Case of Hartman's Estate

The opinion of the court was delivered by Gibson, C. J. By the fifth and seventh sections of the act of 1794, the father or mother of an intestate succeeds to a portion of the inheritance, where it has not come “on the part of” the opposite parent; but in the eleventh section, which provides for the case of the half-blood, the exception is where “ such inheritance came to the said person, so seized, by descent, devise, or gift of some one of his ancestors ; in which case all those who are not of the blood of such ancestor, shall be excluded from such inheritance.” The difference in the phraseology, as regards the parent and the half-blood, must have been accidental, for it surely could not be an object to exclude the parent, more than it could be to exclude the issue of such parent, merely because the title was transmitted by the opposite parent to the intestate as a purchaser for value, just as it would have been transmitted to a stranger. Where the transfer is in pursuance of a purchase, in the popular sense, the parties stand in relation to the transaction, not as parent and child, but as vendor and vendee; and there is no reason to exclude the other parent from a portion of the inheritance that would not equally hold in respect of a purchase from a third person. The question then is, whether the intestate here had the estate from his father as a purchaser for value, or by descent, gift, or devise. As regards those portions of it, which would have passed to his brothers and sisters, had his father died intestate, there [44] can be no question, as they can by no construction be treated as having descended : and on the other hand, having been paid for to the father’s representatives, they stand in relation to the question as if they had been paid for to the father himself. The difficulty is in regard to the part that would have descended, had the father died intestate. At the common law, every devisee being a purchaser and the founder of a new stock, the question, in cases like the present, fs, whether the estate came by descent or by purchase, technically so cdlled. The rule is, that it shall be treated as if transmitted by descent, wherever the will gives, as regards quantity and quality, though clogged with a condition or incumbrance, exactly what the law would have given: in other words, that incumbering the estate by the will, shall not alter its descendable 'quality, the law casting it on the heir, notwithstanding the devise to him, merely subject to the charge. Co. Lit. 12, b. note 2. Hedger v. Rowe, 3 Lev. 127. Allen v. Heber, 1 Bl. Rep. 22. Hurst v. The Earl of Winchelsea, 2 Burr. 879, and Clerk v. Smith, 1 Salk. 241, where Gilpin’s case Cro. Car. 161, is denied to be law. The legislature have thought fit to extend the principle, in favour of the blood of the first purchaser, to a gift or devise ; but by the latter word, it was undoubtedly meant to provide only for a testamentary gift; for being coupled in the clause with the word gift, as applicable to a gratuitous disposition of the estate, taking effect in the decedent’s life-time, it shews pretty clearly, that nothing but a gratuity, whether by devise or inter vivos, was intended to be provided for. The legislature must, therefore, be supposed to have used the word in its popular sense, as importing a testamentary gift, without intending to exclude either parent or the brothers and sisters of the half-blood, where the arrangement was in fact a testamentary sale. The presumption is a natural one, that had the absolute owner been permitted by prolongation of his life, to dispose of the estate, he would not have excluded persons so near in blood, in favour of more remote kindred, merely because the title, and not the beneficial interest, had been derived from their common ancestor. It is unnecessary to determine here, whether in settling the construction of our statute, we ought to apply the principle of the common law, which merges the equitable in the legal estate, where they have been united for the first time in the person of the decedent, so as to restrain the descent to the line of the latter; but it is not too much to say that it would scarce be deemed applicable to such a case as that of Nicholson v. Halsey, 1 Johns. Ch. R. 417. In the case before us, the difficulty arises on what is said to be the main clause in the will, which gave the. devisees not an estate in the land, though the descent was broken, but the produce of the land when sold by the executors, which was determined in Allison v. Wilson, 13 Serg. & Rawle, 330, and Morrow v. Brenizer, 2 Rawle, 185, to be such an interest as is not bound by a judgment; and hence, it might perhaps be contended that the whole was acquired neither by descent nor devise, but by purchase. But by a subsequent clause admitted to have been since proved [45] as d codicil, and therefore proper to be considered here, the testator directed the executors to offer the land to Jonas, or Elias, at a valuation. No formal valuation was in fact made, but what is effectively the same, the land was put up at public sale, and' taken by Jonas, the intestate, at the highest price bidden. It is only by considering this as a substantial compliance with the will that the title can be considered as available, for Jonas, who was also an executor, could not purchase at his own sale. Having taken directly under the will, he was a gratuitous devisee of his own share, but a substantial purchaser of the rest. This principle is in accordance with the decisions that have been made where the whole estate has been decreed to one of the children of an intestate by the Orphan’s Court; and the only case which seems to stand in the way of the same conclusion in the case of a devise of the whole to one of the children on condition of paying an equivalent to the others, is Reading v. Royston, 1. Salk. 242, where it was held that a devisee who would have taken but a of the estate by descent, as in the case of a devise of the whole to son of a deceased parcener, shall take the whole by purchase, ins of taking a moiety by purchase and a moiety by descent: in other words, that all shall be deemed to have passed by the will. There is however, no actual discrepance; for in the case before us, the whole is deemed to have passed by the will, and the devisee is supposed to be technically speaking a purchaser of the whole, though not such a devisee of any thing but his own portion as was within the contemplation of the legislature. To an interest in that portion, coming as it did, on the part of the father, the mother of the intestate is no.t entitled ; but in respect of the other portions which were acquired as a new purchase, her right is indisputable. It is, therefore, ordered that the decree of the Circuit Court, and of the Orphan’s Court, be reversed, and that the report of the auditor be confirmed; in addition to which it is ordered that a bond be executed to John llwmmell, and Em, his wife, to. secure the interest annually payable to her. Decree. accordingly.