In re Leefe , 4 Edw. Ch. 395 ( 1844 )

The Vice-Chancellor :

Although the legal title to the leasehold property in question is vested in the assistant register ex officio, yet, he can claim no beneficial interest or ownership in the property for himself. He is merely a trustee ; and during the life of Mrs. Currie she was cestui que use and enjoyed the property. At her death, it would have gone to Mary Bunn Marston, had she lived ; and the assistant register must have conveyed it to her absolutely and, thus, would have terminated the trust. Mary Bunn Marston had married, however, and died before her mother, Mrs. Currie, leaving no issue, but leaving her husband surviving.

To whom, then, did the property belong ? Did the gift lapse or fail for want of a person to take or did her surviving husband become entitled to the property ?

The remainder in the term or lease, after the life estate for Mrs. Currie was carved out of it, was clearly a vested remainder, vested in interest, although not in possession. As such, it was assignable, transmissible, descendible. The trust did not cover the gift to the daughter. By the original Marston deed, the gift was directly to her—not to a trustee for her. The language of the instrument is: “ after the death of Hannah Currie, I give, grant and convey the house, &c. to my natural daughter Mary Bunn Marston, her heirs and assigns.” This was a gift in presentí and vested her with the title and estate at the same time that the gift to the mother took effect, although it was not to be enjoyed as a thing in possession of the daughter until the death of the mother: on this subject see 1 Roper on Legacies, 392, 394 and cases there cited.

If the daughter—dying, as she did, in the year one thousand eight hundred and eighteen—had died unmarried, it is certain that the property, being a chattel interest, would have gone to her personal representative, subject, of course, to her mother’s use of it for life. But, having married, it is equally certain that the law gave it to her husband, unless, by the contract of marriage, the husband deprived himself of his marital right or, by being an alien, was prevented from taking. The ante-nuptial contract which, it appears, the parties entered into, could not deprive him of the property, except in the event of her surviving him, when it was still to have been her estate ; but, in the event which has happened, it became his property absolutely by survivorship. True, a husband, by marriage, acquires only a qualified right or interest in the outstanding personal property of his wife. If he does not reduce it into possession during her lifetime, he may be obliged to take out letters of administration as upon her estate, in order to recover it; but when so recovered, the property will belong to him, subject to the payment of any debts of the wife contracted dum sola. And if he omits to administer and dies with-without obtaining the possession, then, the property will go to the wife’s and not to the husband’s representative and next of kin : Williams on Executors, 438, 439.

I am of opinion, however, that the right of property in this case, as between this husband and wife, is governed by the ante-nuptial contract made between them and not by the rules of the common law. They have regulated the devolution, as they were at liberty to do, by contract; and have not left the husband to stand upon his strict legal marital right. According to the contract, the husband became entitled by survivorship. All her right, by that event, passed to him by force of the contract and not by operation of law resulting merely from the marriage.

But, it is said, the husband was an alien and could not take and hold an interest in lands. The evidence fails to prove that he was ever naturalized, although he took an incipient step towards becoming a citizen. At common law, however, an alien may take real estate by purchase—not by descent or mere operation of law—and hold the same against every body, except the state; and if disseized or disposessed by any other than the government, he may maintain.his action or writ of right : Bradstreet v. Supervisors of Oneida, 13 Wend. R. 546. There is one exception to an alien’s taking by purchase, i. e. he cannot take by devise (a species of purchase) and which is now prohibited by statute : 2 R. S. 57, § 4. I find no other statutory prohibition to an alien’s taking by purchase, unless, indeed, the proviso introduced into the act of 1825, enabling resident aliens to take and hold lands, provided they do certain things, was intended to prevent any alien from taking by-conveyance as well as by descent or devise. That proviso is incorporated into the revised statutes, 1 R. S. 820, § 15, 16, 17 and the proviso alluded to forms § 17. It seems to me that the legislature could, hardly, have intended to abolish entirely the common law right to take by purchase—by inserting these provisions—or it would have been more clearly expressed.

But, suppose the § 17 produces a disqualification to take as well as to hold lands, unless the alien becomes a resident and files an affidavit of his intention always to reside in the United States and to become a citizen thereof. Who can take advantage of the disability so as to divest the alien or his grantee of the possession acquired under his-purchase ? Most certainly none but the government. It is an affair of the government alone. A grant to an alien is good against the grantor and his heirs. So is a devise good against the heir of the devisor. The title passes out m the grantor or devisor by his own act; but, instead of «sting in the alien grantee or devisee absolutely, it reverts mynstanti to the state by escheat. This seems to be the doctrine recognized by our supreme court in the recent case of The People v. Conklin, 2 Hill’s R. 67.

It follows, from this view of the subject, that the assistant register of this court can have no right to interfere with or to question the title which was acquired by the husband of Mary Bunn Marston by purchase—for such it was—under their marriage contract, much less to disturb the possession of him and his grantee the present petitioner. Upon what ground, even at law, he could have been allowed to recover judgment in the action of ejectment spoken of in the petition, I am not informed. In equity he can have no such right. If the petitioners have not a valid title under the deed from the surviving husband of Mary Bunn Marston, by reason of his alienism, it is not for the officer of this court to interpose the objection and seek to dispossess them; The attorney-general is the person to act in behalf of the state; and the petitioners can only be called upon to defend their title and possession against the claim of the government. In the meantime, this court is bound to order the assistant register to desist from further proceedings against the property and to execute a release, if necessary, to quiet them in the possession against any claims he may suppose himself to have.