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[Campbell v. M'Donald.]

genious, and not without plausibility, to say the least of it; and, seeing there is no direct limitation over of the legacy in question, to any other person or persons, would, perhaps, have been entitled to consideration, were there not other clauses tending to repel it, and indeed going to show clearly that such was not the intention of the testator. There is nothing here in the nature of the condition, annexed to the gift by the testator, that is objectionable on the score of policy, or as being unfavourable to the interest and welfare of society, as in cases of conditions imposing restraints upon marriage. In cases of this latter description, courts have certainly gone far in disregarding the clearly expressed intention of the testator, for the purpose of getting rid of the restriction; and, in short, by a strained construction of the testator's language, have made legacies absolute that were plainly intended by him to be conditional only. Wheeler v. Bingham, 3 Atk. 365, 366, 367, 368; Garrett v. Pritty, 2 Vern. 293, ca. 284. It is not to be questioned, however, that the intention of the testator, as disclosed by the words of the will, all taken together, ought to be carried into effect by courts, unless found to be contrary to some rule of law. Ruston v. Ruston, 2 Dall. 244; 2 Yeates 60; Findlay v. Riddle, 3 Binn. 149; Lynn v. Daines, 1 Yeates 518; Turbett v. Turbett, 3 Yeates 187. In order to come at this intention, that it may be carried into effect, the words of the will are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar as their general and popular sense. Thus applying the same rule to discover the intention of the testator, that is observed for a like purpose, in the interpretation of statutes, in order that the will of the legislature may be ascertained and complied with. 1 Chitty's Black. Comm. 59, and note per Chitty; 2 Black. Comm. 379. Now the daily use of the word "appear," must satisfy every one, that the only sense in which it is used by all classes of people in general, is to appear in person, or to exhibit one's self so as to be visible, and every dictionary shows that this is also its grammatical sense. Besides, this is not all, for it has been held to be its legal meaning. In Sir William Drury's case, cited in Beawfage's case, 10 Co. 100, 101, where the condition of a bail bond, taken by Sir William, as sheriff, under the statute of 23 Hen. 6, c. 9, required that one Moore, whom he had arrested, should "appear in person at the day contained in the writ," whereas the words of the statute are, "shall appear at the day, &c.," generally, without the words "in person;" upon which it was objected, that the bond was void on account of these words being superadded, which were not in the statute. But it was resolved, though it was true there was a verbal difference from the form prescribed by the statute, yet none in substance and effect; for he who is bailed ought to appear in person, for so much is implied in this word of the act ("appear"); and, therefore, at the common law, when any tenant or defendant was commanded to appear in any court, he ought, before the

[Campbell v. M'Donald.]

statute thereof made, in all cases to have appeared in proper person. And Lord Coke accordingly lays it down, 1 Inst. 128, a, that" by the common law, the plaintiff or defendant, demandant or tenant, could not appear by attorney, without the king's special warrant, by writ, or letters patent, but ought to follow his suit in his own proper person." See also, Fitz. N. B. 59, to the same effect. It is true, however, that a personal appearance of either plaintiff or defendant in court, where a suit is brought and pending, is not now requisite, as that has been long since dispensed with in civil cases by statute. By statute, therefore, the word "appear" may be said to have acquired, in such cases, a technical meaning; and had the testator, in the present case, shown that he intended to use it in this sense, by connecting it with a suit or suits to be commenced in court by his brother's children, within the six years, for the legacies given to them by his will, doubtless their appearance in their proper persons, would not have been considered as being required by him in court, unless he had expressly declared that it should be so. But then the word does not seem to have any such connection here. His language, after giving the legacies to the six children of his brother in Ireland, is, "provided, &c., his children, the within mentioned heirs in the sixth item, appear within six years from my decease, with sufficient proof, such as the court of Washington county, Pennsylvania, may think sufficient, that they are the within mentioned heirs; which I do require them to do, before they get any part of my estate." It is not said, to be sure, in the clause just recited, where they shall appear, but it is plain that he did not mean that they should appear in the court of Washington county, by attorney, by commencing a suit therein for the recovery of the legacy; nor did he suppose, I apprehend, that such a thing was or would be necessary to enable them to procure the requisite proof, and to call upon the court to judge of its sufficiency. It would seem to be in the county of Washington, where he resided, that he required them to appear, and not in the court of that county; because, immediately following the clause, bestowing upon them the 1500 dollars, he says, "provided they are satisfied with this bequeathment in lieu of what my letter to them promised them, on their arrival in this county." Thus showing that he had previously made a promise to them of something, upon condition that they would come from Ireland to Washington county, where he resided, to be paid or performed by him, as soon as they should arrive; and showing also that the 1500 dollars, the legacy in question, was intended to be given upon the same condition and in satis. faction of the previous promise. If he intended to give them the 1500 dollars, without their coming to Washington county for it, he must have known that they could have received it without coming after it; and, therefore, instead of saying "provided they appear," &c., would have said "provided they claim or demand the same within six years," &c., such language would have left no doubt

