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written by John Hoge to him, which lines were produced, and in
which John Hoge states, that he had that day, to wit the 1st day
of June 1820, been informed that the plaintiff had employed Messrs
J\f'Kennan and William Baird to bring a suit against him for the
land in dispute, and that he wished the witness and Mr Campbell to
be counsel for him. In relation to the land, John Hoge stated to
witness, that his brother William said it had come from his father,
and he did not wish it to go out of the name or family of the male
line, not certain which expression he used, but witness considered
the one expression equivalent to the other. In the conversation with
John Hoge, in reference to his brother's disposing of his property,
witness understood him as alluding to a will ; because in speaking
of witness being appointed one of the executors of the will, John
Hoge said that he had suggested that to his brother William. Wit-
ness understood John Hoge to have said, that when his brother spoke
of the difficulties that occurred in making provision for the plaintiff)
he (John Hoge) suggested to his brother to give it to him ; but did
not speak of a devise nor a will then ; nor say in words that his bro-
ther had ever consented to do so. Witness has no recollection of
John Hoge's telling him of any objections that the testator had in
his lifetime to the plaintiff. Thinks the widow of the testator was
married to Mr Reed in the fall of 1819. Some short time before her
marriage with Mr Reed, witness asked Mr John Hoge if he would
sell the property devised to him by his brother William, as he wished
to purchase it. Mr Hoge answered he would. Witness found af-
terwards that he was unable to buy, and declined it. That the

166 SUPREME COURT [Pittsburgh,

[Hoge v. Hoge.]

trust was not mentioned or spoken of by either of them at any time
when witness talked with Mr Hoge about buying the property.

John Graham sworn, and says : that on the evening after the fu-
neral of William Hoge, John Hoge told him that his brother William
had left his real estate to be divided into three equal parts, to David,
Jonathan and himself. It is so long since, that witness cannot re-
collect distinctly: that one-third was left to him (John Hoge) in
trust for young William. John Hoge said there were two points in
which his brother had not done right ; one was in cutting out the
widow of her thirds when she married, and the other was something
in respect to young William; but cannot say now what it was ;
whether it was that he had not left him enough, cannot say. John
Hoge stated then that testator had not done as he ought to have
done for young William.

Jacob Henry sworn, and says : that the last time he, witness, was
over with John Hoge at his place above Georgetown, shortly after
the death of William Hoge, witness went there to work for John
Hoge. John Hoge took a copy of the will out of his pocket, and
read it. He said it was not in the will, but he (John Hoge) was
authorized to give it to young William ; that he was not a lawful
child. John Hoge talked about it several times, the same thing.
He worked for John Hoge about his mill. Heard him say that one-
third was given in the will to him, and he had it in his power to
give it to young William. There was one time when James Reed,
who is now dead, was present ; nobody else present at any time.
The plaintiff spoke to me long ago, about what I knew, in the life-
time of John Hoge; but witness told him he might as well do with-
out him. Plaintiff spoke to witness again about it, and after think-
ing on it, recollected all as well as ever. Witness heard John Hoge
tell Mr Grimes about it. John Hoge did not say to Grimes that there
was any thing in which his brother William had done wrong in his
will in regard to his widow; mentioned nothing of the kind. Never
heard him speak of it to any other person.

The deposition of Joseph Pentecost, who says : he never had any
conversation with John Hoge, but once, on the subject of his brother's
will. Shortly after the death of his brother, deponent asked if de-
ceased had made any provision for young William? Mr Hoge's reply
was this : that William wished him to give part of his own estate
then, that is at the time of his death ; but he refused to do it, alleg-
ing that young William might as well wait to the marriage or death
of Mrs Hoge ; as she was young she would outlive him, and he
wanted the use of his own property. On cross examination : Did
John Hoge state any thing that was offered to him in lieu of the
property to be given by him to young William ? Answer, No. The
question he (deponent) put to John Hoge, relative to the provision
made for young William, was in consequence of John Hoge's writing
to deponent to take young William into his lanyard, and in conse-
quence of knowing that Mr Hoge had been sending young William

Sept. 1832.] OF PENNSYLVANIA. 167

[Hoge v. Hoge.]

to school, and he drew the inference that John Hoge was 'to get pro-
perty from William Hoge's estate.

