Open main menu

KERLIN'S Leʃʃee verʃus BULL et al.


HIS caufe now came before the court on a fpecial verdict, returned upon the trial of an ejectment for a meffuage and lands in the townfhip of Eaʃt-Whiteland in the country of Cheʃter. It was ably argued on the 27th of April, by Sergeant and Bradƒord for the defendants, and Lewis and Wilcocks for the plaintiff;


and, the court having taken time to confider of their judgments it was this day pronounced by the CHIEF JUSTICE.

M'KEAN C.J.— This caufe was tried at Niʃe Prius in Cheʃter when the Jury found a fpecial verdict, which contains the following ftatement :– That a certain John Hunter, being feized in fee of the premiffes in queftion, on the 30th of July 1751, made his laft will and teftament in writing, duly executed, and, among other things, devifed in the words following: ‘‘ I give and bequeath to my eldeft fon James when he arrives at the age of twenty one years, all and fingular the meffuage, &c. to hold to him, his heirs and affigns for ever.’’ (illegible text)lien, I give and bequeath unto my youngeft fon John, when he arrives to the age of twenty one years, one hundred acres of land, that I bought of John Chad, known by the name and called Jebu's Hundred, and the houfe and lot of feven acres of land lying on the fouth weft fide of the Cunneʃtagne road near the Whitehorʃe fign ; to hold to him, his heirs and a(illegible text) or ever.’’ That the eftate devifed to the youngeft fon John is the one in queftion. That afterwards he devifes ‘‘ to his wife Anne the ufe and profits of all his faid lands and tenements, for the maintenance and education of his children, until his faid fons fhould attain to their feveral ages aforefaid fucceffively.’’ That the Teftator died feized thereof, leaving James, his eldeft fon, and John, Margaret, Hannah Elizabeth, Anne, and Mary his children, and alfo Martha, who intermarried with John Rathew one of the Defendants. That the other Defendant intermarried with the daughter Anne. That John, the devifee, died in the year 1769 under age, inteftate, unmarried, and without iffue, living his mother, his brother James and all his fifters. That all the leffor of the plaintiff has the eftate that was in James, who was found to be the heir at law of John.– But whether, upon the whole matter, the defendants to be guilty of the trefpafs and ejectment, the jurors know not &c. in common form.

The queftions that arife upon this fpecial verdict, are two– 1ft. Whether the eftate vefted immediately in John or remained in contingency ‘till he came of age ?– And, if it be a vefted devife, 2dly. Whether the lands indifpute went to James, his eldeft brother, as his heir at common law, or were fubject to diftribution, under the Act of Affembly, amongft his brothers and fifters, as he died interftate, under age, unmarried, and without iffue ?

To prove, that it was a contingent and lapʃed devife to John, the counfel for the defendants cited 3 Bacon's Abr. 478. 1 Burr. 227. and 2 Salk. 415. and infifted, that where the time is annexed to the ʃubʃtance of the gift, and not to the poʃʃeʃʃion, there it is lapfed devife, by the devifee's not living until the time fpecified.

And, to fhow, that if the eftate vefted immediately in John by the devife, upon the death of his father, yet it defcended and was to be diftributed equally among his furviving brother and fifters, they produced the ‘‘ Supplement to an Act of Affembly, intitled, ‘‘ An Act for the better fettling interftates, ’’ paffed the 23d of March 1764, in page 307 of the firft volume of Pennʃylvania Laws : And


alfo cited a cafe, determined at Niʃe Prius in Bucks country, by Judges Lawrence and Willing, in 1773, in an ejectment by Joʃeph Heiʃter's Leffee verfus Jacob Lamber ; wherein this point was ably argued and adjudged for the party claiming diftribution. [♦]

For the Plaintiff, it was interefted, that this was a vefted devife, and in fupport thereof, they cited 3 Bacon's Abr. 478. 2 Vent. 366. 3 Co. 21. 8 Vin. 370 pl. 13. 373. pl. 12. 16. Gilb. Rep. in Eq. 36, 2 Mod. 289. 2 Freeman 243. 2 Vern. 561 and 1 Burr. 288. And that the cafes mentioned on the other fide were of lapfed legacies, and not deviʃes.

