ruled Blankard v. Galdy, should shortly afterwards have held,
in a case which involved the legality of slavery, that the laws of
England 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 always held that the laws which were
in force at the foundation of the colony, and not positively un-
suitable to the condition of the colonists, were brought by them
hither ; and it cannot 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 without 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-
r*^^4l ven i Q g *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 & Sellers's edition of the laws,
page 9, it was provided : " that whatsoever estate any person
374



J/arcA29,1833.] OF PENNSYLVANIA. 334

[Girard et al. v. The City of Philadelphia.]

hath in this province or territories thereof, at the time of his
death, unless 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 de-
ceased before him, two-thirds shall go to the children equally,
and the other third to be disposed of as he shall think tit, his
debts being first paid." In the margin we have these observa-
tions by Chief Justice Kiusey : " 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 con-
trary, continued till the first of the fourth mouth, 1693, 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 con-
struction 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 included, it
is pretty evident the crown thought otherwise ; for judging from
the jealousy evinced by it in the case of much less important
innovations, it is scarcely to be believed, that it would have tol-
erated for teiv /ears so violent an infraction of the spirit of the
charter, whic.i required a conformity of the laws to those of
the mother country, as a restriction of the power of devising
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 a restraining
statute, not an enabling one; and this plainly 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 legislation which took place in relation to proof
of the instrument, I shall have occasion to speak in the sequel.
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. Judg-
ing of the substitute by its provisions, it might perhaps

375



335 SUPREME COURT [Philadelphia,

[Girard et al. v. The City of Philadelphia.]

r*oorri as naturally have *been deemed but ancillary to them, as
J performing the same office in regard to them here, by
exacting in addition to their requirements the observance of
particular solemnities as matter of proof, that is performed by
the statute of frauds in England. But even as an enabling
statute, our act of 1705 was not a new law, but an act of legis-'
lation on the basis of an old one, which is therefore to be taken
into consideration in the interpretation of inexplicit clauses, be-
cause it is reasonable to presume that no departure from the
existing law was intended, further than is expressed. 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 suspected, 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 records. It is argued, that whatever
the general 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 exception
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 certainty 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 colour of authority to the
supposed distinction. There it is said to have been determined
in the 39 H. 6, 18, that if a man devise a certain estate, and
have nothing in it at the time, but purchase 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, (s. c. Fitzg. 225,) 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 Trevor, in Arthur v. Bokenham, 11 Mod. 163; (s. C.
Fitzg. 233.) In truth the matter never depended on the actual
intent; nor yet, as it was at one time supposed, on the restric-
tive words of the English statutes, and it is therefore of no im-
portance to the ques'tion, that those statutes were not reported
as in force here. It is true that in Butler & Baker's Case,
Lord Coke laid great stress on these words ; but in Bunker v.
Cook, or Broncker v. Coke, as it is reported in Holt's Rep.
247, it was asserted by Lord Holt, that Chief Justice Bridg-
man had differed from Lord Coke in attaching importance to
them, in a case determined in the Common Pleas, the 16 Car.
9, and that the judges in the exchequer chamber were of the
376



March 29, 1833.] OF PENNSYLVANIA. 335

[Girard et al. v. The City of Philadelphia.]

same opinion : this too on the relation Chief Justice Bridgman
himself. But what puts the matter at rest is, that in this case
of Bunker v. Cook, the rule was applied in all its rigour 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 Buckenham v. Cook, *Holt's Rep. 248, r*oo R -i
by Lord Holt : and in Arthur v. Bokeuham, by Chief '
Justice Trevor, who together rested it on these propositions:
That a will is a species of conveyance, not strictly subject to
the rules of conveyances at the common law it is true, the vest-
ing of the estate being postponed till the death of the testator;
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 memory 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 grantor, cannot give what he has not; and that the
same principle prevails in conveyances to uses, though con-
strued liberally like wills, to favour the intention, as in Y<elver-
ton v. Yelverton, 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 con-
clusive evidence of the necessity that he should be so in fact :
That the reason why land differs in this respect 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 distribution being but a direction to the ex-
ecutor how to administer the assets; by reason of which, and
the fluctuating nature of personal estate, which is changing
every day, a different rule would require a new will to be macie
every dav: 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 doc-
trine. To the argument of such men as these, it would be pre-
sumptuous in me to attempt an addition, 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

377



336 SUPREME COUKT [Philadelphia,

[Girard et al. v. The City of Philadelphia.]

