The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. XII, Part 57

Author: Hazard, Samuel, 1784-1870
Publication date: 1828
Publisher: Philadelphia : Printed by W.F. Geddes ;
Number of Pages: 438

USA > Pennsylvania > The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. XII > Part 57

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A lot of ground on the northeast corner of Coates and John streets, purchased by the same, November 2, 1831.

A house and lot in South Third street, No. 48, pur- chased by the same, November 4, 1831.

A messuage and lot of ground in Passyunk town- ship, having a front on Schuylkill, purchased by the same, December 1, 1831.

Stores, wharf, and dock, in North Water street, be- VOL. XII. 25

tween Market and Arch streets, late Stiles's estate, pur- chased by the same, December 21, 1 831.

It is agreed that the above action be entered to the above term, as if a Summons in Ejectment had been regularly issued and returned served, and that the description of the property, and the dates at which Stephen Girard acquired the same, may be altered and amended according to the deeds.

Case stated for the opinion of the Court, as upon a special verdict.

Stephen Girard, Esquire, late of the city of Phila- delphia, Banker, died on the 26th day of December, 1831-seized in fee of all and singular the Real Estate set forth in the agreement to enter the above action, purchased by him at the dates mentioned in the said agreement-having first made and executed his last. will and testament, dated the 16th day of February, 1830, and codicils thereto, dated respectively on the 25th day of December, 1830, and the 20th day of June, 1831, duly proved in the Register's office for the City and County of Philadelphia, on the 31st day of De- cember, 1831, [prout will and codicils which are to be considered as part of this case ] and leaving at the time of his death, the following named heirs at law.

a brother of

1 .- Etienne Girard,

the testator of the whole blood.

2 .- Antoinetta Hemphill, wife of John Hemphill, Henrietta Clark, wife of John Y. Clark, and Caroline Haslam, wife of John B. Haslam; the said Antoinetta, and Caroline be- ing the children of John Girard,deceased, a brother of the testator of the whole blood.

3 .- Françoise Fenelon Vidal, the wife of Louis Vidal, the said Françoise

Fenellon being the daughter of Sophia Girard Ca- payron, deceased, a sister of the testator of the whole blood.

The defendants are in possession of all the said Real Estate. The deeds granting the Estate mentioned to the said Stephen Girard, are to be considered as part of this case.

If the Court shall be of opinion that the said Real Estate, or any part thereof, was devised by and passed under the said will and codicils to the defendants, then judgment to be entered for the defendants, for the whole or such part of the said Estate as was devised and passed. If the Court shall be of opinion that the said Real Estate, or any part thereof, was not devised by and did not pass under the said will and codicils, then judgment to be entered for the plaintiffs, for one undivided third part of the Real Estate, in the agree- ment mentioned, or for one undivided third part of so much thereof as was not devised by the said will and codicils, to the defendants.

The cases were argued, and

On the 29th March, 1833, judgments were entered in favour of the plaintiffs in each suit, and the follow- ing opinion of the Court was drawn up by

GIBSON, C. J -In the report of the judges on the statutes, nothing is said about the 32 and 34 Hen. 8. which are therefore to be taken as not in force here; I but whether they were considered as having never been

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GIRARD'S INTESTATE REAL ESTATE.