[Campbell v. M'Donald.]

whatever in regard to his meaning; and it is conceived, that if his intention was that they should receive the money without coming to Washington county, he would have employed it as being the most natural and ready that could have occurred to express his purpose. It has been said that the testator could not have had the same motive for annexing the same conditon to the legacy, that he did to the promise, because he could not expect to obtain any comfort or happiness, by means of the former, from the society of the legatees, who were, with the exception of their father, as it would appear, his nearest relations. This would have great weight, and might be sufficient to turn the scale in favour of the legatees, if the language of the testator were ambiguous, but we think it susceptible only of one meaning. And although no rational motive can be discovered for the will of the testator, yet if his intention be expressed in clear and unambiguous terms, it must stand and be regarded as his will. Stat pro ratione voluntas. The condition, though arbitrarily imposed upon the legatee, yet must be strictly complied with, otherwise he cannot claim the legacy. Upon this principle, Sir William Grant, in Burgess v. Robinson, 3 Meriv. 7, where the testator gave legacies to his three nephews, as soon as they should arrive in England, or claim the same, provided they should arrive or claim the same within three years after his death, and if they should not, then part of the legacies to go over, held that the condition was not performed by one of the legatees arriving in England and making his claim after the time specified, although ignorant till then of the will or of the testator's death; and no advertisement published or made for legatees. So the plaintiffs in this case, having failed to perform the condition, though seemingly a very arbitrary one, are not entitled to receive the legacy claimed by them. It will, therefore, fall into the residuum of the estate, and go to the residuary legatees.

Judgment affirmed.

Hart against Gregg.

A mere entry by one co-heir into the land of the ancestor, claiming it all and taking the rents and profits for 21 years, is no disseisin of the other heirs; to make it such there must be some plain, decisive and unequivocal act or conduct on the part of the heir so entering, amounting to an adverse and wrongful possession in himself, and disseisin of the others.

If such coheir enters and keeps possession, leases the property, receiving the rents, and erects fences and buildings adapted to the cultivation and profit of the property, without denying possession to the others, or turning them out, but on the contrary takes out a patent 8 years after his entry, expressly in trust for himself and the other heirs of his father, and the lands are taxed in the name of his father for 15 years afterwards, such entry and possession, though held for more than 21 years, are not a disseisin of the other heirs.

Even where the record of a deed is improperly admitted in evidence, it is cured by the subsequent production of the deed itself.

