Ingraham, J.:
This action was brought for the partition of real property owned by one Margaret Clifford, who died on June 21, 1882, leaving her surviving her husband and mother, since deceased, her brothers, Patrick Casey and John Casey, and her sisters, Anne McCormack, Maria Rooney and Ellen Dunn, her heirs at law. Her property, vested in her brothers and sisters, subject to the life estate in her husband and mother, each taking an undivided one-fifth thereof. The only question which is involved upon this appeal is as to the one-fifth of the property which vested in her brother Patrick Casey. It was found by the court below that upon his death the interest in the property of' Patrick Casey escheated to and became vested in the People of the State of Hew York. Patrick Casey, at the time of the, death of Margaret Clifford, was a non-resident alien and continued as such until hiá death, without having become a citizen or filed a declaration of intention to become one.. His mother, Mary Casey, died" on June 23, 1899. The court found that Maria Rooney was the only 'heir at law of Patrick Casey, who was a citizen of the United States at the time of his death; and the defendant Coddington claims, finder a conveyance from Maria" Rooney, that he is entitled to the one-fifth interest of Patrick Casey, and the question'to be determined is whether or not the one-fifth interest which vested in Patrick Casey descended to ■ his heir at law, who was a citizen of the United States, or escheated to the State of Hew York. Margaret Clifford, the owner of the property, died on the 21st day of June, 1882, and-Patrick Casey died unmarried and intestate.in Ireland on May 3G, 1883, less than one year after the death of his sister.
Chapter. 115 of the Laws of 1845 was in force at the time of the death of Margaret Clifford and Patrick Casey. It was entitled “ An act to enable resident aliens to hold and convey real estate, and for other purposes.” Section 4 of that act, as amended by chapter [743]*74338 of the Laws of 1875, reads as follows: “ If any alien resident of. this State, or any naturalized or dative citizen of the United States, who has purchased and taken, or hereafter shall purchase and take, a conveyance of real estate within this State has died, or shall hereafter die, leaving persons who, according to the statutes of this State, would answer the description of heirs of such deceased person, or of. devisees, under his last will, and being of his blood, such persons so answering the description of heirs, or of such devisees of such deceased person, whether they are citizens or aliens, are hereby declared and made capable to taking and holding, and may take and hold, as heirs, or such devisees of such deceased person, as if they were citizens of the United States, the lands and real estate owned and held by such deceased alien or citizen at the time of his decease. But if any of the persons so answering the description of heii's, or of such devisees, as aforesaid, of such deceased person, are males of full age, they shall not hold the real estate hereby made descendible or devisable to them as against the State unless they are citizens of the United States, or in case they are aliens, unless they make and file in the office of the Secretary of State the deposition or affirmation mentioned in the first section-of this act.” Under this provision Patrick Casey, as an heir at law of Margaret Clifford, took and held this interest in real property as if he were a citizen of the United States. He could not hold it as against the State unléss he made and filed in the office of the Secretary of State the deposition or affirmation mentioned in the 1st section of the act of 1845. The interest that he took was a remainder, subject to the life estate of Margaret Clifford’s husband, as tenant by the curtesy, and of Margaret Clifford’s mother. He died before these life estates terminated and before he was entitled to the possession of the property. At the time of his death he had an heir at law who was a resident and citizen of this State.
