This cause now came before the court on a special verdict,
returned upon the trial of an ejectment for a messuage and lands in
the township of East-Whiteland, in the county of Chester. It was
ably argued on the 27th of April, by Sergeant and Bradford for the
defendants and Lewis and Wilcocks for the plaintiff;
Page 1 U.S.
175, 176
and, the COURT having taken time to consider of their judgment,
it was this day pronounced by the CHIEF JUSTICE.
M'KEAN, C.J. This cause was tried at Nisi Prius in Chester, when
the Jury found a special verdict, which contains the following
statement: That a certain John Hunter, being seized in fee of the
premisses in question, on the 30th of July 1751, made his last will
and testament in writing, duly executed, and, among other things,
devised in the words following: 'I give and bequeath to my eldest
son James when he arrives at the age of twenty one years, all and
singular the messuage, &c. to hold to him, his heirs and
assigns for ever.' 'Item, I give and bequeath unto my youngest son
John, when he arrives to the age of twenty one years, one hundred
acres of land, that I bought of John Chads, known by the name and
called Jehu's Hundred, and the house and lot of seven acres of
land, lying on the south west side of the Connestogoe road near the
Whitehorse sign; to hold to him, his heirs and signs for ever.'
That the estate devised to the youngest son John is the one in
question. That afterwards he devises 'to his wife Anne the use and
profits of all his said lands and tenements, for the maintenance
and education of his children, until his said sons should attain to
their several ages aforesaid successively.' That the Testator died
seized thereof, leaving James, his eldest son, and John, Margaret,
Hannah, Elizabeth, Anne and Mary his children, and also Martha, who
intermarried with John Rattew, one of the Defendants. That the
other Defendant intermarried with the daughter Anne. That John, the
devisee, died in the year 1769, under age, intestate, unmarried,
and without issue, living his mother, his brother James and all his
sisters. That the lessor of the plaintiff has the estate that was
in James, who was found to be the heir at law of John. But whether,
upon the whole matter, the defendants be guilty of the trespass and
ejectment, the jurors know not, & c. in common form. The
questions that arise upon this special verdict, are two 1st.
Whether the estate vested immediately in John, or remained in
contingency 'till he came of age? And, if it be a vested devise,
2dly. Whether the lands in dispute went to James, his eldest
brother, as his heir at common law, or were subject to
disbribution, under the Act of Assembly, amongst his brothers and
sisters, as he died intestate, under age, unmarried, and without
issue? To prove, that it was a contingent and lapsed devise to
John, the counsel for the defendants cited 3 Bacon's Abr. 478. I
Burr. 227. and 2 Salk. 415. and insisted, that where the time is
annexed to the substance of the gift, and not to the possession,
there it is a lapsed devise, by the devisee's not living until the
time specified. And, to show, that if the estate vested immediately
in John by the devise, upon the death of his father, yet it
descended and was to be distributed equally among his surviving
brother and sisters, they produced the 'Supplement to an Act of
Assembly, intitled, 'An Act for the better settling intestates
estates,' passed the 23d of March, 1764, in page 307 of the first
volume of Pennsylvania Laws: And
Page 1 U.S.
175, 177
also cited a case, determined at Nisi Prius in Bucks country, by
Judges Lawrence and Willing, in 1773, in an ejectment by Joseph
Heifter's Lessee versus Jacob Lambert; wherein this point was ably
argued and adjudged for the party claiming distribution.* For the
Plaintiff, it was insisted, that this was a vested devise, and in
support 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. 228. And that the
cases mentioned on the other side were of lapsed legacies, and not
devises. And on the 2d question, they urged, that the original Act
of Assembly, as well as the supplement, must be taken into
consideration, and then it will appear, that the supplement only
related to such lands as should come to a child from an intestate
father or mother by descent, and not to those he should acquire by
purchase, as in the present case, by the will of the father. And
that this case 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 shall die in their minority and intestate, but not
otherwise &c.' for the mother survived the son John the
devisee. It was further said, in answer to the case cited to have
been determined at Nisi Prius in Bucks, that the two Judges did not
pretend to be skilled in the law, and that they were obliged to
give their judgment on a sudden and without deliberation, and that
therefore it ought to have little or no weight. THE COURT have
detained this action under advisement until now, and with respect
to the first question, whether the devise to John is a vested, or
contingent and lapsed devise? they are clear, that to effectuate
the intention of the Devisor, it must be construed a vested devise.
