McCarty v. Deming

Ingalls, J. The evidence fails to establish the fact that Washington Hurray was ever a citizen of the United States. He pretends to no recollection of ever having resided there, but, as his examination shows, relied exclusively upon the representations made to him by his parents that he was born in the town of Argyle, Washington county, New York. Such declarations are incompetent as evidence to establish the place of birth of a party. This principle seems well established by authority. (Jackson v. Etz, 5 Cow., 314, 320; The King v. The Inhabitants of Erith, 8 East, 539, 542; Mima Queen v. Hepburn, 7 Cranch, 291; Cow. & Hill’s Notes to Phill. Ev., vol. 1, p. 559, note 432.) It follows, therefore, that neither himself nor his grantor Deming have established any title to or interest in said farm, based upon the fact that Washington [442] Murray was a citizen of the United States. It is insisted by the defendants that the provision contained in the will, and to which we have referred, by which the executors were authorized to sell the land in question, constitutes an equitable conversion of such land into personal property; and, therefore, the executors should sell the farm and distribute the avails thereof as personal property, thereby enabling the relatives of the testator who are aliens to participate in such distribution. I am convinced that this proposition cannot be sustained. The testator, by his.will, does not absolutely require the executors to sell the real estate. The language employed is as follows: “ With full power to sell all my real estate and convey the same.” The executors are not required, in any event, to sell the land, but an authority, coupled with a discretion, is conferred upon them. Such direction, construed in the light of the other facts and circumstances of this case, does not seem to be sufficient to constitute a conversion of the land in question into personal property. In White et al. v. Howard, recently decided by the Court of Appeals, and not yet reported, Judge Grover remarks: “To constitute a conversion of real into personal, in the absence of an absolute sale, it must be made the d%ity of, and obligatory upon, the trustees to sell it in any event. Such conversion rests upon the principle that equity considers that.as done which ought to have been done. A mere discretionary power of selling produces no such result.” It is apparent from the will, and all the facts proper to be considered in connection therewith, that the testator intended to authorize the sale of the land in question, by the executors, for the purpose of satisfying» those bequests which the court have declared void; and, hence, the purpose which the testator designed to accomplish by such sale has wholly failed, and the necessity therefor ceased. It would seem to be an idle ceremony for the executors to sell the farm in question, for the purpose merely of handing over to the plaintiff the proceeds thereof, which could not be changed in its character by such sale, or include other parties in the distribution. Undei [443] such circumstances, equity would not require the executors to make such sale; and we therefore conclude that the defendants have failed to establish an equitable conversion of the land in question into personal property for any purpose whatever. (See, also, Bogert v. Hertell, 4 Hill, 492.) We deem the views herein expressed entirely consistent with the principle decided in Kinnier v. Rogers (42 N. Y., 531). In that case there was a sale by the executors, under the power contained in the will, to carry out the purposes of the testator; and a controversy arose between the executors and the purchaser, and the question involved was, whether, under the circumstances of that case, a title would be acquired by such purchaser. The facts of this case are essentially different from those in the case referred to; and the questions of law which are controlling here are also different. I do not think the defendants’ case is aided by the statute of 1827, entitled “ An act to enable Robert Orr and others to take, hold and convey real estate.” First, because Thomas Hurray, by remaining unnaturalized for a period of more than six years after the statute referred to took effect, became, by the terms of the statute, excluded from the benefit thereof. The statute contains the following provision: “ And provided, also, that in case either of the persons named in the act shall, after the expiration of six years from the passing of this act, be alive and not naturalized according to the laws of the United States.” Thomas Hurray was alive and not naturalized until December 8th, 1836. Second, when he became, by naturalization, a citizen of the United States, his property was subject to the laws of descent prescribed by the Revised Statutes of this State. (Larreau v. Davignon, 5 Abb. Pr. Rep., 367 [N. S.]) It is quite obvious that, by the statute of 1827, referred to, the legislature intended, under certain restrictions therein specified, to protect the property of the persons named from escheat during a period of six years, within which time they could become naturalized. I conclude that the plaintiff is the owner of, and entitled to the possession of, the land in question. As the executors, and Philander 0. Hitchcock, [444] have been made parties defendant in this action, and have defended, in good faith, under the provisions of the will, they should not be charged with costs.