#### Henry J. Smith, Plaintiff, *v.*Mary R. Reilly et al., Defendants.

*(Supreme*Court, St. Lawrence Special Term,

June, 1900.)

Alien — May take by devise and his alien daughter may take under him, although he had not declared his intention to become a citizen.

A nonresident alien may take a devise of real property situate in the State of New York and hold it even as against the State, providing he flies a declaration of his intention to become a citizen.

Where he dies intestate three months after the testator, before the will of the latter has been proved, and without having declared' his intention to become a citizen, his only daughter and heir, although herself a nonresident alien, will take a fee, as no condition subsequent looking to naturalization is imposed upon a female alien in such a case.

Action for the construction of a will.

J. E. Brown, for plaintiff.

L. P. Hale, for defendant Reilly.

Russell, J.

Owen Smith, a citizen of this State, died July 29, 1892, devising his real property in third parts to Henry Brogan, Patrick Brogan and Thomas Smith, after the life estate of the widow. The plaintiff is the only son of testator and was excluded from any part of the estate. Thomas Smith died October, 1892, a resident of Ireland and an alien. The defendant, Mary R. Reilly, is the only child of Thomas Smith and is also an alien resident of Ireland. The plaintiff seeks a construction of the- will declaring him the owner of the Smith third on the ground that the devise is void as being made to an alien, and that this third fell into intestacy.

It seems anomalous to construe a will at the request of an heir claiming in hostility to it (Chipman v. Montgomery, 63 N. Y. 221); but no plea is urged in this behalf by the defense, and Mary R. Reilly claims an adjudication that this third belongs to her by the devise, and her succession to her father, Thomas Smith.

*702The provision of the Revised Statutes (2 R. S. 57, § 4), declaring a devise to an alien void, and casting descent upon the heir, has been greatly changed by Laws of 1845, chapter 15, section 4, and chapter 38, Laws of 1875. 3 R. S. (9th ed.), 2073, 2074. Aliens are'declared capable of taking as devisees, but, if males and of full age, shall not hold as against the State unless they file the declaration of intention to become citizens. Ho distinction is made by the latter statute between resident and nonresident aliens. Each may become children of the soil, as well as by adoption, and there is no reason to favor the resident who is indifferent to the blessings of American citizenship till spurred by pecuniary interest. The devisee, therefore, took title as against all but the State, and even against it when he filed his declaration. Ho person can question his right. Maynard v. Maynard, 36 Hun, 227; People v. Conklin, 2 Hill, 67, 71, 74; Stamm v. Bostwick, 40 Hun, 35; 122 N. Y. 48; Wainwright v. Low, 132 id. 313, 317, 321.

But here the State even cannot assert title. The devisee, Thomas Smith, died in three months from the death of the testator, and before the will was probatéd. He had certainly a reasonable time to become a resident and file his declaration. The rigor of a stern logical rule may not be applied to this death to determine the title lost forever, and, as an event occurred which made it impossible for Thomas Smith to enjoy the benefits of citizenship, the law will not add to the disaster of death the punishment of forfeiture in order to grasp from the innocent survivor her little patrimony.

The daughter took from the deceased father the title he had, subject to the performance of any condition imposed. As a female she is not required to perform any condition subsequent looking to naturalization. Her title is now fixed and perfect.

The complaint must be dismissed, with costs to defendant Reilly against plaintiff.

Complaint dismissed, with costs to defendant Reilly.