the British statutes being disposed of, it results that the ques-
tion stands here exactly as it did in England, unless the specific
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 authentication, it is declared that
wills so proved, "shall be good and available in law for the
granting, conveying, and assuring, of the lands or heredita-
ments 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
r*^^7l man 'f es t from the legislation which preceded it. By
I *the fifteenth law agreed upon in England, it was de-
clared, that "all wills and writings attested by two witnesses,
shall be of the same force as to lands as other conveyances,
being legally proved within forty days, either within or without
the said province." This was evidently designed to preclude
that provision of the statute of frauds which requires three
witnesses, and is worthy of special notice beside, not only for
treating wills of lands 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 fundamental 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 consid-
eration ; 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 requisi-
tion 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, required no more than legal
378



March 29, 1833.] OF PENNSYLVANIA. 337

[Girard et cd. v. The Cily of Philadelphia.]

proof without specifying the number of the witnesses. It
therefore had, or might be supposed to have, the effect of put-
ting wills of lauds 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 counsel, as may
be seen in VVeis & 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 v
quantity of proof made by the act of J 700, 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 regula-
tion of property should conform, as nearly as might be, to the
laws of England, till altered by the provincial legislature; and
tke same jealousy of innovation, which prompted the crown to
repeal the act for the abolition of survivorship *between r*ooo-i
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 & Sellers'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 adverted, seems therefore to
have reference to the proof, and not the effect of the instrument,
or, at least, no further than the latter may be supposed to de-
pend on the former. The first was all that was in contest
between the province and the crown. The fifteenth law agreed
upon in England, or rather the act of 1682, remained in force
twenty-three years without 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 ;
icdeed, the very suspicion that such a design was harboured,
would have defeated it. On the contrary, the language of all
our laws is incomparably more emphatic than that of any act
of Parliament, to show that a will of lands was esteemed a
conveyance and no more. In the very act before us, a will
proved in the manner prescribed is declared "to be available

379



338 SUPREME COURT OF PA. [Philadelphia,

[Girard et al. v. The City of Philadelphia.]

in law for the granting, conveying, and assuring of the lands or
hereditaments thereby given or devised " words that are prop-
erly predicable only of conveyances of land by deed ; and though
they are used in the same clause as predicable of the transfer of
chattels also, they are so used, as regards the incidents peculiar
to each, reddendo singula singulis,

This sketch of the legislation which preceded the act of 1 705,
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 thousand dollars, as well
'as a respect for the doubt suggested 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 en-
titled to the succession under the intestate laws.

Judgment for the plaintiffs.

Cited by Counsel, 5 Wh. 383 ; 7 Barr, 412 ; 10 Barr, 88 ; 3 H. 476 ; 8 C.
396; 11 C. 399; 14 S. 222.
Affirmed, 1 Wh. 251.
Cited by the Court, 5 E. 86 ; 1 Wh. 505 ; 5 W. & S. 199 ; 10 H. 421.



OF MAKCH TEEM, 1833. EASTEEN DISTEICT.



/

380



CASES



PENNSYLVANIA.



EASTEKN DISTRICT DECEMBER TEEM, 1833.



[PHILADELPHIA, JANUARY 11, 1834.]

Bennett against Bittle and Another.

IX ERROR.

A demise or conveyance of a " barn," without other words being superadded
to extend its meaning, will pass no more land than is necessary for its com-
plete enjoyment.

Any entry by the landlord on the premises demised, against the will or
wishes of the tenant, is not an eviction in point of law, which will suspend the
rent. But if the landlord ejects, expels, evicts, or turns out the tenant, and
prevents his enjoyment of the premises for which the rent is payable, the rent
will be suspended ; and whether there has been such an eviction, in point of
fact, is a question for the jury.

ERROR to the Court of Common Pleas of Delaware county.

In the court below, an action of replevin was brought by
Lewis Bennett, the plaintiff in error, against William Bittle
and Josiah Moore, the defendants in error, in which Moore
made cognizance as the bailiff of Bittle, who avowed for rent
in arrear. The plaintiff replied, no rent in arrcar, and an evic-
tion of part of the premises leased.

