best answer the intention of testator; though, in a deed, it is always taken as a word of purchase. 4 Term Rep. 299. The principle, that an heir should not take a contingent remainder of an estate as a purchaser, where his ancestor took a freehold estate by the same conveyance, rests on the policy of the feudal system, because such depositions, while fiefs were predominant, tended to defraud the lord of the fruits of his tenure, by enabling the heir, with the concurrence of his ancestor, to take the estate as fully as by descent, without the feudal burthens to which it would have been liable had the estate descended. Hence it became a rule of construction, applicable to all instruments so conceived, that the estate limited to the heir, though meant to be contingent, should in law be considered as vested in the ancestor ; and every devise in which an estate of freehold was given to the ancestor, with an immediate or mediate remainder thereon limited to his heirs, or heirs in tail, or issue (the latter term being considered in a devise as a word of limitation) was considered technically as importing an intent in the devisor so to convey. Consequently, the words heir or issue, when so used in a devise, cannot take effect as a description of the person, to take as a purchaser. But when the foundation of the priciple, upon which the rule was grafted, failed, the rule that had been raised thereupon was not extended beyond the precise limits it had at that time reached; from that period therefore, courts of law and equity seem to have been as industrious to take devises out of that rule of construction, in favor of a contrary intent, where that intent is clear, and must necessarily be collected from the testator's language, as formerly they were to endeavor to bring cases within that rule, while the principle of it continued to operate. It follows, that the heir or issue of a devisee may now take under that description contingent remainders as purchasers, notwithstanding a previous freehold is limited to the ancestors by the same devise, if there be language so modifying the limitation, as to make it not quadrate exactly with the rule. Pow. on Dev. 355, 6, 7. Thus, in Haddon's case (cited Moor. 372) a devise to one for life, and so afterwards to every person that should be his heir for life only, was held to convey an estate in possession to the tenant for life, with a remainder for life to the next heir and nothing more. So in Loddington v. Kime, a devise to B for life without impeachment of waste, and in case he should have any issue male,to such issue male and his heirs forever; the subsequent limitation to the issue male of B was held not to make him tenant in tail, but to be a contingent fee to his issue male, who took by way of purchase, as a devisee specifically described. 1 Salk. 224. 1 Ld. Raym. 203, 3 Lev. 435. A limitation to the heirs of the body of A now living, shall be good as designatio personæ, notwithstanding the rule nemo est hæres viventis. 2 Vent. 311.Pollex. 457. 2 Lev. 232. So a limitation to the heirs of the body of A then begotten, shall prevail. 1 Wms. 229. 1 Bro. Bro. Parl. 489. 2 Bla. Rep. 1010. And a devise to a son and the heirs of his body, the son being dead before the will made, the grandson will take as a purchaser. Cro. El. 423. A devise to one and his heirs, may in particular circumstances, make the heirs take by purchase. 1 Bla. Rep. 265. 2 Burr. 1100. Heirs or issue, where they take distributively, must take as purchasers. F. Ves. jr. 145. of words, which Doug. 327. control the legal If a testator makes use of technical phrases, the court are bound to understand them in the legal sense; but it is otherwise manifestly indicate his intention. Where the intention in a will is operation of the words. 2 Wms. Rep. 460. Per. Buller, Just. A devisee may be described as first and eldest son not heir at law. take by devise as special heir, by particular description. 2 Bl. Rep. 1002. So a devisce may be described as next of kin. Cro. El. 532. Nearest relation of the name is likewise a good description of a devisee, and operates as noman collectivum. 1 Vez. 335. The words used in the will under consideration are "to their legal representatives, agrecably to the common law of England, or as modified by the law of the states, wherein they are respectively situated." In the British statutes of distribution, (22 and 23 Car. 2, c. 10, and one Jac. 2, c. 17,) it is said, that the words "legal representatives" are used for the intestate's children, or their children, or the descendants of the next of kin. They mean persons substituted in the place of others deceased. 2 Bro. Cha. Rep. 226. So it is under our intestate act of 1705, 1 Dall. St. Law, Append. 44, 82, the supplement thereto of 1764. Ib. 47, §§ 1, 4. And under the new act of 19th April 1794. 3 St. Laws 526, §§ 8, 9, 22; and the supplement thereto of the 4th April 1797. 4 St. Laws 159, § 7. In Bridge v. Abbot, where a testatrix bequeathed the residue o her personal estate to several persons, and if they should die in her life-time, to their legal representatives, one of them died, and the master of the rolls decreed, that his next of kin at the death of the testatrix, should take his share. 3 Bro. Cha. Rep. 224. The words "legal representatives" have never, as far as I have been able to discover, been construed as technical terms of limitation, measuring out the quantity of estate that a devisee was to take. The case of Duncan's lesse, v. Walker, very briefly reported in 2 Dall. 205, by no means shows it. The objections in Goodright v. Wright, reported in 1 Wms. 397, 1 Stra. 25, 10 Mod. 370 2 Equ. Ca. Ab. 359, pl. 13, against the words issue and heirs, cannot, in my idea, hold in this case. The terms here made use of are analogous to children, heirs of the body then living, or then begotten, next of kin, &c. which are good words of purchase. The substitution in the stead of Elizabeth, necessarily took place immediately on the testator's death, and is perfectly ascertained by law, which fixes the designation. I think there can be no doubt whatever of the intention of Richard Dennis, and that his bounty contemplated the representatives of such of his children as should die before his wife's decease, as his immediate devisees in their place. And thinking as I do, I feel myself bound to follow his intention. Annal. 