In re Estate of Gill

Given, J. I. It will be seen by the foregoing statement that both Mr. and Mrs. Gill were aliens; that Mrs. Gill never resided in the United States, and that Mr. Gill had not resided in this state since 1880, and at the time of his death, in 1887, he was a resident of the state of New Jersey. Code, section 2442, is as follows : “The widow of a non-resident alien shall be entitled to the same rights in the property of her husband as a resident, except as against a purchaser from the decedent.” i Dorat-wia-Sdentnon" alien:” who ia, The first question presented is whether the deceased was a non-resident, within the meaning of this section, appellant’s contention being that “nonresident,” as here used, means non-resident 0f phe United States, while appellees contend that it means a non-resident of this state. No question is made but that it is within the power of the state to declare and regulate the property rights of aliens with respect to property within the state. Our legislation on this subject, like that of many other states, has enlarged the property rights of aliens quite beyond that given them under the common law. The policy of this state, as shown in its constitution and laws, has been to encourage foreigners to become residents of the state, and to aid in its development, and share in its prosperity. Section 22, article 1, Bill.of Rights, provides that “foreigners who are, or may hereafter become, residents of this state, shall enjoy the same rights in respect to the possession, enjoyment and descent of property as native-born citizens.” See, also, chapter 1, tit. 13, Code, secs. 1908, 1909. Section 2440, Code, provides, without qualification as to residence or citizenship, the share of the [299] estate of the deceased husband or wife that shall go to the survivor. Were it not for section 2442, appellant’s rights in the estate of her husband would be unaffected by his residence or citizenship. The evident purpose of section 2442 is to encourage the purchase of lands within the state from non-resident alien owners, and to protect purchasers of such real estate against claims for dower or distributive share therein. Among the reasons for such a provision is the difficulty of knowing the relations of such non-residents. Without such a provision, titles derived from non-resident aliens, in which the husband or wife does not join, would be left in uncertainty for an indefinite period of time. Appellant cites said section 1908, Code, wherein it was provided that “aliens, whether they reside in the United States or any foreign country, may acquire, hold and enjoy property,” etc., and contends that thereby aliens are divided into-two classes, — those residing within, and those residing without, the United States. This is not a classification of aliens, nor a declaration that all aliens may acquire, hold and enjoy property, etc.; and, to render it certain that all aliens are meant, and avoid any questions that might arise because of the restrictions of the common law, it is declared, “whether they reside in the United States or in any foreign country.” If this were a classification of aliens, it is certainly not with reference to the section of the Code under consideration. In view of the language and purpose of section 2442, we are of the opinion that a “non-resident alien,” as therein expressed, means an alien not residing in this state, and that William John Gill, deceased, was such a non-resident alien. 3 _._. ««Npuichaser.” II. Appellant’s next contention is that, though Mr. Gill was a non-resident alien, yet that his mortgagees are not purchasers from him; that the term “purchasers,” in section 2442, is used in the sense of “buyer, or one who has acquired title;” and that these mortgagees acquired no interest or title in the real estate mortgaged, and hence are not purchasers. The law recognizes but two ways [300] of acquiring property, — by descent and by purchase. These mortgagees surely acquired property by their mortgages, and acquired it by purchase. While it may be said that they did not acquire title to the real estate, they certainly acquired an interest in it that they did not theretofore have. It is conceded that under the recording acts they are deemed purchasers. The same reasons for protecting purchasers of unconditional titles from non-resident aliens against claims for dower apply with equal force to mortgagees from such. Our conclusion is that mortgagees of non-resident aliens are purchasers, within the meaning of section 2442, and that these mortgagees are, therefore, entitled to priority over the claim of the appellant. the same III. The views already expressed render it unnec- essary that we notice the questions made as to the' legality of the proceeding had in the circuit court, or the claim of the mortgagees that the debt secured by their mortgages was for money loaned to pay on the purchase price of the property. It only remains to determine whether appellant is entitled to one-third of the entire property, subject to the mortgages, or only to one-third of what is left after the mortgages are satisfied. Regarding these mortgagees as purchasers, the deceased died possessed only of what is left of the property after satisfying the mortgages;. and it is only in one-third of what he possessed that she is entitled to share. We think the decree of the district court is right, and should be Affirmed.