with his usual perspicuity, reviews all the cases in this
[*38]
branch of equity. He adopts the opinion of Lord Lough bor-
ough in Lloyd v. Collit, 4 Bro. 469, who observes that there is
nothing of more importance, than that the ordinary contracts
between man and man, which are so necessary in their inter-
course with each other, should be certain and fixed, and that it
should be certainly known, when a man is bound and when not.
There is a difficulty to comprehend how the essentials of a con-
tract should be different in equity and at law. It is one thing to
say that time is so essential, that in no case in which the day
has by any means been suffered to elapse, the court would relieve
against it and decree performance ; the conduct of the parties,
inevitable accidents, &c., might induce the court to relieve. But
it is a different thing to say, the appointment of a day is to have
' 39
38 SUPREME COURT [Philadelphia,
[M'Crelish v. Churchman and another.]
no effect at all, and that it is not in the power of the parties to
contract, that if the agreement is not executed at a particular
time, they shall be at liberty to rescind. This is not, it is true,
the case of an express stipulation to rescind the contract, pro-
vided the notes were not taken up and delivered at the day, yet
there is no mistaking the intention of the parties to provide for
the faithful, literal, and punctual compliance with the contract,
It was an object of the greatest importance to M'Crelish to pre-
serve his credit, which could only be done by preventing the
dishonour of his bills. Had the notes been paid at the day, but
not delivered, that would have been a case of a part performance,
and the failure to deliver the bills might have been compensated
in damages. But not so where there has been an entire failure
on the part of the plaintiffs. The principle seems to be firmly
established, that time may be a circumstance of decisive import-
ance, but that it may be waived by the conduct of either party ;
that it is incumbent on the plaintiff, whether at law or in equity,
to show that he has used due diligence in the performance of
his part of the contract, or that if he has not, his negligence
arose from some just cause, or has been acquiesced in ; that it
is not necessary for the defendant to show any particular incon-
venience ; it is sufficient if he has not acquiesced in the negli-
gence of the plaintiff. It is not pretended that the plaintiffs
performed their part of the contract at the time, nor has it been
shown that the negligence arose from any just cause, or that it
has been acquiesced in by the defendant. They seek every
benefit from the contract, without anything being done on their
part from which M'Crelish could receive the slightest possible
advantage. His notes have been dishonoured, and he has
been compelled to assign his property for the benefit of his
creditors.
Judgment reversed, and a venire facias de novo awarded.
Cited by Counsel, 5 Wh. 62 ; 3 W. & S. 431 ; 4 W. & S. 532 ; 4 Barr, 407 ,
1J. 380; 1 Par. 426; 5C.275; 7 C.503; 10 C. 457 ; 1 Wr.478; 6 S. 85; 7 S.
71 ; 10 S. 306 ; 12 N. 527, s. c. 9 W. N. C. 26 ; 15 N. 239.
Cited by the Court, 5 W. 517 ; 1 H. 245.
40
Jan. 28, 1833.] OF PENNSYLVANIA. 39
* [PHILADELPHIA, JANUARY 28,1833.] [*39]
Case of Jonas Hartmau's Estate.
Where a person dies intestate, leaving no lawful issue, nor a father, but
leaving a mother, and brothers and sisters, seized of real estate which he had
from his father, or his father's legal representatives, as a purchaser for value,
his mother is entitled to an interest in the estate under the seventh section of
the act of the 19th of April, 1794.
Testator by his will directed that on his youngest child coming of age, his
executors should sell the whole of his real and personal estate, and divide the
proceeds equally between his wife and six children ; and by a codicil directed
that when his youngest son should be of full age, the estate should be ap-
praised, and his sons, Jonas and Elias, should " have the first choice to accept
the same, if they choose to do so." The executors, after the youngest child
attained full age, exposed the premises to public sale, when they were struck
off to a bidder who failed to comply with his contract ; upon which one of the
sons, Jonas, who was also one of the executors, agreed to take the estate at the
price bidden, which was considered by the executors and heirs as a fair one,
and a deed was executed to him by his co-executors. Jonas afterwards died,
seized of the estate, leaving no issue, but leaving a mother and brothers and
sisters. Held : that his mother was not entitled, under the seventh section of
the act of 19th of April, 1794, to an interest in that portion of the estate,
which could have descended to him if his father had died intestate, but that
she was entitled to an interest in those portions which he acquired as a new
purchaser.
THIS was an appeal from the decree of the Circuit Court of
Lehigh county, affirming the decree of the Orphans' Court of-
that county, in relation to the distribution of the estate of Jonas
Hart man, deceased.