Andrew Swearingen's deposition. Some time after the death of
William Hoge, he fell in company with John Hoge at his own house,
and knowing that John Hoge was always a great friend to young
William, felt anxious to know what the deceased had done for him
by will. Mr John Hoge told me that he had not left him any thing.
Deponent expressed surprise, as he had not heard of any other child.
Mr Hoge told him that his brother was a great stickler for the name,
and did not like to leave any thing out of the name, and mentioned
that he had often urged his brother to do something very decent for
young William; his brother said he wished to do so, but said the
young man might die without heirs, and the estate would go out of
the family ; but there was an understanding between him and his
brother, that if young William was to marry and get a male heir,
that then he had it in his power, as he expressed it, to do something
very decent for him. Mr Hoge and deponent never had any con-
versation after that on the subject. He has known young William
from a child ; his character good; and it was his opinion that deceased
took notice of him when a child. He does not know that deceased
ever gave him a cent, but John Hoge did, and put him in business,
and was like a father to him.

George Morgan's deposition. Some time after the death of Wil-
liam Hoge, deponent had a conversation with Mr John Hoge, relative
to the will of William Hoge. He stated the manner in which he
had left it : one third of the real estate to himself in trust for young
William Hoge ; that this had been done by by his advice, or at his
instance. Mr Hoge, as well as I can recollect, mentioned two rea-
sons for this ; the one he thought a wrong delicacy to Mrs Hoge ;
the other, in case of William Hoge's dying without issue before Mrs
Hoge's marriage or death, it might go to his mother's branch of the
family, which with his brother's family pride he could not bear; and
as it came from his father, it should be retained in the name, and
did not think it ought to change its channel. Mr Hoge mentioned
that he wanted his brother to do more for him ; but I think the
amount of it was, that he replied it was sufficient. Mr Hoge then
remarked that " with my brother I could go a certain length, but
further he would not allow." I gave important employment to
young William, in consequence of Mr Hoge's application ; and I also
saw letters from Mr Hoge to officers in the army, recommending
young William to office, one of which was to major Reed. During
the time young William was with me, he was lamenting his situa-
tion in life. I told him he ought to have patience ; that he was
well provided for, in at least Mr John Hoge's say so. He mentioned
this frequently as a favourable trait in Mr Hoge's character, having a
property left to him, and declaring it in trust for another, and also
providing for a person in young William's situation. He had several
conversations with Mr Hoge, and all went to the same point.

168 SUPREME COURT [Pittsburgh,

[Hoge v. Hoge.]

Young William's character good. That Mr John Hoge had advised
his brother to provide for this young man, notwithstanding his birth.
Young William depends on his own exertions for support. The
business he gave him was the collection of 8000 or 10,000 dollars,
and he did it with fidelity.
Plaintiff closed his testimony.
The defendants then gave the following evidence :
A deed of conveyance from John Hoge to William Hoge, son of
David Hoge, dated the 24th day of August 1820, for the land in dis-
pute, was read in evidence, and is in the following terms : " know
all men by these presents, that whereas the late William Hoge, Esq.
by his last will and testament, devised one third of his real estate in
the county of Washington, Pennsylvania, to the undersigned, which
devise, it is alleged and now believed, was in trust, with full power
to select and grant the same to such of the male heirs of said testa-
tor, as he the undersigned might deem most worthy. And whereas,
although it would be desirable to delay the execution or declaration
of said trust for some time, on several accounts ; yet, taking into
view, the sudden and violent disorder to which the undersigned is
subject, and by which he has more than once been brought in an
instant to the brink of the grave, he deems it now proper to make
the declaration and execute the trust aforesaid, especially as he is
advised that David Hoge, Esq. of Steubenville, Ohio, who is the
natural guardian of the selected objects of the trust, and who is of
that age that promises a continuance of life, can be fully authorized
to make any disposition of the property devised, not incompatible
with the views of the testator. And whereas, expectations have
been excited by alleged incautious conversations of the undersigned,
held with various persons previous to any certain knowledge he had
of the said devise being in trust, which cannot now be gratified, be-
cause the trust has been made known to him. And it is, therefore,
proper to make a distinct declaration on the subject, lest after the
death of the undersigned, these incautious conversations might be
used for purposes never in his contemplation and adverse to the
views of the testator. Wherefore, now know ye, that in order to
promote and accomplish the views of the testator, I, the undersigned
John Hoge, trustee as aforesaid, do hereby grant, bargain and trans-
fer unto William Hoge, son of David Hoge, Esq. of Steubenville, in
the state of Ohio, and his male heirs and assigns, the whole of my
right, title, interest and estate, in the premises devised as aforesaid,
with all the hereditaments and appurtenances thereunto belonging.
To have and to hold the said premises to the said William Hoge, son
of David Hoge, to the only proper use and behoof of him the said
William Hoge, son of David, his male heirs and assigns for ever ;
subject, nevertheless, to a full and absolute power hereby reserved
and granted to the said David Hoge, Esq., to have and enjoy during
his natural life, the whole of the premises so devised, and also with
full power and authority, if he should deem it proper and necessary,

