Walker v. Parker
38 U.S. 166 (1839)

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U.S. Supreme Court

Walker v. Parker, 38 U.S. 13 Pet. 166 166 (1839)

Walker v. Parker

38 U.S. (13 Pet.) 166

Syllabus

The testator devised to his wife one-third of his personal estate forever for her own proper use and benefit, and also one-third of all his real estate during her lifetime, and in the event of her death, all the right in real property bequeathed to her should be, and by the will is, declared to be vested in his infant son. The testator then proceeded to devise sundry lots and houses to his mother, his sisters, his brothers separately, and his son. These are given to their respective devisees "as their property forever." He then devised the balance of his real estate to his infant son "forever," believed to be certain lots specified in the will. Held that the wife took under the will one-third of all the real estate of the testator during her life, and that his son took a fee simple in one-third of the property given to the brothers and sisters of the testator, subject to the devise to his mother, and a fee simple in all the real estate specifically devised to him, subject to the devise of one-third to his mother during her life.

The devisee of one of the lots devised to him forever, which the court held was subject to the right to one-third in the wife of the devisor and one-third after her decease in fee to the son of the devisor, cannot, by a proceeding in chancery, compel a sale of the property devised, or a partition, without the court is satisfied it would be for the benefit of the infant son to make such sale, and without the consent of all the other parties interested in the property.

The appellant, John Walker, filed a bill in the Circuit Court of the County of Washington stating that James Walker, late of Washington, by his last will and testament, had bequeathed to him and to his then wife, Ann Sophia Walker, since intermarried with George Parker, one-third of his real estate during her life, and in the event of her death, all the right bequeathed to her is declared to be vested in his infant son, James Walker. James Walker, the son, claims the right in fee simple, after her death, of the portion of the estate devised by the testator to his wife. The testator in a subsequent part of his will, bequeathed other parts of his estate in fee to other persons, and among them to his said infant son, James Walker. The bill then states the particular estates devised by the will to the complainant himself and the others of the family of the testator, and alleges the same to have been devised to them in fee simple, free and clear of any right of the widow of the testator or of his son.

Ann Sophia Parker, who was the wife of the testator, James Walker, and her present husband, George Parker, the bill states, insist upon the right of the said Ann to one-third of the lots and houses bequeathed by the will, and refuse to permit the complainant to dispose of the same, and claim a right to exact one-third of the rents thereof and to have a right to rent the same as they please.

The bill proceeds to state that the complainant is advised that Ann Sophia Parker and her husband have no right in the lots held by him under the will of James Walker, nor has any other person a right to them to his prejudice, but should the court think differently,

Page 38 U. S. 167

the bill states that the property cannot be divided without great injury and that the complainant is desirous to sell the lots and property devised to him and those under whom he holds. The complainant states that he is desirous to have the exclusive control of his own property, and that if the said Ann Sophia has a right of dower in the property, he asks that the same be assigned to her and that the rights of the minor be assigned, and if this cannot be done that the property be sold and out of the proceeds of the sale an equivalent be allowed for their interest therein.

The bill asks that Ann Sophia Parker and the infant son of the testator and his testamentary guardian be enjoined from setting up any claim to the property held by him or to which he is entitled under the will of James Walker, and that he may be quieted in his possession and enjoyment of the premises. The bill also asks for further and general relief.

The will of James Walker was made on 17 September, 1832, and admitted to probate on 25 September in the same year.

The material parts of the will are the following:

"I bequeath and give to my dearly beloved wife, Ann Sophia Walker, one-third of the whole of my personal estate, forever, for her own proper use and benefit, and also one-third of all my real estate during her lifetime, and in the event of her death, all the right in real property hereby bequeathed to her shall be and is hereby declared to be vested in my dear and infant son, James Walker."

"I bequeath and give to my dearly beloved brother, John Walker, forever, all of lot numbered six in square one hundred and six, with the two-story brick house, back building, and all appurtenances thereto belonging."

"I bequeath and give to my dearly beloved brother, Lewis Walker, forever, lots twenty-three, twenty-four, and twenty-five in square numbered one hundred and six, together with a two-story brick building, with a basement story, back building, and all appurtenances thereto belonging, and erected on one or more of said lots."

"I bequeath and give to my dearly beloved brother, Henry Walker, forever, lot numbered six, in square four hundred and three, together with the improvements thereon erected, and appurtenances thereto belonging."

"I bequeath and give to my dearly beloved sister, Margaret Peck, lots numbered twenty-one, twenty-two, twenty-six, and twenty-seven in square numbered one hundred and six, together with a two-story frame house erected on lot number twenty-seven as her property forever."

"I bequeath and give to my dearly beloved sister, Louisa Ballard, forever, lot numbered four, in square numbered four hundred and thirty-two, together with the three-story brick house erected thereon, and all the appurtenances thereto belonging. "

Page 38 U. S. 168

"I bequeath and give to my dearly beloved sister, Sarah McCallion, part of lot numbered eight, in square numbered seventy-four, together with the frame house erected thereon, as her property forever."

"I bequeath and give to my dear and infant son, James Walker, lot numbered twenty-two, in square numbered three hundred and fifty-two, together with two two-story brick houses, and other buildings thereto belonging, as his property forever. I also bequeath and give to my infant son, James Walker, forever, the balance of my real estate, believed to be and to consist in lots numbered six, eight, and nine, with a house, part brick and part frame, erected on one of said lots, in square one hundred and sixteen; lots thirty-one, thirty-two, and thirty-three, in square numbered one hundred and forty, and a slaughterhouse erected on one of said lots; lots numbered eight and eleven, in square numbered two hundred and fifty; and lot numbered twenty-eight, in square numbered one hundred and seven. And further, I bequeath and give to my infant son, James Walker, one thousand dollars, to be paid out of my personal estate to, and applied, at the discretion of his guardian, hereinafter appointed, for the education of my son, James Walker. The balance of my personal estate, whatever it may be, I desire shall be equally divided between my mother, Dorcas Walker, my sister, Sarah McCallion, and my brothers, John, Lewis, and Henry Walker."

The defendants all answered (including the minor James Walker, whose answer is put in by George Cover under a special appointment or him by the court to answer for said infant), and substantially admit the facts stated in said bill, but they all, with the exception of Peck and wife, aver that the property cannot be divided without prejudice, and refuse to agree to a sale.

The case being submitted on bill, answers, and exhibits, the court dismissed the bill: from which dismissal this appeal was taken by the complainant.

Page 38 U. S. 171

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