THIS was a writ of error to the district court of Allegheny county, on a judgment rendered in that court in favour of the plaintiffs, in an ejectment brought by Oliver O. Gregg and Christian Johnson, plaintiffs below and defendants in error against Jacob Hart, the defendant below, and plaintiff in error. It was brought on the 20th November 1838, to recover the undivided third part of a tract of land adjoining the borough of Birmingham, containing 81 acres. This tract was part of a larger tract which had belonged to John Ormsby, deceased, and was called for distinction, the Triangle. The plaintiffs claimed as alienees of Gabriel Swazey and Mary his wife, who was alleged to be the daughter of John Ormsby, Jun., deceased, one of the sons of John Ormsby, Sen, deceased. The defendants claimed under the heirs of Oliver Ormsby, deceased, another of the sons of John Ormsby, Sen., deceased. It was admitted that John Ormsby, Sen, died on the 9th December 1805, and his wife Jane died in the year 1791; that John their eldest child was born in 1765, and died in August 1795; Oliver, another son, was born in 1767, and died in 1832. Jane (afterwards Mrs Bedford) was born in 1769, and died in the year 1790, without issue. Joseph B. died in 1803. Sidney, another daughter, was born in 1774, and was alive at the time of the trial.

On the trial in the court below, the plaintiffs gave in evidence a patent to Oliver Ormsby, for 345 acres and allowance, dated April 16th 1813, consideration money 276 dollars 78 cents, reciting that said tract was surveyed in pursuance of application No. 1, entered April 1st 1769, by John Ormsby, who since died intestate, leaving issue the said Oliver, and several others to survive him, to whom the above described tract of land descended, &c. The patent was

[Hart v. Gregg.]

to the said Oliver Ormsby for himself, and in trust for the other heirs of John Ormsby, deceased, a certain tract of land called Ormsby's villa, &c.

To prove the pedigree of Mary Swazey, as the daughter of John Ormsby, Jun., and the marriage of John Ormsby and Lydia Swazey (the mother of Mary) at Homochitto, in Mississippi, the plaintiffs read in evidence a number of depositions, which it is unnecessary now to detail the contents of, and several letters, viz., January 1st 1789, John Ormsby Sen. to John Ormsby, Jun.; July 1791, Buffalo, John Ormsby, Jun, to Nathan Swazey; July 1791, John Ormsby, Jun., to Lydia Ormsby; March 12th 1825, Oliver Ormsby to Mary Swazey; March 19th 1828, Oliver Ormsby to Mary Swazey.

The plaintiffs then offered a copy of a deed from Gabriel Swazey and wife to the plaintiffs, from the records of the recorder of deeds of Allegheny county, duly recorded in his office. The defendants objected, that this was but a copy, and that the grantees were confessedly in possession of the original deed. The court overruled the objection, and at the defendant's instance sealed a bill of exceptions. The defendants afterwards objected that the acknowledgment was not before any mayor, chief magistrate or officer, as required by law, nor legally certified. But the court were of opinion that these objections were not founded on fact or law, and again sealed a bill of exceptions. It appeared, however, that the original deed was not then in court, but after the record was read, it was produced and handed to the defendant.

The plaintiffs then gave in evidence the assessment books of St. Clair township, from 1800 to 1819 inclusive, to show the lands formerly of John Ormsby, Sen., which had continued to be taxed in the names of his heirs generally.

The defendant denied the marriage of John Ormsby, Jun., to the mother of Mary Swazey, under whose conveyance the plaintiffs claimed. They further contended that John Ormsby, Jun., had been advanced by his father, John Ormsby, Seu.; and also insisted that Oliver Ormsby having had the exclusive possession and enjoyment of the premises was protected by the statute of limitations.

The defendant gave in evidence a deed, dated December 1st 1804, from John Ormsby, Sen., to Isaac Gregg and Sidney Gregg, (his daughter,) for 50 acres, a portion of the above mentioned tract of 345 acres, and not now in dispute. Also a deed dated July 23d 1804, from John Ormsby, Sen., to Oliver Ormsby, for 200 acres and allowance, another portion of the same tract in consideration of 4000 dollars. Also letters of May 20th 1789, and August 9th 1773, from John Ormsby, Jun., to John Ormsby, Sen. Also a deed, made in 1804, from John Ormsby, Sen., to Dr. Nathaniel Bedford (who married one of his daughters), for 75 acres and allowance, another part of said tract.

To show the advancement, the defendant gave in evidence the ledger of John Ormsby, Sen., under date, commencing January

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