1 U.S. 175 (1786)

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U.S. Supreme Court

KERLIN'S LESSEE v. BULL, 1 U.S. 175 (1786)

1 U.S. 175 (Dall.)

Kerlin's Lessee
Bull et al.

Supreme Court of Pennsylvania

September Term, 1786

This cause now came before the court on a special verdict, returned upon the trial of an ejectment for a messuage and lands in the township of East-Whiteland, in the county of Chester. It was ably argued on the 27th of April, by Sergeant and Bradford for the defendants and Lewis and Wilcocks for the plaintiff;

Page 1 U.S. 175, 176

and, the COURT having taken time to consider of their judgment, it was this day pronounced by the CHIEF JUSTICE.

M'KEAN, C.J. This cause was tried at Nisi Prius in Chester, when the Jury found a special verdict, which contains the following statement: That a certain John Hunter, being seized in fee of the premisses in question, on the 30th of July 1751, made his last will and testament in writing, duly executed, and, among other things, devised in the words following: 'I give and bequeath to my eldest son James when he arrives at the age of twenty one years, all and singular the messuage, &c. to hold to him, his heirs and assigns for ever.' 'Item, I give and bequeath unto my youngest son John, when he arrives to the age of twenty one years, one hundred acres of land, that I bought of John Chads, known by the name and called Jehu's Hundred, and the house and lot of seven acres of land, lying on the south west side of the Connestogoe road near the Whitehorse sign; to hold to him, his heirs and signs for ever.' That the estate devised to the youngest son John is the one in question. That afterwards he devises 'to his wife Anne the use and profits of all his said lands and tenements, for the maintenance and education of his children, until his said sons should attain to their several ages aforesaid successively.' That the Testator died seized thereof, leaving James, his eldest son, and John, Margaret, Hannah, Elizabeth, Anne and Mary his children, and also Martha, who intermarried with John Rattew, one of the Defendants. That the other Defendant intermarried with the daughter Anne. That John, the devisee, died in the year 1769, under age, intestate, unmarried, and without issue, living his mother, his brother James and all his sisters. That the lessor of the plaintiff has the estate that was in James, who was found to be the heir at law of John. But whether, upon the whole matter, the defendants be guilty of the trespass and ejectment, the jurors know not, & c. in common form. The questions that arise upon this special verdict, are two 1st. Whether the estate vested immediately in John, or remained in contingency 'till he came of age? And, if it be a vested devise, 2dly. Whether the lands in dispute went to James, his eldest brother, as his heir at common law, or were subject to disbribution, under the Act of Assembly, amongst his brothers and sisters, as he died intestate, under age, unmarried, and without issue? To prove, that it was a contingent and lapsed devise to John, the counsel for the defendants cited 3 Bacon's Abr. 478. I Burr. 227. and 2 Salk. 415. and insisted, that where the time is annexed to the substance of the gift, and not to the possession, there it is a lapsed devise, by the devisee's not living until the time specified. And, to show, that if the estate vested immediately in John by the devise, upon the death of his father, yet it descended and was to be distributed equally among his surviving brother and sisters, they produced the 'Supplement to an Act of Assembly, intitled, 'An Act for the better settling intestates estates,' passed the 23d of March, 1764, in page 307 of the first volume of Pennsylvania Laws: And [1 U.S. 175, 177]

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