| Pa. | May 15, 1838
he defendants here were plaintiffs below, and brought this ejectment for one undivided half of a tract of land containing two hundred acres.
At the trial, the plaintiffs claimed one-sixt.h part of the land ; and for so much they had a verdict and judgment. . ,
Both parties assumed that the whole tract was, atone time, the property of Samuel S. Galbraith. By his first wife he had two sons, Bartram and James. James died in 1823, unmarried and without issue. After the death of his first wife, Samuel married Juliet Buchanan, who died, leaving one daughter, Juliet. Samuel married again, but had no issue by his third wife, and died about 1810, leaving Bartram and James, his children by his first wife, and a daughter, Juliet, by his second wife: she is now married to a Dr William Lei per. About 1814, Bartram went to study the practice of physic under Dr Abraham Carpenter. I shall state in the order of time the title of the defendant below, who showed a bond dated 4lh February 1820, for 2600 dollars, conditioned for the payment of 1300 dollars on 4th April then next, with interest, and a warrant to confess judgment. This was entered upon the 12th April 1823, as of the preceding January term.
On (he 4th of February 1825, this was revived by an amicable scire facias.
Dr Bartram Galbraith married a Miss Reigart, who died, leaving no issue. He then married Rebecca Simon, who survived him, and who, together with her present husband, James Cameron, are plaintiffs in this cause. Dr Bartram Galbraith and his’wife, with very many others along the Susquehanna, fell sick in the autumn of 1826. His wife-was removed to Lancaster, to her father’s. After her departure, he sent for a justice of the peace, who, by his direction, wrote his will. He was then able to sit up, and to walk through the house.
The will was as follows:
“In the name of God, amen. I, Bartram Galbraith, of the town of Bainbridge, in the county of Lancaster, considering the uncertainty of this mortal life, and being of sound mind and memory (blessed be God for the same), do make and constitute this my last will and testament, in manner and form following, to wit. First, it is my will, and I do order and direct, that after my decease my funeral expenses be defrayed, and all my legal debts be liquidated, and for that purpose I do authorise and direct my survivors to sell and dispose of all my real and personal estate, for the purposes above-mentioned; and the surplus, should there any íemain, I do give and bequeath unto my dear wife Rebecca. I do also give and bequeath unto my dear wife the watch I carry. Item, I give and bequeath unto my sister Juliet the portrait of my brother James. I publish and declare this, and none other, to be my'last will and testament.
“Signed and sealed in presence of Robert H. Jones.”
Soon after this, Dr Galbraith also set out to go to Lancaster, but only reached his brother William’s house, at Mountjoy, where he died in a day or two after.
I may here stale that it was alleged that his wife, being sick at her father’s in Lancaster, did not know or hear of this will until since her second marriage; it was found in a drawer of a desk, among other papers, and immediately proved, and this suit, brought.
After the revival of the judgment, in 1825, Dr Carpenter issued one or more writs of fieri facias, which, being found erroneous, from some mistake between the district court and common pleas, were not executed.
On the 6th of December 1826, letters of administration were granted to the widow,Rebecca Galbraith, and DrWilliam Thompson, in the usual form; and a bond, with sureties, in the form prescribed by law, in which was the usual clause, that if a will should be found and proved, they would deliver up the said letters of administration.
The defendants then gave in evidence an agreement by these administrators to enter ah amicable scire facias on the judgment of Dr Carpenter, against them, as administrators of B. Galbraith, and to give judgment for 1948 dollars 62 cents. This was filed in the prothonotary’s office May 15th, 1827, and the scire facias and judgment thereon the same day.
A fieri facias issued on this judgment, No. 10, of August 1827. The return was, “I have seized and taken in execution the within described property, late the estate of Dr Bartram Galbraith deceased, which remains, &c.” The only description of the property was in the inquisition annexed tothe writ, which found, “that the rents, issues and profits of the undivided half part, of a tract of land containing one hundred and eighty acres, more or less, with a log house, &c. (describing the improvements and local situation), late of the estate of Dr Bartram Galbraith deceased, in the same writ named, were not of a clear yearly value,” &c. The defendants further showed a venditioni exponas, and a sale by the sheriff of Lancaster county on the I9ih of November 1827 to James Buchanan, Esq. for 505 dollars, and a sheriff’s deed to Mr Buchanan, and adeed poll indorsed thereon, by which he transferred the property to Dr Carpenter for the same price; both recorded. Dr Carpenter has been in possession since that time. According to the testimony, Dr Carpenter had, as guardian of Juliet while she was a minor, and as agent for the heirs in some suits, been in possession of the whole of this farm from about 1815.
