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.
[♦]See Ant. 20.
