This is a motion for an injunction to restrain the defendant Müller from paying over rents of real estate, situate in the city of Hew York, to the alien next of kin of Karl Hafner, deceased.
The action is to recover possession and the rents and profits of the property in question, from Jacob Müller, and his tenants in possession under him, and plaintiff’s right to possession is founded upon the allegation that she is the sole heir of the deceased capable of taking the inheritance.
Karl Hafner died seized of the fee of the property in question and intestate, on the 19th day of January, 1874. At the time of his death he was a citizen of the United States, and an actual resident of the city and county and state of Hew York. At the same time the following of his blood relatives were residents of the United States, viz.:
1. The plaintiff, Magdalena Kenner, a niece, the daughter
2. Christine Müller, another niece, wife of the defendant, Jacob Müller, and the daughter and legitimate child of his sister, Christine Bosine Wieland, who then was still alive, and a resident of the kingdom of Wurtemberg.
3. Michael Wieland, a nephew, who is a brother of Mrs. Müller, and the son of Hafner’s sister, Christine Bosine Wieland; and,
4. Another nephew, the son of a deceased brother, which nephew had come to the United States in the autumn of 1873.
The three first named resided in the state of Hew York, and the fourth in Pennsylvania.
Karl Haffner also left him surviving a mother (since deceased), two sisters, one brother, two nephews and five nieces, natives and residents of the kingdom of Wurtemberg^ none, of whom had ever been in this country, and all of whom were aliens.
Upon the argument, both sides agreed that Hafner’s title descended, at the moment of his death, upon some one or more of his heirs at law, or, in default of heirs, escheated to the state under the statute. It could not remain in abeyance, but had to go somewhere. If there was no one ready and capable of taking it, it escheated. If, at the moment referred to, there was but one heir capable of taking, the title vested in him or her absolutely and exclusively, and no subsequent act of the legislature could divest it.
The parties differ widely, however, upon the question of the citizenship of some, and the rights, as conceded aliens, of others, of Hafner’s next of kin, and the questions involved in those conflicting claims, are of such great importance as to justify a somewhat extended discussion.
The rule of the common law, as to the rights of aliens, as
“ That an alien may purchase lands, tenements or hereditaments, to himself and his heirs, and, although he can have no heirs, yet he has capacity to take a fee simple, but not to hold it. For, upon office found, the king shall have it, by his prerogative, of whomsoever the land is holden. And so it is, if the alien doth purchase land and die, the law doth cast the freehold and the inheritance upon the king. If an alien purchase any estate of freehold in houses, lands, tenements or hereditaments, the king, upon office found, shall have them ” (Co. Litt., 2 b.).
In Hew York, proceedings by office found, which were formerly authorized by statute (2 R. S., p. 586), are abolished, and ejectment is provided as the first remedy (Code, sec. 428).
At common law, therefore, and where no prohibitory statute is in the way, an alien can take an estate in fee, by purchase or devise, and can hold it against all parties, except the state. But he cannot take by inheritance, nor transmit by descent (Mooers agt. White, 6 Johns. Ch. R., 365; Fairfax's Devisee agt. Hunter's Lessee, 7 Cranch., 603; The People agt. Conklin, 2 Hill, 67; Wadsworth agt. Wadsworth, 12 N. Y., 376; Munro agt. Merchant, 28 N. Y., 9).
In Hew York the acquisition, tenure, alienation and descent of real property, are regulated by statute. The people of the state, in their right of sovereignty, are deemed to possess the original and ultimate property in and to all lands within the jurisdiction of the state; and all lands the title to which fails from a defect of heirs, revert or escheat to the people (1 Rev. St., 718).
All lands within the state are declared to be allodial, so that, subject only to the liability to escheat, the entire and absolute property is vested in the owners according to the nature of their respective estates; and all feudal tenures of every description, with all their incidents, are abolished (Id., sec. 3).
But the capacity to hold lands, and of taking the same by descent, devise or purchase, was originally confined to citizens of the United States (Id., sec. 8).
The chapter relative to the title of real property by descent, contains a series of canons specifically regulating the descent. It also prescribes that in all cases not expressly provided for, the inheritance shall descend according to the course of the common law (1 Rev. St., 753, sec. 16).
It was also enacted, at an early day, that any alien who had or might come into the United States, upon making and filing with the secretary of state a deposition or affirmation in writing, that he is resident in the state, and intends always to reside in the United States, and to become a citizen thereof as soon as he can be naturalized, and that he has taken such incipient measures as the laws of the' United States require to enable him to obtain naturalization, could take and hold real estate of any kind, to himself, his heirs and assigns forever, and might, during six years thereafter, sell, assign, mortgage, devise and dispose of the same, in any manner, as he might or could do, if he were a native citizen* but should have no power to lease or demise until he should become naturalized (1 Rev. St., 720, secs. 15, 16).