Sept. 1832.] OF PENNSYLVANIA. 1G9

[Hoge v. Hoge.]

to sell and dispose of or otherwise use the same for the education
and advancement in life of his male children only, and particularly
of the said William, his son. And I do hereby relinquish all power,
control and interest in the property or estate devised to me for the
purpose aforesaid. In testimony whereof, I have hereunto set my
hand and seal, this twenty-fourth day of August, in the year of our
Lord one thousand eight hundred and twenty."

Acknowledged before James Blaine, justice of the peace of Wash-
ington county, Pennsylvania, the same day, and recorded the 29th
day of the same month.

The deposition of John Hoge was next read in evidence, in which
he testifies : that he is no way interested in the result of the suit
brought by William Hoge against Samuel Lyon. That he never
intended to profit himself by the devise made by his brother William
Hoge to him, of one third of his real estate, and never felt any inter-
est in it further than what is to be derived from the pleasure of be-
stowing on merit. That he knew that his brother William had the
utmost confidence in him, and believes it was that confidence as well
as affection, that induced his brother to make the devise, but he
never could be certain from any information received from Mr
M'G-iffin, or otherwise, until he heard his testimony on the 12th of
August 1820, that the devise to the deponent was in trust; and
deponent therefore never could say that it was a trust estate for the
use of any one, though he knows he did designedly insinuate some-
thing like it, as he had no fear that young William would or could
claim all, especially as deponent knew that all aid had been repeat-
edly refused for him in the deponent's brother's lifetime. And as a
trust had been spoken of in the country, deponent did apprehend
that if others instituted an inquiry, that he might by some legal con-
struction be obliged to exclude young William altogether, and there-
fore often said that one third of the devise to deponent was for him
at any rate. But after Mr M 'Corn's offer to purchase, without
mentioning the trust, all doubt on the subject vanished, and depo-
nent never spoke or thought of a trust afterwards, because he believed
if Mr M'Gijjin would purchase, he had heard nothing which would
militate against the views of the deponent ; and until the testimony
of Mr M'Gijftn was taken before James Blaine, Esq. on the 12th, as
before stated, the deponent believed that he had full power, what-
ever doubts might be entertained by others, over the estate ; and that
the confidence or trust reposed in him by his brother, was a confidence
that he would dispose of the estate devised, in the same manner that
he would of his other property, viz. to the most promising male or
males of the family, for the establishment of a male branch or
branches, and thus give a fixed habitation and preserve the name in
the country. Under the persuasion that he, the deponent, was not
limited by any trust, he had determined on the manner in which he
would bestow the estate ; which was, one third to young William,
who now claims the whole as a trust estate ; and the remaining two

170 SUPREME COURT [Pittsburgh,

[Hoge v. Hoge.]

