This action was brought to partition certain real property located, in the city of New York of which one Mary McArdle, a citizen of the United States, was seized. She died intestate on the 5th day of November, 1903, leaving as her next of kin and heirs at law an aunt, Annie Sheridan, an uncle, James Tully, and three cousins who were the children of a deceased uncle. There is no dispute but that an undivided third of the real property vested in the uncle of the said Mary McArdle, James Tully. At the time of the death' of Mary McArdle James Tully was an alien, a citizen and subject of Great Britain residing in Ireland and was never in the United States. James Tully died intestate on March 5¿ 1904, about four months after the death of Mary McArdle, leaving him surviving a daughter, the defendant Margaret 'Kerr, and a widow, the defendant Mary Tully. James Tally’s widow is an alien, a citizen of and residing in Ireland, but Margaret Kerr, daughter of James Tully, became a citizen of the United States by the naturalization of her husband-on • December 11, 1903, before the death of James Tully.
The court held that although an undivided third of this property vested in James Tully upon the death of Mary McArdle, his heir at law, although a citizen of the United States, could not inherit, and that, therefore, the undivided third of the property escheated to the: People, and that the State of New York is, therefore, seized in fee of an undivided one-third interest in the premises.
The question here presented depends upon the provisions of sections 5 and 7 of the Real Property Law (Laws of 1896, chap. 547) and also upon the provisions of chapter 593 of the Laws of 1897. By chapter 207 of the Laws -of 1893 the disability of an alien to inherit real property from a citizen of the United States was removed, arid such a person could, notwithstanding the fact that he was a non-resident alien, “ take from said citizen, and hold,, enjoy, convey, transmit and devise any interest in real property situated in this State, in the same manner and.to the same extent and; with the same effect as if he was himself a citizen of the United States.” This act was repealed by section 300 of the Real Property Law, and the subject was covered by section 5 of that act; but in considering the provisions of the Real Property Law,, it is important to bear in mind that the act which it repealed, and *19whose place it took, substantially removed all restrictions upon the power of an alien to inherit or transmit real property and allows such an alien to inherit or take, and hold, enjoy, convey, transmit and devise an interest in real property situated in this State, in the same manner and to the same extent and to the same effect as if he was himself a citizen of the United States, notwithstanding the fact that he was a non-resident alien, provided his title, or that of some person under whom he claims, was derived, by descent or devise, from some person who was, at the time of his death, a citizen of the United States. Section 2 of the Real Property Law regulates the holding and taking of real property and applies only to citizens. That section provides that a citizen of the United States is capable of holding real property within this State and of taking the same by descent, devise or purchase. Section 3 provides, not for the capacity to take, but for the capacity to transfer, and applies to all persons other than minors, idiots or persons of unsound mind. Thus, any person who is legally seized of or entitled to an estate or interest in real property, has authority to transfer such estate or interest. This provision seems to have been taken from the Revised Statutes (1 R. S. 719, § 10), which provided that a person capable of holding lands other than a minor, etc., who was seized of or entitled to any estate or interest in lands, might alien the same; but the words “ capable of holding lands ” were omitted on the revision, so that now any person other than a minor or idiot or person of unsound mind who is seized of or entitled to an estate or interest in real property, may transfer such estate or interest. Section 5 of the Real Property 'Law provides that an alien may for a term of six years after filing the deposition described in section é of the act,“ take, hold, convey and devise real property,” provided that a devise to an alien shall not be valid unless a deposition be filed by him or the alien be admitted to citizenship within one year after the death of the testator or, if the devisee is a minor, within one year after his majority. The section then provides that if a person who' has filed such deposition dies within six years thereafter, and before he has been admitted to citizenship, his widow is entitled to dower in his real property, and if he dies intestate his heirs or the persons Avho would otherwise answer to the description of heirs, inherit his real property, upon such persons *20being admitted to citizenship or filing a deposition in their own behalf within one year after such death, or if minors, within one year after their majority; and then section 7 provides that “ the right, title or interest in or to real property in this State,of any person entitled to hold the same, cannot be questioned or impeached by reason of the alienage of any person through whom such title may have been derived.”
