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Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 1) online

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(inter alia) including the interest of the said Eliza Shields, so
conveyed as aforesaid, together with all arrears of rents, to the
said David C. Skerrett, (the plaintiff) in fee simple, upon certain
trusts.

On the fifth day of July, 1832, the said Thomas Shields, by
deed bearing date the same day conveyed all his one-third part
of the said yearly rent charges, (inter alia') together with all
arrears of rent, to the said David C. Skerrett, (the plaintiff) in
fee simple, upon certain trusts.

On the twentieth day of August, 1832, the said Eliza Shields,
conveyed by deed bearing date the same day, all her interest,
(inter alia) of, in, and to the two-third parts of the said Thomas
Shields and Robert Shields, in the said yearly rent charges, to
the said David C. Skerrett, upon certain trusts.

By these conveyances, the whole of the interest of the said
Eliza Shields, David Shields and wife, and Thomas Shields, of, in,
and to the said yearly rent charges, became vested in the said
David C. Skerrett, the above plaintiff.

On the ninth day of May, 1832, the said Adam Cornman, by



1835.] OF PENNSYLVANIA. 248

(Skerrett v. Burd.)

deed bearing date the same day, conveyed the said lots, as above
conveyed to him by John Shields, to the said Edward S.
Burd, in fee simple, under and subject to the payment of the
yearly rent charge so reserved as aforesaid. There are arrears
of rent arising from the non-payment of these yearly rent
charges.

*Upon these facts, the following questions are sub-
mitted to the Court for their opinion.

1. Did not Eliza Shields, by her intermarriage with John
Shields after the publication of his last will, upon his death be-
come entitled to a moiety of the rent charges during her life ?

2. Did not John Shields die intestate as to those two yearly
rent charges, and did they not descend to his three brothers,
Thomas Shields, Robert Shields, and David Shields, in fee simple,
as tenants in common, subject to the life-estate of the widow in a
moiety ?

3. Did not the conveyance above stated, vest in the plaintiff
two-thirds parts of the said two yearly rent charges in fee simple,
and an estate for the life of Eliza Shields, in a moiety of the other
third part ?

4. Did John Shields, the testator, in and by the two several
ground-rent deeds above specified, divest himself thereby of all
estate whatever in so much of the said messuages, tenements and.
lots of ground, situated in the half square between Broad and
Juniper streets and Spruce and Locust streets, with the appur-
tenances thereunto respectively belonging, devised (inter alia) to
Mary Shields, in and by the said will, as Avere conveyed by the
said two ground-rent deeds ? and did he die intestate of the two
several rent charges, reserved in and by the said two ground-
rent deeds respectively ? Or, did such an interest and estate in
the said premises, continue and remain in him, notwithstanding
the execution of the said ground rent deeds, as to be the subject
of said devise, and upon which the same can in any manner
operate ?

If these questions should be determined in the affirmative by the
Court, then judgment to be entered in favor of the plaintiff, for
such sum as may be agreed upon by the parties or their counsel ;
and, in case of any difference of opinion between them, the said
sum shall be settled by the Court.

If the Court shall determine these questions in the negative,
then judgment to be entered in favor of the defendant."

Mr. J. M. Read, for the plaintiff. This is an amicable pro-
ceeding ; the object of which is the determination of a question
of law. Mr. Burd is only a stakeholder. By a family arrange-
ment between the widow and two of the brothers of the testator,

VOL. i. 17.



249 SUPREME COURT [Dec. Term,

(Skerrettc.Burd.)

conveyances have been executed to carry the will into effect. The
interest of one of the brothers is outstanding.

1. The will was revoked by the marriage of the testator. (Act
of 19th April, 1794, 23.)

2. The conveyance of the lot on ground-rent, after the date of
the will, was a revocation pro tanto. An alteration of the estate
produces this effect. 4 Kent's Com. 513, &c. Even when a
contract for the sale of land was rescinded, it was to be a revoca-
r*9 r m ti n > * Walton v. Walton, (7 Johns. Ch. Rep. 258.)

J -That after-acquired real estate does not pass, is recog-
nized in the recent case of Crirard v. The Mayor $c. of Phila-
delphia, (4 Rawle, 323.) There is an exception of the case of
partition, but this is believed to be the only exception, 1 Hoven-
den's notes to Vesey, 208, &c. : Attorney General v. Vigor, (8
Ves. 281.) Here there was a sale of land in fee, and the cre-
ation of a rent charge, which was a new estate, 4 Black. Com.
42 ; Woodfall's Land & Ten. 29, note ; Co. Litt. 47 (a), 143 (6),
144, Mr. Margrave's note ; 19 Vin. Abr. 105, 107, title, Reser-
vation ; 6 Bac. Abr. 22.

