[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 173 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 175 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 177 Barbara Eimer, by her intermarriage with Gottfried Baur in 1857, who was a citizen, became herself a citizen by virtue of such marriage, and capable of taking and holding lands in this State by purchase or descent: (U.S. Statutes at Large, vol. 10, ch. 71, p. 604; 1 R.S., 719, § 8; Burton v. Burton 1 Keyes, 359; Kelly v. Owen, 7 Wall., 496.) Upon the death of her brother, Jacob Schlegel, intestate, in 1866, the premises in question would have descended under our statute to Ludwig Schlegel, the father of Jacob, except for the fact of the alienage of Ludwig, which impeded the descent to him, provided his incapacity was not taken away by section 4 of chapter 115 of the Laws of 1845. The incapacity of Ludwig, the father, to take as the heir of Jacob was not removed by that statute, for the reason that the fourth section only removes the disability of alien heirs in respect of lands of alien residents, and not in respect of land of citizens; and as Jacob, the son, was a citizen at the time of his purchase of the premises in question and when he died, the statute of 1845 does not apply. 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. The language does not admit of the construction that the words "alien resident" include or designate a naturalized citizen. A reference to the twelfth and other sections of the act renders this plain, if any doubt could exist, upon the words of the fourth section alone.
It is justly said that the effect of this construction of the act of 1845 is to discriminate between resident aliens and *Page 178 citizens, either native born or naturalized, to the disadvantage of the latter, by rendering the alien heirs of the former capable of inheriting, while the alien heirs of citizens continue under the disability and incapacity of the common law. But this incongruity cannot change the plain meaning and interpretation of the act, and it has been remedied by the amendment made by chap. 261 of the Laws of 1874.
In Heney v. The Trustees, etc., of the Brooklyn Benev. Soc. (39 N.Y., 333), the question was whether the plaintiffs, who answered the description of heirs at law of Cornelius Heney, a naturalized citizen, who died in 1848 seized of the premises in controversy, were entitled to inherit, being aliens at the time of the descent cast, although subsequently naturalized. It was decided adversely to the plaintiffs. If the construction of the act of 1845 now claimed by the appellant is correct, the plaintiffs in that case were entitled to recover. But this point was not taken by the able counsel who argued that case, and it cannot be assumed that it was overlooked both by counsel and by the court.
We are therefore of the opinion that the premises in question did not descend to Ludwig Schlegel the father, and for the same reasons, that the children of Catharine Gompper, a deceased sister of Jacob Schlegel the intestate, who was an alien, could not inherit from their uncle or through their deceased mother. They were aliens, and are not within the provisions of the statute of 1830, which saves the rights of a person capable of inheriting from being barred of the inheritance by reason of the alienism of any ancestor of such person. (1 R.S., 754, § 22.)
Barbara Eimer, the sister of Jacob Schlegel, was as has been seen, by reason of her citizenship, capable of taking by descent, and was the only person at the time of his decease, of his blood not disabled by reason of alienage from taking the premises in question. If, in order to support her title by descent she is compelled to trace the inheritance through Ludwig Schlegel the common ancestor, who was living at the death of Jacob, this would be an insuperable objection. *Page 179 But it is a well settled principle of the common law, that the descent between brothers or between a brother and sister is immediate, and the alienage of the father does not impede the descent between children. "The father is medium differenssanguinis, but not medium differens hereditatis": (Collingwood v. Pace, 1 Vent., 413; Hobby's Case, Cro. Jac., 539; McGregor v. Comstock, 3 N.Y., 408.) This rule was not changed by the statute of 1786, which enabled the father of a decedent to inherit from him in default of lineal heirs. That statute changed the order of descent; but no father living, or, if living, incapable of taking by reason of alienage, then the brothers and sisters take — not, however, through the father, but immediately from the decedent, as at common law. The brothers and sisters are respectively stocks of descent, and alienism is an impediment only where it comes between the stock of descent and the person claiming to take. And if some of the persons who answer the description of heirs are in capable of taking by reason of alienage, they are disregarded, and the whole title vests in those heirs competent to take, provided they are not compelled to trace the inheritance through an alien: (Jackson v. Green, 7 Wend., 334; Orser v. Hoag, 3 Hill, 79; McLean v. Swanton, 13 N.Y., 535.) That the statute changing the order of descent was not intended to change the rule, that the descent between brothers is immediate, is confirmed by reference to the seventh section of our present statute (1 R.S., 752), which provides that "if there be no father or mother capable ofinheriting the estate, it shall descend, in the cases hereinafter specified, to the collateral relatives of the intestate." The next section then provides for the descent between brothers and sisters, and is a case specified, in the contingency of there being no father or mother capable ofinheriting: (§ 8.) We are satisfied that the change in the order of descent was not intended to incapacitate brothers and sisters from inheriting immediately from each other, where the father and mother are dead, or are incompetent from alienage to take the *Page 180 inheritance. It follows that the title to the premises in question vested in Barbara Eimer upon the death of Jacob Schlegel.
The act of 1874 (chap. 261) could not operate to divest her estate thus acquired. Prior to the passage of that act she had recovered possession of the premises, by judicial proceedings against the person in possession, founding her claim upon her title by descent. That act may perhaps operate as a surrender by the State of its title to lands, acquired by escheat before the passage of the act, in favor of persons who, except for alienage, would have taken them by descent; but it would be contrary to fundamental principle, to hold that the title, which, under the laws of descent existing at the death of Jacob Schlegel, had vested in and became perfect in Barbara Eimer, could be taken away by subsequent legislation removing the disabilities of alienage: (The People v. Conklin, 2 Hill, 67; Heney v. TheTrustees of Brooklyn Benev. Soc., 39 N.Y., 333; Westervelt v.Gregg, 12 id., 202; Dash v. Van Kleeck, 7 J.R., 477; Wood v. Oakley, 11 Paige, 400.)
The other questions in the case do not require special notice.
We think the judgment is right, and that it should be affirmed.
All concur.
Judgment affirmed. *Page 181