96. The lot in question lies in the Northern Liberties, in the county of Philadelphia. Elizabeth Dennis resided and died in her minority, unmarried, in Southwark, in the same county. It remains only to observe, that the intestate act of 1705, solely directing the course of distribution of real estate in cases of lineal descent, does not reach the present case; that the law of 1764 supplementary thereto, changes the common law only where brothers or sisters die intestate in their minority, unmarried and without issue, after the death of any father and mother, and not otherwise; and that none of the provisions of the late act of 1794 extend hereto. It follows therefore, that Barney Cozens Dennis, the only brother of the whole blood of Elizabeth Dennis, takes the real estate devised to her, agreeably to the common law of England, exclusive of the other children of the testator; and I am of opinion that he is legally entitled thereto. Lancaster, May 2d, 1800. J. YEATES. 1. QUÆRE, how far the governor of a foreign island, can justify his acts 26 2. An officer of the United States, who has disbursed money in his public ca- 3. An action of crim. con. is not supportable by the husband, after an agree- 4. When a policy of insurance expresses, that the loss shall be paid three ACTS OF ASSEMBLY. 1. New loan certificates issued under the law of 1st March 1786, are not Contra. M'Clenachan's case. 8. The words "five pounds in value," in the oath, refer to the value of the 4. The act for prevention of frauds and perjuries, passed 21st March 1772, not 5. The words of the 5th sect. of the act of 13th March 1791, do not take away 6. The act of 26th March 1785, for limitation of actions, does not respect the 7. The words of the act of assembly of 1st April 1784, in the 3d section, are - 113 278 281 31 502 ib. 38 95 100 148 8. A determination of the board of property, on a caveat, under the 11th section ACTS OF ASSEMBLY.] ( 590 ) [AGREEMENT, &c. 10. Where the property of a person attained of high treason, under the act of 6th March 1778; is sufficient to pay his debts, his creditors are bound to resort to the fund provided by law. Bare's ex'rs. v. Rhine. 11. A jury has not the power of determining in what cases the depreciation act does not apply; but it is the province of auditors. Levan's adm'r v. Frey. 12. The act of 1st October 1779, sec. 4, which directs that county treasurers shall give security in 50007., has reference to continental money then in circulation. Respublica v. Wray. 13. The act of 18th April 1795, directing the corporation of Philadelphia to pass ordinances to prevent the erection of wooden buildings in certain parts of the city, as they may judge proper, is constitutional. The court will not pronounce a law unconstitutional, unless in a clear case. Respublica v. Dunquet. ACTS OF PARLIAMENT, STATUTES. 1. The English statute of 4 and 5 Ann. c. 16, 21, has never been extended to Pennsylvania. Eshelman's lessee v. Hoke. ADMINISTRATORS, AND EXECUTORS. 1. An executor, defendant, is a competent witness to prove the state of papers Page 286 320 429 493 509 37 2. Administrators should begin the sale of lands under an order of Orphan's Court, on the day appointed by the order; but may adjourn it. They cannot sell to themselves. Rham v. North. 3. Where lands held under an equitable title, have been formerly, (as in 1758) sold bona fide by administrators, to pay debts, or maintain children, without an order of Orphan's Court, such sales will be established. Campbell's lessee v. Rheim et al. AGENT. 1. In mercantile cases, a factor may generally prove his own authority; aliter, in sales of land by an agent, which must be by written authority; but it is not necessary that the same be signed: but it must be proved by other testimony than his own. Nicholson's lessee v. Mifflin. 2. An agent shall not in general, establish his authority by his own oath. Anderson v. Hayes. 3. Agent, or factor, cannot charge commission on the payment of his own debt to his principal: aliter, where it is remitted in bills of exchange. Pavret et al. v. Perot et al. AGREEMENT AND CONTRACT. 1. A contract for the sale of six per cent stock is lawful; and where such sale is made at a stipulated price, payable and deliverable at a future day, the contract is for concurrent acts; and vendor is not bound to make the transfer without receiving the money. Gilchreest v. Pollock. 2. Where the penalty of a contract is not in nature of stated and ascertained damages on non-performance, the injured party may recover damages beyond the penalty. Graham v. Brickham. 3. One who is principal in a contract, shall not be a witness to establish it: aliter, if it appear he acted as agent only. Steward v. Richardson. 117 123 38 95 185 18 32 89 4. Every concealment will not avoid a contract, where the party ought to know the particular fact. 5. Though there are actual words of transfer in an instrument, it shall be construed as an agreement to convey, if such appear to have been the parties' intention. Neave v. Jenkins. 6. Underhand agreements, contrary to agreements on marriage, are void; yet the court will not reject the evidence of such subsequent agreements, but declare their operation. Whitehill's lessee v. Lousey et al. 109 7. An agreement will not be decreed against a bona fide purchaser without notice. ib. 8. Where there is uo ambiguity in an agreement, parol evidence shall not be admitted to show the intention of the parties according with its legal operation. Litle, in error, v. Skiles's assignees. 295 |