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so, or,as supplanted by our statute of 1705, can not be positively known. They were most probably thought to be repealed and supplied, as they were entirely with- in the rule laid down by Lord Holt in Blankard v. Gal- dy, 2 Salk. 411, and repeated by the Privy Council, as appears from the relation of the Master of the Rolls in 2 P. Wms. 75; that an emigrant colony carries with it the laws of the parent to an uninhabited country; or even to one acquired by conquest. so far as regards matters in respect to which the existing laws are silent, or en- join what is immoral, or are contrary to the religion of the conqueror. It is plain that a country whose entire population has been displaced to make room for the new comers, is an uninhabited country for the purpose of receiving their laws; and it therefore seems singular that the distinguished judge who ruled Blankard v. Gal- dy, should shortly afterwards have held, in a case which involved the legality of slavery, that the laws of Eng- land did not extend to Virginia, being a conquered country; and the more so as the laws of the aborigines, if they had any, could not be supposed to have provided for the subject. Be that as it may, our courts have al- ways held that the laws which were in force at the foun- dation of the colony, and not positively unsuitable to the condition of the colonists, were brought by them hither; and it can not be thought that laws which enabled them to dispose of real estate, were unsuitable. During the twenty-four years that elapsed between the charter and our statute, they could not have been with- out provision on the subject, and I know of none that was competent to satisfy their necessities but these very statutes; for it will appear in the sequel, that the inter- vening legislation on the subject of wills, had regard to the proof of the instrument and not the power of the testator, with perhaps the single exception of the act to direct " how the estate of any person shall be disposed of at his death," passed the 10th of March. 1683. By that act, which may be seen in the Appendix to Hall and Seller's edition of the laws, page 9, it was provided: " That whatsoever estate any person hath in this pro- vince or territories thereof, at the time of his death, un- less it appear that an equal provision be made else . where, shall be thus disposed of; that is to say, one- third to the wife of the party deceased, one-third to the children equally, and the other third as he pleaseth; and in case his wife be deceased before him, two-thirds shall go to the children equally, and the other third to be disposed of as he shall think fit, his debts being first paid." In the margin we have these observations by Chief Justice Kinsey: " 1. This act seems to restrain the power of devising more than one-third of the lands of which a man died seized. 2. This law, for aught I find to the contrary, continued till the first of the fourth month, 1683, when a law passed authorizing a man to devise all his real estate." .This repealing law I have been unable to find. But it is observable that the act of 1683, included land, if at all, only by force of the word "estate" and not of any more specific term; so that it is by no means clear that the inclination of Judge Kinsey's opinion, for he spoke doubtingly, accorded with the true construction or actual understanding of the times. He could not have known by experience the construction put on the act in practice, for his notes were written probably forty years after the repeal of it; and if he had been a member of the profession during that period, he was not till 1730, an inhabitant of Penn- sylvania Granting his opinion to be that land was in- cluded, it is pretty evident the crown thought other- wise; for judging from the jealousy evinced by it in the case of much less important innovations. It is scarce to be believed, that it would have tolerated for ten years so violent an infraction of the spirit of the charter which required a conformity of the laws to those of the mother country, as a restriction of the dower of devis- Ing to a third of the testator's land, or the dower of his widow to be turned to a fee. But if it were even applicable to land, still it was viewed by the Chief Justice but as | of conveyances at the common law, it is true, the vesting

a restraining statute, not an enabling one; and this plain- ly shows what, in his opinion, was the law before. It was therefore to remove a doubt of the interpretation, or to repeal the law taking the interpretation of the Chief Justice to have been established-in any event to restore the law to its former footing-that the act of which he speaks, was passed in 1693. Of the legisla- tion which took place in relation to proof of the instru- ment, I shall have occasion to speak again. It seems pretty clear, then, that the English statutes of wills were originally in force with us, and not reported as being so still, only because the judges thought that our own statute was designed to supersede them in their whole extent. Judging of the substitute by its provi- sions, it might perhaps as easily have been deemed but ancillary to them as performing the same office in re- gard to them here, by exacting in addition to their re- quirements the observance of particular solemnities as matter of proof, that is performed by statute of frauds in England. But even as an enabling statute,our act of 1705 was not a new law, but an act of legislation on the basis'of an old one, which is therefore to be taken into consideration in the interpretation of inexplicit clauses, because it is reasonable to presume that no departure from the existing law was intended further than is ex- pressed. For this reason it is, perhaps, that the act has always been understood by the profession, in accordance with the British statutes. Had a variance been suspect- ed, it must long ago have been put to the test of judicial decision; but no trace of such suspicion is to be found in our judicial record. It is argued, that whatever the ge- neral rule may be, the clauses in the codicils of this will which require real estate acquired subsequently to pass as if it were then the estate of the testator, make the case an exeption to it; and the question therefore is not one of intention but of power. But even in the case of a general residuary devise, the intention to pass the estate is taken for granted; and what is there in the specific expression of such an intention here, but a greater degree of cer- tainty in respect to what is in other cases taken for granted? Nothing in the books but the dictum in Brett v. Rigden, Plowd. 344, gives color of authority to the A supposed distinction. There it is said to have been de- termined in the 39 H. 6. 18, that if a man devise a cer- tain estate and have nothing in it at the time, but pur- chase it afterwards, it shall pass; because, as it is said, it must be taken that his intent was to purchase it, and were it not to pass, the will would be void. All this was repudiated by Lord Holt in Bunker v. Cook, 11 Mod. 278, as being not even the' dictum. of a judge, but an assertion of counsel and unwarranted by the book cited for it; in which he is supported by Chief Justice Treby in Archer v. Bokenham, 11 Mod. 163. In truth the matter never depended on the actual intent; nor yet, as it was at one time supposed, on the restrictive words of the English statutes, and it is therefore of no import- ance to the question that those statutes were not report- ed as in force here. It is true that in Cutler and Baker's case, Lord Coke laid great stress on those words; but in Bunker v. Cook, or Broncker v. Coke, as it is report- ed in Holt's Rep. 247, it was asserted hy Lord Holt that Chief Justice Bridgeman had differed from Lord Coke in attaching importance to those words, in a case deter- mined in the Common Pleas the 16 Car. 2. and that the judges in the Exchequer Chamber were of the same opinion : this too on the relation of Chief Justice Bridge- man himself. But what puts the matter at rest is, that in this case of Bunker v. Cook, the rule was applied in all its rigor to lands which were devisable, not by force of the statute at all, but by custom; and the judgment was affirmed in the House of Lords. The doctrine was vigorously maintained in that case as well as in Bucken- ham v. Cook (Holt's Rep 248) by Lord Holt; and in Archer v. Bokenham, by Chief Justice Treby; who to- gether rested it on these propositions: That a will is a species of conveyance, not strictly subject to the rules

