§ 13.

Tenure of real property.

L. 1909, ch. 52.

Transfer of property by alien.-A woman who came from Ireland to America when an infant, whose father was never naturalized, may legally dispose of her property by deed, England conferring similar privileges on citizens of the United States. Rept. of Atty. Genl. (1908) 526.

Descent to aliens.-There can be no presumption in favor of the right of an alien to take by descent. If the only heir of a citizen is an alien the land will escheat to the people without any inquest of office found. Ettenheimer v. Heffernan (1873), 66 Barb. 374. Under the act of 1802, lands descended to the heirs of aliens although such heirs were aliens; if an alien died without heirs, the lands escheated. Jackson ex dem. Smith v. Adams (1831), 7 Wend. 367.

Real estate of which an intestate died seized descends to resident heirs to the exclusion of alien heirs. A resident heir may inherit, although he is required to trace his right through two nonresident alien ancestors. Callahan v. O'Brien (1893), 72 Hun 216, 25 N. Y. Supp. 410.

The statute gives the right of transmission by descent only to resident aliens and naturalized or native citizens; this right attaches only to land acquired by purchase; the statute contemplates only one step of transmission to alien heirs. Branagh v. Smith (1891), 46 Fed. 517.

Devises to aliens, see People v. Conklin (1841), 2 Hill 67; Parker v. Linden (1889), 113 N. Y. 28, 20 N. E. 858, 861.

Trusts for aliens.-If an alien has no interest in or control over the land itself, but only a right to its proceeds, there can be no forfeiture on the ground of alienage. Ludlow v. Van Ness (1861), 21 N. Y. Super. (8 Bosw.) 178. The fact that a beneficiary under a trust is an alien does not incapacitate him from receiving the income. Marx v. McGlynn (1882), 88 N. Y. 358, 376. A conveyance of land to a citizen as a trustee upon an experss trust to sell and pay the proceeds to an alien, is a valid trust. Anstice v. Brown (1837), 6 Paige 448.

Where an alien for the purpose of evading the statute purchases land and takes a conveyance in the name of a third person, a resulting trust will not arise in favor of the alien. Leggett v. Dubois (1835), 5 Paige 114.

A direction in a will that money be laid out in land to be conveyed to or for the benefit of an alien is unlawful. Beekman v. Bonsor (1861), 23 N. Y. 298, 316, Adverse possession by aliens.-When citizens permit aliens to hold their lands adversely for twenty years they should be barred from recovering them in the same manner that they are when they permit citizens to hold them adversly for a like period. Overing v. Russell (1860), 32 Barb. 263.

Dower. An alien widow of a naturalized citizen of the United States, although she never resided within the United States during the lifetime of her husband, is entitled to dower. Burton v. Burton (1864), 1 Abb. Ct. of App. 271. Forgey v. Sutliff (1825), 5 Cow. 713. Compare Mick v. Mick (1833), 10 Wend. 379.

Alien widow who was an inhabitant of the state at the passage of the act of 1802, enabling aliens to purchase and hold real property, was not entitled to dower in her husband's lands, where said lands were acquired by her husband, and the marriage took place previous to the passage of the act. Priest v. Cummings (1838), 20 Wend. 338, revg. (1837), 16 Wend. 617.

An alien widow of a resident alien who had acquired the right to hold real property under the statute, was held not entitled to dower. Connolly v. Smith (1839), 21 Wend. 59. An alien widow of a natural born or naturalized citizen was held incapable of taking dower under the law as it existed in 1838. Currin v. Finn (1846), 3 Den. 229.

Mortgages on lands escheated.-The state takes title to escheated lands subject to a mortgage. But since the state cannot be sued without its consent its title is no divested by a sale in an action foreclosure. Seitz v. Messerschmitt (1907), 117 App. Div. 401, 102 N. Y. Supp. 732, affd. (1907), 188 N. Y. 587, 81 N. E. 1175.

