US SUPREME COURT DECISIONS

Where a testator made certain devises to his two grandchildren,

"provided, and the legacies herein before devised are upon this special condition that, if both my said grandchildren shall happen to die under age and without any lawful issue, then it is my will that three fourth-parts shall be equally divided between Sarah Smallwood and others,"

&c., and the two grandchildren lived many years after they arrived at full age, and then both died without issue, the devise over to Sarah Smallwood &c., never took effect, because the two grandchildren both arrived at full age.

The plaintiffs below having claimed the whole as the heirs of Sarah Smallwood, the court instructed the jury that they could not recover. But the plaintiffs below claimed in this Court that they were entitled to recover a part, because they were a portion of the heirs of the two grandchildren. This point was not made in the court below, and therefore cannot be made here.

The Supreme Court of Pennsylvania decided with regard to this very will that the devise over to Sarah Smallwood never took effect. This decision was made in 1795, and the acquiescence of half a century would seem to close all litigation under the will. But even if it did not, this Court is of the same opinion.

This was an ejectment brought by the lessee of Cheesman &c. to recover certain lots in the City of Philadelphia. As the defendant below offered no evidence, but contested the validity of the title shown by the plaintiff, it is necessary to set that forth. It was as follows, viz.:

The plaintiff gave in evidence the deed of conveyance from the Proprietors of Pennsylvania, Thomas and Richard Penn, to James Parrock, bearing date 5 September, 1749, under the great seal of the Province. chanrobles.com-red

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Also, the last will and testament of James Parrock, bearing date 24 May, 1754, admitted to probate 24 January, 1755.

One of the arguments of the counsel for the plaintiff in error being founded upon the presumed intention of the testator, as gathered from a comparison of several clauses in the will, it becomes necessary to insert them.

The devises contained in the will material to this controversy are, in substance, the following:

1. To his wife, Hannah Parrock, of his dwelling house, kitchen, and lot of ground in Second and Sassafras Streets, together with various rent charges issuing out of lots of land, to hold during her life, with remainder of the said dwelling house, kitchen, and lot of ground, and certain of those rent charges, to his granddaughter, Sarah Parrock, and her heirs, and as to the other of said rent charges to his grandson, John Parrock, and his heirs.

2. To his wife, Sarah Parrock, for life, the use of certain goods and chattels; and to his grandson, John Parrock, certain other goods and chattels.

3. To his grandson, John Parrock, and his heirs, his bank and water lot in the Northern Liberties of said city, in breadth 50 feet, and depth into the Delaware 254 feet, and his piece of upland and meadow in the Northern Liberties of about fifty-six acres, and his bank and water lot in said city, in breadth 71 feet, in length or depth into the Delaware River 250 feet; also certain rent charges.

4. To his granddaughter, Sarah Parrock, and her heirs, a tenement and lot of ground, adjoining the messuage and lot before devised to her; also another piece of ground, in breadth, north and south, 22 feet, in length and depth, east and west, 51 feet, bounded westward by an alley &c., northward by M. Hilliga's lot &c.; also his bank and water lot in said city, in breadth 40 feet, in length 250 feet, into the River Delaware, bounded by Sassafras Street, by Front Street, and by Leeches' lot, with certain other rent charges.

5. He then devised to his said granddaughter Sarah and his said grandson John all that his pasture or piece of land in the Northern Liberties, by Oldman's land, Daester's land, and the York Road, containing three acres, to be equally divided between them, to said John and his heirs, and to said Sarah and her heirs.

6. The testator then devised, in these words and figures:

"And I do hereby empower and order my said executors, and the survivor of them, to sell and dispose, as soon as my said grandchildren shall come of age, all that my piece or lot

Page 49 U. S. 265

of ground, situate on the south side of Vine Street aforesaid, about seventy-one feet from said Second Street corner, and extending east sixteen feet and one-half, to Preserve Brown's lot; south, fifty-one feet, to John Denton's lot; west, by said Denton's lot, sixteen feet and an half; and north, fifty-one feet, by John Marle's lot, together with the appurtenances, to any person or persons that will purchase the same, and for the best price that they can reasonably get, to hold to such purchaser or purchasers, his heirs and assigns, forever, and to give good deeds or other sufficient conveyances, and the moneys arising by reason of said sale shall be equally divided between my said two grandchildren, John and Sarah Parrock, share and share alike."