Jonas Hartman died about the year 1829, leaving no issue,
but leaving a widow, a mother and brothers and sisters. He was
seized at the time of his death of a tract of land in Lehigh county,
the title to which he derived in the following manner, viz. : Jacob
Hartman, the father of Jonas, was seized of the premises, and on
the 6th of December, 1815, made his will, which after his de-
cease, to wit, on the 12th of January, 1820, was duly proved.
The will contained the following clauses: "It is likewise my
will that my said wife, Eve, shall remain in the full possession
of my plantation, until she marries, or my youngest child shall
come to age, and in case my widow shall not marry again, then
as soon as my youngest child then living conies to age, the whole
of my real and personal estate shall be sold by my executors,
and divided in equal shares between my wife and my six chil-
dren, Sarah, Jacob, Esther, Elizabeth, Jonas, and Elias, but in
case my widow shall marry again, then my personal estate only
41
39 SUPREME COURT [Philadelphia,
[Case of Jonas Hartman's Estate.]
shall be sold, and my widow shall receive what the law will
allow her, and no more, and my real estate shall then be sold
when my youngest child arrives to age/' &c. "And I autho-
rize my executors when my youngest child is of age, to sell my
r*4ft1 rea ^ esta ^ e by public or private *sale, and to make and
' deliver good titles for the same, and I hereby bequeath
my whole estate and the reversion thereof to my six children,
Sarah, Jacob, Esther, Elizabeth, Jonas, and Elias, and to their
heirs and assigns forever. And after this is so done, my
beloved wife Eve, shall have as her dower or ausbehalt, as
long as she remains my widow, the lower room and the cellar
under the room," &c., &c. The testator appointed his wife
Eve, his son-in-law, Jacob Seipel, and his son Jonas, his ex-
ecutors.
Subjoined to the will was a paper without date or signature,
in the handwriting of the decedent, Jacob Hartman, but not
proved with the will, in which he says, "And I again recom-
mend to my executors that when the youngest child will be
of full age, that then my plantation shall be appraised, and
Jonas and Elias shall have the first choice to accept the same if
they choose to do so."
" N. B. It is also my will that my wife Eve's share or pur-
part, which she takes equally with my six children, shall remain
on said plantation as long as she shall be my widow, and she
shall receive annually the interest thereof," <fec. "And it is my
will that my wife Eve, shall take a mortgage or security on my
plantation for the time she shall remain my widow, and have
the same recorded," &c.
The testator died in December, 1819, and in 1825, Elias, the
youngest child, attained his full age.
The land was exposed to public sale by the executors on
the 4th of February, 1826, and struck off to John Schweitzer,
at fifty-six dollars and one cent an acre, and he neglecting to
comply with his contract, Jonas Hartman took the land at
Schweitzer's bid, which was considered by the executors and
heirs a fair price for it.
On the 8th of April, 1826, Eve Hartman and Jacob Seipel,
two of the executors, executed to Jonas Hartman, their co-
executor, a deed for the premises, subject to the payment of
the interest of three hundred and twenty-nine dollars and
thirty-one cents, annually to Eve Hartman, during her life,
and of the principal to the heirs of Jacob Hartman, after her
decease. The residue of the price, amounting to one thousand
nine hundred and seventy-five dollars and fifty-five cents, was
paid or accounted for to the executors, and distributed among^
the six children of Jacob Hartman, of whom Jonas was one.
42
Jan. 28 1833.] OF PENNSYLVANIA. 40
[Case of Jonas Hartman's Estate.]
On the 14th of September, 1828, Eve Hartman married John
Hummell.
Jonas Hartman having died without issue, but leaving a
mother, brothers, and sisters, on petition of some of the heirs, an
inquest was held under the intestate laws, and the estate being
incapable of division, it was appraised. The inquisition was
confirmed by the court, and the property accepted by one of
the heirs. The question which then arose was, to whom the
appraised value should be paid.
The Orphans' Court appointed an auditor to make distribu-
tion, who reported as follows :
*" Valuation money, $3,200 00
Deduct expenses of inquisition, . . . $37 85 i-* -. -
Amount due by Jonas Hartman, to
the estate of Jacob Hartman, de-
ceased, (on account of purchase-
money,) 146 22 2-7
Interest due Eve Hummell, late Eve
Hartman, from September 14,
1828, to April 1, 1830, .... 30 57 5-7
Auditor's wages, 3 217 65
2,982 35
Amount of a lieu on the land in fa-
vour of Eve Hummell, subject to
which the land was accepted, . . 329 31
2,653 04"
This sum of two thousand six hundred and fifty-three dollars
and four cents, the auditor directed to be distributed as fol-
lows :
" A bond to be given to John Schweitzer, and Margaret, his
wife (the widow of Jonas Hartman), for one thousand three hun-
dred and twenty-six dollars and fifty-two cents, being one-half
of the net valuation money, the interest thereof to be paid to
her, during life, and the principal at her decease.