thirds to his brother David, who had not been provided sufficiently
for by his father, or otherwise such part of the two thirds to him as
would enable him to educate his sons and fit them for the world,
reserving any balance that might be to bestow on such one of his
sons as should appear to him to merit most hereafter. With this
view, deponent was much pleased with Mr M'GiJfiri's offer to pur-
chase, not only because it would enable deponent to provide imme-
diately for young William, but also because, in his mind, it did away
the idea of a trust, of which there might be doubts, and which had
been spoken of in the country. Such was the anxiety of deponent
to provide immediately for young William, that when Mr M'Giffin
declined to purchase, and the change of times forbade the prospect of
a sale for money, he commenced operations to induce a wealthy
merchant to purchase, and designed to offer to take one third of the
price in goods, which he meant to bestow on young William, and
credit the balance to suit the purchaser's convenience, and he en-
gaged Mr Campbell to procure a division of the estate, that he might
be enabled to close a bargain, if a purchaser offered for the land.
That the deponent had taken young William, without education,
character or friends, and fitted him for the world, and must feel for
his comfort and prosperity in it ; and the deponent was, therefore,
sorry when he heard the testimony of Mr M'Gijfin, relative to the
trust, as it obliged him, against his will, to change his course and be
bound by the wishes of the testator. These wishes the deponent
must collect from a variety of conversations which he had with the
testator, as he has no other direction on the subject. The deponent
states, that his deceased brother William and himself were in the
habit of the most friendly communication of opinion, and he never,
on any occasion, omitted to press upon his brother the propriety and
duty of doing something for young William; he even ridiculed the
distinction between legitimate and illegitimate children ; and the
deponent declares that his brother never on any occasion consented
to do any thing, except furnishing a horse, saddle and bridle, after
he, the deponent, had succeeded in getting young William appointed
to an office, which required a horse when called on a tour of militia
duty. The deponent further states that he has spoken with differ-
ent persons of the pains he took with his brother on the subject, and
he finds by the testimony he heard on the 12th, that he has been
very much misunderstood. Mr Swearingen, one of the witnesses,
said, allowance ought to be made for him on account of the distance
of time, his age and bad hearing ; and the deponent must ascribe
the gross mistakes of others to his blundering attempts to serve young
William, and their inattention to his observations, for it might be
unfair to ascribe their mistakes to a worse motive. The objections
of the deponent's brother William, he states positively, were always
against making any provision for young William, and not as to the
mode of doing it ; and the deponent could not say, with truth, that
the deceased was willing to provide for him, for he was always un-

Sept. 1832.] OF PENNSYLVANIA. 171

[Hoge v. Hoge.]

willing ; and if it had not been for this unwillingness, deponent
would have had young William provided for long before his brother's
death. The deponent's brother often urged, in conversations had
with him, when pressed hard, that young men did as well generally
without patrimony as with it ; that estates in prospect did great
mischief; that, at any rate, he was not bound to do any thing, for,
from the infamous character and profession of the mother, young
William had as great a chance to be son of any one among twenty
or more, as to be his ; and that if there was no other reason, this
last was sufficient that he could not give money ; and personal
property such as he had, would be of no use ; and that, in a word,
he was determined to do nothing. And the deponent says positively,
that his brother and himself never spoke of a devise to young Wil-
liam, nor to any other person, nor had he the most remote no-
tion of his brother's death, or any prospect of outliving him, who
was a very temperate man ; nor did the idea ever enter depo-
nent's head, that any of the conversations with his brother had
any view to his death until after his will was made and he un-
able to converse much on any subject, when it occurred to de-
ponent's mind that perhaps some of his brother's last observations
relative to the division of estates, had that event in view. . So
far was the deponent from knowing of any thing intended to be
comprised in his brother's will, that the first intimation he had of a
will at all, or of being considered in it, was from Jlndrew M'Clure,
after his brother's death, to whom the deponent immediately said he
was glad of it, as it would enable him to provide for young William
and others who had been neglected. The last conversation which
the deponent had with his brother in relation to young William, or
indeed on any other subject, was the day before he set out to Fa-
yette county for merino sheep ; and the same day he wrote for Doc-
tor Wilson, of Steubenville, to attend his brother, about a week before
his death. He was then in no apparent danger, but had no confi-
dence in the physicians of Washington, and the deponent thought it
best to have the aid of some one. Previous to this last conversation,
deponent had on several occasions suggested the -propriety of giving
to young William a lot, and assisting him a little to sink a lanyard
and commence business, being a tanner by trade ; which, as the de-
ponent has stated, his brother always refused to do. In this last
conversation, only about a week before his death, the deponent sug-
gested the giving to young William a piece of ground, at which de-
ponent's brother became angry, and said, " Do you think I would
give part of this estate to Peg Treanour's son ; no, this I got from
my father, and I have no right to divert it from the family." De-
ponent interposed, and assured him that it was a piece of out-land
that was meant, which would suit for a tanyard for a beginner.
He became cool, and said he had no land of the kind ; but added,
" As you appear to be so much interested on this subject, you had
better give some land yourself." Deponent then answered he would,

