Wilkinson v. Leland
27 U.S. 627

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U.S. Supreme Court

Wilkinson v. Leland, 27 U.S. 2 Pet. 627 627 (1829)

Wilkinson v. Leland

27 U.S. (2 Pet.) 627




J. J. died in New Hampshire seized of real estate in Rhode Island, having devised the same to his daughter, an infant. His executrix proved the will in New Hampshire and obtained a license from a probate court in that state,

to sell the real estate of the testator for the payment of debts. She sold the real estate in Rhode Island for that purpose and conveyed the same by deed, giving a bond to procure a confirmation of the conveyance by the Legislature

of Rhode Island. The proceeds of the sale were appropriated to pay the debts

of the intestate. Held that the act of the Legislature of Rhode Island, which confirmed the title of the purchasers, was valid.

The legislative and judicial authority of New Hampshire were bounded by the territory of that state, and could not be rightfully exercised to pass estates lying in another state. The sale of real estate in Rhode Island by an executrix under a license granted by a court of probate of New Hampshire was void, and a deed executed by her of the estate was, proprio vigore, inoperative to pass any title of the testator to any lands described therein.

By the laws of Rhode Island, the probate of a will in the proper probate court is understood to be an indispensable preliminary to establish the right of the devisee, and then his title relates back to the death of the testator.

That government can scarcely be deemed to be free where the rights of property are left solely dependent on the will of the legislative body, without any restraint. The fundamental maxims of a free government seem to require that

the rights of personal liberty and private property should be held sacred. At least no court of justice in this country would be justified in assuming that the power to violate or disregard them, a power so repugnant to the common principles of justice and civil liberty, lurked under any general grant of legislative authority or ought to be implied from any general expressions of the will of the people. The people ought not to be presumed to part with rights so vital to their security and wellbeing without very strong and direct expressions of such an intention.

It is admitted that the title of an heir by descent in the real estate of his ancestor, and of a devisee of an estate unconditionally devised to him, is upon the death of the party under whom he claims immediately devolved upon him, and he acquires a vested estate. But this, though true in a general sense, still leaves his title encumbered with all the liens which have been created

by the party in his lifetime, or by law at his decease. It is not an unqualified, though it may be a vested, interest, and it confers no title, except to what remains after every such lien is discharged.

By the laws of Rhode Island as well as of all the New England states, the real estate of intestates stands chargeable with the, payment of their debts upon a deficiency of assets.

A legislative act is to be interpreted according to the intention of the legislature apparent upon its face. Every technical rule as to the construction or force of particular terms must yield to the clear expression of the paramount will of the legislature.

Page 27 U. S. 628

This case came before the court upon a bill of exceptions tendered by the plaintiff in error, they having been defendants below on the trial of the cause in the circuit court. In that court, the defendants in error instituted an ejectment for the recovery of a lot of ground called "The Swamp Lot," lying in North Providence in the State of Rhode Island, which lot of ground was, with other lands, devised by Jonathan Jenckes of Winchester in the State of New Hampshire by his last will and testament, dated 17 January, 1787, to his daughter Cynthia Jenckes, subject to a life estate therein of his sister Lydia Pitcher, who was then in possession of the same and so continued until her death on 10 August, 1794.

Jonathan Jenckes was also seized of other lands in North Providence and in Smithfield, Rhode Island, and also of real estate in New Hampshire and in Vermont, most of which were devised to his daughter Cynthia. A small part of his New Hampshire lands was devised for the payment of his debts. Cynthia Jenckes his wife, and Arthur Fenner of Providence, Rhode Island, were appointed the executors of his will. Cynthia Jenckes alone qualified as executrix. The testator died at Winchester in New Hampshire on 31 January, 1787, a few days after making his will.

No probate of the will of Jonathan Jenckes was made in the State of Rhode Island.

The plaintiffs in the ejectment are the heirs of Cynthia Jenckes, and claim the premises under the devise to her, she having afterwards intermarried with Joel Hastings.

The title of the plaintiff in error was as follows:

Cynthia Jenckes the widow and executrix of Jonathan Jenckes, having been qualified in New Hampshire to act as executrix, on 18 August, 1790, returned to the Probate Court of the County of Cheshire an inventory of the real and personal estate in New Hampshire and Vermont amounting to

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