47

lateral succession, beyond the acts of 1782 and 1786, so as to include both uncles and aunts, and their descendants, it was necessary to provide specifically not only that they, if of the same degree, should inherit equal shares, but that they should hold as tenants in common. The original of this section does not, however, modify one prior section, and where the common law now prevails this section has no application to the succession; 49 so that presumably great aunts (being sisters) would succeed, if at all, as coparceners;50 section 66 of the "Real Property Law," being limited to grants and devises.51

47 1 R. S. 752, §§ 7, 8, 9, 10; id. 753, §§ 11, 12, 13, now §§ 86, 87 and 88, Decedent Estate Law.

48 1 R. S. 753, § 16, now § 92, Decedent Estate Law.

48

§ 95. Alienism of ancestor. A person capable of inheriting under the provisions of this article, shall not be precluded from such inheritance by reason of the alienism of an

ancestor.

Formerly 293, The Real Property Law (chap. 46, General Laws), chap. 547, Laws of 1896:

§ 294. Alienism of ancestor.-A person capable of inheriting under the provisions of this article, shall not be precluded from such inheritance by reason of the alienism of an ancestor.52

§ 294 was formerly 1 Revised Statutes, 754, § 22:

§ 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.53

Comment on Section. The Revised Statutes first provided that no person capable of inheriting should be precluded from such inheritance by reason of the "alienism" of any ancestor.54 The original revisers intended thus to change what they call a harsh rule of existing law.55 The common law had in England been changed in this respect by the act 11 & 12 William III, chapter 6,56 which was not a part of the law of New York, certainly after the general act repealing those English statutes not then re-enacted in a new form as laws of New York.57

Interpretation of this Section. This provision of the Revised Statutes, now here re-enacted, was held strictly prospective in operation; to embrace lineal, as well as collateral ancestors,59 and

52 Repealed by § 130, Decedent Estate Law.

53 Repealed, chap. 547, Laws of 1896.

541 R. S. 754, § 22; § 95, Decedent Estate Law.

55 Note to chap. 2, part 2, R. S.; vide infra, Appendix II.

56 Cf. 25 Geo. II, chap. 40; Hargrave, Notes 8a, Co. Litt.

57 Jackson v. Green, 7 Wend. 333,

339; Levy v. McCartee, 6 Pet. 102, 109, 110; Jackson v. Fitzsimmons, 10 Wend. 9; Banks v. Walker, 3 Barb. Ch. 438, 446.

58 Redpath v. Rich, 3 Sandf. 79; Jackson v. Green, 7 Wend. 333.

59 McCarthy v. Marsh, 5 N. Y. 263; Lynch v. Clarke, 1 Sandf. Ch. 583, 637; Smith v. Reilly, 31 Misc. 701; affd., Smith v. Smith, 70 App. Div. 286.

estates derived ex parte materna as well as those derived ex parte paterna. While this section permitted citizens thereafter to inherit, notwithstanding they deduced title through an alien ancestor, yet it did not so change the course of descents as to enable one not an heir at law to succeed in the place of one living and debarred by alienage, or to permit aliens to inherit otherwise than as provided by law.1

Section Refers to Dead, not Living, Ancestor. This section refers to such alien ancestors as are dead, and not to those who are alive. One cannot inherit in the place of a living person under this section." 63

62

"Ancestor" Embraces Collaterals. The term ancestor," in this section, embraces collaterals, as well as lineals," and "ascendants" are under the statute treated as descendants."

66

9 65

Descent through Illegitimates not Aided by this Section. Where the mother of an illegitimate is an alien and deceased, this section does not aid so-called brothers of such illegitimate to inherit from him, as the common law did not give inheritable blood to illegitimates. The descent between brothers is immediate, and not through the parent.67

60 McLean v. Swanton, 13 N. Y. 535; McCarthy v. Marsh, 5 id. 263; Redpath v. Rich, 3 Sandf. 79; People v. Irvin, 21 Wend. 128; Heeney v. Brooklyn Benevolent Society, 33 Barb. 360, 368; McCormack v. Coddington, 109 App. Div. 741, 184 N. Y. 467.

61 See authorities cited, Fowler's Real Prop. Law (3d ed.), pp. 125, 126; Haley v. Sheridan, 46 Misc. 506, 190 N. Y. 331.

62 People v. Irvin, 21 Wend. 128; Luhrs v. Eimer, 80 N. Y. 171, 179; Renner v. Muller, 44 N. Y. Super. Ct. 535; Lerreau v. Davignon, 5

Abb. Pr. (N. S.) 367, 370; Callahan v. O'Brien, 72 Hun, 216. Cf. Stewart v. Russell, 91 id. 310.

63 McCreery's Lessee v. Somerville, 9 Wheat. 354.

64 Supra, pp. 382, 395, 406; Renner v. Muller, 57 How. Pr. 229, 241; Matter of Reeve, 38 Misc. 409, 412.

65 See chap. 106, Laws of 1904, amdg. 288, The Real Prop. Law, all now $88, Decedent Estate Law.

66 St. John v. Northrup, 23 Barb. 25; and see 8 89, Decedent Estate Law.

67 Supra, p. 388; Renner v. Muller, 57 How. Pr. 229, 241.

Treaties. Section 10, Real Property Law, now enables aliens of a state or nation which confers like privileges on citizens of the United States to take, hold and convey real property in this State in the same manner, and with like effect as if such aliens were citizens.68

68 See Fowler's Real Prop. Law (3d ed.), 106, 114; Fay v. Taylor, 31 Misc. 32.

§ 96. Advancements of real and personal estates.

If a

child of an intestate shall have been advanced by him, by settlement or portion, real or personal property, the value thereof must be reckoned for the purposes of descent and distribution as part of the real and personal property of the intestate descendible to his heirs and to be distributed to his next of kin; and if such advancement be equal to or greater than the amount of the share which such child would be entitled to receive of the estate of the deceased, such child and his descendants shall not share in the estate of the intestate; but if it be less than such share, such child and his descendants shall receive so much, only, of the personal property, and inherit so much only, of the real property, of the intestate, as shall be sufficient to make all the shares of all the children in the whole property, including the advancement, equal. The value of any real or personal property so advanced, shall be deemed to be that, if any, which was acknowledged by the child by an instrument in writing; otherwise it must be estimated according to the worth of the property when given. Maintaining or educating a child, or giving him money without a view to a portion or settlement in life is not an advancement. An estate or interest given by a parent to a descendant by virtue of a beneficial power, or of a power in trust with a right of selection, is an advancement.

Formerly $295, The Real Property Law (chap. 46, General Laws), chap. 547, Laws of 1896:

$ 295. Advancements.- If a child of an intestate shall have been advanced by him, by settlement or portion, real or personal property, the value thereof must be reckoned for the purposes of descent and distribution as part of the real and personal property of the intestate descendible to his heirs and to be distributed to his next of kin; and if such advancement be equal to or greater than the amount of the share which such child would be entitled to receive of the estate of the deceosed,69 such child and his de

69 Spelled

"deceosed" in Session Laws of 1896, p. 622.