Matthews v. Turner

Robinson, J., delivered the opinion of the Court. The main question in this appeal is whéther, in an action of ejectment by legatees to recover certain leasehold property specifically bequeathed to them, it is necessary to prove in addition to the probate of the will, and the grant of letters testamentary and the assent of the executor to the legacy, that the property was included in the inventory returned by the executors, and was distributed to the legatees by the order of the Orphans’ Court ? There ought not to be any difficulty in determining this question. Upon the death of the testator his entire personal estate, including property specifically bequeathed, [121] devolves on the executor, to be administered by him for the benefit of creditors, and the payment of legacies, and the balance, if any, to be distributed to the persons entitled under the statute of distributions. Strictly speaking, the entire personal estate ought to be returned in the inventory to the Orphans’ Court. But the title of a legatee to property specifically bequeathed, does not depend upon the inventory returned by the executor, nor does it necessarily depend upon the orders of the Orphans’ Court. By the will itself, the legatee gets an inchoate title, and when the debts are paid, and the executor assents to the delivery of the property to the legatee, the title of the latter is thereby perfected. Nothing more is necessary, and upon the title thus perfected, the legatee may maintain an action of ejectment if the property be leasehold, or an action of trover for the conversion of personal property. There is no error therefore in the rulings of the Court in the first, third and fourth bills of exception. Bacon’s Abridg. Legacies, L; 2 Williams on Executors, 1378; Comyns Digest Adm’r, (C. 6); 1 Roper on Legacies, 848-851; 3 Preston on Abstracts of Title, 145; Doe dem. Saye and Sele vs. Guy, 3 East, 120; Stevenson, et al. vs. Mayor, &c., of Liverpool, L. R., 10 Q. B., 81. After verdict, a motion was made in arrest of judgment, on the ground that the plaintiffs could not recover an undivided three-fourths under a declaration, in which they claimed the entire tract. Whatever force there may be in this objection, arising from what was said, in Magruder vs. Peter, 4 G. & J., 331, it is clear, since the passage of the Act of 1833, chap. 216, no such objection can be maintained. The provisions of this Act are by necessary implication inconsistent with the objection now made. The Act provides not only in the case of a joint holding, the plaintiffs may declare on a joint demise, but further, that if title be shown in any of the lessors of the plaintiff, he may recover to the extent of his title, notwithstanding the [122] joinder of others who had no title, or who had parted with their interest. The Act in thus permitting the plaintiff to recover to the extent of his title, without regard to the title as claimed in the declaration, is plainly inconsistent with the existence of a rule of law, which prohibits the recovery of an undivided share, under a count for the entirety. (Decided 24th June, 1885.) In the case before us, it was not only proper, but strictly within the function and duty of the jury to define the interest which the plaintiffs were entitled to be put in possession of. If upon the evidence they were not entitled to recover the whole, but only some undivided part, the jury must decide how much. Denn ex. dem. Burges vs. Purvis, et al., 1 Burrow, 326: Doe ex. dem. Bryant, et al. vs. Wippel, 1 Espinasse, 360; Roe ex. dem. Raper vs. Lonsdale, 12 East, 39; 3 Phil. on Evi., 580, and note (2); 2 Stark. on Evi., Ejectment, Sec. IV, 310; Adams on Ejectment, 211; Parke, B.; Doe dem. Hellyer vs. King, 6 Exch., 794. Finding no.error in the rulings, the judgment will be affirmed. Judgment affirmed.