On the trial, the defendants gave in evidence a lease from
William Bittle to Lewis Bennett, dated the 9th of February,
1830, of which the following are the material parts :

"Be it remembered, that William Bittle has leased to Lewis
Bennett, the messuage, tenement or tavern-house, barn, sheds,

381



339 SUPREME COURT [Philadelphia,

[Bennett v. Bittle and another, j

&c., with four lots of land, on the north-east side of the West-
chester road, in the township of Haverford, and county of Del-
aware, known by the name of the Spread Eagle Tavern, to hold
the same for one year from the first day of April next ensuing,
the said Lewis Bennett yielding and paying to the said Wil-
liam Bittle, the rent or sum of three hundred and seventy-five
r*^40l Collars, together with the price of the license *for keep-
J ing the public house, and all the taxes that may be
levied upon the said premises for the year 1829. It is further
agreed to pay the rent half yearly.

After having proved that Bennett went into possession of
the premises, under this lease, soon after the middle of April,
1830, and remained in possession until the last of March, 1831,
the defendants closed their case.

The plaintiff then examined several witnesses, from whose
evidence it appeared, that about the 1st of May, 1830, two men
and a boy employed by Bittle, hauled manure out of the barn-
yard. They were hauling it the greater part of one day, and
they afterwards returned to haul more. Bennett was not at
home on the first day. He afterwards reproved Bittle for taking
away the manure, who replied, he would do as he pleased.
Some further dispute then look place between them. Bittle
also turned cattle into the barn lot ; one day seven, and the
next day ten, and kept them there more than two weeks, put-
ting them in in the morning, and taking them out at night.
Bennett forbade his putting cattle into the lot, and told him he
should charge him the same that he did for drove cattle. Ben-
nett usecj the barn and lot, but each insisted that they were
his. Bittle asserted that they were excepted from the lease,
which the other denied. Bittle on one occasion said, that Ben-
nett had put up the bars, and four of the cattle were out, and
three in the field, and he would make Bennett find them. The
latter answered, that he would not find them, but would charge
him for those that were in the field. Bittle said, that if he had
rented the lot to Bennett, it was his, and the witness added,
that Bennett had convinced Bittle that the lot was his, and he
agreed that Bennett should take out the cattle and drive them
home. On the same day, Bennett took the cattle out of the lot,
and put them into Bittle's field over the road.

In a conversation between Bennett and a witness, in reference
to the lease, he stated, that he did not get a foot of land on
that side of the road on which the barn lot was situated, except
half the barn. At another time he stated to the same witness,
that he would like to rent the barn field to Bittle, but he could
not spare it ; he wanted it for pasture. Bittle put a fence across
it oither in April or May, 1830, but after the dung was hauled
382



Jan. 11,1834.] OF PENNSYLVANIA. 340

[Bennett v. Bittle and another.]

away, Bennett had possession of it, and continued to occupy it
until the expiration of the lease. The lot in question contained
about eleven acres.

Other evidence was given on both sides, tending further to
show the understanding of the parties, as to what was intended
to be embraced by the lease, which it is unnecessary to state.

When the evidence was closed, the president judge delivered
to the jury the following

CHARGE. " On the question, what premises were leased by
Bittle to Bennett, it has been broadly urged, that by the terms
of the contract, and the legal interpretation of the lease, by
the term barn, the *lot or field in which it stood, r^qjn
passed. Although the attention of the court has not L
been asked, it is proper to say, that I do not think that neces-
sarily follows. All contracts are to be construed according to
their subject-matter : If the late Mr. Anderson had leased a
house and two lots on the east side of the road, and the barn
on the bank of the creek, it does not follow that the field in
which it stands is also leased, but at most a passage to it.

" In the course of the argument the court has been asked by
the plaintiff's counsel to instruct the jury, 'That any entry on
the premises demised against the will or wishes of the tenant, is
an eviction in point of law, and suspends the rent,' I cannot so
instruct the jury. If such were the law, and if Mr. Bittle had
entered the tavern of Mr. Bennett, after having been forbidden
had walked over his field, or without leave had walked into the
little orchard and carried away a basket of apples or fine
peaches, or in short committed any other trespass, it would, ac-
cording to this position, be an eviction, and suspend the whole
rent. But the law is not so ; in this, as in every other in-
stance, it is more consonant to reason ; it declares, that if the
landlord takes the high-handed measure of entering upon the
lands he has leased to his tenant, and ejects, expels, evicts, or
turns out the tenant, and prevents him from enjoying and using
the land, or a portion of it, which he had solemnly leased to
him, thus preventing the tenant's enjoyment of the premises, ill
respect of which rent was to be paid, that would be an eviction
which would suspend the rent ; so that the inquiry with this
jury will be whether Bittle did eject from, and dispossess Ben-
nett, and thus evict him of any particular portion of the prem-
ises really demised to him, and for which the rent was to be
paid ; or whether Bittle merely did other wrongs short of evic-