#### Mary Fay, Plaintiff, *v.*Winifred Taylor et al., Defendants.

(Supreme Court, Albany Special Term,

March, 1900.)

1. Alien —Proof, prima facie, of naturalization.

Proof that a person came in 1865 from Ireland to the State of New York, lived there until his death in 1899, participated in State and national elections, and held a liquor tax certificate when he died, is *prima facie*sufficient to show that he was a citizen when his wife died in December, 1898, and hence that he could take land from her by devise.

8. Same — Law of England — L. 1897, ch. 593.

In view of the fact that the law of England (33 Viet., ch. 14, p. 166) permits aliens to take real property in the same manner as a natural-*33born British subject, the person in question, if regarded as an alien, would be entitled to take under our State statute (L. 1897, ch. 593) declaring that any citizen of a nation which, by its laws, confers similar privileges upon our citizens may take lands within the State of New York in the same manner and with like effect as if such person were, at the time, a citizen of the United States.

3. Power, of sale — When merged in fee.

Where a will devises real property in fee to one as sole beneficiary, and also appoints him sole executor and gives him a power of sale, the power merges in the fee, and hence an administratrix with the will annexed of the devisor, appointed after the death of the sole beneficiary, takes no power of sale and is not entitled to hold the real property under the power.

Action for partition.

Frost, Daring & Warner, for plaintiff.

J. M. Townsend, for defendants John Taylor and Josephine. Carrol], and as guardian *ad litem*for Catherine J. Taylor, infant defendant. ■

Charles H. Mills and Joseph A. Murphy, for Margaret Carroll, Sarah Carroll Cramer and Daniel Carroll.

FT. B. Spalding, for John Carroll, and as guardian *ad litem*for Mary Catherine Fay, an infant, and for Catherine F. Davin, as administratrix of Patrick Finn, deceased.

John W. Kenny (Louis M. King, of counsel), for Mary Ward, administratrix, with the will annexed, of Ann Finn.

Chester, J.

This action is brought for the purpose of obtaining a partition of the real property of which it is claimed Patrick Finn died seized. He received such title as he had to the property in question under the will of his wife, Ann Finn, and died intestate. It is urged in defense that he was an alien and, therefore, could not take or hold land by devise, and for that reason that the land in question belongs to the heirs of Ann Finn, instead of to those of Patrick Finn.

*34It appears that Patrick Finn came from Ireland to this country in 1865, and lived in West Troy from that time down to the time of his death, in February, 1899. It also appears that he participated ,in national and State elections here; that for many years-he carried on a grocery and saloon business in West Troy, and that at the time of his death he was the holder of a liquor tax certificate, which, under the law, can only be issued to a citizen. These facts are sufficient, in my opinion, to justify a finding that he was a citizen at the time of the death of his 'wife, in December, 1898, leaving the will containing the devise to him of this land. It is true that there was no direct proof of his naturalization, and that the burden was on the plaintiff to show that he was a citizen, but when the facts above recited were shown by the plaintiff they were amply sufficient to create the presumption and to show *prima facie*that he was a citizen and had been, in fact, naturalized. People v. Pease, 27 N. Y. 45. FTo proof was given to rebut this presumption. I, therefore, have no hesitation in finding upon this, testimony the fact of citizenship.

However, if there had been no proof upon which the court could base a finding of citizenship it would not change the result in this case under a recent statute in this State, when taken in connection with the English statute upon the subject.

Our statute provides that “ Any citizen of a state or nation which, by its laws, confers similar privileges on citizens of the United States, may take, acquire, hold and convey lands or real estate within this state, in the same manner and with like effect as if such person were, at the time, a citizen of the United States". Chap. 593, Laws of 1897.

By reference to the English statute, enacted in 1870, it will be seen that England does confer similar privileges upon our citizens. The English statute provides that “ Real and personal property of every description may be taken, acquired, held and disposed of by an alien in the same manner in all respects as by a natural-born British subject; and a title to real and personal property of every description may be derived through, from or in succession to an alien, in the same manner in all respects as through, from or in succession to a natural-born British subject.” 33 Vict., chap. 14, p. 166.

It is clear, therefore, that whether Patrick Finn was a citizen or an alien he was capable of taking and holding lands devised to.' *35him by his wife, and upon his death, intestate, his heirs-at-law became tenants in common thereof, and that the plaintiff, being one of them, is entitled to maintain this action.

It is urged by the defendant Ward, who is the administratrix, with the will annexed, under the will of Ann Einn, that she is entitled to hold the lands in question under a power of sale given to the executor under that will. The will devised the real property to Patrick Finn, absolutely and in fee, and under it he was appointed executor and empowered to sell and convey the real estate. The claim made under this power of sale has no force, because here was a devise of the fee to the same person to whom the power of sale was given, and no other person was interested in the execution of the power. The power was, therefore, merged in the fee and was inoperative and cannot he held to cut down or affect the fee. Jennings v. Conboy, 73 N. Y. 230.

Findings in harmony herewith and the usual interlocutory judgment directing a sale and division of the proceeds among the heirs-at-law of Patrick Finn, in accordance with their respective interests, may he prepared and submitted to me for settlement, on two days’ notice. The question of costs will be determined upon the application for final judgment.

Ordered accordingly.