Smith v. Mulligan

11 Abb. Pr. 438

• Court: New York Supreme Court
• Decided: November 15, 1871
• Status: Published

Opinion

By the Court.—J. F. Barnard, J.

*

The deceased John Mulligan was a citizen, and therefore could hold and transmit property. If an heir capable of taking can be found, the estate will descend to such heir (Parish v. Ward, 28 Barb., 328). .

The fact of the alienage of a common father, will not impede the inheritance between brothers; the inheritance between brothers is immediate (McGregor v. Comstock, 3 N. Y. [3 Comst.], 408).

This doctrine is not questioned in McLean v. Swanston (13 N. Y. [3 Kern.], 535). In that case, the title, to have reached the plaintiff, must have passed through an alien. In this case the father is not a medium heriditatis.

Order affirmed with costs.

Present, J. F. Barnard, P. J., and Gilbert and Tappen, JJ.