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to the heir as undevised or passes to the residuary devisee. 58 This is a different construction from that accorded to the historic Mortmain Acts which prohibited only the holding, and not the taking, of lands.59 In this State the restraint goes as well to the taking as to the holding of lands. Besides the general restrictions expressed in this section of this act, both devises and bequests to corporations of this State are now expressly inhibited under certain circumstances by sections 18, 19 and 20 of this act, which will be hereafter considered in the commentary on those sections.
58 Downing v. Marshall, 23 N. Y. at p. 386; Levy v. Levy, 33 id. at p. 124; Chamberlain v. Chamberlain, 43 id. 424; Matter of McGraw, ili id. 66, 94, 108; Riker v. Leo, 115 id. at p. 102; Edson v. Bartow, 10 App. Div. 104, 117. Cf. Kerr v. Dougherty, 79 N. Y. at p. 346; Vail v. Vail, 4 Paige, 328.
59 Shelford on Mortmain, 8; Betts v. Betts, 4 Abb. N. C. 317, 403.
60 Matter of McGraw, II N. Y. 66, 108; King v. Rundle, 15 Barb. at p. 150, cited Fowler's Char. Uses, 81.
§ 13. Devises of real property to aliens. Every devise of any
interest in real property, to a person who, at the time of the death of the testator, shall be an alien, not authorized by statute to hold real estate, shall be void. The interest so devised, shall descend to the heirs of the testator; if there be no such heirs competent to take, it shall pass under his will to the residuary devisees therein named, if any there be, competent to take such interest.
Formerly 2 R. S. 57, § 4:
$ 4. Every devise of any interest in real property, to a person who, at the time of the death of the testator shall be an alien, not authorized by statute to hold real estate, shall be void. The interest só devised, shall descend to the heirs of the testator; if there be no such heirs competent to take, it shall pass under his will to the residuary devisees therein named, if any there be, competent to take such interest.61
Comment. This section applies only when no statute authorizes aliens to take real property. Let us glance then at the law concerning the disabilities of aliens in this State. The disabilities of aliens to take and to hold lands and real property in this State are due to the common law and the authority given it by the State Constitution.62 But this statement is subject to the exception that a devise to an alien was made void by the Revised Statutes. It was not otherwise void. This section of the Decedent Estate Law only repeats the former Revised Statutes.
Removal of Disabilities. As the Legislature has the reserve power to alter the common law, it has, in many instances, removed such disabilities from particular aliens.69 When the Real Property Law of 1896 was enacted it repealed all prior statutes relating to aliens' taking, holding, conveying and transmitting real property. 64
61 Repealed by Decedent Estate Law of 1909. See below, $ 130.
62 Hansard on Aliens, 131 ; 1 Black. Comm. 366; 2 id. 249; 23 Am. Law Rev. 762, 768, 769; 30 id. 241; Ludlam v. Ludlam, 26 N. Y. 356; cf. $ 5, The Real Prop. Law, formerly i R. S. 720, $ 17; Wright v. Sadler, 20 N. Y. 320. The remote origin
of the disabilities of aliens in all systems of law is discussed in Prof. Bernheim's History of the Law of Aliens (N. Y., 1885).
63 See the statutes and cases adjudged, cited pp. 189-197, “History of the Law of Real Property in New York," and the cases cited under $ 13, Real Prop. Law.
Escheat. The right of the State to enforce an escheat, or forfeiture, for alienage came to it as successor to the rights of the English Crown. The common law “escheat," which the State enforces against aliens who hold lands, was not of purely feudal origin; it grew out of national policy.“5 This remote origin of the disabilities of aliens produced the distinction next noticed.
Distinction between the Taking and Holding of Lands. A distinction is always to be made between aliens' capacity to take and their capacity to hold lands.66 An acquisition by an alien through purchase (which includes every mode, except descent, by which property can be acquired €7) was not void by the common law, but only a cause of forfeiture. The estate of an alien acquired by purchase could even be protected by action. The estate vested in him until office found,"o and could be conveyed by him subject to being divested on the recording of the inquisition.” at common law an alien could not take by descent."
64 Chap. 547, Laws of 1896; Haley v. Sheridan, 190 N. Y. 330, 335.
65 Cf. 2 Black. Comm. 249, 252; 3 id. 258; Bernheim, Hist. of the Law of Aliens, 124, 125; 23 Am. Law Rev. 769; 29 id. 386; Chitty, Prerog. of Crown, 215; Goodrich v. Russell, 42 N. Y. 177; Lee, Abstracts of Title, 202.
Craig v. Leslie, 3 Wheat. 563, 588;
69 Nolan Command, Civ. Proc. Rep. 295; Craig v. Leslie, 3 Wheat. 563, 589.
70 Jackson v. Lunn, 3 Johns. Cas. 109; People v. Conklin, 2 Hill, 67; Munro v. Merchant, 28 N. Y. 9; Goodrich Russell, 42 id. 177 ; Wright v. Sadler, 20 id. 320, 328; Wadsworth v. Wadsworth, 12 id. 376; Stamm v. Bostwick, 122 id. 48.
66 Hall v. Hall, 81 N. Y. 130.
67 See Stamm v. Bostwick, 122 N. Y. 48; McCartee v. Orphan Asylum, 9 Cow. 491-495; Daly v. Beer, 32 N. Y. St. Rep. 1064; Callahan v. O'Brien, 72 Hun, 216, 220, for a clear definition of “purchase.”