It is certain that no alien could inherit Patrick Casey’s interest in this property; but this appeal is not based upon the right of an alien to inherit, but upon the right of a citizen of this State to inherit. The conclusion of the court below was based upon the failure of the act of 1845 to provide that the alien may transmit. This act (as amd. supra) allows an alien to take and hold, but the court held that it gives no power to transmit by inheritance the [744]*744title which vested in the alien under, the statute, and* therefore, upon his death, without having become a. citizen of the United States, the property escheated to the State. ' Undoubtedly the State could have questioned the light of Patrick Casey to hold this property without having made and filed the deposition required by the 1st section of- the act of 1845, but. no such action was taken.. Patrick Casey had title to this one-fifth in remainder .when he died, as if he were a citizen of the United States. He died leaving an heir at law who was a citizen of the United States. There is nothing in this statute which would affect the right of this citizen, of the United States to inherit. Section 8 of title 1 of chapter 1 of part 2 of the. Revised Statutes (1 R. S. 719; 3 id. [7th ed.[| 2163) provides that every citizen of the United States is capable of holding lands .within this State and of'taking the same by descent, devise or purchase. Maria Rooney was capable of inheriting the property, and section 1 •of chapter 2 of part 2 of the Revised Statutes (1 R. S. 751; 3 id. [7th ed.] 2210) provides that after the chapter took" effect the real estate of every person who shall die without demising the same shall descend in manner following:. First,, to his lineal descendants ; second, to his father; third, to his. mother, and,- fourth, to his collateral relations. Under the act of 1845, as amended by chapter 38 of the Laws of 1875,- upon Margaret Clifford’s death the title to one-fifth of the real estate vested in Patrick Casey. - He was made capable of taking and holding as heir at law as if he were a citizen of the United States. There was vested in him, therefore, under this statute the absolute title to the premises, and being the owner of the premises, upon his death the title that he owned descended to his heirs at láw, being citizens, under section' 1 of the .Statute of Descent (1 R. S. 751) before referred to. If he was entitled to take and hold bv virtue of the provisions of this statute of 1845 (as amd. supra), he came, I think, directly within section 1 of. the Statute, of Descent, which provides that “ the real estate of every person who shall die without devising the same shall descend in manner following.” He was certainly a person and this interest in real estate was Ms, and such real estate, therefore^ descended to his heirs at law being .citizens and entitled to inherit,
I think, therefore, that Maria Rooney inherited from Patrick Casey any real estate of interest therein of which he died seized as [745]*745his heir at law. If, however, I am wrong in this construction of the statute, I think that the subsequent statutes in relation to aliens have operated to divest the People of the State of any right to question the title of Patrick Casey or the right of Maria Booney as his heir at law to inherit. In Luhrs v. Eimer (80 N. Y.
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Ingraham, J.:
This action was brought for the partition of real property owned by one Margaret Clifford, who died on June 21, 1882, leaving her surviving her husband and mother, since deceased, her brothers, Patrick Casey and John Casey, and her sisters, Anne McCormack, Maria Rooney and Ellen Dunn, her heirs at law. Her property, vested in her brothers and sisters, subject to the life estate in her husband and mother, each taking an undivided one-fifth thereof. The only question which is involved upon this appeal is as to the one-fifth of the property which vested in her brother Patrick Casey. It was found by the court below that upon his death the interest in the property of' Patrick Casey escheated to and became vested in the People of the State of Hew York. Patrick Casey, at the time of the, death of Margaret Clifford, was a non-resident alien and continued as such until hiá death, without having become a citizen or filed a declaration of intention to become one.. His mother, Mary Casey, died" on June 23, 1899. The court found that Maria Rooney was the only 'heir at law of Patrick Casey, who was a citizen of the United States at the time of his death; and the defendant Coddington claims, finder a conveyance from Maria" Rooney, that he is entitled to the one-fifth interest of Patrick Casey, and the question'to be determined is whether or not the one-fifth interest which vested in Patrick Casey descended to ■ his heir at law, who was a citizen of the United States, or escheated to the State of Hew York. Margaret Clifford, the owner of the property, died on the 21st day of June, 1882, and-Patrick Casey died unmarried and intestate.in Ireland on May 3G, 1883, less than one year after the death of his sister.
Chapter. 115 of the Laws of 1845 was in force at the time of the death of Margaret Clifford and Patrick Casey. It was entitled “ An act to enable resident aliens to hold and convey real estate, and for other purposes.” Section 4 of that act, as amended by chapter [743]*74338 of the Laws of 1875, reads as follows: “ If any alien resident of. this State, or any naturalized or dative citizen of the United States, who has purchased and taken, or hereafter shall purchase and take, a conveyance of real estate within this State has died, or shall hereafter die, leaving persons who, according to the statutes of this State, would answer the description of heirs of such deceased person, or of. devisees, under his last will, and being of his blood, such persons so answering the description of heirs, or of such devisees of such deceased person, whether they are citizens or aliens, are hereby declared and made capable to taking and holding, and may take and hold, as heirs, or such devisees of such deceased person, as if they were citizens of the United States, the lands and real estate owned and held by such deceased alien or citizen at the time of his decease. But if any of the persons so answering the description of heii's, or of such devisees, as aforesaid, of such deceased person, are males of full age, they shall not hold the real estate hereby made descendible or devisable to them as against the State unless they are citizens of the United States, or in case they are aliens, unless they make and file in the office of the Secretary of State the deposition or affirmation mentioned in the first section-of this act.” Under this provision Patrick Casey, as an heir at law of Margaret Clifford, took and held this interest in real property as if he were a citizen of the United States. He could not hold it as against the State unléss he made and filed in the office of the Secretary of State the deposition or affirmation mentioned in the 1st section of the act of 1845. The interest that he took was a remainder, subject to the life estate of Margaret Clifford’s husband, as tenant by the curtesy, and of Margaret Clifford’s mother. He died before these life estates terminated and before he was entitled to the possession of the property. At the time of his death he had an heir at law who was a resident and citizen of this State.