L. 1909, ch. 52.

Tenure of real property.

§§ 14-16.

Effect of foreclosure.-Where foreign heirs are not made parties in foreclosure the title acquired is not good as against the estate. The interest of such heirs escheats unless they make the declaration required by this section, and the title of the estate is not affected by foreclosure. Lowenfeld v. Ditchett (1906), 114 App. Div. 56, 99 N. Y. Supp. 724.

§ 14. Effect of woman's marriage with alien.-(Repealed by L. 1913, ch. 152.)

A devise to children of a woman who was a citizen of the United States, but married to an alien, is valid. McGillis v. McGillis (1898), 154 N. Y. 532, 49 N. E. 145.

Section cited.-Haley v. Sheridan (1907), 190 N. Y. 331, 83 N. E. 296, affg. (1906), 114 App. Div. 903, 100 N. Y. Supp. 1119.

§ 15. Title through alien.-The right, title or interest in or to real property in this state now held or hereafter acquired by any person entitled to hold the same can not be questioned or impeached by reason of the alienage of any person through whom such title may have been derived. Nothing in this section affects or impairs the right of any heir, devisee, mortgagee, or creditor by judgment or otherwise.

Source.-Former Real Prop. L. (L. 1896, ch. 547) § 7; originally revised from R. S., pt. 2, ch. 1, tit. 1, § 9; L. 1802, ch. 49, § 3; L. 1807, ch. 123, § 2; L. 1845, ch. 115, 9; L. 1857, ch. 576, § 1; L. 1868, ch. 513, § 1; L. 1872, ch. 141; L. 1872, ch. 358; L. 1875, ch. 336; L. 1877, ch. 111.

Consolidators' note.-The section should be made more clearly futuritive in operaation, as was originally intended by the revisers.

Reference.-Alienism of ancestor does not preclude inheritance, Decedent Estate Law, § 95.

At common law alienism was an impediment, to taking lands by descent only when it came between the stock of descent and the person claiming to take; if some of the heirs were incapable of taking by alienage they were disregarded and the whole title vested in the heirs competent to take, provided they were not compelled to trace the inheritance from an alien. Luhrs v. Eimer (1880), 80 N. Y. 171.

Effect of former statute.-The former statute did not enable a person to take an estate by inheritance who deduced title by descent through a living alien relative of the deceased, who would himself inherit the estate were he a citizen. McLean v. Swanton (1856), 13 N. Y. 535. Former statute not to be construed so as to enable a person to deduce through an alien ancestor still living. People v. Irvin (1839), 21 Wend. 128.

Naturalization of husband of nonresident.-Where a citizen of the United States dies intestate in this state seized of lands therein acquired by devise from her mother, leaving as her heirs-at-law an aunt and uncle on her mother's side and three cousins, heirs-at-law of a deceased uncle, the share of the uncle who died a nonresident alien does not descend to his daughter although, by the naturalization of her husband, she had become an American citizen before her father's death, but the title thereto vested at once in the People of the State of New York. Haley v. Sheridan (1905) 46 Misc. 506, 95 N. Y. Supp. 42, mod. (1905) 107 App. Div. 17, 94 N. Y. Supp. 864.

§ 16. Liabilities of alien holders of real property.-Every alien hold

§§ 17, 18.

Tenure of real property.

L. 1909, ch. 52. ing real property in this state is subject to duties, assessments, taxes and burdens as if he were a citizen of the state.

§ 17. Heirs of patriotic Indian.-The heirs of an Indian to whom real property was granted for military services rendered during the war of the Revolution may take and hold such real property by descent as if they were citizens of the state at the time of the death of this ancestors. A conveyance of such real property to a citizen of this state, executed by such Indian or his heirs after March seventh, eighteen hundred and nine, is valid, if executed with the approval of the surveyor-general or state engineer and surveyor indorsed thereupon.

