Kilfoy v. Powers , 3 Dem. Sur. 198 ( 1884 )

The Surrogate.

The decedent, who, at the time of his death, was a citizen of the United States, owning real estate in this county, died here in July last. Among his surviving next of kin are a sister and a brother, both non-resident aliens. A paper' purporting to be his last will, and to devise to his wife and to a brother residing in the United States certain real property, having been offered for probate, the question has arisen as to the necessity of issuing’ citations to this alien brother and sister.

Section 2615 of the Code of Civil Procedure directs that, upon an application for the probate of a will affecting real estate, all the “heirs” of the testator must be cited. Are the alien brother and sister of this decedent to be deemed his “ heirs,” within the meaning of this section ? “ An heir,” says Blackstone, “ is he upon whom the law casts the estate immediately on the death of the ancestor ” (2 Blacks, Comm., ch. 14, p. 201). At common law, aliens were incapable of taking by descent, and they were formerly under the same incapacity in the State of New York (2 Kent’s Comm., 53; Lynch v. Clarke, 1 Sandf. Ch., 640). This disability was removed by the act of 1845. That act (L. 1845, ch. 115, § 4; as am’d, L. 1874, ch. 261, and L. 1875, ch. 38 [3 Banks, 7th ed., 2170]), recognizes the right of alien kin of a person deceased, who was, at the time of his death, a resident alien, or a citizen of the United States, to take, as his heirs, the lands which would have descended to them in that capacity, had they been citizens of the United States. The title of an alien male of full age is, however, made defeasable by the State, upon his failure to file an affirmation or deposition respecting his intended citizenship, in the manner provided by § 1 of the act. That, under the provisions of this statute, non-resident aliens can take by descent seems too plain to be doubted, and has been often expressty asserted by our courts (Goodrich v. Russell, 42 N. Y., 177; Luhrs v. Eimer, 80 N. Y., 171; Hall v. Hall, 81 N. Y., 131).

I hold, therefore, that this decedent’s sister, though a non-resident alien, is entitled, if he shall be found to have died intestate, to the same interest in his real estate that she could take, were she a citizen of the United States, and that his alien brother is entitled to a like interest, subject to be defeated by the State, and only by the State, in case he should neglect to make and file the deposition or affirmation that the statute requires.

Both • brother and sister must, therefore, be cited.