"Three hundred and two dollars and seventy-five cents, the
amount of Jonas Hartman's share of his father's estate, to be
immediately distributed among his brothers and sisters.
" One thousand and twenty-three dollars and seventy-seven
cents, the residue of tli-e net valuation money to remain in the
premises, the interest thereof to be paid to Eve Hummell, late
Hartmau the mother of Jonas, during life, and the principal at
43
41 SUPREME COURT [PJriladelphia,
[Case of Jonas Hartman's Estate.]
her decease, and bonds to be executed by the acceptant of the
real estate accordingly."
This report was read and confirmed, nisi, on the 13th of May,
1831. On the 14th of May, 1831, exceptions were filed by the
widow, and the mother of the deceased, and by Jacob Seipel,
one of the heirs, and rules were granted to show cause why the
report should not be set aside or corrected.
The exception filed on behalf of the widow of Jonas Hartman,
was, " That the auditor had not directed a bond to be given to
John Schweitzer, and Margaret, his wife, and the survivor of
them, conditioned for the punctual payments of the interest of
the one thousand three hundred and twenty-six dollars and
fifty-two cents, stated on said report as the half of the said Jonas
Hartman's estate ; the said Margaret Schweitzer, late Margaret
Hartman, being widow of the said Jonas Hartman, who left no
issue."
The exception filed on behalf of the mother, was, " That the
auditor has directed a bond to be given to the heirs and legal
representatives of Jacob Hartman, the father of the said Jonas
I-JMO-I Hartman, *deceased, payable at the death of Eve Hart-
J man, now Eve Hummell, widow of the said Jacob, and
mother of the said Jonas, the interest to be paid annually to the
said Eve, during her natural life, counting from April 1, 1830,
for one thousand and twenty-three dollars and seventy-seven
cents : Whereas, there should have been a bond given to John
Hummell, and Eve, his wife, late Eve Hartman, in the same
way to enforce payment of the yearly interest to the said Eve
Hartman, the widow."
The exception filed on behalf of Jacob Seipel, married to a
sister of Jonas Hartman, was, " That the auditor erred in direct-
ing a bond to be given to Eve Hummell, late Eve Hartman, who
is the mother of Jonas Hartman, deceased, for the sum of one
thousand and twenty-three dollars and seventy-seven cents."
On the 2d of September, 1831, the Orphans' Court made the
following decree : " That the account reported by John Rice,
auditor, be corrected in this, that instead of a bond being given
to Eve Hummell, formerly Eve Hartman, widow of Jacob Hart-
man, deceased, and mother of the said Jonas Hartman. de-
ceased, for the sum of one thousand and twenty-three dollars
and seventy-seven cents, that the bonds be given for the said
sum of one thousand and twenty-three dollars and seventy-seven
cents, to the brothers and sisters of the said Jonas Hartman, as
if Jonas Hartman had survived his said mother Eve. The court
also decree that a bond be given by the acceptant of the real
estate of Jonas Hartman, deceased, to John Schweitzer, and
Margaret, his wife, in the penaltv of one thousand three hun-
44
Jan. 28, 1833.] OF PENNSYLVANIA. 42
[Case of Jonas Hartman's Estate.]
dred and twenty-six dollars and fifty-two cents, conditioned for
the payment of seventy-nine dollars and fifty-nine cents an-
nually on the 1st day of April, counting the 1st day of April,
1831, for and during the natural life of Margaret Schweitzer,
widow of said Jonas Hartman, deceased, and that the said ac-
ceptauts pay immediately to the said John Schweitzer, and Mar-
garet, his wife, seventy-nine dollars and fifty-nine cents, being
the interest due at this time, to the said widow of Jonas Hart-
man, deceased. And the court also decree that the said ac-
ceptant of the said real estate, give bond to the brothers and sis-
ters of the said Jonas Hartman, deceased, (naming them,) in the
penalty of two thousand six hundred and fifty-three dollars and
four cents, conditioned for the payment of one thousand three
hundred and twenty-six dollars and fifty-two cents, on the day
of the death of Margaret Schweitzer, late Margaret Hartman,
widow of Jonas Hartman, now deceased, and the report thus
corrected, is confirmed by the court, and the exceptions dis-
missed."
