Daly's Lessee v. James
21 U.S. 495 (1823)

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U.S. Supreme Court

Daly's Lessee v. James, 21 U.S. 8 Wheat. 495 495 (1823)

Daly's Lessee v. James

21 U.S. (8 Wheat.) 495

Syllabus

J.B. devises all his real estate to the testator's son, J.B. Jr., and his heirs lawfully begotten, and, in case of his death without such issue he orders A.Y., his executors and administrators, to sell the real estate within two years after the son's death, and he bequeaths the proceeds thereof to his brothers and sisters by name and their heirs forever, or such of them as shall be living at the death of the son, to be divided between them in: equal proportions, share, and share alike. All the brothers and sisters die, leaving issue. Then A.Y. dies, and afterwards J.B. Jr., the son, dies without issue. Heirs is a word of limitation, and none of the testator's brothers and sisters being alive at the death of J.B. Jr., the devise to them failed to take effect.

Quaere whether a sale by the executors, &c., under such circumstances is to be considered as valid in a court of law?

However this may be, a sale thus made, after the lapse of two years from the death of J.B. Jr., is without authority and conveys no title.

Quare under what circumstances a court of equity might relieve in case the trustee should refuse to exercise the power within the prescribed period or should exercise the same after that period?

A power to A.Y. and his executors or administrators to sell may be executed by the executors of the executors of A.Y.

Page 21 U. S. 496

This was an action of ejectment brought in the court below by the plaintiffs in error to recover the possession of a messuage and lot in the City of Philadelphia. The special verdict in the case stated that on 8 August, 1768, John Bleakley, of Philadelphia, being then in London, made and duly executed his last will, as follows:

"In the name of God, amen. I, John Bleakley, of Philadelphia, Esquire, now in London and shortly bound to Philadelphia, being in perfect health and of sound and disposing mind, memory, and understanding, and considering the certainty of death, and the uncertainty of the time thereof, do therefore make and declare this my last will and testament in manner following -- that is to say:"

"First and principally, I commend my soul to God and my body to the earth or sea, as He shall please to order, and as for and concerning my worldly estate, I give, devise, and bequeath the same in manner following, that is to say:"

"First I will and desire that all my just debts and funeral expenses (if any) be fully paid and satisfied as soon as conveniently may be after my decease. Also I give and bequeath to my brother, David Bleakley, living in the north of Ireland, the sum of ten pounds sterling. Also I give and bequeath to my brother William Bleakley, living near Dungannon, the sum of ten pounds sterling. Also I

Page 21 U. S. 497

give and bequeath to my sister Margaret Harkness, of Dungannon, the sum of one hundred pounds sterling. Also I give and bequeath to my sister, Sarah Boyle, wife of the Rev. Mr. Boyle, the sum of ten pounds sterling. Also I give and bequeath to my cousin Archibald Young, of Philadelphia, an annuity of thirty pounds, Pennsylvania money, to be paid to him out of the rents and profits of my real estate on the 25th day of March in every year during the joint lives of him, the said Archibald Young, and my son, John Bleakley or his heirs lawfully begotten. But in case of the decease of my said son without issue lawfully begotten as aforesaid in the lifetime of the said Archibald Young, then the said annuity is to cease, and in lieu thereof I give and bequeath unto the said Archibald Young and his assigns the sum of four hundred pounds sterling, payable out of the proceeds of my real estate when the same is sold and disposed of according to the intention of this my will, hereinafter mentioned and before any dividend is made of the proceeds of my said estate. And this legacy or bequest is made to my said cousin Archibald Young not only for the natural affection I have and bear to him as a relation, but also as a full compensation for the services he has already rendered me and in lieu of his commissions for the trouble he may hereafter have in the execution of this my will. All the rest and residue of my estate, real and personal, of what nature, kind or quality the same may be or consist, and hereinbefore not particularly disposed of, I give,

Page 21 U. S. 498

devise, and bequeath to my son John Bleakley and his heirs lawfully begotten, and in case of the decease of my said son without such issue, then I do direct and order my said cousin Archibald Young, his executors or administrators, to sell and dispose of my real estate within two years after the decease of my said son, John Bleakley, to the best advantage. And I do hereby give and bequeath the proceeds thereof to my said brothers David Bleakley and William Bleakley and my said sisters Margaret Harkness and Sarah Boyle and their heirs forever, or such of them as shall be living at the decease of my said son, to be divided between them in equal proportions, share and share alike, after deducting out of such proceeds the sum of 400 pounds sterling, hereinbefore given and bequeathed to the said Archibald Young, immediately on the decease of my said son without issue in lieu of the annuity above mentioned. And in case my said son should die before he attains the age of twenty-one years without issue lawfully begotten as aforesaid, then my will and mind is that the remainder of my personal estate, hereby intended for my said son at his own disposal, if he should live to attain the age of twenty-one years, shall go to and be divided amongst my said brothers and sisters with the proceeds of my real estate, as is hereinbefore directed to be divided. And I do hereby nominate and appoint the said Archibald Young and my said son John Bleakley executors of this my will, hereby revoking and making void all former wills, codicils, and bequests by me at any time or times

Page 21 U. S. 499

heretofore made, and do ordain this will to be as and for my last will and testament. In witness whereof,"

&c.

The testator died in the month of January, 1769. His brothers and sisters all died, leaving children (who are still alive) at or about the following periods, viz., Sarah Boyle between the years 1760 and 1770; William in the year 1775; David in the year 1790, and Margaret Harkness in the year 1794. The children were of full age or nearly so when the above will was made, and were personally known to the testator. Archibald Young died in May, 1782, having duly made and executed his last will and testament, whereby he appointed Robert Correy his executor, who, on 24 April, 1797, made his last will and testament, and thereof appointed Eleanor Curry and James Boyd the executors, and died in June, 1802.

John Bleakley, the son, died on 3 September, 1802, without issue and of full age, having previously executed his last will and testament, whereof he appointed J. P. Norris his executor, and thereby directed his real and personal estate to be sold and the proceeds, after paying certain legacies, to be divided among certain of his relations. On 25 May, 1803, the said Norris, for a valuable consideration, sold and conveyed the premises in dispute to W. Folwell, who, on 21 April, 1810, conveyed the same for a valuable consideration to the defendant. On 1 February, 1805, Eleanor Curry, and James Boyd, the executors of R. Correy (who was the

Page 21 U. S. 500

executor of A. Young), by deed, bargained and sold the premises in question to James Smith, which deed was afterwards cancelled, and subsequently, on 27 March, 1820, they sold and conveyed the said premises to the lessor of the plaintiff, who, at the time of his purchase, had notice of the death of the brothers and sisters of John Bleakley in the lifetime of his son.

Upon this special verdict, judgment having been rendered pro forma for the defendant in the court below, the cause was brought by writ of error to this Court.

Page 21 U. S. 531

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