Opinion
Submitted December 3, 1907
Decided December 20, 1907
William S. Jackson, Attorney-General ( James A. Donnelly and Lewis O. O'Brien of counsel), for appellant. Henry Melville and John J. Clancy for respondents.
When the Real Property Law (Laws of 1896, Chapter 547) was enacted all prior statutes in any way relating to aliens taking, holding, conveying and transmitting real property were repealed. At that time the disabilities of aliens relating to real property claimed through descent or devise from some person who was at the time of his death a citizen of the United States had for about three years been wholly removed by chapter 207 of the Laws of 1893 as therein stated. That act provided as follows:
"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 be 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 commissioners of statutory revision, in reporting the proposed Real Property Law in 1896, said: "If the revision becomes a law non-resident aliens, with the exception contained in section 6, and as their rights may be extended by treaties of the United States with foreign governments, will be unable to take and hold real property within the state. This, it is believed, affects no substantial change in the general policy of the state, which, until 1893, seems to have uniformly required residence and the filing of a deposition in order to entitle an alien to hold real property within the state."
The Real Property Law, as enacted in 1896, (Ch. 547,) provided: "A person other than a minor, an idiot, or person of unsound mind, seized of or entitled to an estate or interest in real property, may transfer such estate or interest." (Section 3.) "The real property of a person who dies without devising the same shall descend: 1. To his lineal descendants. 2. To his father. 3. To his mother; and, 4. To his collateral relatives, as prescribed in the following sections of this article." (Section 281.)
The fourth section of said Real Property Law provides that a resident alien may make and file a written deposition stating his intention of becoming a citizen of the United States, and section 5 of said act provides that an alien may for a term of six years after filing such deposition take, hold, convey and devise real property. It further provides that if such alien be admitted to citizenship a grant, devise, contract or mortgage theretofore made to or by him is as valid and effectual as if made thereafter.
It further provides that if a devise is made to such alien it shall not be valid unless a deposition be filed by him or he be admitted to citizenship within one year after the death of the testator, or if the devisee is a minor, within one year after his majority. It further provides that if a person who has filed such a deposition dies within six years thereafter and before he is admitted to citizenship his widow is entitled to dower in his real property, and if he dies intestate his heirs or the persons who would otherwise answer the description of heirs inherit his real property upon such persons being admitted to citizenship or filing a deposition in their own behalf within one year after such death or if minors within one year after their majority.
Section 6 of said Real Property Law provides that if a woman born a citizen of the United States marries an alien the foreign-born children and descendants of such woman shall, notwithstanding her or their residence or birth in a foreign country, be entitled to take, hold, convey and devise real property situated within this state in like manner and with like effect as if such woman and such foreign-born children and descendants were citizens of the United States.
After the enactment of the Real Property Law there was no statute on the subject of non-resident aliens holding real property in this state except said section of said act relating to the foreign-born descendants of a woman born a citizen of the United States and marrying an alien.
At the next session of the legislature this radical change from the practical removal of all disabilities under the act of 1893 was again changed by the enactment of chapter 593 of the Laws of 1897, which is as follows: "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; provided, however, that nothing in this act contained shall affect the rights of this state in any case in which proceedings for escheat have been or may be instituted before the passage of this act."
By this act certain alien citizens may take, acquire, hold and convey lands or real estate within this state in the same manner and with the like effect as if such person were at the time a citizen of the United States. The privileges conferred by this act are matters of comity and in no way dependent upon the intention of the alien. The language of such act is more condensed than the act of 1893, but a title acquired pursuant to the privileges conferred by that act is unconditional. The act does not say that a citizen of such state or nation may hold real property in this country until "office found." The privileges conferred are without restriction or forfeiture. A citizen of such other state or nation 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. Such a title could not have anything added to it if the alien acquiring it should subsequently become a citizen of this country. It is said in Mooers v. White (6 Johnson's Chancery, 360, 365): "Though an alien can take by a purchase or devise which is taking by the act of the parties as contradistinguished from taking by operation of law and can hold until office found, yet the law will not enable him to transmit by hereditary descent."
An alien apart from the authority of some statute cannot transmit property by hereditary descent because he has no title which is the subject of transmission at the moment of death. ( McCormack v. Coddington, 184 N.Y. 467.)
An alien holding real property pursuant to the privileges conferred by the act of 1897 does so independent of the power of the state to take it from him. He, like a citizen of this country, can acquire the absolute fee of the land. He holding his title in the same manner and with like effect as a citizen of the United States has a title which is the subject of transmission at the moment of death. He is put upon the same footing as a citizen and if he does not convey or devise his real property it is not forfeited and escheated, but passes to his heirs at law under our statutes. ( Habirshaw v. Isler [memorandum decision], 189 N.Y. 552. )
It is provided by the Naturalization Act (33, 34 Vic. c. 14) (12 May, 1870) as follows: "Real and personal property of every description may be taken, acquired, held and disposed of by an alien in the same manner in all respects as by a natural-born British subject; and a title to real and personal property of every description may be derived through, from, or in succession to an alien in the same manner in all respects as through, from, or in succession to a natural-born British subject."
As the kingdom of Great Britain and Ireland confers similar privileges on the citizens of the United States, James Tully in his lifetime and upon the death of his niece Mary McArdle became seized in fee of one undivided third interest in said real property of which Mary McArdle died seized, and on his death his widow, Mary Tully, became entitled to a dower interest in said one-third of such real property and his daughter, Margaret Kerr, of the fee thereof subject to the dower interest of her mother.
The Code of Civil Procedure expressly provides that the People of the state may be made a party defendant to an action for the partition of real property in the same manner as a private person (section 1594), and in such action the court may in its discretion render judgment against any party to the action for the costs and expenses thereof. (Section 1579.)
We cannot interfere with the discretion exercised in this case. The judgment should be affirmed, with costs.
CULLEN, Ch. J., O'BRIEN, EDWARD T. BARTLETT, HAIGHT, VANN and HISCOCK, JJ., concur.
Judgment affirmed.