From this decision of the Orphans' Court, John Hummell,
and EVP, his wife, appealed to the Circuit Court, and filed their
exceptions.
In the Circuit Court, his honour Judge Huston, without argu-
ment, affirmed the decree of the Orphans' Court, in order to
bring up the whole case before the Supreme Court, without
prejudice, and the appellants appealed to this court.
*The following reasons for the appeal were filed : r*4.^T
1. That under the intestate laws of Pennsylvania, the L
mother of the deceased, (who died intestate without issue, but
leaving a wife, a mother, and brothers and sisters,) was entitled
to enjoy during life, the income of one-half of the net proceeds
of the real estate of the deceased, after payment of his debts,
and the court should have so decreed in this case.
2. That the real estate of the deceased, or the valuation-money
thereof, should not have been decreed to the widow and brothers
and sisters of the deceased, to the exclusion of the mother, such
estate having been acquired by the intestate by purchase, in the
strict sense of the term, in his lifetime.
J. M. Porter for the appellants, referred to the act of the 19th
of April, 1794, sec. 4, 7, 8 ; Purd. Dig. 402, 403 ; Ferree v. The
Commonwealth, 8 Serg. & Rawle, 312 ; Stoolfoos v. Jenkins, 8
Serg. & Rawle, 167 ; Fogelson^er v. Somerville, 6 Serg. & Rawle,
267 ; M'Cu Hough y. Wallace, 8 Serg. & Rawle, 181 ; Simpson
v. Hall, 4 Serg. & Rawle, 337, 342 ; Shippen v Izard, 1 Serg.
& Rawle, 222 ; Bevan v. Taylor, 7 Serg. & Rawle, 397.
45
43 SUPREME COURT [Philadelphia,
[Case of Jonas Hartman's Estate.]
Gibons and Davis, contra, cited Allison, Executor of Hender-
son, v. Wilson's Executors, 13 Serg. & Rawle, 332 ; Toller, 360 ;
3 Ba. Ab. 30, 31 ; Nicholson v. Halsey, 1 Johns. Ch. R. 417 ;
2 Ba. Ab. 304 ; Lutw. 313 ; Burke v. Lessee of Young, 2 Serg.
& Rawle, 383.
The opinion of the court was delivered by
GIBSON, C. J. By the fifth and seventh sections of the act
of 1794, the father or mother of an intestate succeeds to a por-
tion of the inheritance, where it has not come "on the part of"
the opposite parent ; but in the eleventh section, which provides
for the case of the half-blood, the exception is where " such in-
heritance came to the said person, so seized, by descent, devise,
or gift of some one of his ancestors ; in which case all those
who are not of the blood of such ancestor, shall be excluded
from such inheritance." The difference in the phraseology, as
regards the parent and the half-blood, must have been accidental,
for it surely could not be an object to exclude the parent, more
than it could be to exclude the issue of such parent, merely
because the title was transmitted by the opposite parent to the
intestate as the purchaser for value, just as it would have been
transmitted to a stranger. Where the transfer is in pursuance
of a purchase, in the popular sense, the parties stand in relation
to the transaction, not as parent and child, but as vendor and
vendee ; and there is no reason to exclude the other parent from
a portion of the inheritance that would not equally hold in
respect of a purchase from a third person. The question then
is, whether the intestate here had the estate from his father as
a purchaser for value, or by descent, gift, or devise. As regards
those portions of it, which would have passed to his brothers ajid
r*44l s ^ ers > n& d his father died intestate, there *can be no
' question, as they can by no construction be treated as
having descended : and on the other hand, having been paid for
to the father's representatives, they stand in relation to the ques-
tion as if they had been paid for to the father himself. The
difficulty is in regard to the part that would have descended, had
the father died intestate. At the common law, every devisee
being a purchaser and the founder of a new stock, the question,
in cases like the present, is, whether the estate came by descent
or by purchase, technically so called. The rule is, that it shall
be treated as if transmitted by descent, wherever the will gives,
as regards quantity and quality, though clogged with a condition
or incumbrance, exactly what the law would have given : in other
words, that incumbering the estate by the will, shall not alter
its descendable quality, the law casting it on the heir, notwith-
standing the devise to him, merely subject to the charge. Co.
Jan. 28, 1833.] OF PENNSYLVANIA. 44
[Case of Jonas Hartman's Estate.]
Lit. 12, b, note 2 ; Hedger v. Rowe, 3 Lev. 127 ; Allen v. Heber,
1 Bl. Rep. 22 ; Hurst v. The Earl of Winchelsea, 2 Burr. 879,
and Clerk v. Smith, 1 Salk. 241, where Gilpin's Case, Cro. Car.
