Dusenberry v. Dawson

16 N.Y. Sup. Ct. 511

• Court: New York Supreme Court
• Decided: January 15, 1877
• Status: Published

Opinion

LeaeNbd, P. J.:

The only question is whether the devise to the plaintiff is void by reason of the alienage of Abraham Dawson, a resident of this State.

The express language of section 5 of chapter 115, Laws of 1845, makes the devise valid, unless this section is to be modified by construing it in connection with sections 1 and 6. The appellant claims that section 6, which gives power to a resident alien, after filing the required deposition, to grant and devise, is to be construed so as to limit section 5, and that therefore the rights given by section 5 cannot be enjoyed, unless the resident alien has filed the proper deposition.

The contrary, however, was decided in Goodrich v. Russell (42 N. Y., 177), in respect to section 4. Section 4 is analogous to section 5. The former provides for cases of descent; the latter for cases of grant and devise. The construction given by the highest court of the State to the one section, should, with us, apply also to the other.

It is true that the object of section 6 is not clear. But both sections 4 and 5 omit the requirement of filing a deposition ■by the testator, grantor or intestate, in order that .the devisee, grantee or quasi heir may hold the property. And we see no reason to suppose that the legislature intended to make it necessary.

The judgment should be affirmed with costs.

Present — Leakned, P. J., Booees and Boardman, J.J.

Judgment affirmed', with costs.