It is certain that no alien could inherit Patrick Casey’s interest in this property; but this appeal is not based upon the right of an alien to inherit, but upon the right of a citizen of this State to inherit. The conclusion of the court below was based upon the failure of the act of 1845 to provide that the alien may transmit. This act (as amd. supra) allows an alien to take and hold, but the court held that it gives no power to transmit by inheritance the [744]*744title which vested in the alien under, the statute, and* therefore, upon his death, without having become a. citizen of the United States, the property escheated to the State. ' Undoubtedly the State could have questioned the light of Patrick Casey to hold this property without having made and filed the deposition required by the 1st section of- the act of 1845, but. no such action was taken.. Patrick Casey had title to this one-fifth in remainder .when he died, as if he were a citizen of the United States. He died leaving an heir at law who was a citizen of the United States. There is nothing in this statute which would affect the right of this citizen, of the United States to inherit. Section 8 of title 1 of chapter 1 of part 2 of the. Revised Statutes (1 R. S. 719; 3 id. [7th ed.[| 2163) provides that every citizen of the United States is capable of holding lands .within this State and of'taking the same by descent, devise or purchase. Maria Rooney was capable of inheriting the property, and section 1 •of chapter 2 of part 2 of the Revised Statutes (1 R. S. 751; 3 id. [7th ed.] 2210) provides that after the chapter took" effect the real estate of every person who shall die without demising the same shall descend in manner following:. First,, to his lineal descendants ; second, to his father; third, to his. mother, and,- fourth, to his collateral relations. Under the act of 1845, as amended by chapter 38 of the Laws of 1875,- upon Margaret Clifford’s death the title to one-fifth of the real estate vested in Patrick Casey. - He was made capable of taking and holding as heir at law as if he were a citizen of the United States. There was vested in him, therefore, under this statute the absolute title to the premises, and being the owner of the premises, upon his death the title that he owned descended to his heirs at láw, being citizens, under section' 1 of the .Statute of Descent (1 R. S. 751) before referred to. If he was entitled to take and hold bv virtue of the provisions of this statute of 1845 (as amd. supra), he came, I think, directly within section 1 of. the Statute, of Descent, which provides that “ the real estate of every person who shall die without devising the same shall descend in manner following.” He was certainly a person and this interest in real estate was Ms, and such real estate, therefore^ descended to his heirs at law being .citizens and entitled to inherit,
I think, therefore, that Maria Rooney inherited from Patrick Casey any real estate of interest therein of which he died seized as [745]*745his heir at law. If, however, I am wrong in this construction of the statute, I think that the subsequent statutes in relation to aliens have operated to divest the People of the State of any right to question the title of Patrick Casey or the right of Maria Booney as his heir at law to inherit. In Luhrs v. Eimer (80 N. Y. 171) the distinction between the effect of a subsequent statute to affect the right of the People of the State and of the right of a person who had acquired title to real property before the passage of the act was referred to. It was there said: “Theactof 1874 (Chap. 261
The provisions of this act removed the disability which had prevented aliens from either inheriting or transmitting real property. ■ When it was passed Patrick Casey was dead, but Maria Booney as his heir at law was entitled to inherit from him his title to his property but for his being a .non-resident alien ■; and the provisions of the statute of 1877, read in connection, with the statute of 1893, clearly indicated an intent to remove all disability and to allow an alien to inherit' and transmit real property with the same' effect as if he was a citizen of the United States; and this act of 1893, as was said in Luhrs v. Eimer (supra), Would, therefore, “ operate as a surrender by the State of its title to lands, acquired by' escheat before the passage of the act, in favor of persons who, except for alienage, would have taken them by descent.” It is true that.this act of 1893 was,repealed by the Beal Property Law (Laws of 1896, chap. 547, § 300), but its enactment operated as a surrender by the State of its right to enforce this escheat, and its effect was, I think, to prevent the State from claiming that this property had escheated and that Patrick Casey had not the power to transmit,- as well as to take and hold it as. heir at law of Margaret Clifford,
It follows that the interlocutory judgment appealed from should be modified by adjudging that the defendants the People of the State of Hew York are entitled -to no interest in the property, and that the defendant Charles E. Coddington is seized in fee simple absolute in-and entitled to four-fifths of the said real property, instead of three-fifths, as provided in said judgment, subject to the inchoate right of dower therein of his wife; and as so modified the judgment should be affirmed, with costs to the defendant Charles E. Coddington against the People of the State of .Sew York.
McLaughlin and Clarke, JJ., concurred; Patterson, J., concurred in result; O’Brien, P. J., dissented.
Amending Laws of 1845, chap. 116, § 4.— [Rep.