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GIRARD'S INTESTATE REAL ESTATE.

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of the estate being postponed till the death of the testa- tor; yet operating, as regards his disposing power and capacity, by relation to the making of it, insomuch as to require his power over the estate to be perfect at the time, just as his capacity must be perfect at the time, it being settled that the want of a disposing mind and me. mory at the performance of the act of disposition, is not supplied by the restoration of it before the death, for the same reason that an intervening loss of it will not prejudice a disposition unexceptionable at the time -in other words, that the act of disposition must be complete in every respect at the performance of it: That a testator, like any other granter, can not give what he has not; and that the same principle prevails in conveyances to uses though construed liberally like wills, to favor the intention, as in Yelverton v. Yelver- ton, Cro Eliz. 401, where a father covenanted to stand seized of land which he should purchase: That the form of pleading a devise, the testator always being described as seized at the time of making his will, is strong though not conclusive evidence of the necessity that it shall be so in fact: That the reason why land differs in this re- spect from personal estate, is that the common law has provided in the event of intestacy, a fixed successor to the one and not to the other, even the statute of distri- bution being but a direction to the executor how to ad- minister the assets; by reason of which, and the fluctuat- ing nature of personal estate, which is changing every day, a different rule would require a new will to be made every day: That a subsequent purchase giving the land to the testator, is repugnant to the import of the devise which would give it to the devisee; and therefore not to be intended to have been made in subservience to the object of the will: And finally, that there is no case or authority to warrant the opposite doctrine. To the argument of such men as these, it would be presumptuous in me to attempt an ad- dition, and I therefore refer the student to their reasons as stated in the report. The alleged dependence, then, of the doctrine, on the restrictive words of the British statutes being disposed of, it results that the question stands here exactly as it did in England, unless the spe- cific provisions of our own statute be thought to make a difference.

The clause which has been supposed to make this difference, is in the first section. After requiring proof by two witnesses, and establishing a mode for its authen- tication, it is declared that wills so proved, "shall be good and available in law for the granting, conveying, and assuring, of the lands or hereditaments thereby given or devised, as well as of the goods and chattels thereby bequeathed;" and from the parity of provision thus expressed is inferred an intention to create a parity of operation and effect. That such was not the object, seems manifest from the legislation which preceded it. By the fifteenth law agreed upon in England, it was declared-that "all wills and writings attested by two witnesses, shall be of the same force as to landsas other conveyances, being legally proved within forty days, either within or without the said province." This wa evidently designed to preclude that provision of the sta- tute of frauds which requires three witnesses, and is worthy of special notice beside, not only for treating wills of land as conveyances, but for putting them on the footing, as to proof, of testaments of chattels, which, by the Canon, and consequently by the English law, require but two. Lea v. Libb. 3 Salk. 396. This fun- damental law received a regular statutory form from the first Assembly, convened at Upland in 1682, by whom it was enacted as the forty-fifth section of the Great Law, and in the terms in which it had been expressed in England, with the exception of two immaterial words introduced, the last of them evidently by inadvertence. Chief Justice Kinsey's note in the margin is, "This Act as amended in the fourth of Queen Anne, remains to this day." Prov. Laws, App. 7. Now the fourth of "Queen Anne, which he pronounces but an amendment,