Mr. Binney, for the defendant, stated that the counsel on both
sides were of opinion that the will was revoked. He referred in
addition to the cases cited by Mr. Read, to Livingston v. Liv-
ingston, (3 Johns. Ch. Rep. 148.)

The opinion of the Court was delivered by

SERGEANT, J. The general rule in relation to a will is, that
the estate disposed of must remain in the same condition till the
death of the devisor ; if the estate be afterwards altered by the
testator, so that it no longer exists as he devised it, the will is
inoperative, and the act of alteration is construed a revocation.
Parting with a portion of the estate, as by making a lease for
life or years, or creating an incumbrance on it, as by mortgage,
or conveyance for payment of debts, are only revocations pro
tanto. 2 Christ. Black. 373. So a conveyance for a partition is
no revocation. Ib. But says Lord Hardwicke, in Sparrow v.
Hardcastle, reported in the note to 7 T. R. 416, when there is a
complete disposition of the land without leaving any part of it in
the devisor, it is a revocation. If a man make a will devising
land, and after execute a feoffment to his own use, it is a revoca-
tion of the will, notwithstanding it is in point of law the old use,
and will descend ex parte paterna or materna as before. So a
feoffment without livery, a bargain and sale not enrolled, or any
other imperfect conveyance will be a revocation, because it im-
ports an intention of altering the condition of the estate. So,
where after the will, the testator executes any legal conveyance,



1835.] OF PENNSYLVANIA. 250

(Skerrett , Burd.)

it is a revocation, because the estate is gone, and the will has lost
the subject of ifs operation. If a man seised of real estate devise
it, and after convey the legal estate, though there be only a par-
tial declaration of trust, yet as he has granted the whole estate, it
is a revocation of the will. So if a man seized of a legal estate
makes his will, and then conveys the legal estate to another, in
trust for himself, it is a revocation. Parsons v. Freeman, (7
Bac. Ab. 370). These are the legal principles, which have been
determined, and they have been inflexibly maintained in analagous
cases. 4 Kent's Com. 513.

A conveyance by the testator in fee simple, of a lot of ground
which he had devised, reserving a ground rent in lieu of the lot
* itself, is a complete disposition of his estate in the lot.
It is a substitution of an incorporeal hereditament issu-
ing out of the ground, usually, as in this case, with clauses of dis-
tress and condition of re-entry to enforce the payment of the rent.
On the other hand there is a stipulation for redemption within a
certain time, which when it happens, turns it into a sale, and
renders the consideration money personal property to those who
receive it. These reservations and clauses preserve to the
grantor no residuary estate in the land ; they create new services
and rights instead of it. It somewhat resembles the case of #n
exchange of lands, which has been held to operate as a revocation,
so as to exclude the land taken in exchange, from the operation
of a prior devise. Being then an entire transfer and disposal of
the estate in the land, there is nothing left for the devise of the
lots of ground to operate on, and the will is so far revoked by the
subsequent acts of the testator. That the ground rents thus
created could not pass by the residuary bequest, as after-acquired
property, under our act of Assembly, in force when the will was
made, results from the decision in The City of Philadelphia v.
G-irard, (4 Rawle, 323).*

It is, therefore, the opinion of the Court, that John Shields
died intestate as to the two ground rents in question. That they
descended to his three brothers, Thomas, Robert, and David, in
fee simple, as tenants in common, subject to the widow's life es-
tate in a moiety. That the conveyances of the widow and two of
the brothers, Thomas and David, vested in the plaintiff two-third
parts of the said ground rents in fee simple, and an estate for the
widow's life in a moiety of the other third part.

Judgment for the plaintiff according to case stated.

Cited by Counsel, 2 Barr, 169 ; 4 Id. 90 ; 1 Jones, 431 ; 7 Harris, 68 ;
4 Casey, 30 ; 7 P. F. Smith, 211.

Cited by the Court, 2 Wharton, 111 ; 5 Watts & Sergeant, 199; 8 Id.
127 ; 2 Harris, 460 ; 4 Wright, 224.

See also 5 Watts, 53 ; 4 Barr, 88.

*See post, 503.



252 SUPREME COURT [Dec. Term,

[*252] [* PHILADELPHIA, FEBRUARY 6, 1836.]

