Statement of case. CHARLOTTE WAINWRIGHT, Respondent, v. WILLIAM G. Low et al., Appellants. Under the provision of the act of 1874 (Chap. 261, Laws of 1874), amending the act of 1845 (Chap. 115, Laws of 1845), in reference to aliens taking and holding lands in this state, which provides that if an alien resident, or a naturalized or native citizen, "has died or shall hereafter die" holding a conveyance of lands in the state, purchased by such person, and “leaving persons who would answer the description of heirs,” such persons, whether citizens or aliens, may take and hold the lands as heirs, etc., the state surrendered its title to lands acquired by escheat previous to the passage of the act, of which it had not before that time assumed in any manner to make disposition, where the person to whose title the state so succeeded, died leaving alien heirs. By an ante-nuptial agreement, S., in contemplation of the marriage, conveyed to a trustee certain lands, the trustee to pay to her the rents and profits, or at her election to permit her to hold and use the lands during her life, and upon her death to convey them as she by deed, appointment or will, “should order, direct or appoint." S. retained possession of the premises until her death. Held, that the ante-nuptial conveyance did not create a trust within the meaning of the Statute of Uses and Trusts (1 R. S. 728, § 55), as the power of the trustee to receive and apply the rents and profits was dependent on the election of S., and she exercised the right reserved by her to herself take and hold the property; the no title vested in the person named as trustee (1 R. S. 727, § 47; Id. 728, § 49; Id. 729, § 58); and that, therefore, the premises were held and owned by S. at her decease. S. died in 1871, intestate and without having executed an appointment or deed as prescribed in the ante-nuptial agreement. She left the plaintiff, an alien, her only heir at law. By an act passed in 1876 (Chap. 184, Laws of 1876), the state released its right and interest in the lands to A., the husband of S., with the proviso, however, that nothing therein contained should "affect the right in said real estate of any heir at law." Before the passage of the act of 1874, no proceeding for escheat had been taken by the state. The trustee having died, upon petition of A. a new trustee was appointed by the court, with directions to convey the premises to A., which was done. In au action of ejectment, defendant claimed title under said conveyance to A. Held, that upon the passage of said act of 1874, the title vested in plaintiff, which title was not affected by the act of 1876; that, therefore, A. acquired and conveyed no title or interest by his deed; and that judgment was properly directed for plaintiff. Statement of case. APPEAL from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made July 18, 1890, which affirmed a judgment in favor of plaintiff entered upon the report of a referee. This was an action of ejectment, brought to recover certain premises situated in the city of Brooklyn. The premises were conveyed to Sarah Ann Wood in May, 1846. She was then the widow of one Wood, who died in or about the year 1836. She married George G. Ackley July 8, 1846. And shortly before and in contemplation of such marriage, she entered into an ante-nuptial trust deed, in which Ackley and Edward F. Sanderson joined, whereby, in terms, the premises were conveyed to Sanderson in trust to receive, take and hold the rents, issues and profits, and to pay the same or any portion thereof to her, or to such person or persons as she should require or direct for her sole and separate use, or at her election to suffer and permit her to take, hold, receive and use such real estate for her own separate use and benefit, and upon her decease to convey the premises to such person or persons, and for such uses and purposes as she "by deed of appointment or instrument in the nature of a last will and testament, under hand and seal duly made and executed in the presence of two or more witnesses," should "order, direct or appoint." Mrs. Ackley continued in the possession of the premises, and she and her husband (Ackley) resided there until her death in 1871, and Ackley continued to reside there until his death in August, 1876. After her death, a deed bearing date July 8, 1847, having her name subscribed to it, but without any attesting witness or certificate of acknowledgment, was found in her bureau drawer, by the terms of which instrument, after reciting something of the ante-nuptial deed before mentioned, she authorized and directed Edward F. Sanderson to convey the premises to George G. Ackley. The referee found that Mrs. Ackley signed her name to this deed of appointment, but that she didn't do so with the intent to execute and give legal effect to it, and she did not during her life deliver such instrument to Statement of case. Ackley or Sanderson, or to any other person; but that she retained such paper in her possession to the time of her death. Sanderson died in 1866. In April, 1876, the legislature passed "An Act to release the right, title and interest of the People of the State of New York to George G. Ackley, husband of Sarah Ann Ackley, deceased, in certain real estate situate in the city of Brooklyn, and also in the town of Flatbush in the county of Kings and state of New York." The land in question was included in that mentioned in the act; and by the second section it was provided that "Nothing in this act contained shall be so construed as to affect the right in said real estate of any