It was further provided that if any such alien should die within the six years, intestate, his estate should descend to his heirs, if he have any, who are inhabitants of the United States, in the same manner as though he died a citizen of the state (1 Rev. St., 720, sec. 18).
After the six years the alien lost all the privileges so secured, except the right to hold the estate, unless he became naturalized according to the provisions of the laws of the United States.
It has been a subject of dispute whether this seventeenth section extended to aliens, who had not complied with the provisions of the sections immediately preceding, and thus changed the common law rule, or'whether it was limited to aliens who had complied with the provisions ; in other words, whether it was intended to prevent aliens from taking real estate, except upon a fulfillment of the requirements of the statutes, or only intended to prevent such aliens as did comply, from holding lands before purchased as against the claim of the state.
It has been decided in the case of Wright agt. Saddler (20 N. Y., 320), that that section did not impair the common law rule, but merely prevented those who should place themselves within the statute, from holding such lands as they had before purchased, as against the state.
By subsequent enabling acts, viz.: Chapter 171 of the Laws of 1830; chapter 87 of the Laws of 1843 ; chapter 115 of the Laws of 1845 ; chapter 576 of the Laws of 1857; the capacity of resident aliens to hold and convey real estate was still further extended. Time and space do not permit any extended reference to them.
A passing notice should be taken, however, of the act of 1845, as the most important of them. By that act a resident alien was not only empowered to take by purchase or devise, upon making and filing the deposition or affirmation required by the former statutes, but it was also expressly provided that, upon making and filing such deposition or affirmation, he might hold all real estate previously granted, conveyed or devised to him in the same manner and with the like effect as if he at the time of such grant, conveyance or devise, had been a citizen of the United States. Provision was also made
The section last referred to has been amended by chapter 261 of Laws 1874 and chapter 38 of Laws 1875, so as to enable aliens to take lands by descent from naturalized or native citizens as well as from resident aliens. But as these amendments were made after Hafner’s death, and consequently after the rights of all parties had become fixed, they may be at once dismissed. For the same reason chapter 111 of Laws of 1877, which seems to be an amplification of chapter 336 of Laws 1875 and of chapter 513 of Laws 1868, need not be considered. The three last named statutes simply relate to the confirmation of the title of citizens which may be questioned by reason of the alienage of former owners.
At the time of Hafner’s death, therefore, the law was that none but a citizen could inherit a fee by descent from a citizen ancestor. To this extent the common law, which upon this point rests upon the policy of the feudal law, still prevailed notwithstanding the abolition of all feudal tenures.
I now proceed, to consider the objections which have been urged against plaintiff’s claim, and especially against her standing in court.
I. The first objection is, that, at the time of Hafner’s death, the plaintiff was an alien.
It appears that she was born in the kingdom of Wurtemberg on the 20th of September, 1853; that her parents never resided in, and never were, citizens of the United . States; that she came to the Hnited States in 1869 ; that, consequently, at the time of Hafner’s death, she had not resided five years within the Hnited States, nor had she arrived at the age of twenty-one; and that she had not, at that time, declared her intention to become a citizen, nor had she been admitted to citizenship by the judgment of any court.
Moreover it is well settled that a statute which merely authorizes an alien to take and hold real estate by purchase or devise, does not change the general law of descent.
According to the common law of this country it is not enough that a person is in the order of succession prescribed by statute, as required to take lands by descent, upon the death of the owner thereof intestate. He must also be a citizen of the United States at the time of the death of the intestate. He cannot qualify himself to inherit by becoming a citizen afterward. This disqualification does not rest upon a lack of inheritable blood, though that expression frequently occurs in the books, but, as shown by Mr. Bingham on Descents, upon a lack of right to inherit for the reason that the alien is not a citizen or a subject of the government where the land lies. The inheritance itself is made up of a right to the possession and use of certain land, which right is derived from a
It is claimed, however, on the part of the plaintiff, that by virtue of her marriage with Michael Eenner she became a citizen of the United States by force of- the second section of the act of congress, passed February 10, 1855.
Michael Eenner came to the United States in 1865 and has ever since that time resided here. On June 4, 1871, at the city of Hew York, he and the plaintiff were married, and on October 10, 1873, he was, on his application, duly naturalized and admitted to citizenship.
