff to Alexander T. Stewart was too vague and shadowy to authorize the submission of such question to the jury, or to support a verdict based thereon. We are not able to sustain this contention. On the contrary, we think that such relationship was shown with sufficient clearness to have authorized the submission .of such question to the .jury. The evidence fairly established that Alexander T. Stewart was the son of Alexander Ste'wart, who was a son of Thomas Stewart of Stoneyfort, Ireland; that the said. Thomas Stewart, grandfather of Alexander T. Stewart, had nine children, one of whom was William Stewart, who was the father of William Stewart II, and who in turn was the father of William Stewart III, and that William Stewart III was the father of John Stewart, this plaintiffl It was also fairly established that William Stewart III predeceased William Stewart II and that the latter was living at the time of the death of Alexander T. Stewart; that William Stewart II died prior to the commencement of this action, and whatever title, if any, to these premises plaintiff inherited, he has taken as an heir at law and next of kin of William Stewart II, his grandfather. It was admitted Upon the trial that both William Stewart II and John Stewart, the plaintiff, have always been aliens and residents of Ireland, in the kingdom of Great Britain, as was also their ancestor. At the close of the plaintiff’s case the court dismissed the complaint, solely upon the ground that the plaintiff was an alien and could .not, therefore, inherit property from an alien, which came to such other alien by descent.

. It was clearly established that plaintiff was not entitled to inherit from Alexander T. Stewart at the time of his death in 1876, for when that event occurred plaintiff’s grandfather, William Stewart II, was living, and he was the person who would have inherited from Alexander T. Stewart had the latter died intestate and he was possessed of right to inherit. (McLean v. Swanton, 13 N. Y. 535.) It is the settled rule in actions of ejectment that the plaintiff must recover on the strength of his own title, and the weakness of the title of his adversary, who is in possession, cannot aid him. (Roberts v. Baumgarten, 110 N. Y. 380.)

It is not needful that we discuss the status, of non-resident aliens in respect of their right to take real property, held and owned by -a resident citizen of this country, at common law or under ■ the Revised Statutes. Such question has been the subject of discussion in numerous cases, and the rule in respect thereto is well'settled. The plaintiff’s rights, whatever■ they are, do not depend upon the rule as it existed at common law, or under the Revised Statutes; nor is anything to be adduced therefrom which aids him in his claim. If he has taken any interest in the property, the subject of this action, as an heir of Alexander T. Stewart, he takes it by virtue of the provisions of chapter 115 of the Laws of 1845, as amended by chapter 261 of the Laws of 1874 and chapter 38 of the Laws of 1875. These were the statutes in existence which are controlling in disposition of the rights of the plaintiff at the time of the death of Alexander T. Stewart. His capacity to take by descent must exist at the time when the descent occurs, and as these statutes measure all of his rights in this respect, whatever right he has must be determined thereunder. (Heney v. Brooklyn Benevolent Society, 39 N. Y. 337.) Our attention has been called to statutes (Laws of 1893, chap. 207 ; Laws of 1897, chap. 593) which very much enlarge the rights of non-resident aliens to take and hold real property by descent from resident citizens and aliens. These statutes, however, have no retroactive effect and may not, therefore, be invoked in determining the status of the plaintiff in his capacity to take real property by descent. The statutes under which the plaintiff’s rights are to be determined have been the subject of construction by the General Term of this court, and the precise point involved in this case, and upon which the dismissal of the complaint was based, has been authoritatively adjudicated. Therein it was held that the words “ purchase and take, a conveyance of real estate ” excluded from the operation of section 4 of the statute of 1845 (as amd. by Laws of 1875, chap. 38), lands acquired by descent. (Callahan v. O’Brien, 72 Hun, 216.) This decision has precise application, for here the plaintiff takes by descent from his grandfather and he confessedly took by descent. In no sense, therefore, either by devise, or otherwise, did plaintiff’s ancestor purchase and take a conveyance of this real estate. Argument is useless where the point is so clearly decided. The same point was also decided by Wallace, J., in the Circuit Court of the United States. (Branagh v. Smith, 46 Fed. Rep. 517.) The latter case not only makes construction of the statute, but decided that it was applicable to an alleged heir of the estate of Alexander T. Stewart. This decision was approved in Callahan v. O’Brien (supra).

The appellant claims that these decisions are in conflict with Smith v. Reilly (31 Misc. Rep. 701 ; 66 N. Y. Supp. 40 ; affd. on appeal sub nomine Smith v. Smith, 70 App. Div. 286). Therein it, was held that the daughter of a non-resident alien devisee under a will of a resident naturalized citizen of this State was entitled to take by descent from such non-resident alien the estate so devised. The case was properly decided, as it was within the terms of the statute of 1845 as amended by the statute of 1875. Her ancestor had taken the property by purchase, because he obtained it by devise and, therefore, he held the same as a purchaser (Stamm v. Bostwick, 122 N. Y. 48) and the alien daughter was, therefore, entitled to take. Therein the case of Callahan v. O’Brien (supra) was cited and approved. There is nothing, therefore, in the decision of that case which aids the plaintiff herein.. It is quite likely that the defendants could not avail' themselves of the doctrine of escheat, as this is a question solely between the State and the heir, and the heir would be entitled to hold until office found ” and escheat is declared. (Croner v. Cowdrey, 139 N. Y. 471.) Such question, however, is of no importance, as the plaintiff herein has never acquired any title, and, as we have seen, he must stand upon the strength of his own title. Doubtless, the plaintiff was not required to show who were all of the heirs at law entitled to take; he was only required to show that he was so entitled. (Rhoades v. Freeman, 9 App. Div. 20.) These questions, however, are unimportant, as we think that the learned trial judge •was correct in the disposition which he made of the case. * This conclusion renders it unnecessary for us to discuss the ruling of the trial judge in excluding evidence tending to establish pedigree. The rule enforced was doubtless too strict, and much of the testimony offered should have been received, but it is unnecessary to discuss the question, as the plaintiff is not aided thereby.

It follows that the judgment should be affirmed, with costs.

Ingraham, McLaughlin and Laüghlin, JJ., concurred; Van Brunt, P. J., concurred in result.

Judgment affirmed, with costs.  