On the 14th of July 1835, the above will of Bartram Galbraith was proved before the register of Lancaster county by Robert H. Jones, the subscribing witness, and by John Smith, who was ac
To all this testimony and the probate of the will and letters testamentary, bills of exception were taken. In this court the argument seemed to be against the effect of what had been done, rather than to the evidence of what had been done. In other words, that there was no executor appointed by this will, and that letters of administration with the will, ought to have been granted. Our acts of assembly have not designated what shall amount, in a will, to making any person executor of that will; their provisions are precise,in most cases, where a person or persons are designated executors, and renounce or remove out of the state, or die. What shall amount to appointing or' designating an executor is left as it was; all authorities agree that the word executor is not necessary. That an executor may be appointed expressly or constructively by committing to his charge those duties which it is the province of an executor to perform, or by conferring those rights which belong to the office, or by any other means by which the intention of the testator to invest him with that character, may be inferred: as if. a testator direct that A shall have his property, after paying his debts; so, when after giving various legacies he directed that his debts and legacies being paid, his wife should have the residue, if she gave security for the performance ofi the will, Toller 35. (These last words savour more of an administration than of an executorship, and she must have been more clearly entitled to be executor if they bad not been added.) So far as the cases cited, or our researches have gone, the above, from Toller, is a fair synopsis of the law, as found from Swinburne to Williams on Executors; the one among the earliest, and the other among the latest writers on the subject. There may be cases in which it may be not very clear what was the intention of the testator, and perhaps this may be one of those cases. It might have been decided that letters of administration, with the will annexed, were proper. The officer granted letters testamentary. This court has not decided which would have been most proper, nor have we discussed that question; because by section fifth of the act of 15th March 1832, Stroud’s Pur don 857, every register qualified to act as aforesaid, shall have jurisdiction within the county for which he shall have been appointed, of the probate of wills and testaments, of the grant-ting letters testamentary and of administration, of passing and filing the accounts of executors, administrators, guardians, &c.; and by section seventeen of the same law, it is directed that ah original wills, &c., &c. shall be recorded, &c., and the copies of such wills and probates under the seals of the courts or offices where the same may
Section thirty-one says ; from all official aets of the register appeals may be taken to the register’s court, at any time within three years: and sections thirty-nine to forty-two, inclusive, direct proceedings (here, and from the register’s court give an appeal to the supreme court.
independently of the general rule that the decisions of a court of exclusive jurisdiction are conclusive, until reversed, on all matters within such jurisdiction, it would seem that these express provisions of our act of assembly compel the admission of this will and probate, and letters testamentary in every court of the state. They are enacted to be matter of record, and good evidence to prove the gift or devise thereby made.
It was said if this probate was not within the jurisdiction of the register, it was utterly void, and should have been rejected ; but this was not, and could not be seriously pressed. There is no allegation that the will was not duly proved, and before the register, and he alone had jurisdiction to grant letters testanientary, or of administration with (he will annexed : if he mistook, an appeal was the remedy. But it is said, if this last had been the case, security must, have been given, and thus the creditors would be free from danger of loss. If there was really any one seriously afraid in this particular, and will make oath of it, he can soon have the security spoken of.
Another point somewhat urged by the counsel of the defendant below was, that Dr Carpenter, by. his levy and sale of “ the undivided half part of a tract of land,” &c., could hold the whole interest of the defendant, if it should turn out to be two-thirds, or three-fourths, or the whole of the tract; and not a few cases were cited, or rather the dicta in those cases; but in not. one of them was the point now in consideration in the view of the court.
It was a matter about which lawyers and laymen talked for years, whether a sale on execution by a sheriff passed the land to a purchaser clear of prior liens; and what was said at the sale by the sheriff, and sometimes what was said by the bystanders, was offered in evidence to show what the rights of the purchaser were; and the court said those rights depended on the law, and not on the sheriff, or cryer, or bystanders, unless in very particular cases.