Source.-Former Real Prop. L. (L. 1896, ch. 547) § 8; originally revised from R. S., pt. 2, ch. 1, tit. 1, § 20; L. 1845, ch. 115, § 112.

§ 18. Mines in Saint Lawrence county.-The proprietors of any mines or veins of lead or copper in the county of Saint Lawrence, may demise, lease, or rent the same for a period not to exceed twenty-one years from the date of any such lease, to any foreign individual or company, and such lessee may take, hold, work, use or convey the same during the said term, in the same manner and subject to the same liabilities as if such lessee were a natural born citizen.

Source.-Former Real Prop. L. (L. 1896, ch. 547) § 9; originally revised from R. S., pt. 2, ch. 1, tit. 1, § 13.

See Jackson ex dem. Gillet v. Brown (1818), 15 Johns. 264.

Section 30.

ARTICLE III.

CREATION AND DIVISION OF ESTATES.

Enumeration of estates.

31. Estates in fee simple and fee simple absolute.

32.

33.

34.

Estates tail abolished; remainders thereon.
Freehold; chattels real; chattel interests.

When estate for life of third person is freehold; when chattel real. 35. Estates in possession and expectancy.

40.

Definition of reversion.

When future estates are vested; when contingent.

41. Power of appointment not to prevent vesting.

44.

Remainders on estates for life of third person.

45. When remainder to take effect if estate be for lives of more than two

persons.

46. Contingent remainder on term of years.

47. Estate for life as remainder on term of years.

48. Meaning of heirs and issue in certain remainders.
49.

Limitations of chattels real.

55. When remainder not limited on contingency defeating precedent estate takes effect.

56.

Posthumous children.

57. When expectant estates are defeated.

58. Effect on valid remainders of determination of precedent estate before contingency.

64.

65.

66.

67.

Undisposed profits.

When expectant estates are deemed created.

Estates in severalty, joint tenancy and in common.

When estate in common; when in joint tenancy.

Sale of real property held by tenant for life with contingent remainder

or remainders over to persons whose identity is unknown.

68. Application, how made.

69.

Sale, how conducted.

70. Instruments upon sale or lease.

71. Disposition of proceeds of sale.

72. Release of rents reserved by leases in perpetuity.

§ 30. Enumeration of estates.-Estates in real property are divided into estates of inheritance, estates for life, estates for years, estates at will, and by sufferance.

Source.-L. 1855, ch. 17.

Source.-Former Real Prop. L. (L. 1896, ch. 547) § 20; originally revised from R. S., pt. 2, ch. 1, tit. 2, § 1.

Estates of inheritance include hereditaments; perpetual easement to carry water through a pipe across the lands of another is included in such term. Nellis v. Munson (1888), 108 N. Y. 453, 15 N. E. 739.

Estate for years.—At common law an estate for years was personal estate and by our statute goes to executors and administrators. The seisin of the freehold remains in the lessor and the possession of the lessee is that of the owner of the freehold. But by the statute the lessee takes an interest treated by designation and for some purposes as an estate in land. An action in ejectment may be maintained by the lessee to recover his term. Crooked Lake Nav. Co. v. Keuka Nav. Co. (1885), 37 Hun 9, 14; see also Gardner v. Keteltas (1842), 3 Hill 330, 332; Whitney v. Allaire (1848), 1 N. Y. 311.

Estates for years are denominated estates in lands; nevertheless they go to personal representatives as assets. Despard v. Churchill (1873), 53 N. Y. 192, 199. An estate for years, although denominated an estate in lands, is nevertheless a chattel real and does not fall by descent in the same manner as real property. Bennett v. Crain (1886), 41 Hun 183, 186.

A demise at an annual rent for the term of one year and an indefinite period thereafter, creates an estate for years. Pugsley v. Aikin, 11 N. Y. 494, 498 (1854). An easement in a right way may be the subject of an estate for years. Robert v. Thompson (1896), 16 Misc. 638, 40 N. Y. Supp. 754.