By these three sections of the Real Property Law an alien was . given the power to take, hold, devise and convey real property for six years after he filed the deposition' required by sections 4 and 5, except that in case he acquired said property by devise he was required to file the deposition or be admitted to citizenship within one year after the death of the testator or, if he was a minor, within one year after Ms majority,- and upon his death, within six years after filing said deposition without being naturalized, his widow was entitled to dower and his heirs entitled to inherit, although non-resident aliens, upon being admitted to citizenship or filing a deposition within one year after his death, or if minors, within one year after their majority. If, except as above stated with reference to a devise, within six years after a non-resident alien had inherited real property he became a citizen of the United. States a grant, devise, contract or mortgage of real property by or to him became as valid and effectual as if made after he had become a citizen, and he would take the fee with full power to transmit or transfer under the provisions of section 3.
By chapter 593 of the Laws of 1897 a new provision was enacted,' which gave, to the citizen of any other country that allowed the citizens of the United States to take, acquire, hold and convey real estate similar privileges in this State, and it seems to me that the clear intention of the-Legislature was to give citizens of a foreign country giving to citizens of this State a privilege to acquire and hold real estate a similar right in this State; and as an essential element of that right was the power to transmit, a person inheriting real property in this State under the provisions of the statute of 1897 would necessarily be entitled to'transmit as well as convey. When a citizen of a nation which by its laws conferred a privilege on citizens of the United States to take, acquire, hold and convey lands within such foreign State, then the People of the State of New York gave to citizens of that State the. right to take, acquire, hold and convey *21lands within this State in the same manner and with the same effect as if such persons were at the time 'citizens of the United States. By virtue of this provision the citizens o.f such foreign State became seized of or entitled to the lands which, under this provision, they had acquired, and such a person acquired under section 3 of the Real Property Law power to transfer such-estate or interest.
I think it is too narrow a construction of these provisions to say that, because in the statute of 1897 the word “ transmit” is not included, it was intended to limit the interest of a citizen of a foreign State to holding and conveying. It is conceded that under this provision James Tully, the father of Margaret Kerr, the appellant, inherited from Mary McArdle an undivided third part of this property. He thus became seized of and entitled to that undivided third, and upon his death Margaret Kerr, a citizen of the United States, was his heir at law. There is no question that if James Tully had been a citizen of the United States, Margaret Kerr would have inherited his interest in this property, and then section 7 of the Real Property Law applies, and the right, title and interest of Margaret Kerr in this property cannot be questioned by reason of the fact that her father was an alien.
There are no authorities in this State which present this question under the Real Property Law, and I have not cited the authorities under the law in force prior to the enactment of that law ; but in determining the meaning that was intended to be given.by the statute of 1897 to the words “ take, acquire, hold and convey lands or real estate within this State,” we may consider the provisions of section 6 of the Real Property Law (as amd. by Laws of 1897, chap. 756). That section provides for the case of a woman who is born a citizen of the United States, but who has married or shall marry an alien, and it is there provided that “ the foreign-born children and descendants of any such woman shall, notwithstanding her or their residence or birth in a foreign country, be entitled to'take, hold, convey and devise real property situated within this State, in like manner and With like effect as if such woman and such foreign-born children and descendants were citizens of the United States.” It is quite, clear that in this section it was intended to give to the children of such a foreign-born woman the absolute title.to the property, including a right to transmit by inheritance; and this construction is continued by sections 281 and 294 of the Real Property Law.
*22It is not disputed -but that the Kingdom of Great Britain and Ireland, of which James Tully was a citizen and resident, conferred upon citizens of the United States the privilege to acquire and transmit by inheritance real property within the United Kingdom, and I am clearly of the opinion that under the law of this State James Tully has an equal right to acquire and transmit real property in .this State, and that Margaret Kerr inherited the one-third interest in this property subject to her mother’s dower. If this view,is correct, it follows that the judgment appealed from must be modified by providing that the State of New York took no interest in this property and that an undivided third of the estate vested in Margaret Kerr upon the death of James Tully, subject to the dower' of her mother, the defendant Mary Tully.
As there is no dispute about the facts, the judgment should be modified accordingly, with costs to the appellants..
McLaughlin and Laughlin, JJ., concurred; Patterson, J., concurred in result; O’Brien, P. J., dissented
Judgment modified as directed in opinion, and as modified affirmed, with costs to appellants.