And, on the 2d queftion, they urged, that the original Act of Affembly, as well as the fupplement, muft be taken int confideration, and then it will appear, that the fupplement only related to fuch lands as fhould come to a child from an interʃtate father or mother by defcent, and not to thofe fhould acquire by purchaʃe as in the prefent cafe, by the will of the father. And that this cafe does not come within even the words of the Act, which are, ‘‘ if after the death of any father and mother, any of their children fhall die in their minority and interftate, but not otherwife &c.’’ for the mother ʃurvived the fon John the devifee. It was further faid, in anfwer to the cafe cited to have been determined at Nife Prius in Bucks that the two Judges did not pretend to be fkilled in the law, and that they were obliged to give their judgment on a fudden and without deliberation, and that therefore it ought to have little or no weight.

the court have detained this action under advifement until now, and with refpect to the firft queftion, whether the devife to John is a vefted, or contingent and lapfed devife ? they are clear that to effectuate the intention of the Devifor, it muft be conftrued a veʃted devife.

The abʃolute property is given to John when he fhould arrive at age, and the ufe and profits in the mean time to his mother, for the maintenance and education of all the children. This laft devife is a particular intereft, and no more than a chattle intereft. The fon John was the principal object of the teftator's bounty, and if he had married, and died before 21 years of age, leaving children., he certainly meant not that this eftate fhould go from them. This therefore, was an immediate giƒt to John, though he was not to have the poʃʃeʃʃion until he came of age. All the cafes support this judgment. Legacies are governed by the rules of the civil and ecclefiaftical Courts ; Devifes by the intention of the teftator.

The 2d queftion is, Whether by the inteftate laws of this State, the lands in difpute belonged to the eldeft brother James Hunter, or to all the fifters and him equally, upon the death of John inteftate, under age, unmarried, and without iffue?

I will make an obfervation or two, previoufly to my delivering the particular opinion of the Court on this point.


1. Where the intention of the Legiflature, or the Law is doubtful, and not clear, the Judges ought to interpret the law to be, what is moft confonant to equity and leaft inconvenient. Vaugh. 38.285.

2. A Court is not bound to give the like judgment, which has been given by a former Court, unlefs they are of opinion that the firft judgment was according to law ; for any Court may err ; and if a Judge conceives, that a jugment given by a former Court is erroneous, he ought not in confcience to give the like judgment, be b(illegible text)ng fworn to judge according to law. Acting otherwife would have this confequence ; becaufe one man has been wronged by a judicial determination, therefore every man, having a like caufe, ought to be wronged alfo. Vaugh. 383.

We will now have recourfe to the fupplementary Act of Affembly, 1 State Laws 397, and confider the words and the fpirit of it. In the cafe before the Court, John Hunter, the cevifee, died inteftate, under age, unmarried and wothout iffue, after the death of his father, his mother furviving him. The words of the Act are, after the death of any father and mother, fo that he was not within the words ; but I am of opinion, that the word and, in this place, muft be conftrued or ; as in the very next fentence the mother is given an equal fhare of the perfonal eftate of fuch interfate child, which came from the father, with the brothers and fifters of fuch child ; which fhews, the Legiflature did not mean that the eftate fhould not be diftributed,unlefs both parents were dead. The claufe, refpecting the real eftate of an infant inteftate, does not take notice of diftinguifh whether it was to come from the father, or mother, by deʃdent or purchaʃe or how it was to be acquired, or from whom ; but fays, generally, that all his lands&c. fhall be divided &c. And, it is remarkable that th eperfonal eftate of fuch as inteftate is to go in the fame manner with the real eftate: But in the following fentence there is an exprefs provifion for the mother out of that part of the perfonal eftate, to which the interftate fhall be intitled under ʃuch ƒather ; which fhews, manifeftly, that the mother was not to have any fhare of any perfonal eftate that fhould be acquired by fuch child, in any other manner than from the father ; and perhaps they meant in both cafes an inteftate father, but this is by no means clear ; it is very doubtful from the difpofition of the perfonal eftate, that was acquired differently ; and our contribution and laws favor equality and diftribution of eftates.

This Act of Affembly has been made upwards of twenty years ago, and the queftion upon it now before the Court has received at leaft one judicial determination thirteen years ago, that the real eftate, in fuch a cafe, fhould be diftributed among the interftate's brothers and fifters equally. When there had been a folemn determination before two Judges of the Supreme Court after debate, and an acquifcence under it, there ought always to be a great confideration paid to it, that the (illegible text)may be certain. Upon the beft information we can obtain from the gentlemen of the law in dinerom part of the


State were find that eftates have been diftributed agreeably to this determination. And as this conftruction of the Act has been fo long accepted and received as a rule of property, though fome may not be fatisfied in their private judgment, were the matter to be newly refolved, it is but reafonable we fhould acquiefce and determine the fame way in fo doubtful cafe, to prevent greater mifchiefs which may arife by fhaking a number of eftates, and from the uncertainty of the law.

Let judgment be entered for the Defendants.