BURR ayainst SIM and Others.

IN ERROR.

1. A testator directed his executors to sell all his real estate, goods and
chattels, and to pay the proceeds, together with all the moneys coming
to their hands after the payment of his just debts, funeral expenses and
legacies, to two persons whom he appointed guardians for his son, and
whom he directed to invest the money and to apply the interest thereof
to the maintenance and education of his son during his minority, and to
pay the principal to him on his arriving at the age of twenty-one years.
But in case he should die before his arrival at that age, he gave the same
to the children of a brother and sister in Scotland ; in the same clause
with the directions to the executors to sell, he declared his will to be
that his houses should be rented out "until the same shall be sold as
aforesaid." The houses were not in fact sold. The son of the testator
arrived at the age of twenty-one, and died about a year thereafter, hav-
ing made a will in which he devised one of the houses to A., "her heirs '
and assigns," and the other to B. without words of inheritance : Held,
1 . That the real estate of the testator was in equity converted into per-
sonal, by the directions of his will, and continued so during the minority
of the son : 2. That the son was to be considered as having elected to
take the houses as real estate, and that B. took only a life estate in the
huse devised to him. 3. That the election to take as real estate oper-
ated as a new acquisition, and not to cast the descent upon him as from
the part of his father, and consequently, that the reversion in fee of the
house devised to B. vested in the heirs ex parte materna as well as those
ex parte paterna.

2.. A testator began his will thus, "I, A. C. C. feel myself in declining
state of body, and knowing the certainty of death, and not knowing the
time thereof:" after certain bequests he gave to A. "or to her heirs or
assigns one three-story brick house in Arch street, No. 63. Further I
icish to give to W. C. one other three-story house in Arch street, No. 65,"
the will concluding thus, and not being signed by the testator : Held
that W. C. took only a life estate in the house devised to him.

THIS was a writ of error to the District Court for the City and
County of Philadelphia, to remove the record of an action of
ejectment brought by George Sim, Margaret Sim, Jean Ander-
son, and Peter Nicholson, ngainst Postrema Burr, to recover pos-
session of a house and lot of ground situate on the north side of
Mulberry (or Arcn) street, between Second and Third streets, in
'the City of Philadelphia.

The plaintiffs below claimed as heirs of a certain Archibald
Cummings Craig, who died seized or possessed of the premises on
the 5th of September, 1797, and whose title to the same arose as
follows :

George Craig, the father of the said Archibald Cummings
Craig, died seized of the premises, with other real estate situate
in the City of Philadelphia and elsewhere : having made his last



1835.] OF PENNSYLVANIA. 252

(Burr v. Sim. )

will and testament dated the 17th day of June, 1782 ; in which,
after directing the payment of all his just dehts and funeral ex-
penses by his executors, and after giving his wife a legacy of
.250, he made the following provision :

"Item. My will is, and I do hereby authorize, impower and
direct my executors hereafter named, and the survivor of them
to * grant, bargain, and sell, either at public or private
sale, and as such time or times as they or the survivor
of them shall think most convenient and proper, all those my two
messuages or tenements, and lots of ground situate in the City of
Philadelphia, and my house and lot in the borough of Lancaster,
and to make, seal, execute, and deliver a deed or deeds, valid in
the law, for the same, to the purchaser or purchasers thereof, his,
her, or their heirs and assigns forever; and my will further is, that
my said executors or the survivor of them, do sell either at public
or private sale, as may be thought most proper, all the rest and
remainder of my goods and chattels ; and the money arising by
.the sale of my said real and personal estate, together with all other
moneys coming to their hands, after the payment of my just debts,
funeral expenses, the legacies herein bequeathed, with the inci-
dental expenses and a full compensation for their care and trouble,
my will is, and I do hereby order and direct my said executors to
pay into the hands of my friends William Craig and William
Wells of the City of Philadelphia, or the survivor of them, to be
applied and disposed of as hereinafter mentioned, whose receipt
to my said executors, shall sufficiently requit, release and dis-
charge them; and my will is, that my houses be rented ont until
the same shall be so sold as aforesaid.

