Wainwright v. Low

• Decision Date: 19 April 1892
• Citation: 132 N.Y. 313,30 N.E. 747
• Parties: WAINWRIGHT v. LOW et al.
• Court: New York Court of Appeals Court of Appeals

132 N.Y. 313

30 N.E. 747

WAINWRIGHT

v.LOW et al.

Court of Appeals of New York, Second Division.

April 19, 1892.

Appeal from supreme court, general term, second department.

Ejectment by Charlotte Wainwright against William G. Low and the Sailors' Coffee House Company, Limited Plaintiff obtained judgment, which was affirmed by the general term. Defendants appeal. Affirmed.

William G. low for appellants.

William G. Low, for appellants.

S. R. Ten Eyck, for respondent.

The other facts fully appear in the following statement by BRADLEY, J.:

The action is ejectment, brought to recover certain premises situated in the city of Brooklyn. They were conveyed to Sarah Ann Wood in May, 1846. She was then the widow of one Wood, who died in or about the year 1836. She married George C. Ackley, July 8, 1846; and shortly before, and in contemplation of, such marriage, she entered into an antenuptial trust deed, in which Ackley and Edward F. Sanderson joined, whereby in terms the premises were conveyed to Sanderson in trust to receive, take, and hold the rents, issues, and profits, and to pay the same, or any portion thereof, to her, or to such person or persons as she should require or direct, for her sole and separate use, or, at her election, to suffer and permit her to take, hold, receive, and use such real estate for her own separate use and benefit, and upon her decease to convey the premises to such person or persons, and for such uses and purposes, as she ‘by deed of appointment or instrument in the nature of a last will and testament, under hand and seal, duly made and executed in the presence of two or more witnesses,’ should ‘order, direct, or appoint.’ Mrs. Ackley continued in the possession of the premises, and she and her husband (Ackley) resided there, until her death, in 1871; and Ackley continued to reside there until his death, in August, 1876. After her death a deed bearing date July 8, 1847, having her name subscribed to it, but without any attesting witness or certificate of acknowledgment, was found in her bureau drawer, by the terms of which instrument, after reciting something of the antenuptial deed before mentioned, she authorized and directed Edward F. Sanderson to convey the premises to George G. Ackley. The referee found that Mrs. Ackley signed her name to this deed of appointment, but that she did not do so with the intent to execute and give legal effect to it, and she did not during her life deliver such instrument to Ackley or Sanderson, or to any other person, but that she retained such paper in her possession to the time of her death. Sanderson died in 1866. In April, 1876, the legislature passed ‘An act to release the right, title, and interest of the people of the state of New York to George G. Ackley, husband of Sarah Ann Ackley, deceased, in certain real estate situate in the city of Brooklyn, and also in the town of Flatbush, in the county of Kings and state of New York.’ The land in question was included in that mentioned in the act; and, by the second section, it was provided that ‘nothing in this act contained shall be so construed as to affect the right in said real estate of any heir at law.’ In May, 1876, Ackley, by his petition to the supreme court, sought the appointment of a trustee in place of Sanderson, deceased, and direction to him to convey the premises to the petitioner; and such proceedings were thereupon had that David Barnett was appointed such trustee, and directed to make such conveyance. The direction was executed; and in July, 1876, Ackley and his wife, Margaret Ackley, conveyed the premises to one Hunting, who immediately reconveyed them to Mrs. Ackley. She conveyed to one Sayres in February, 1882, and he reconveyed to her in April, 1885. In April, 1885, she conveyed to defendant Low, under whom the other defendant occupied the premises. Mrs. Sarah Ann Ackley died intestate in 1871. The plaintiff, her sister and her only heir at law, was born in England, and has never resided in or become a citizen of the United States, but is a subject of the crown of Great Britain. The intestate was also a native of England. Her first husband, Wood, was at the time of their marriage a citizen of the United States. The referee directed judgment for the plaintiff.

BRADLEY, J., ( after stating the facts.)

The plaintiff's right to recover is dependent upon her having the legal title to the land in question. Prior to her marriage to Wood, Sarah Ann was an alien, but by her marriage to Wood, who was a citizen, she became a naturalized citizen of the United States. Luhrs v. Eimer, 80 N. Y. 171. At the time of her death, in 1871, her sister, the plaintiff, her only heir at law, being an alien, was incapable of inheriting the land, (Laws 1845, c. 115;) and assuming that Mrs. Ackley, in her life-time, made no provision for the disposition of the property, it escheated to the state. The plaintiff had no support for her claim to the premises prior to the passage of the act of 1874, c. 261, so amending section 4 of chapter 115, Laws 1845, as to provide that ‘if any alien resident of this state, or any naturalized or native citizen of the United States, who has purchased and taken, or hereafter shall purchase and take, a conveyance of real estate within this state, has died, or shall hereafter die, leaving persons who, according to the statutes of this state, would answer the description of heirs of such deceased person, such persons, whether they are citizens or aliens, are hereby declared and made capable of taking and holding, and may take and hold, as heirs of such deceased person, as if they were citizens of the United States, the lands and real estate owned and held by such deceased alien or citized at the time of his decease.’ This statute, as well as Laws 1875, c. 38, by its terms, includes within its effect the heirs of those who had died before as well as after its passage, and without distinction between citizens and aliens, otherwise than in relation to alien males of full age, who are required to make and file in the office of the secretary of state the deposition or affirmation required by 1 Rev. St. p. 720, § 15. And although the land had escheated to the state when the act of 1874 was passed, the legislative purpose is, by its provisions, quite apparent,-to surrender the title to lands taken by escheat, and of...