The absolute property is given to John when he should arrive at
age, and the use and profits in the mean time to his mother, for
the maintenance and education of all the children. This last devise
is a particular interest, and no more than a chattle interest. The
son John was the principal object of the testator's bounty, and if
he had married, and died before 21 years of age, leaving children,
he certainly meant not that this estate should go from them. This,
therefore, was an immediate gift to John, though he was not to have
the possession until he came of age. All the cases support this
judgment. Legacies are governed by the rules of the civil and
ecclesiastical Courts; Devises by the intention of the testator.
The 2d question is, Whether by the intestate laws, of this State,
the lands in dispute belonged to the eldest brother James Hunter,
or to all the sisters and him equally, upon the death of John
intestate, under age, unmarried, and without issue? I will make an
observation or two, previously to my delivering the particular
opinion of the Court on this point.
Page 1 U.S.
175, 178
1. Where the intention of the Legislature, or the Law is
doubtful, and not clear, the Judges ought to interpret the law to
be, what is most consonant to equity, and least inconvenient.
Vaugh. 38. 285. 2. A Court is not bound to give the like judgment,
which had been given by a former Court, unless they are of opinion
that the first judgment was according to law; for any Court may
err; and if a Judge conceives, that a judgment given by a former
Court is erroneous, he ought not in conscience to give the like
judgment, he being sworn to judge according to law. Acting
otherwise would have this consequence; because one man has been
wronged by a judicial determination, therefore every man, having a
like cause, ought to be wronged also. Vaugh. 383. We will now have
recourse to the supplementary Act of Assembly, I State Laws 397,
and consider the words and the spirit of it. In the case before the
Court, John Hunter, the devisee, died intestate, under age,
unmarried and without issue, after the death of his father, his
mother surviving him. The words of the Act are, after the death of
any father and mother, so that he was not within the words;' but I
am of opinion, that the word and, in this place, must be construed
or; as in the very next sentence the mother is given an equal share
of the personal estate of such intestate child, which came from the
father, with the brothers and sisters of such child; which shews,
the Legislature did not mean that the estate should not be
distributed, unless both parents were dead. The clause, respecting
the real estate of an infant intestate, does not take notice or
distinguish, whether it was to come from the father, or mother, by
descent or purchase, or how it was to be acquired, or from whom;
but says, generally, that all his lands &c. shall be divided
&c. And, it is remarkable, that the personal estate of such an
intestate is to go in the same manner with the real estate: But in
the following sentence there is an express provision for the mother
out of that part of the personal estate, to which the intestate
shall be intitled under such father; which shows, manifestly, that
the mother was not to have any share of any personal estate that
should be acquired by such child, in any other manner than from the
father; and perhaps they meant in both cases an intestate father;
but this is by no means clear; it is very doubtful from the
disposition of the personal estate, that was acquired differently;
and our constitution and laws favor equality and distribution of
estates. This Act of Assembly has been made upwards of twenty years
ago, and the question upon it now before the Court has received at
least one judicial determination thirteen years ago, that the real
estate, in such a case, should be distributed among the intestate's
brothers and sisters equally. When there has been a solemn
determination before two Judges of the Supreme Court after debate,
and an acquiescence under it, there ought always to be great
consideration paid to it, that the law may be certain. Upon the
best information we can obtain from the gentlemen of the law in
different parts of the
Page 1 U.S.
175, 179
State, we find that estates have been distributed agreeably to
this determination; And as this construction of the Act has been so
long accepted and received as a rule of property, though some may
not be satisfied in their private judgment, were the matter to be
newly resolved, it is but reasonable we should acquience and
determine the same way in so doubtful a case, to prevent greater
mischiefs which may arise by shaking a number of estates, and from
the uncertainty of the law.
Let judgment be entered for the Defendants.
Footnotes
[
Footnote *] See Ant. 50.
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