1 Rawle 386 | Pa. | 1829
The opinion of the court was delivered by
The certificate of the presiding justice of Jefferson county, that the attestátion of the clerk is in due form of law, was sufficient to introduce the exemplification of the will. The laws of Virginia are to be proved- as the laws of a foreign Country; but, the acts of its courts may,' undoubtedly, bé resorted to for their exposition. To the act of the county court, in holding jurisdiction of the subject of probate, the.maxim omnia presumuntur rite esse acta, is aS applicable as it is to judicial proceedings in our own state.
The articles of agreement were competent evidence, because they constitute a part" of the title under which all parties claim; and, it is, therefore, immaterial, whether the executors derived an .authority to complete the purchase under the will. Having ratified their acts by taking the estate subject to the provisions of the will, Philip, or any one claiming under him, is estopped from denying their authority. ' ‘
The intention to charge the'premises with the maintenance of the testator’s -daughters, Catharine and Elizabeth, although .not expressed in terms, is, nevertheless, clear and satisfactory. • It is to be collected from all-the parts of the will considered in reference to the testator’s circumstances. Having articled for the sale of the mansion place -in Virginia, he sends his son to Pennsylvania to purchase the premises in' dispute; but before his return, sickens, makes his will, and dies. He. provides contingently for the projected purchase, by directing his executors, in- case it should be effected, to execute the contract for the sale of the mansion- place; and he devises the premises in question to his son Philip, coupled with this clause:—“My son Philip is to keep and provide for my wife and my two oldest daughters, Catharine and Elizabeth, during their natural lives. ” He also provides for the failure, of the contemplated- purchase, by forbidding the executors, in that event, to complete the sale of the mansion place, and by directing, that it be held by his wife and children till the youngest come of age, Philip working the land, and rendering a third of the produce for their
Pursuant to the instructions of the testator, his son agreed with the vendors on the terms of the purchase, but did not enter into articles agreeably to the letter of, the condition on which the land was to pass by the will; and.it was nevertheless agreed on all hands, that the executors.should complete the purchase as if. articles had been executed. Accordingly, they,paid the purchase, money, and the vendors executed a conveyance to Philip, according to the testator’s directions. Hence, as the defendants, claiming under Philip, derive the legal estate directly from the vendors, and not through the will, it was necessary to affeGt .them with notice of the equitable incumbrance of,the daughters’ maintenance. To this end, it was proved, that an uncle of the daughters, and an inhabitant actually ráledin the township in which,they are settled, gave actual notice to one off them at the sale, and to the other a short time previous, the third being merely a tenant. In addition, it was shown, that another rateable' inhabitant of the same township, had not only informed them of the existence of the incumbrance, but had repeated to them nearly the-words (if the will by which it was created. Now, although a purchaser may disregard "rumours, set . afloat by those who have no right to intermeddle, lie is bound to attend to the admonitions of a party in .interest. Here the daughters, although actually charged to the township, had an interest of their
The concluding, objection is to the joinder of the ov.erseers and the paupers in the same ejectment. By the -act of the 29th of March, 1819, overseers of the poor are empowered to recover the money, •or other property, of paupers committed to their charge, for the purpose of applying it to their maintenance; but, whether in their, corporate name, or in the name of the pauper, is not specified; Perhaps an action would lie in the name of either. But, it is said, that whichsoever way it be taken, there cannot be an action in the names of both. By the act of the 31st of March, 1823, it is provided, that in ejectments by more than one, a plaintiff failing to establish his title, may become nonsuit, and a verdict nevertheless pass for the others. Now, had the Overseers, or the-paupers, become nonsuit here, -the case would have been within the letter of the act. Even as it. stands, it. is so entirely within its spirit, that we would not exercise a sound discretion, were we t,o say, it is unsustainable. All parties are, in fact, interested: the overseers, in the application of the property in ease of the township; and, the paupers, to be let into the enjoyment of their father’s bounty. They have thus an interest in common, which entitles them to the possession. But, were all this otherwise, we ought not to use our discretion so as to trip up the parties really entitled, oh a trifling objection to the form of the action. .
Judgment a®rmed.
