Hanafin v. Mccarthy

• Decision Date: 03 February 1948
• Citation: Hanafin v. Mccarthy, 95 N.H. 36, 57 A.2d 148 (N.H. 1948)
• Parties: HANAFIN et al. v. McCARTHY et al.
• Court: New Hampshire Supreme Court

57 A.2d 148

HANAFIN et al.

v.McCARTHY et al.

Supreme Court of New Hampshire.

Feb. 3, 1948.

Reserved and transferred from Superior Court, Rockingham County; Goodnow, Chief Justice.

Proceeding on the petition of one Hanafin and others against one McCarthy and others for partition of certain realty inherited by the parties as the heirs and next of kin of Bridget O'Leary, deceased.Defendants moved to dismiss on the ground that plaintiffs, as nonresident aliens, had no interest in real estate under the laws of inheritance and descent of New Hampshire.The question raised by the pleadings was reserved and transferred to the Supreme Court without ruling.

Case discharged.

Petition for partition brought by two sisters and a brother of Bridget O'Leary, late of Portsmouth, deceased, all of whom are residents of the Free State of Ireland, against three other sisters of the deceased, one of whom is also a resident of the Free State, another a resident of Massachusetts, and the third, the defendant Foley, a resident of Portsmouth, New Hampshire.All are heirs and next of kin of the said Bridget O'Leary, who died intestate owning real estate in Portsmouth.The plaintiffs claim interests in the real estate by inheritance.Each defendant has both answered and moved to dismiss, alleging that the plaintiffs are nonresident aliens and therefore have no interest in the real estate under the laws of inheritance and descent of this state.The question raised by these pleadings was reserved and transferred without ruling by Goodnow, C. J. Varney & Fuller and Robert J. Winton, Jr., all of Portsmouth, for plaintiffs.

Charles J. Griffin, of Portsmouth, for defendants.

DUNCAN, Justice.

At common law, aliens were incapable of taking real estate by descent; but by statute, the right may be conferred.Montgomery v. Dorion, 7 N.H. 475.Our statute provides: ‘An alien resident in this state may take, purchase, hold, convey or devise real estate; and it may descend in the same manner as if he were a citizen.’R.L. c. 259, § 19.Obviously the plaintiffs cannot claim a right to ‘take’ under the first clause of the statute, since they are non-residents.The case is to be distinguished from that of Lumb v. Jenkins, 100 Mass. 527, where no requirement of residence within the state was imposed by the statute under consideration.Phraseology similar to that of the last clause of our statute has been held not to authorize transmission of real estate from one alien to another.Parish v. Ward, 28 Barb., N.Y., 328.And in Donaldson v. State, Ind.Sup., 67 N.E. 1029, it was pointed out that where both ancestor and descendant are aliens, the statute must confer capacity upon the former to transmit by descent, and upon the latter the power to take by descent, before there can be transmission of title from one to the other.See also, 3 C.J.S., Aliens, § 26(b).

Our statute is not capable of construction which would permit a non-resident alien to ‘take * * * real estate.’It does not appear that the decedent was an alien, and we are therefore not called upon to decide whether the provision that real estate held by a resident alien ‘may descend in the same manner as if he were a citizen’ could operate to confer upon a non-resident alien heir the right to inherit from a resident alien, although the doubt that it was intended to do so is manifest.

Since the statute does not permit the plaintiffs to take any interest in the real estate in this jurisdiction, it becomes necessary to consider the effect of the treaty upon which the plaintiffs rely, between the United States and the United Kingdom of Great Britain and Ireland, entered into on March 2, 1899.

The ‘Convention * * * relating to the tenure and disposition of real and personal property,’ concluded on March 2, 1899 between the United States of America and Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, was thereafter duly ratified and made effective.31 Stat.L.1939.Article I of the Convention provides in part as follows: ‘Where, on the death of any person holding real property * * * within the territories of one of the Contracting Parties, such real property would, by the laws of the land, pass to a citizen or subject of the other, were he not disqualified by the laws of the country where such real property is situated, such citizen or subject shall be allowed a term of three years in which to sell the same * * *.’

While by Article IV, provision was made for adhesion to the Convention, upon notice, by colonies and foreign possessions of Her Britannic Majesty, and territories beyond the seas governed by the United States, no serious doubt appears concerning the binding effect of the treaty upon Ireland as a part of the United Kingdom, one of the original contracting parties.40 Geo. 3, c. 67, Art. 6;42 L.R.Stats.L. 648, 654, (1800).See, Bamforth v. Ihmsen, 28 Wyo. 282, 1204 P. 345, 205 P. 1004.As to the parties, the provisions of Article IV of the treaty were plainly inapplicable.

Since the signing of the treaty, the Free State of Ireland, now Eire, has been created out of Ireland, by Articles of Agreement dated December 6, 1921, and given the force of law by act of the Imperial Parliament.12 Geo. 5, c. 4;60 L.R.Stats. 4, (1922).By these Articles, the Irish Free State took the ‘same constitutional status in the Community of Nations known as the British Empire, as the Dominion of Canada,’ and other dominions (Schedule, par. 1), and its position in relation to the Imperial Parliament and Government was established as equivalent to that of Canada.Id., par. 2.In 1922, the Irish Free State(Constitution)Act was adopted, by which the executive authority of the Free State was vested in the King, exercisable by the representative of the Crown.13 Geo. 5, c. 1, FirstSchedule, Art. 51;60 L.R.Stats. 635, 649, (1922).

In neither of these acts was the status of existing treaties expressly adverted to.While in practice since 1922, many treaties binding upon the Irish Free State have been concluded in the name of the Government of Ireland, the practice of His Majesty's serving as contracting party in respect of Ireland still survives.See, 32 Am.Jour.Int.L., 467, 480 et seq.In Murray v. Parkes, [1942]2 K.B. 123, the view was expressed that the status of Ireland as a member of the British Commonwealth of Nations has remained unchanged since the Acts of Parliament...