is the very act under consideration; and it seems clear therefore that he considered the act of 1682, as the law of his day, except so far as it was amended by the Act of 1705. His notes were written certainly after 1713, as they contain a reference to acts passed in the close of that year, and probably after 1730, when he removed from New Jersey to Pennsylvania. He was appointed Chief Justice about the year 1743, and died in that office, according to Proud, in 1750. The Act of 1682, however, was amended only as to the time of proof and the manner of authenticating it, the requisition of two witnesses being preserved. But this is not all. An Act had been passed at New Castle in 1700, (Append. to Prov. Laws, 7,) which expressly following the analogy of conveyances as to the effect of the instrument, re- quired no more than legal proof without specifying the number of the witnesses. It therefore had, or might be supposed to have, the effect of putting wills of lands upon a lower footing as to proof than wills of chattels, about which it said nothing, and consequently left them on the footing of the general law. To say the least, it was open to an argument that one witness was sufficient for a will of land as in the case of any other conveyance of land. This Act having been repealed by the Queen in Council, as may be seen in Weis and Miller's edition of the laws, page 18, our present act was passed in the same year, and the requisition of proof by two witnesses restored, with new provisions added as to the mode of authenticating it; and thus the reduction in the quantity of proof made by the Act of 1700, was taken away, and wills of land were again put, as to proof, on the footing of testaments of chattels. It is needless to ask why. It was an express condition of the charter that the laws for the regulation of property should conform, as nearly as might be, to the laws of England, till altered by the provincial legislature; and the same jealousy of innova- tion which prompted the crown to repeal the act for the abolition of survivorship between joint tenants, passed in 1700, as well as the two acts for barring entails by a deed acknowledged and recorded-the one passed in 1705, and the other in 1710, (Hall and Seller's edition of the laws, Append. 18, 19,)-might on a question of further departure from the statute of frauds, induce it to stickle about a witness more or less. The clause in our statute of wills, to which I have particularly advert- ed, seems therefore to have reference to the proof and not the effect of the instrument. The first was all that was in contest between the province and the crown. The fifteenth law agreedupon in England, or rather the Act of 1682, remained in force twenty-three years with- out opposition; and during that time, wills of lands and testaments of chattels stood on the same footing. But no sooner did the act of 1700 reduce the proof of the former, or bring it into doubt, than it was repealed by the Privy Council; and when the present act of 1705 raised it again to the level of the act of 1682, the crown acquiesced. At no time does there appear to have been a disposition to change the effect of a will of lands as understood in England; indeed the very suspicion that such a design was harbored, would have defeated it. On the contrary, the language of all our laws is incom- parably more emphatic than that of any Act of Parlia- ment, to show that a will of lands was esteemed a con- veyance and no more. This sketch of the legislation, which preceded the act of 1705, and which is here given in the order and nearly in the words of a distinguished counsel, to whose research I am indebted for it, seems to put the intention of the legislature beyond the reach of doubt. The magnitude of the interest in contest, amounting as it does in value to more than sixty thou- sand dollars, as well as a respect for the doubt suggest- ed by my brother Huston, has induced me to examine the foundations of this part of our law with peculiar care; and the result is a firm conviction, that the real estate acquired subsequently to the two codicils, did not pass by Mr. Girard's will: consequently the plaintiffs are entitled to the succession under the intestate laws.

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FIRST ANNUAL REPORT OF LAFAYETTE COLLEGE.

[SEPTEMBER

Judgment for the plaintiffs accordingly.

On the 9th April 1833, the Board of Commissioners of the Girard estate, "directed the Treasurer to settle the account of the intestate property, with the next of kin of Mr. Girard, and pay over to them the balance in his hands, on account of that estate. Instructions were also given to the agents to deliver to them possession of said property."