7. He devises a house and lot to "Mary Parrock, the widow of my son John Parrock, deceased, and mother of my said grandson, John Parrock," and to Lydia Cathcart, a house and lot,

"to hold the said messuage so devised to said Mary Parrock during the term of her natural life, if she shall so long continue my said son's widow. And to hold the said last-mentioned messuage unto the said Lydia Cathcart during the term of her natural life if she shall so long continue a widow. And from and immediately after their, or either of their (the said widows') decease, day, or days of marriage, then I give and bequeath all and singular the said two messuages unto my said grandson, John Parrock, to hold to him and his heirs and assigns forever."

8. The testator gives pecuniary legacies to said Mary Parrock and Lydia Cathcart; to the children of John Smallwood, deceased, his wearing apparel; and pecuniary legacies to the children of William and Mary Paschal; to Sarah Smallwood, the widow of John Smallwood, deceased, and to Sarah James and Hannah James, he gives pecuniary legacies.

9.

"And it is my will that the several and respective legacies hereinbefore devised unto my grandson John Parrock, and unto my granddaughter Sarah Parrock, shall be paid and delivered to them as they shall respectively come of age."

10. The testator devised all the rest and residue of his personal estate unto his wife Hannah, his said grandson John, and his granddaughter Sarah, to be equally divided between them.

11.

"Provided always, nevertheless, and the several legacies herein before devised unto my said grandson John Parrock, and my said granddaughter Sarah Parrock, are on this special condition, that if both my said grandchildren shall happen to die under age, and without any lawful issue, then it is my will"

that the one-fourth part of all and singular the real and personal chanrobles.com-red

Page 49 U. S. 266

estate unto them herein before devised shall go to the monthly meeting of the people called Quakers at Philadelphia, and the other three parts of said real and personal estate shall be equally divided between

"the said Sarah Smallwood, the widow of John Smallwood, and their children; the children of Thomas Smallwood; the children of Benjamin Richards; the children of William Paschal, deceased; the said Sarah Paschal, said William Paschal; widow Lydia Cathcart and her children; Joseph Fordham and his children; Richard Fordham and his children; the children of Isaac Ashton, deceased; Sarah Thomas and her children; Mary Lee and her children; Lydia Davis and her children; John Spencer and his children, and to the survivor of them, and to the heirs and assigns of such survivors or survivor, as tenants in common (and not as joint tenants), forever, anything heretofore contained to the contrary thereof in any wise notwithstanding."

In addition to that written evidence, the lessors of the plaintiff gave evidence by the mouths of witnesses, conducing to prove that the grandchildren of the testator, John Parrock and Sarah Parrock, both died without issue and unmarried; that both said John Parrock and Sarah Parrock had attained full age before their respective deaths, and died long after the death of the testator; that said John Parrock died about the year 1790; that Peter Cheesman and wife (who was Mary Smallwood) were both related to John Parrock -- said Peter Cheesman married his relation; that John Smallwood and James Parrock were half-brothers; with other evidence of the genealogy of the lessors of the plaintiff; and that John Smallwood was dead when the will of James Parrock was made.

The defendant gave no evidence.

The counsel for the plaintiff then prayed the court to give the following instruction to the jury, viz.:

"If the jury believe the evidence given by the plaintiffs of pedigree, then, under the true construction of the will of James Parrock, the plaintiffs are entitled to recover, it being proved by plaintiffs that both John Parrock, the grandson, and Sarah Parrock, the granddaughter, died over age, and without issue."

But the said learned judges refused to charge the jury as so requested, and gave in charge to the jury that under the said will the plaintiffs could not recover, inasmuch as to devise over to plaintiffs' ancestors in the said will mentioned and contained never took effect by reason of the devisees therein named, viz., John Parrock and Sarah Parrock, having both arrived at full age.

To this instruction the counsel for the plaintiff excepted, and chanrobles.com-red

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upon it brought the case up to this Court. The jury, of course, found a verdict for the defendant. chanrobles.com-red

Page 49 U. S. 271