Parish v. Ward

By the Court, Hubbard, P. J. The important question in this case is as to the plaintiff’s title to the mine of iron ore upon lot 687, excepted from the operation of the deed from David Parish to the defendant Ward. It was conceded on the argument that the exception was good, not repugnant to the granting clause in the deed, and that this action could have been maintained by David had he been living. The plaintiff deduces his title under the execution of the trust in the will of George Parish, the brother of David, and the uncle of the plaintiff. The defendants’ counsel disputes the title of George, on the ground of the alienage of David. It is insisted that the lands of which David died seised, escheated to the state. This presupposes that he left no heirs or next of kin capable of inheriting. The act of the legislature (Bess. Laws 1807, eh. 21,) enabling David to acquire, hold and alienate real estate in like manner as a natural born citizen, invested, him with inheritable blood, and clothed him with the power of transmitting his estate to his next of kin. (Banks v. Walker, 3 Barb. Ch. R. 445.) Dying intestate, his estate would descend, the same as that of a citizen by birth. His estate would not, therefore, escheat, provided an heir capable of taking by descent could be found. It is further insisted by the defendants’ counsel, that if there was an escheat, the estate of David descended to his father, John Parish, who was living at his decease. The father, of course, could not inherit under the general law of descent, being an alien. If he was possessed of an inheritable quality, it must have been conferred by the act authorizing David to take and-transmit real property. But that act simply empowers the taking and conveying of property by him, in the same manner as a citizen. It does not assume to qualify or change in any respect the general law of descent; [331] or to remove -the barrier of alienism against alien heirs. It may be that if the act had authorized the taking and holding of real estate, by David and his heirs, his father might have inherited on the ground of a presumed intent on the part of the legislature to extend the inheritance to such heirs as an alien was capable of having. Such seems to be the doctrine in cases of patents or special grants, or property acquired by1 an-alien, under a special law authorizing lands to be taken and held by an alien grantee, to himself and his heirs. (Goodell v. Jackson, 20 John. 707. Jackson v. Elz, 5 Cowen, 314. Jackson v. Adams, 7 id. 367.) In such cases it is held that an alien heir may take. Upon this doctrine John Parish would have inherited from David, if this act had vested the estate in the heirs of David; unless it should be held that such inheritance was interrupted by the capability of George Parish, the brother of David, to inherit, under the general law. Whether any such interruption would exist it is not necessary to decide, inasmuch as it must be held that John Parish cannot inherit. John Parish not being competent to take by descent, the next question to be determined is, whether the estate of which David died seised, descended to his brother Greorge. That it did so descend, no doubt can be entertained. The act under which G-eorge was enabled to acquire real estate, (Sess. Laws 1807, p. 282,) expressly authorizes him to take, by purchase or by descent, the same as a natural born citizen. This clothed him with ample inheritable power, and he succeeded to all of' David’s estate. The fact of the alienage of a common father, could not impede the inheritance between brothers. The inheritance between brothers is immediate. (McGregor v. Comstock, 3 Comst. 408,) Greorge does not trace his inheritable line through the father. It has become a maxim of the law that as between brothers, a father, although a medium sanguinis is not a medium Jiereditatis. [332] [Oneida General Term, January 1, 1855. Hubbard, Pratt and Bacon, Justices.] It is unnecessary to have a common ancestor, and hence the alienism of such ancestor is not important. The whole estate having thus legitimately descended to George, it was competent for him under the statute authorizing him to alienate, to make a will. Under the execution of the trust in his will, by Eosseel, the plaintiff derives title to the bed of iron ore in controversy. It was said that the trust created by the will was invalid, because Eichard Parish, the plaintiff’s father, was the sole beneficiary.' In my judgment the trust is valid under the statute authorizing the creation of a power in trust, to sell lands for the benefit of creditors. Eichard was an alien, and could not take by inheritance or devise. He was a creditor of the testator to a large amount, in two bonds. It was the same in effect as though the residuum of the estate of David had been given to some third person, and not to the creditor. The trust being thus valid, the plaintiff acquired a good title by the conveyance from the trustee, Eosseel. He thus became invested with all the rights and title of David, in the ore in question, and could maintain this action, the same as David could if living. Ho question was made upon the argument, as to the capacity of the plaintiff to take under the grant. It follows then that the plaintiff was entitled to recover, and the judgment must therefore be affirmed.