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DAVIS V. MASON, 26 U. S. 503 (1828)

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U.S. Supreme Court

Davis v. Mason, 26 U.S. 1 Pet. 503 503 (1828)

Davis v. Mason

26 U.S. (1 Pet.) 503


In an action of ejectment to recover land in Kentucky, the law of real estate in Kentucky is the law of this Court in deciding the rights of the parties.

It seems that the rigid rules of the common law do not require that the husband shall have had actual seizin of the lands of the wife to entitle himself to a tenancy by curtesy in waste, or what is sometimes styled "wild lands."

If a right: of entry on lands exists, it ought to be sufficient to sustain the tenure acquired by the husband where no adverse possession exists.

At present it is fully settled in equity that the husband shall have curtesy of trust as well as of legal estates, of an equity of redemption, of a contingent use, or money to be laid out in lands.

Under the law of the State of Kentucky and the decisions of its courts upon it, a will with two witnesses is sufficient to pass real estate, and the copy of such a will, duly proved and recorded in another state, is good evidence of the execution of the will.

It is a settled rule in Kentucky that although more than one witness is required to subscribe a will disposing of lands, the evidence of one may be sufficient to prove it.

The lessee of Richard B. Mason commenced an action of ejectment in the Circuit Court for the District of Kentucky against John Davis and others tenants in possession for the recovery of eight thousand acres of land, claiming to recover the same under a right of entry under and by virtue of a grant from the State of Virginia to George Mason of Fairfax, dated 19 March, 1817.

William Mason and others conveyed by deed their interest in and to the land in contest, they being children of the patentee, to George Mason of Lexington, the eldest son of George Mason the patentee. George Mason the grantee and the father of the lessor died the ___ day of December, 1796, having first made his last will and testament, in a codicil to which, made on 3 November, 1796, he devised to the child of which his wife was then enceinte his Kentucky lands, "if the child should be born alive, and arrive at the age of twenty-one years, or married, whichever may first happen." Richard B. Mason, the lessor of the plaintiff, is, by the evidence in the cause, the posthumous child referred to in the codicil. This will was fully proved and admitted to record according to the laws of Kentucky, and was said to vest the title in Richard B. Mason.

At the trial of the cause in the circuit court, the plaintiffs in error requested the court, by instructions to the jury, chanroblesvirtualawlibrary

Page 26 U. S. 504

1st. To exclude the depositions of Lund Washington and George Graham on the alleged ground that they were not taken and certified according to law.

2d. To exclude what the defendants designated as "the third codicil" annexed to the will of George Mason which it was said was not proved and certified according to law.

3d. That the plaintiff could not recover unless he could show that the land sued for was entered after George Mason the elder made his will, and not patented at his death.

4th. That if from the evidence they believe that the daughters of the patentee were dead before the commencement of this suit, they should find for the defendants, as the deed from the husbands did not pass the interest of the femes, nor had the husbands a right by curtesy to the lands, as they never had other or further possession of the lands than that given by deed.

The court refused to give the several instructions prayed for, and a bill of exceptions was tendered upon which the case was brought before this Court. The facts of the case which appeared upon the record in connection with the matters contained in the exceptions are stated in the opinion of the Court.

The defendants in error insisted

1st. That the court should have excluded the third codicil. It was not, upon proof, ordered to be recorded by the County Court of Fairfax County. It is not certified as having been proved and ordered, or admitted to record. It was not proved upon the trial by any admissible and competent proof to have been executed by George Mason.

2d. That there was no competent proof upon the trial that the land in contest passed by conveyance to George Mason. It does not appear that they were not patented before the date of the will of George Mason and otherwise disposed of by him in his will. The plaintiff should have proved that the lands were acquired by the said George Mason after his will, and not having done so, the court should have given the instructions asked for on that point by defendants.

3d. The court erred in stating to the jury that the deed conveyed to George Mason the curtesy right of the husbands of the feme coverts, daughters of George Mason, Sr.

4th. The court erred in refusing to give the instructions asked for by defendants upon the other points stated in the bill of exceptions. chanroblesvirtualawlibrary

Page 26 U. S. 505

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