The acts of congress, relative to the naturalization of aliens require, among other things, as conditions precedent to admission, an application in a certain prescribed manner and proof of a residence of five years within the United States. Even minors, on arriving at the age of twenty-one, must, as a general rule, comply with these conditions before they can become citizens. This is the general policy of the law. Prior to 1855 exceptions were made in favor of:
1. Eesident children of persons duly naturalized, being under the age of twenty-one years at the time of the naturalization of their parents,
2. Children of certain citizens, though bora out of the limits and jurisdiction of the United States; and,
3. The widow and children of aliens dying during the interval between their application and actual naturalization.
The persons falling within either of the first two classes, are considered citizens of the United States without a formal
By the second section of the act of 1855 it was provided :
“Any woman who might lawfully be naturalized under the existing laws, married, or who shall be married, to a'citizen of the United States, shall be deemed and taken to be a citizen.”
It was held by the court of appeals in Burton agt. Burton (1 Keyes, 373), that the words “who might lawfully be naturalized under the existing laws,” were only a limitation of the application of the section to a class of persons, viz.: to white women, and hence it was determined that an alien woman who had married a citizen, but who had never been in the United States, became, by the act of marriage, a citizen, and that such act stood in the place of all the requirements demanded by the naturalization laws.
The defendants insist that the plaintiff does not come within this decision, because at the time of her marriage with Michael Benner, the latter was not a citizen, though he became such afterwards. This "precise point came up in Kelly agt. Owen (7 Wall., 496), in which case the supreme court of the United States, approving the doctrine of Burton agt. Burton, held as follows:
“As we construe this act, it confers the privileges of citizenship upon women married to citizens of the United States, if they are of the class of persons for whose naturalization the previous acts of congress provide. The terms ‘married,’ or ‘who shall be married,’ do not refer, in our judgment, to the time when the ceremony of marriage is celebrated, but to a state of marriage. They mean that whenever a woman who under previous acts might be naturalized, is in' a state of marriage to a citizen,'whether his citizenship existed at the passage of the act or subsequently, or before or after the marriage, she becomes, by that fact, a citizen also. T-Tis citizenship, whenever it exists, confers, under the act, citizenship upon her. The construction which would restrict the act to women whose husbands, at the time of marriage, arePage 239citizens, would exclude far the greater number, for whose benefit, as we think, the act was intended. Its object, in our opinion, was to allow her. citizenship to follow that of her husband, without the necessity of any application for naturalization on her part; and, if this was the object, there is no reason for the restriction suggested. The terms, “ who might lawfully under the existing laws,” only limit the application of the law to free white women * * *.”
The defendants also contend that the plaintiff does not come within the decision of either of the two foregoing cases, because- on the day of Hafner’s death she was not twenty-one years of age, and for that reason could not, on that day, have been naturalized under the laws existing prior to the act of 1855. This objection has no greater force, if as much, than the objections urged against Mrs. Burton. The plaintiff was no more incapacitated on that account, than Mrs. Burton was by reason of non-residence. Indeed she was not so much, for, if necessary, she. could confessedly have become naturalized under the naturalization acts within a few months after Hafner’s death, while Mrs. Burton could not for five years after her husband’s death. Age of twenty-one years, under the then existing laws, was simply one of the qualifications necessary for an applicant to have, just as it was necessary for him to show a five years’ residence. The plaintiff comes clearly within the reasoning, if not the letter, of the two decisions. The statute says, “ any woman,” and not “ any woman of twenty-one years of age.” There is no more reason, in considering the general policy of the naturalization laws, why, in case of marriage with a citizen, the requirement of twenty-one years of age should not be dispensed with, than the requirement of a five year’s previous residence. They are both made requirements for the purpose of furnishing evidence of fitness to undertake the duties and responsibilities of citizenship, and one is no more important or necessary than the other. The fact of marriage furnishes evidence of such fitness, and the law says that
I repeat, therefore, that there is nothing in the general policy of the naturalization laws which requires such a construction of the act of 1855 as will exclude the wife of a citizen from citizenship, either, because at the time of the marriage she was an alien, or because her husband was an alien, if he subsequently became a citizen, or because she had not resided five years within the United States, or was under twenty-one years of age.
All that is necessary is a valid marriage with a citizen, or one who subsequently becomes such, and that presupposes lawful capacity to contract it. At common law the age of legal consent is fourteen in males and twelve in females, and this rule is still in force in Hew York.