68 See below, Revisers' note 3, Appendix II ; Mooers v. White, 6 Johns. at p. 366; 2 Black. Comm. 293;
71 Griffeth v. Pritchard, 5 Barn. & Ald. 765, 780; 2 Kent Comm. 61; cf. i R. S. 719, $ 9; $ 7, The Real Prop. Law of 1906, now $ 15.
72 See Fowler's Real Prop. Law (3d ed.) pp. 114, 125, 127.
Devises to Aliens when Void, unless Deposition Filed. The Revised Statutes enlarged the former or common-law rule, and made devises to an alien, living at the time of testator's death void." Their reason for proposing a change in the old law was
explained by the revisers of the Revised Statutes and was wise, as : it tended to prevent useless escheats. This provision was, however, an augmentation, rather than a diminution, of the commonlaw disabilities of aliens, and was soon modified by statute,75 so as to enable a resident alien to devise lands and a male resident alien devisee to take and hold lands on filing a deposition of an intention to become a citizen of the United States.76 This obligation to file a deposition did not apply to alien females.77 The exemption of aliens has now been further enlarged by the act enabling any alien citizen of a State or nation conferring like privileges on citizens of the United States, to take by devise and hold and convey real estate in this State. At present no distinction is in this respect made between a resident, and a nonresident, alien.79
The Act of 1897 now Subdivision 2 of Section 10, Real Property Law. The provisions of chapter 593, Laws of 1897, now repealed, 80 have been transferred to subdivision 2 of section 10 of the Consolidated Real Property Law. Chapter 593, Laws of 1897,81 as re-enacted, operated to give capacity to take, hold and convey real property within this State to a large proportion of the world's population, and consequently essentially altered the law which forbade aliens from taking and holding real property in this State.
73 2 R. S. 57, § 4, now $ 13, supra; Mick v. Mick, 10 Wend. 379; Wadsworth v. Wadsworth, 12 N. Y. 376; Downing v. Marshall, 23 id. 366, 375; Hall v. Hall, 81 id. 130; Beekman v. Bonsor, 23 id. 298, 316; Van Courtland v. Nevert, 11 N. Y. Supp. 148, 152; McGillis v. McGillis, 154 N. Y. 532, 540.
74 See note 3, Appendix II, infra.
75 Wadsworth v. Wadsworth, 12 N. Y. 376; Marx v. McGlynn, 88 id. 357, 376. 76 Chap.
115, Laws of 1845: amended, chap. 261, Laws of 1874; I R. S. 720, $ 15; Hall v. Hall, 81 N. Y. 130; cf. Marx v. McGlynn, 88 id. 376; chap. 207, Laws of 1893; $ 12, Real Prop. Law; chap. 38, Laws of
1875; Kelly v. Pratt, 41 Misc. 31; Smith v. Reilly, 31 id. 701; Smith v. Smith, 70 App. Div. 286; Haley v. Sheridan, 190 N. Y. 331; and see $ 13, Real Prop. Law.
77 Smith v. Reilly, 31 Misc. 701.
78 Chap. 593, Laws of 1897, now $ 10, Real Prop. Law, chap. 50, Consol. Laws; Fay v. Taylor, 31 Misc. 32; Geofroy v. Riggs, 133 U. S. 258.
79 Chap. 38, Laws of 1875; chap. 593, Laws of 1897, now $ 10, Real Prop. Law; Smith v. Reilly, 31 Misc. 701, 70 App. Div. 286.
80 & 640, chap. 50, Consol. Laws.
81 Became a law May 19, 1897, with the approval of the governor. 85 See Fowler's Real Prop. Law Rep. 469. (3d ed.) P. 115, and consult Van 89 § 30, 34 U. S. Stats. at Large, Dyne, Citizenship of the United 606. .
The effect of this recent act is to make it most clear that all the subjects of Great Britain or most other European States82 have the capacity of citizens in respect of real property within this jurisdiction.83 In some cases treaties had already conferred such rights on foreigners,84 and then this act of 1897, as now re-enacted, was declaratory only. But where a treaty does not confer the right, and a foreign State does permit Americans to take real property within its territory, then its citizens may take and hold in New York under such act alone.
Porto Ricans and Filipinos. At the present time, citizens of the newly annexed insular provinces of Porto Rico and the Philippine Islands occupy a peculiar status. They are neither citizens nor aliens, but are under the protection of the United States 85 But they may be naturalized. They undoubtedly may take by devise under section 10 of the Real Property Law of 1909.
Hawaiians. By act of Congress of April 30, 1900,87 the citizens of the Republic of Hawaii on the 12th day of August, 1898, were made citizens of the United States. Naturalization in Hawaii is controlled by act of Congress of June 29, 1906.88
Subject Populations. The citizens of any country annexed to the United States, as they then owe permanent allegiance to the United States, may become citizens of the United States by naturalization.si
82 See as to France, Geofroy v. States," passim, and Gonzales v. WilRiggs, 133 U. S. 258. See as to liams, Immigration Commissioner, England, Haley v. Sheridan, 190 N. 192 U. S. 1; Richmond v. People of
Porto Rico, 51 Misc. 202. 83 Fay v. Taylor, 31 Misc. 32; 86 § 30, 34 U. S. Stats. at Large, Haley v. Sheridan, 46 id. 506, modified, 107 App. Div. 17; 114 id. 903 ; 31 U. S. Stats. at Large, 141. 190 N. Y. 331.
34 U. S. Stats. at Large, 596; 84 Geofroy v. Riggs, 133 U. S. 258. United States v. Rodiek, 162 Fech