The pamphlet then contains, some "remarks signed 'R.'" which appeared in the American Sentinel of the 9th July 1833, "upon the above decision; also another article in reply to the preceding by 'K,'" which ap- peared in the same paper, on the 22d of July; and "a rejoinder by 'R,'" published on the 25th of July. The object of "R." is to show that by the "doctrine of elec- tion," the legatees could not claim both the intestate es- tate and the legacies, and that if they received the latter, the former belongs to the mayor and aldermen of the ci- ty as residuary legatees; and that the decision of the court only settled the question "whether real estate purchas- ed subsequently to the date of his will by a testator, passed by that instrument;" and it left open all other questions "relative to the title of the heirs to this real estate for future discussion and decision," As our ob- ject is, to preserve a history of this matter, we deem it sufficient merely to refer to those articles if they should be hereafter required. Presuming that if there be any serious determination to try the question, it will be ju- dicially decided, and we shall of course then publish the result.

From the Wheeling Gazette.

BY-GONE DAYS .- "I remember when there was no such thing to be seen as a keel boat plying on the beau- tiful river Ohio; great unwieldy " arks" were used by traders to New Orleans, and for the purpose of convey- ing emigrants on their pilgrimage to Kentucky. In 1793, when James McLuny of Washington, Pa. and John Halsted from near West Middletown, arrived at our landing in a Barge from Orleans, it was thought by our citizens to be one of the greatest exploits ever per- formed; it certainly was so, as it respected the naviga- tion of the two great rivers.

I remember when there was no glass of any descrip- tion made west of the mountains. Col. James O'Har- ra was the first to establish a green glass manufactory at Pittsburg. It is not forty years since we got all our paper from the east side of the Allegheny; Jackson and Sharpless were the first to commence this branch of business near Brownsville."

APPENDIX TO THE FIRST ANNUAL REPORT

OF THE BOARD OF TRUSTEES OF LAFAY- | bedding, and washing the same,

ETTE COLLEGE.

(See Register, page 192.)

COURSE OF STUDIES. Freshmen class-First term.

Latin-Odes of Horace.

Greek-Minora, Neilson's Exercises, Roman Anti- quities, Mythology, Ancient Geography.

Mathematics-Euclid, First Book.

Second term.

Latin-Satires and Epistles of Horace, Cicero's Ora - tions, Roman Antiquities.

Greek-Majora, viz. Zenophon, Herodotus, Thucy- dides, Neilson's Exercises.

Greek-Antiquities.

Mathematics-Euclid, Second and Third Books, Al- gebra to Simple Equations.

Sophomore class-First term.

Latin-Horace's Art of Poetry, Tacitus' History. Greek-Majora, viz. First volume completed, Greek Antiquities.

Mathematics-Euclid, Fourth, Fifth and Sixth Books. Second term.

Latin-Tacitus' History.

Greek-Majora, Second volume.

Plain Trigonometry, Algebra through Equations. Evidences of Christianity.

Junior class-First term.

Latin-Cicero de Officiis.

Greek-Majora, Second volume.

Surveying, Mensuration, Conic Sections.

Mental Philosophy, Logic, Evidences of Christianity. Second term.

Greek-Longinus de Sublimitate, Spherical, Trigo- nometry, Analytic Geometry, Differential and Integral Calculus.

Moral Philosophy, Rhetoric, Natural Theology.

Senior class-First term.

Latin-Cicero de Oratore.

Greek-Majora, Medea, Natural, Philosophy, Chemis-

try, Mental Philosophy, Rhetoric. Second term. Natural Philosophy, Mineralogy, Botany. Political Economy, History Review, Mental and Mo- ral Philosophy, and Evidences of Christianity.

Preparatory course.

Studies of the Preparatory course-Reading, Writ- ing, Arithmetic to the Cube" Root, Geography, Vocal Music, English Grammar. Latin Grammar, Historia Sacra, Viri Roma, or Historia Græca, Cæsar, Virgil, Sallust, Mair's Syntax, Greek Grammar, Greek Testa- ment, Greek Minora in part.

School Teachers course.

Reading, Writing, English Grammar, Geography, Book-keeping, Vocal Music, Arithmetic, Algebra, Plane Trigonometry, Surveying, Mensuration, Evidences of Christianity, Moral Philosophy.

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The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. XII, Part 57

Author: Hazard, Samuel, 1784-1870 Publication date: 1828 Publisher: Philadelphia : Printed by W.F. Geddes ; Number of Pages: 438

Author: Hazard, Samuel, 1784-1870
Publication date: 1828
Publisher: Philadelphia : Printed by W.F. Geddes ;
Number of Pages: 438