Smith v. Mulligan
New York Supreme Court
Appeal from an order. This was an action for partition, brought by Rose Smith, against Margaret Mulligan and others. The facts are these : .John Mulligan, a citizen of the United States, died intestate, at the city of Brooklyn, December 4, 1868, seized and possessed of certain real .estate in that city.
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Appeal from an order. This was an action for partition, brought by Rose Smith, against Margaret Mulligan and others. The facts are these : .John Mulligan, a citizen of the United States, died intestate, at the city of Brooklyn, December 4, 1868, seized and possessed of certain real .estate in that city. He left surviving him, his sister, Rose Smith, the plaintiff, his widow, Margaret Mulligan, one of the defendants, and several nephews and nieces, the children of deceased brothers and sisters, who were also defendants. All these were citizens and residents of the United States. He also left…
1Opinion of the Court
By the Court.—J. F. Barnard, J.*
The deceased John Mulligan was a citizen, and therefore could hold and transmit property. If an heir capable of taking can be found, the estate will descend to such heir (Parish v. Ward, 28 Barb., 328). .
The fact of the alienage of a common father, will not impede the inheritance between brothers; the inheritance between brothers is immediate (McGregor v. Comstock, 3 N. Y. [3 Comst.], 408).
This doctrine is not questioned in McLean v. Swanston (13 N. Y. [3 Kern.], 535). In that case, the title, to have reached the plaintiff, must have passed through an alien. In…
2Cases cited1 opinion
- Parish v. WardNew York Supreme Court · 1855