Sometimes the quantity was not accurately stated in the levy, and the question was, what would pass under the words “more or less,” or under those words accompanied by the designation that it was a tract of land in the oGcqpation of the defendant, and as defendant had notice of the levy, inquisition and sale, if he did not apply to have the quantity corrected, if it was too small, did the purchaser take the wl}qle fqrm, though containing more acres than the deed 1 Jn
The act of 21st March 1806 provides, that not less than a whole farm or tract, if all owned and occupied by one person, shall be levied on ; and the spirit of this act would direct that if a man owned the whole, or certain aliquot parts, the plaintiff would be bound to levy on (he whole interest. Certainly, if either the plaintiff or the defendant, at any time before the acknowledgement of the sheriff’s deed, should make known that this law had been violated, by levying on part of a tract, or, where the defendants had an undivided interest, by levying on less than that interest, the executions would be all set, aside, or, perhaps, in some cases, the terms of the levy'’ corrected and a new sale ordered. These proceedings would be decided on according to circumstances and consent of parties. But after a sale and deed acknowledged, as in this case, and long acquiescence, I am not aware that it has been, or can be decided, that a levy and sale contrary to the directions of this act woud be void, unless procured by fraud or misrepresentation of the plaintiff, or purchaser, or both. If, however, this act can have any effect in such a case, it cannot be in favour of a plaintiff purchaser. The act was made to protect defendants in executions, and prevent their lands from being taken from them in small parcels, when the rents and profits of the whole would have paid the debts in seven years. . It is not intended to give even the individual opinion of the judge, as to the effect of thislaw on the title of the purchaser at sheriff’s sale, further than that, in this case, the levy and sale does not vest in Dr Carpenter more than one undivided half part of the tract.
Another objection was, that where land is devised to be sold to pay debts, or divided among several, or the price to be paid to one, it is considered, to all intents, as money ; and many British, and some of our own authorities, were cited. Without entering into all the questions which occur under this rule, in different circumstances, we are of opinion it has no application in the case before us.
A creditor of a decedent, who gets possession of property belonging to the estate in any other way than by purchase from the executor, or purchase under process of law, is as much a trespasser as any stranger. A person, then, having no right, gets into possession ; the executor has by common law, and by our act of 1800, express authority to bring ejectment to obtain possession, in order that he may sell, and apply the money according to the directions in the will; or he may convey at private sale, and the purchaser may support ejectment; if there is any objection to such private sale, it is for
Not a little was said as to whether the plaintiff below was claim? ing as executrix or devisee. They styled themselves neither execu? tors or devisees, and it was not necessary that they should. In a case where a person, who has no other right than an executor, is plaintiff in ejectment, and dies before the cause is ended, there may be a conve? nience in his being styled executor. By our present law his executor will not be executor of the first testator; and as the person next in interest is to be substituted as plaintiff, there may be difficulty in de* ciding who is next in interest, where the deceased plaintiff had stated that he sued out the writ in the character of executor. The'Vecord, in case of recovery, will also show for whose benefit the recovery was; but it has never been held necesáary that the style of executor should be added ; nor has it, to my knowledge, been contended in this state that it was necessary to state that the plaintiff brought ejectment as executor, except in one case, before Judge Shippen, at a circuit court in Lycoming, in which R. Tunis was plaintiff, and claimed as executor of Roberts, but was not so styled on the record, The judge at once said, if plaintiff showed a right in himself, it was never necessary to state in the writ, or title of the writ, the nature of that right. I think in the middle counties it has never been discussed since, and seldom has the plaintiff been stated to sue as executor, In one case I knew of a long contest between the heirs of the executor and of the first testator, who should be substituted under the act of 1807, upon the death of the plaintiff; and for this cause I would ad? vise counsel who bring ejectments for executors, to state it so on the record.
It is no part of this cause to state or decide what effect any sta« tute of limitation or lapse of time, since the death of Dr R. Galbraith, may have on the claims of his creditors ; if that is disputable, it will be decided when it occurs. The judge very properly avoided de-, ciding the question raised by the defendant below, as to executor and devisee, and as to the effect on the rights of creditors, whether in one or the other character. It was enough to settle in this cause thaj one-sixth of this farm, which was vested in Dr Galbraith at his death, remained undisposed of, and that under his will, the plaintiffs had it right to recover possession of that undivided sixth.
It has been conceded, on both sides, that either Dr Carpenter did not know that Juliet was only a sister of the half blood to James and Bertram, or that he did not know that the law in this case gave all to the full brother; and that the widow of Bartram was under the same misapprehension. There is not any thing to which the docrine of estoppel can apply. Dr Carpenter had been in possession of tlffa property, as guardian and agent of the family, ten years ; it is not surmised that the widow gave in the levy,- or was consulted about it, The one-sixth, now in dispute, is not embraced in that levy or sale; the present plaintiff did nothing, in the whole matter of sale, except
Judgment affirmed.