" Item. I do hereby nomieate, constitute, and appoint my
said friends, William Craig and William Wells, to be guardians
over the person and estate of my son Archibald Cummings Craig,
during his minority, and I do hereby authorize, impower, and
direct the said William Craig and William Wells, and the sur-
vivor of them, to put and place out the money, so to be paid to
them by my executors, at interest, on security, as they or the
survivor shall deem good, from time to time, but at the sole risk
of my said son, and shall apply the interest thereof, to and for
the maintenance, education and clothing of my said son during
his minority ; and upon his my said son's arrival to twenty-one
years. of age, to pay over all the moneys in their hands, after de-
ducting all necessary expenses and a full compensation for their
care and trouble, unto my said son, to whom I give and bequeath
the same when he arrives at the age of twenty-one years, under
the restrictions hereafter mentioned. But in case my said son
shall die before his arrival to that age without leaving lawful issue,
then I give and bequeath the same to the children of my brother,



253 SUPREME COURT [Dec. Term,

(Burr . Sim.)

Archibald Craig, and of my sister, Jane Sim, deceased, of that
part of Great Britain called Scotland, to be equally divided be-
tween them part and share alike."

He then directed the emancipation of certain negro slaves, and
proceeded as follows:

" Whereas I have some moneys in the stocks or funds in Eng-
land under the care and management of Messrs. Mildred and
Roberts, merchants in London, which yield an annual interest, now
m j will * an d mind is, that there be paid out of the
interest thereof to the children of my sister, Jane Sim,
deceased, the sum of thirty pounds apiece, the first payment
thereof is to be made within four years after my decease, to the
youngest of the said children, and the next payment to the next
younger child, a twelvemonth after, and in the same mariner an-
nually till they shall each of them have been paid thirty pounds,
and the remainder of the said money I give and bequeath to my
said son, Archibald Cummings Craig, if he shall live to attain the
age of twenty-one years, but if he dies before that time, without
leaving lawful issue, then I give fifty pounds thereof to and for
the use of Bedrnan's house in the borough of Elgin, in the shire
of Murray, in Scotland, to be paid to the overseers or managers
of the said house ; and other fifty pounds thereof I give to and
for the use of the poor of the Episcopal Meeting in the said
borough of Elgin, to be paid to the corporation of the said bor-
ough, and by the said corporation placed out at interest, which
interest is to be paid yearly to the said poor on Christmas day
forever, and the remainder of said moneys I give and bequeath
unto the children of my said brother and sister, equally to bo
divided between them.

'Item. .My will and mind is, and I do order the guardians
aforesaid, to take my said son under their care and management
and send him when he is twelve years old to be educated at Old
Aberdeen in Scotland ; but if his mother refuses to deliver him
up to the said guardians, or he himself refuses to go under their
care and management, then and in either case, my will is, and I
hereby declare that he my said son shall be entitled to and receive
no more than only one half part of what I have hereinbefore in-
tended to give him, and the other half part thereof I give aud
bequeath to the children of my brother and sister aforesaid,
equally to be divided between them.

" Lastly, I nominate, constitute and appoint my friends Henry
Hall Graham of the borough of Chester, and Richard Riley of
the town of Chichester, sole executors of this my last will and
testament, hereby revoking all former wills by me made, and de-
claring this and no other to be my last will and testament."

The executors of George Craig never actually sold the premises



1835.] OF PENNSYLVANIA. 254

(Burr. Sim.)

in question, and were both dead at the commencement of this
ejectment. Archibald Cummings Craig, the son of the testator
was sent when he was twelve years old to Aberdeen, in Scotland,
where he received his education ; and thence returned to Penn-
sylvania. He arrived at the age of 21 years some time in the
year 1796. On the 5th of September, 1797, being absent from
home and in the Sta'te of New Jersey, he made a will in the
following words:

" In the name of God, amen. I Archd. Cumiss Craig feel my-
self in a declinening state of body, and knowing the certainty
of death, and not knowing the time thereof the funds

in Eng.

"My funds I have in the Bank of England .1 wold wish to
devise *unto John Creigh son of Archb. Gregg of Eegin r*9rr-i
County of Murough in the kingdom of Scotland, and * J
unto Mr. Anderson, son in law unto the aford. Archibald Craig
an inhabitant of Scotland, to be equal dd. between the
of sd. Jo. Creg. and sd. Mr. Anderson.

" Likewise I wold give onto my loving frnd Joseph Louriat of
the city of Philadelphia six hundred dollars.

" Further I wish to give unto Mesrgs. Martha Ross wife of
Capt. David Ross of the citty of Philadelphia, or to her heirs or
assigns, one three story brick house in Arch street, No. 63.

" Further I wish to give unto Doct. William Gurry of the
citty of Philada., one other 3 story house in Arch stt, No. 65."

