23 F. Cas. 27 | U.S. Circuit Court for the District of Rhode Island | 1828
The demandant is admitted to be entitled to one quarter part of the estate in controversy; and he has never been ejected from it. As to the other three quarters, the defendants are in possession of it under the town council of Newport, who took possession and charge of it
The demandant seems to rely upon his own possession, before the town council took possession of the estate, as sufficient to entitle him to recover the whole of the estate. But his possession was not exclusive of the heirs of the three quarter parts not purchased by him. He was tenant in common with them, and his possession was quite consistent with their title. No act of disseizin of them is proved, or pretended. Under such circumstances, he can recover only according to the strength and extent of his own title. The tenants, being in possession, are entitled to hold it, until he establishes some title to displace them.
The' demandant seems, also, to rely upon the ground, that, as tenant in common, he is entitled to a present possession of all the estate in the absence of the heirs, because the statute was not intended to apply to any cases, except those, where there was no heir or representative or legal claimant of any portion of it within the United States. The words of the act of 1S22 are, “that when any person shall die, leaving any real or personal estate within this state, and shall leave no known heir or legal representative within the United States to claim the same, it shall be lawful for the town council of the town, in which such real or personal estate shall be, to direct the town treasurer to take the same into his possession, until the heir or other legal representative of such deceased person shall call for the same.” The sound construction of this, clause is, that it applies to so much of the estate of the deceased person, whether it be an undivided moiety or the whole, as is without a known heir or representative; for as to such portion of the estate, the deceased, in the very words of the statute, died, “leaving no known heir or representative within the United States.” A co-heir or co-tenant is in no just sense the heir or representative of the deceased thereto. The case is equall5r within the mischief of the statute, whether the deceased be the owner of the whole, or of an undivided portion of the estate; and whether his unknown heir take the whole, or an undivided portion of it by descent. In each case, the object is to preserve the estate in the possession of the town treasurer for the benefit of the rightful owner, whenever he shall appear.
The only real doubt upon the words of the statute is, whether a person, who dies leaving heirs or representatives within the United States at the time of his death, who afterwards remove from the United States, and leave no representatives behind, is within its purview. In strictness of construction, the words seem limited to eases, where there is no known heir or representative of the deceased left within the United States at the time of his death. Perhaps it is not easy to enlarge that construction by implication, so as to reach all the mischiefs arising from subsequent events.
In the present case, it does not appear from the state of facts, what has become of the devisees and immediate heirs of the estate of T. T. Taylor. They are said long since to have removed abroad. Whether they are now living, does not appear. The fair presumption from the lapse of time may be, that all of them have died since their removal, and that thereby a descent has been cast upon their own heirs. If so, then as these last heirs are unknown, the case would be fairly within the reach of the statute to the extent of the three quarters now claimed.
The statement is not sufficiently precise to enable the court to draw such a conclusion with absolute certainty. The case must, therefore, be determined upon the first ground; and for want of any title in the de-mandant, his right of recovery must be limited to one quarter part of the demanded premises.
Judgment accordingly.