heir at law." In May, 1876, Ackley, by his petition to the Supreme Court, sought the appointment of a trustee in place of Sanderson, deceased, and direction to him to convey the premises to the petitioner; and such proceedings were thereupon had that David Barnett was appointed such trustee and directed to make such conveyance. The direction was executed. And in July, 1876, Ackley and his wife Margaret Ackley conveyed the premises to one Hunting, who immediately reconveyed them to Mrs. Ackley. She conveyed to one Sayres in February, 1882, and he reconveyed to her in April, 1885. In April, 1885, she conveyed to defendant Low, under whom the other defendant occupied the premises. Mrs. Sarah Ann Ackley died intestate in 1871. The plaintiff, her sister and her only heir at law, was born in England and has never resided in or become a citizen of the United States, but is a subject of the crown of Great Britain. The intestate was also a native of England. Her first husband, Wood, was, at the time of their marriage, a citizen of the United States. The referee directed judgment for the plaintiff. William G. Low for appellants. The deed of appointment was valid, though not acknowledged. (Strough v. Wilder, 119 N. Y. 530; 86 id. 603, 608; 3 Kern. 509; Richardson v. Pulver, 63 Barb. 71; 4 Kent's Comm. 333; Clark v. Crego, Statement of case. 47 Barb. 600; In re Robinson, 37 N. Y. 261; Milbank v. Crain, 25 How. Pr. 193; In re Waring, 99 N. Y. 114.) Assuming that Mrs. Ackley died without having executed a deed of appointment, the property passed to her heirs, if she had any capable of inheriting. (2 R. S. 729, 748, $$ 60-68, 81, 82, 83; Luhrs v. Eimer, 80 N. Y. 176; McCanghal v. Ryan, 27 Barb. 376; Ettenheimer v. Haffernan, 66 id. 374; Hanenheim v. Lynham, 100 U. S. 483; Laws of 1876, chap. 184.) Lands held in trust, if not devised by cestui que trust, descend to his heirs. (1 R. S. 574; Gerard on Tit. 365.) S. R. Ten Eyck for respondent. The findings of facts made by the referee are conclusive upon this court, for they are all based upon conflicting or undisputed evidence. (Code Civ. Pro. $$ 992, 993, 1337; Halpin v. P. Ins. Co., 118 N. Y. 171; Flack v. Vil. of Green Island, 2 N. E. Rep. 267; Vandervoort v. Gould, 36 N. Y. 639; Wood v. Wood, 83 id. 575.) The trust attempted to be created by the ante-nuptial deed executed by Mrs. Ackley was void, and the title to the premises remained in her notwithstanding its execution. (D. D. Co. v. Stillman, 30 N. Y. 194; In re Livingston, 34 id. 568; Albrecht v. Pell, 11 Hun, 127; Herman v. Roberts, 64 N. Y. 333; Miller v. Wright, 12 Cent. Rep. 212; Nichols v. Walworth, 4 Den. 385; Watkins v. Reynolds, 25 N. E. Rep. 322.) If a valid power in trust was created by the ante-nuptial trust deed executed by Mrs. Ackley, it did not divest her of her title to the premises. The title remained in her subject to the execution of the power. (In re Livingston, 34 N. Y. 568; Allen v. De Witt, 3 id. 278; Barber v. Cary, 1 Kernan, 397; A. F. Ins. Co. v. Bay, 4 N. Y. 9.) The proceedings instituted by George G. Ackley, in the Supreme Court, in May, 1876, by which he obtained a conveyance of the premises, were fraudulently instituted and carried on by him; and the conveyance that he thereby obtained was void, and gave him no title to the premises. (In re Waring, 99 N. Y. 116; Albrecht v. Pell, 11 Hun, 127; Freem. on Judg. §§ 162–201; Campbell v. Hall, 16 N. Y. 575; Sheridan v. Andrews, 49 Opinion of the Court, per BRADLEY, J. id. 483; Zoeller v. Riley, 100 id. 107; Denman v. McGuire, 101 id. 161; N. Bank v. Hubbill, 117 id. 399.) Mrs. Ackley having died intestate seized of the premises, they descended to her heirs, if she left any capable of inheriting them. They escheated to the state, but in 1874 the legislature passed an act which removed the plaintiff's disability and placed her on an equality with citizens in that respect. (Laws of 1874, chap. 261; Luhrs v. Eimer, 86 N. Y. 171; Hall v. Hall, 13 Hun, 306; Brown v. Sprague, 5 Den. 551; Maynard v. Maynard, 36 Hun, 227; White v. City of Brooklyn, 122 N. Y. 53; Branagh v. Smith, 46 Fed. Rep. 517.) BRADLEY, J. The plaintiff's right to recover is dependent upon her having the legal title to the land in question. Prior to her marriage to Wood, Sarah Ann was an alien, but by her marriage to Wood, who was a citizen, she became a naturalized citizen of the United States. (Luhrs v. Eimer, 80 N. Y. 171.) At the time of her death in 1871, her sister, the plaintiff, her only heir at law, being an alien was incapable of inheriting the land. (L. 1845, ch. 115.) And assuming that Mrs. Ackley in her life-time made no provision for the disposition of the property, it escheated to the state. The plaintiff had no support for her claim to the premises prior to the passage of the act of 1874 (Ch. 261), so amending section four of chapter 115, L. 1845, as to provide that "if any alien, resident of this state, or any naturalized or native citizen of the United States, who has purchased and taken, or hereafter shall purchase and take, a conveyance of real estate, within this state, has died, or shall hereafter die, leaving persons who, according to the statutes of this state would answer the description of heirs of such deceased person, such persons so answering the description of heirs of such deceased person, whether they are citizens or aliens, are hereby declared and made capable of taking and holding, and may take and hold as heirs of such deceased person, as if they were citizens of the United States, the lands and real estate owned and held by such deceased |