2 U.S. 199 (1793)

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U.S. Supreme Court

BARNES' LESSEE v. IRWIN, 2 U.S. 199 (1793)

2 U.S. 199 (Dall.)

Barnes's Lessee
Irwin, et al.

Supreme Court of Pennsylvania

January Term, 1793

This cause was argued upon a case stated, which included the following facts. The plaintiff was heir at law for one moiety of the real estate of Margaret Henderson, who died seized of the premises in question. Previous to her marriage with Mathias Henderson, articles of agreement dated the 29th of June, 1794, were executed between them, and a third person; by which Matthew Henderson, covenanted, that the real state belonging to her, should be to their joint use during the marriage; but that Mrs. Henderson should have full power to dispose of it by Deed, or Will, during coverture. They had no issue. On the 29th January 1790, during the coverture, Mrs. Henderson, made a Will in the usual form, appointed the defendants her executors, and gave them power to sell her real estate; the monies arising from which were bequeathed, except some charitable legacies. To the plaintiff she left five shillings. The defendants entered and sold.

Page 2 U.S. 199, 200

The case was argued on the 19th of January, 1792, by Bankson and Rawle for the plaintiff, and Wilcocks and Serjeant for the defendants.

For the plaintiff. It is admitted by the defendant's counsel, that the devise was void at law, and we contend, that it would not be established in equity. A defective Will, or the defective execution of a power, will not be aided in a Court of Chancery, for a meritorious or valuable consideration, and the heir at law, where the equity is equal, will not be disturbed in the enjoyment of his legal advantage. Pow. on Powers, 90. 155 to 165. 3 Atk. 715. Amb. 474. In this case the parties all stood in equal relation and there was no meritorious claim on the side of the devisees; they were not children unprovided for, they had no claim on the Testatrix. Max. in Eq. 67. 8. Whatever was the intention of Mrs. Henderson (though it was argued to have been to bar her husband from the terms of the agreement) if that intention was not executed, Chancery would not carry it into effect against the heir. Pow. 136. 164. Com. Rep. 250. Vern. 68. Chancery, indeed, exercises this power only in case of trusts, and never on legal estates. 2 Vez. 193. Ambler. 467. Fearn. 89. It is true, that equity is admitted as a part of the law of Pennsylvania 1 Dall. Rep.; yet it must be applied with caution, as the full remedies of a Court of Chancery are not in our power; and the act of Assembly, directing the mode of conveying the estates of feme coverts, would on the defendants' principles be altogether unnecessary.

For the defendants it was contended, that Courts of Chancery would favor the execution of such a power, and Wright v. Cadogan Ambler, 469. and Rippen v. Dawdin. Ibid. 565. were relied upon as in point, while 2 Term. Rep. 695. was also read to shew, that Lord Kenyon held the same principles.

For the plaintiffs, it was replied, that Wright v. Caaogan, was conformable to the principles stated for the plaintiffs, but did not apply in the defendants favor. That Rippin v. Dawdin, (or Hawdin, as it is called in Powell on contracts) was a solitary questionable case. That it contradicted Peacock v. Monk. 2 Vey. 193, and Bramhall v. Hall, Ambler. 467. That Ld. Kenyon, referred expressly to Peacock v. Monk; but took no notice of Rippin v. Dawdin; so did Ld. Thurlow, in Brown. Parl. Ca. 16. from whence it was inferred, that it was not held as law even in England.

Cur. Adv. vult.

In April 1792, a further argument was requested by plaintiffs' counsel, and granted: But at the next Term, September 1792, they informed the Court, that they meant to leave the cause on the former argument.

The Court then desired the following points might be further considered. [2 U.S. 199, 201]

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