§ 30.

Creation and division of estates.

L. 1909, ch. 52. Estates for long terms of years, as for a hundred years or a thousand years, are of greater value than estates for life and have some of the characteristics of estates by inheritance. Averill v. Taylor (1853), 8 N. Y. 44, 52. A tenant under a lease for a term of 990 years is taxable as the owner of real property. Trustees of Elmira v. Dunn (1856), 22 Barb. 402.

The owner of an estate for years may redeem it from a prior incumbrance. Burr v. Stenton (1871), 43 N. Y. 462, 465.

Estates at will.-A tenant in possession under a void parol lease is a tenant at will, where he paid no rent nor promised to pay any while in possession. Talamo v. Spitzmiller (1890), 120 N. Y. 37, 23 N. E. 980, 8 L. R. A. 221; Unglish v. Marvin (1891), 128 N. Y. 380, 28 N. E. 634. It is otherwise where the tenant remains in possession under a parol lease for a term of years, an annual rental being reserved for a period of more than one year. Coudert v. Cohn (1890), 118 N. Y. 309, 23 N. E. 298, 7 L. R. A. 69.

Where a lease is disaffirmed by the parties after a tenant takes possession, the tenancy becomes one at will. Altschuler v. Lipschitz (1909), 113 N. Y. Supp.

1058.

Where one goes into possession of land under an invalid lease, his tenancy at its inception is a tenancy at will; but, by paying a monthly rent, he then becomes a tenant from month to month. Israelson v. Wollenberg (1909), 63 Misc. 293, 116 N. Y. Supp. 626.

A person, occupying land within the meaning of L. 1855, ch. 427, § 68, requiring the grantee of land under a tax deed from the State Comptroller to serve a written notice on any person occupying the land within two years from the expiration of the time to redeem, is a tenant at will. Matter of Rourke v. Metz (1910), 139 App. Div. 155, 123 N. Y. Supp. 720, affd. (1911), 202 N. Y. 604, 96 N. E. 1129.

An intending purchaser who enters into possession under an invalid contract is merely a tenant at will. Burrows v. Fischer (1911), 71 Misc. 168, 129 N. Y. Supp. 902.

Tenants, under a lease requiring written notice of an intention to renew, who hold over without giving the notice are tenants at will. Oumpaugh v. Engel (1907), 121 App. Div. 9, 105 N. Y. Supp. 510

A person who enters upon land by permission of the owner without any term being prescribed or rent reserved, is a tenant at will. Larned v. Hudson (1875), 60 N. Y. 102; Sarsfield v. Healy (1867), 50 Barb. 245.

A demise to a tenant for and during the will and pleasure of the landlord creates an estate at will. Post v. Post (1852), 14 Barb. 253.

Estates by sufferance.-At common law a tenant who held over after the expiration of his term, became a tenant by sufferance. He had only a naked possession, and no estate which he could transfer or transmit. He stood in no privity to his landlord and was not liable to pay any rent. He was held by the laches of the landlord, who could enter and put an end to the tenancy when he pleased. Smith v. Littlefield (1873), 51 N. Y. 539.

A tenancy at sufferance is not created, by a tenant for life continuing in possession, without the consent of the owner, after the determination of the life estate. Livingston v. Tanner (1856), 14 N. Y. 64. But in Nesbitt v. Thompson (1916), 93 Misc. 251, 157 N. Y. Supp. 166, it was held that where the life tenant of a farm which she leased by a written instrument under seal for five years dies within the term, the tenant if he continue in the use and occupation of the premises without agreement with the remaindermen is a tenant at sufferance. Nesbitt v. Thompson (1916), 93 Misc. 251, 157 N. Y. Supp. 166.

As to what constitutes a tenancy by sufferance, see also Marquart v. La Farge (1856), 12 N. Y. Super. (5 Duer) 559, 565.