163, is denied to be law. The legislature have thought fit to
extend the principle, in favour of the blood of the first pur-
chaser, to a gift or devise ; but by the latter word, it was un-
doubtedly meant to provide only for a testamentary gift ; for
being coupled in the clause with the word gift, as applicable to
a gratuitous disposition of the estate, taking effect in the dece-
dent's lifetime, it shows pretty clearly, that nothing but a gratu-
ity, whether by devise or inter vivos, was intended to be pro-
vided for. The legislature must, therefore, be supposed to have
used the word in its popular sense, as importing a testamentary
gift, without intending to exclude either parent or the brothers
and sisters of the half-blood, where the arrangement was in fact
a testamentary sale. The presumption is a natural one, that
had the absolute owner been permitted by prolongation of his
life, to dispose of the estate, he would not have excluded per-
sons so near in blood, in favour of more remote kindred, merely
because the title, and not the beneficial interest, had been de-
rived from their common ancestor. It is unnecessary to deter-
mine here, whether in settling the construction of our statute,
we ought to apply the principle of the common law, which
merges the equitable in the legal estate, where they have been
united for the first time in the person of the decedent, so as to
restrain the descent to the line of the latter ; but it is not too
much to say that it would scarce be deemed applicable to such a
case as that of Nicholson v. Halsey, 1 Johns. Ch. R. 417. In
the case before us, the difficulty arises on what is said to be the
main clause in the will, which gave the devisees not an estate in
the land, though the descent was broken, but the produce of the
land when sold by the executors, which was determined in Alli-
son v. \Yilson, 13 Serg. & Rawle, 330, and Morrow v. Brenizer,
2 Rawle, 185, to be such an interest as is not bound by a judg-
ment; and hence, it might perhaps be contended that the whole
was acquired neither by descent nor devise, but by purchase.
But by a subsequent clause admitted to have been since proved
*as a codicil, and therefore- proper to be considered here, r*Ac-]
the testator directed the executors to offer the land to '
Jonas, or Elias, at a valuation. No formal valuation was in fact
made, but what is effectively the same, the laud was put up at
public sale, and taken by Jonas, the intestate, at the highest
price bidden. It is only by considering this as a substantial
compliance with the will that the title can be considered as avail-
able, for Jonas, who was also an executor, could not purchase at
his own sale. Having taken directly under the will, he was a
47
45 SUPREME COURT [Philadelphia,
[Case of Jonas Hartman's Estate.]
gratuitous devisee of his own share, but a substantial purchaser
of the rest. This principle is in accordance with the decisions
that have been made where the whole estate has been decreed to
one of the children of an intestate by the Orphans' Court ; and
the only case which seems to stand in the way of the same con-
clusion in the case of a devise of the whole to one of the children,
on condition of paying an equivalent to the others, is Reading
v. Royston, 1 Salk. 242, where it was held that a devisee who
would have taken but a part of the estate by descent, as in the
case of a devise of the whole to the son of a deceased parcener,
shall take the whole by purchase, instead of taking a moiety by
purchase and a moiety by descent : in other words, that all shall
be deemed to have passed by the will. There is, however, no
actual discrepance ; for in the case before us, the whole is deemed
to have passed by the will, and the devisee is supposed to be
technically speaking a purchaser of the whole, though not such
a devisee of anything but his own portion as was within the
contemplation of the legislature. To an interest in that portion,
coming as it did, on the part of the father, the mother of the in-
testate is not entitled ; but in respect of the other portions which
were acquired as a new purchase, her right is indisputable. It
is, therefore, ordered, that the decree of the Circuit Court, and
of the O; phans' Court, be reversed, and that the report of the
auditor be confirmed : in addition to Avhich it is ordered that a
bond be executed to John Hummell, and Eve, his wife, to secure
the interest annually payable to her.
Decree accordingly.
Cited by Counsel, 1 Wh. 259 ; 3 S. 142; 5 S. 66.
Cited by the Court, 10 H. 297 ; 3 S. 143.
[*46] *[PHI:LADELPHIA, JANUARY 28, 1833.]
In the Matter of the alleged Nuncupative Will of Pris-
cilla E. Yarnall, deceased.
Nuncupative wills are not to be favoured.
To entitle a nuncupative will to probate, the provisions of the law must be
strictly complied with, and the absence of due proof of a strict compliance
with any one of them is fatal.
The testamentary capacity of the deceased and the animus testandi, at the
time of making the alleged nuncupative will, must be proved by the clearest