The three story house in Arch street, last mentioned, was
the property in dispute in this ejectment. The probate was as
follows :

" Henry Disborough of Somerset county, and state of New
Jersey, being duly sworn on the Holy Evangelist of Almighty
God, did depose and say, that Archibald C. Craig of Philadel-
phia, died at this deponent's house in sd. county of Somerset on
the fifth of this instant. That on the day of his death the within
writing was wrote part by the deceased and part by this deponent
at the request of the deceased, and that the bequests therein set
down and wrote by this deponent, were made in the hearing of
the said deceased and acknowledged by the deceased to be wrote
agreeably to his wishes, and that at the time the bequests were
read to the said Archibald C. Craig, he the sd. Craig was of
sound and disposing mind and memory as far as this deponent
knows, and as he verily believes. This deponent further says
that he asked the deceased as to further disposition of his estate,
to which he replied, that as to the bequests already set down he
had made up his mind upon them for some time past, but as to
further bequests he had not fully made up his mind upon them,
and must take some time to think upon the subject ; upon which



255 SUPREME COURT [Dee. Term,

(Burr v. Sim.)

this deponent left the room for some time, and upon his return
found the deceased, as he thought, incapable of proceeding any
further on business.

HENRY DISBROW.
Sworn at Bedminster in Somer-
set county, the 13th day of
September, A. D. 1797, be-
fore me, JOHN MEHELM,

Surrogate of sd. county.

"Henry Disborough junior, being duly sworn on the Holy
Evangelists of Almighty God did depose and say, that he was
present in the room where Archibald C. Craig deed., lay sick on
the fifth instant; and heard Henry Disborough senr. read the
bequests in the within writing, to the deceased, and heard the
r*o'-p-| said deceased say *that they were wrote agreeably to
J his wishes and will, and at that time the sd. deceased
was of sound and disposing mind and memory as far as this depo-
nent knows, and as he verily believes.

HENRY DISBOROUGH, JR.
Sworn at Bedminster, in Somer-
set county, the 13th day of
September, A. D. 1797, be-
fore me, JOHN MEHELM,

Surrogate."

Archibald Cummings Craig, died unmarried and without issue.
On the part of his father, George Craig, his next of kin were
four first cousins, the issue of a paternal uncle and aunt. These,
or the issue of such as were since deceased, were the plaintiffs in
this ejectment. On the part of his mother he left two first cous-
ins, viz. : 1st, John Ewer Sword; 2d, Ann Sword married to
Dr. Nathan Dorsey, and the issue of another first cousin, viz. :
James W. Sproat. John Ewer Sword, and Ann Dorsey died
before the commencement of this suit.

Dr. Wm. Currie, the devisee named in the will of Archibald
Cummings Craig, died in the year 1828, intestate, leaving two
children, viz. : 1st, Isabella, who married J. G. Williams. 2d,
William Currie, who conveyed all his interest in the premises to
the said J. G. Williams. The defendant, Postrema Burr, came
into possession during the lifetime of Dr. Currie, as his tenant.
The said J. G. Williams was admitted by the Court to defend as
landlord of the defendant.

The foregoing circumstances having been proved on the trial,
the counsel for the defendants requested the Court to charge the

J UI 7>



1835.] OF PENNSYLVANIA. 256

(Burr v. Sim.)

1. That by the will of Archibald C. Craig, Dr. Wm. Currie
took a fee simple in the house and lot devised to him.

2. That by the will of George Craig, the real estate devised to
his executors to be sold, became converted into personal estate,
and as such, vested in Archibald C. Craig, and was transmissible
as such.

3. That by the will of Archibald C. Craig, the property in
dispute passed as personal property to Dr. William Currie, and
therefore that he took an absolute interest in it.

4. That if at the death of Archibald Craig, the property in
dispute is to be considered as real estate, yet it is to be regarded
as a new acquisition by him, and not as having descended to him,
or having been devised to him as real estate by his father, and
therefore under the act of 1794, passed to this heirs on the part of
his mother, as well as to the heirs on the part of his father, if Dr.
Currie took only a life estate.

The judge, however, delivered his opinion to the jury,

1. That Dr. William Currie took only a life estate in the
premises under the will of Archibald C. Craig, and not a fee
simple.

* 2. That the real estate directed by the will of George r^o^-i
Craig to be sold by his executors, was not converted into *-
personal estate, nor as such did it vest in Archibald C. Craig, nor
did the property in dispute pass by the will of Archibald C. Craig
to Doctor William Currie as personal property, nor did the said
Dr. Currie take an absolute interest in it .as such.



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