US SUPREME COURT DECISIONS

This was an appeal from the Orphan's Court of the county of Philadelphia. It was argued in January term by Levy and Tilghman for the Appellant; and Sergeant and Ingersol for the Appellee. And now the Chief Justice stated the case, and delivered the opinion of the Court, in the following manner.

M'Kean, Chief Justice.

Elizabeth Willis being seized of a messuage and lot of land in the city of Philadelphia, with the appurtenances, died intestate, leaving issue a daughter named Elizabeth, who had intermarried with Samuel Walton, the Appellant, and by him had issue two sons, Joseph and Booz; and four grand-children, to wit, Thomas the Respondent, Solomon, Musgrove and Rebecca, being the children of her son Solomon Willis deceased, who had died, before her, intestate. The daughter, Elizabeth Walton, died after her mother, and her husband, the Appellant, and their two children, before named, survived her. Thomas Willis, the Respondent, applied by petition to the Orphan's Court of the county of Philadelphia, held on the 1st of April, 1782, for a partition of the premisses; or, if they could not be divided without prejudice to, or spoiling the whole estate, that a valuation thereof might be made, agreeably to the directions of the Acts of Assembly in such case made and provided. An inquest was accordingly had, and a return made, that the premisses could not be divided without prejudice to, or spoiling the whole, and valuing the same at L358. This return was confirmed by the Court on the 10th of June, 1782, and the premisses were adjudged to, and accepted by Thomas Willis, the Respondent, at the above valuation; and for securing the payment of that sum, in due proportions to the other Grand-children, he offered to the Court two sureties, who were approved of, and directed to

Page 1 U.S. 351, 352

give bonds in the office of the Clerk of the Court, unto the other grand- children, for their respective shares; but no such bonds or security have yet been given.

On these proceedings an appeal is brought before this Court; and, upon the argument, the counsel have done great justice to their respective clients. It was our wish, however, that the opinions and practice of the several Orphan's Courts of Pennsylvania, had been ascertained in cases of this description; and that we might be informed, whether any case, upon similar principles, had been ever determined in the Supreme Court; for we should be exceedingly cautious in pronouncing a judgment that might shake estates held in this way. As we have not yet obtained full satisfaction on this head, we would still wish to defer giving our opinion; but that we think it proper, from the length of time the cause has been under advisement, to proceed upon the lights we have received.

On the part of the Appellant, six exceptions have been taken to the proceedings in the Orphan's Court.

1. That it is no where mentioned, who are the Representatives of Elizabeth Willis, the intestate; nor into how many parts the estate should be divided; but the whole is left to the Sheriff.

2. That the Court have adjudged the estate to a Grandson; whereas they had no authority to go beyond the first degree in the descending line.

3. That even if the Acts of Assembly did impower the Court to go farther, to wit, to the grand-children, yet that the adjudication ought to have been to all the children of the eldest son, and not to his eldest son exclusively. [352-Continued.]

4. That no provision is made for the Appellant, Samuel Walton, who is tenant by the curtesy of his wife's share, to wit; of a third part, in three parts to be divided.

5. That the judgment is uncertain with respect to the valuation money; in-as-much as the amount of each share is not particularized, nor the time of payment limited.

6. That the partition ought to have been made by one inquest, if practicable; but, if not practicable, and so returned, the valuation ought to have been made by another inquest; and that, on the whole, no estate can be vested in Thomas Willis by his acceptance at the valuation, as no security has yet been given for the money.

The weight of these exceptions depends upon the due construction of the Act of Assembly, entitled, 'An Act for the better settling of intestates estates,' the supplement to that Act, and the practice under both of them.

1. With respect to the first exception; we think it would be well for the party praying for a partition of an intestate's real estate, to be particular in the names of the persons entitled to shares, and of the purparty of each; and in this respect to pursue the form of a declaration in partition, and of the return of a writ de partitione facienda. But to reverse an inquest for this omission, would certainly affect [1 U.S. 351, 353]

Full Text of Opinion