II. Defendants’ second objection to plaintiff’s claim is, that, even if at the time of Hafner’s death the plaintiff was a citizen, she was incapable of inheriting for the reason that her mother, a sister of the intestate, through whom she must trace her descent, was an alien. That the latter always was, and in July, 1855, died, an alien, is conceded.
The objection is obviated, however, by section 22 of chapter 2 of part 2 of the ¡Revised Statutes, which provides that
This section is a modification of the common law rule that no person can inherit who is compelled to trace his title through an alien ancestor, and it removes the incapacity which, but for its existence, would attach to the plaintiff.
The word “ ancestor,” as used in this statute, has been made the subject of much discussion whether it should be construed to mean lineal ancestors only, or whether collateral ancestors were also intended, and it was finally held to embrace both lineal and collateral ancestors. They are ancestors of the estate, not of the blood (McCarthy agt. Marsh, 5 N. Y., 263).
III. Defendants’ third objection to plaintiff’s claim is, that the fact that the mother of Karl Hafner, at the time of his death, was alive and an alien, impeded the descent to plaintiff’s mother, and that the plaintiff has no better claim than her mother would have had, if she had been alive and capable of inheriting at that time. It must be conceded that under the canons of the statute of descents the plaintiff, as a citizen, can only succeed, if at all, as the representative of her deceased mother, and that in this aspect of the case she must claim through her mother. But this she can do successfully.
It was held in Jackson agt. Green (7 Wend., 333), that, at. common law, one brother could inherit of another, though the father was an alien. And it is said: “ Collateral descent from brother to brother is immediate, taking no notice of the father, but from uncle to nephew, or nephew to uncle, the descent is mediate, the father being the medium through which the descent must pass. Hence one brother may inherit from another, though the father be an alien, or attainted; but a grandson cannot inherit from his grandfather, the father having died in the life of the grandfather, provided the father was an alien, or attainted; but the land shall escheat.”
It has also been decided, that the rule which enables brothers, sons of an alien father, to inherit of each other, because the descent between them is immediate, applies, also, between one of the brothers and the representative of the other, and also between the representatives of both of them (McGregor agt. Comstock 3 N. Y., 408; McCarthy agt. Marsh, 5 N. Y., 274; Smith agt. Mulligan, 11 Abb. [N. S.], 438).
Under the laws of blew York sisters stand upon the same footing as brothers, and hence the descent is also immediate between brothers and sisters. This being so, it follows that if an alien father cannot impede the descent between them, or their representatives, the same rule, as between them, must apply in the case of an alien mother. The fact, therefore, that at the time of Hafner’s death his mother was alive and an alien, can constitute no obstacle to inheritance between such of Hafner’s brothers and sisters, or their representatives, as are otherwise capable and entitled to inherit.
The rule laid down by chancellor Kent, that “ if a citizen dies and his next heir he an alien who cannot take, the alien cannot interrupt, the descent to others, and the inheritance descends to the next of kin who is competent to take, in like manner, as if no such alien had ever existed” (2 Kent, 56), applies to all cases in which the claimant does not make title ■through the alien, but where he or she can deduce his or her pedigree from the person dying seized, by leaving out or passing by the alien. Hafner’s mother may, therefore, be left out and passed by; and his sister (plaintiff’s mother) having died before him, and the impediment which her alien-ism would have otherwise presented, having been obviated by statute, the plaintiff labors under no disqualification.
IV. Defendants’ fourth objection to plaintiff’s claim is, that even if the preceding three objections'were untenable and the plaintiff were coihpetent of taking by descent, she
In McCreery's Lessee agt. Somerville (9 Wheat., 354), which arose in Maryland under a statute substantially like the provision of the English act, the statute was construed in the same way.
So it has been held under the statute of Hew York that that did not enable a citizen to take by descent as the representative of an alien parent alive at the death of the intestate (The People agt. Irwin,, 21 Wend., 128: McLean agt. Swanton, 13 N. Y., 535).
These cases have settled the law to be that when, in the course of descent, a title comes to an alien living, who, but for his alienage, would have been the heir, it will not pass through him, but will pass by him to the next one who is competent.
It appearing, then, that, aside from the questions arising under the treaty, all the objections against plaintiff’s claim are unfounded; that under the laws of this state, the title to the property in question descended at the time of Hafner’s death to the plaintiff as the only heir competent to take it,, and that there is danger that the rents and profits of such property may be removed, by the defendant, Jacob Müller, beyond the jurisdiction of this court and of this state, the plaintiff has shown enough, according to well settled rules of law, to entitle
The motion for the continuance of the injunction'during the pendency of the action must be granted, with ten dollars costs to abide the event. Order to be settled on notice.