Callahan v. O'Brien , 72 Hun 216 ( 1893 )

FOLLETT, J.

One of the questions presented by the record being whether the rights of the litigants are the same in both pieces of land, it will be most convenient to consider to whom each parcel descended, so we will first determine the rights of the parties in Ho. 18 Perry street, which the intestate acquired by purchase and grant. Section 4 of chapter 115 of the Laws of 1845, as amended by chapter 38 of the laws of 1875, provides:

“See. 4. If any alien resident of this state, or any naturalized or native 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 of 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 heirs, 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.”

The counsel for the plaintiff insists that John Jackson did not inherit, because his deceased mother and deceased grandmother were nonresident aliens, and, being compelled to trace his right through two such ancestors, is not within section 22 of chapter 2 of part 2 of the Revised Statutes,¹ which provides;

“Sec. 22. No person capable of inheriting under the provisions of this chapter, shall be precluded from such inheritance, by reason of the alienism of any ancestor of such person.”

The contention of the counsel was decided adversely to him by the court of appeals in McCarthy v. Marsh, 5 N. Y. 263. Jackson is entitled to inherit.

The 11 persons who the special term held inherited this parcel “¡answered the description of heirs of such deceased person” (Catherine Callahan) “according to the statutes of this state,” and alb of them took the land by inheritance, unless the contention of the-counsel for the appellant that the eight nonresident aliens did not take jointly with the three citizens, but that the citizens took, to the exclusion of the aliens. The statute quoted makes no such, distinction. It does not provide that in case an intestate dies-leaving no persons answering the description of heirs who are-citizens, in that casé aliens answering such description may take;, nor does it provide that in case an intestate dies leaving persons answering the description of heirs, some of whom are citizens and others aliens, that only the former can take, but the language of the section is comprehensive enough to include citizens and aliens,, which is, we think, what the legislature intended to do. Luhrs v. Eimer, 80 N. Y. 171, is not to the contrary. That case arose over-the land of a naturalized citizen who died intestate in 1866, before the amendment of chapter 115 of the Laws of 1845. The question involved was whether aliens so related to the decedent, a naturalized citizen, as to answer the description of heirs, inherited." by force of chapter 11.5 of the Laws of 1845, and it was held that-they did not. It was said in that ease:

“The fourth section declares that if any ‘alien resident,’ who has taken- or shall take a conveyance of lands, has died or shall die, leaving persons, ' who, according to the statutes of this state, answer the description of heirs, such persons, whether citizens or aliens, shall be capable of taking and-holding as heirs of the ‘deceased alien,’ etc.”

This remark tends to support the construction we have given the - section. The result is that Ho. 18 Perry street descended to the litigants in the following proportions: -The plaintiff and John G-raddy took six twenty-fourths each, the children of Margaret O’Brien took one twenty-fourth each, the children and grandson-of Árme Morrissey took two-twenty-fourths each.

This brings us to the consideration, to whom did Ho. 58 Greenwich avenue descend? As before stated, Catherine Callahan, the intestate, acquired this parcel by descent from her son. Does land' acquired by descent by “any alien resident of this state, or any naturalized or native citizen of the United States,” descend to aliens by force of the section hereinbefore quoted? The language of the statute seems to us so explicit as not to adroit of 'serious' question. It is:

“If any alien resident of this state, or any naturalized or native citizen-of the United States, who has purchased and taken, or hereafter shall pui> chase and take, a conveyance of real estate within this state,” etc..

The idea that the statute embraces only lands acquired by purchase is emphasized by the use of the words, “purchase and take a conveyance of real estate,” which seems to exclude from the operation of the section lands acquired by descent. The word “purchase” has a well-settled meaning at common law and in the jurisprudence of this state. Words and terms having a precise -and well-settled meaning in the jurisprudence of the country are to be given that meaning when used in its statutes, unless it is plain that they were used in a different sense. Cruger v. Railroad Co., 12 N. Y. 190, 198; Wynehamer v. People, 13 N. Y. 378, 427; McCool v. Smith, 1 Black, 459; Stephenson v. Higginson, 3 H. L. Cas. 638. We cannot regard the use of these words, “purchase and take a conveyance of real estate” as accidental nor as used in a different sense than theretofore given them 'in the real property law of this state. The same words are found in chapter 115, Laws 1845, and in chapter 261, Laws 1874. We are asked to give controlling force to the words, “the lands and real estate owned and 'held by such deceased alien or citizen at the time of his decease,” -and hold that they embrace all lands however acquired. The decedent having acquired one piece of land by purchase and conveyance and another by descent, it is urged that both fall within the section, and both descend to aliens. Such a construction seems to us unnatural, and to warp the section from its true meaning. It would be as reasonable to hold that in, case a person had acquired parcels of land by purchase and others by descent, and had died seised only of those acquired by the latter mode, that they would descend to his alien relatives answering to the description of heirs because the intestate had once had lands acquired by purchase. How the acquisition of one parcel by purchase can affect the right of aliens to succeed to another acquired by descent we are unable to see. The reasoning in Stamm v. Bostwick, 122 N. Y. 48, 25 N. E. Rep. 233, is an answer to this argument. Whether nonresident aliens take by force of the statute under consideration lands acquired by descent was discussed in Branagh v. Smith, 46 Fed. Rep. 517, and the conclusion was reached that the statute applied only to lands acquired by purchase, and was not applicable to lands acquired by descent. We‘think that the nonresident aliens took no interest in the land acquired by the intestate by descent, and that the avails aris'ing from the sale of that parcel must be distributed among the heirs who are citizens of the United States. This leads' to a modification of the judgment so far as it affects the piece of land under consideration. The judgment so far as it relates to Ho. 18 Perry street should be affirmed, but, in so far as it relates to No. 58 Greenwich avenue, ‘it should be modified, by providing that one-third of the avails be distributed to the plaintiff, one-third to John Jackson, and one-third to Michael O’Brien, and that the judgment as so modified should be affirmed, without costs in this court to any party. All • concur.

1 8th Ed. vol. 4, p. 2466.