172 SUPREME COURT [Pittsburgh,

[Hoge v. Hoge.]

if his brother would exchange some land with him or repay him in
any way ; and that if the deceased was unwilling, from any family
cause unknown to deponent, to do any thing publicly for young Wil-
liam, and would authorize deponent and provide the means, that
deponent would apply them sparingly, and only as the young man's
merit would justify ; but a devise, as staled by Mr M'Giffin, was not
mentioned or thought of by deponent on this or any other occasion.
Deponent's brother, on this last effort made for young William, point-
edly refused to do any thing, as he had always done before, and beg-
ged that deponent would not introduce the subject again. This was
about a week before his death, and when the deponent returned
from Fayette, his brother's will was made without any concert with
him, or the probability of having any; nor did his brother, either be-
fore or after the will was made, speak of it or say one favourable word
of young William. There certainly was no trust in favour of young
William, to the knowledge of the deponent ; but on the contrary, as
appears by the conversations stated, he was always excluded from
any aid, sometimes with anger, and always with firmness, accom-
panied often with a denial of the relationship; and on this last occa-
sion deponent was forbidden to mention his name again, and this, as is
stated, about a week before the death of the testator. These things
deponent certainly stated in part to Mr M'Giffin, perhaps confusedly
and avoiding the strong objections his brother had to young William,
because deponent was afraid of his exclusion, not of his taking all,
in case the confidence in deponent, as expressed to Mr Jlf' Giffin, by
his brother, amounted to a trust in law. The terms of the trust
could be known to no one but deponent, and as he did not then be-
lieve the confidence so expressed by his brother amounted to a trust,
he did not think himself called on to state the strong objections of
his brother to young William. And the deponent felt confident, as
he did still until he heard Mr M'Gijfirfs testimony, that his brother
did not mean to confine his power, but left him free to act as he
would with his other property. The deponent states that his con-
versations must have been misunderstood, and have been conse-
quently misrepresented. One error is, by ascribing his observations
to his brother, and another great one is by supposing any of his con-
versations with his brother related to the final disposition of his
estate, when they referred exclusively, so far as young William is
concerned, to some small beginning for him. Deponent further
states, that he is not surprised, when such a man as Mr M^ Giffin
misunderstood him, at the gross testimony of Graham and Morgan,
to whom he might have said, before Mr M^ Giffin offered to pur-
chase, that if the devise made to him was in trust, one-third of it
should go to young William; thus insinuating that the trust was
for him ; but more the deponent did not say, and never on any occa-
sion went further than insinuation in favour of young William, as
this deponent thinks and believes. The appointment of Mr M'Gif-
fin as an executor, would seem from the testimony to be the result

Sept. 1832.] OF PENNSYLVANIA. 173

[Hoge v. Hoge.]

of a recommendation made by the deponent to his brother of Mr
M'Giffin as such, than which nothing can be more untrue; when it
may be true that the deponent indirectly contributed to it, and may
have said so, but if he did, it was by his constant recommendation
of Mr M'Giflin to his brother and others, as a young man of honour,
who promised well ; and if Messrs Cook and Huston were dead before

Online LibraryPennsylvania. Supreme CourtReports of cases argued and determined in the Supreme court of Pennsylvania (Volume 1) → online text (page 20 of 68)