Summary
ERROR to the District Court of Allegheny county.
Thomas Blackmore and Jacob Poth against Oliver Ormsby Gregg and Christian Ihmsen. This was an action of ejectment for the third part of thirty acres of land opposite Pittsburgh. A verdict and judgment were rendered for the plaintiff for one-fourth part of the premises; and a writ of error was sued out by each party.
Mrs Jane Ormsby died seised of a tract of land containing sixty or seventy acres on the bank of the Monongahela, between the bridge and Birmingham. She left four children (or their representatives), who, after the death of their father, would be entitled to their mother’s estate; to wit, Oliver Ormsby, Joseph Ormsby, Mrs. Sidney Gregg, and Mary Ormsby, daughter of John Ormsby, Jr., now Mary Swazy, under whom the plaintiffs claimed.
Joseph Ormsby perished at sea in 1803, having first made his will, devising his estate to a son of Sidney Gregg, who also died intestate; so that Mrs Sidney Gregg and her family were entitled to one-half of the tract, and Oliver Ormsby and Mary Swazy each to a fourth.
John Ormsby, Sen., and his wife, Jane Ormsby, had sold two lots off this tract in her lifetime; and after her death, mistaking perhaps the nature of his title as tenant by the curtesy, he conveyed, at two different times, by deed in fee, to his daughter, Sidney Gregg, thirty-three acres of this tract off the upper end. The Greggs took possession of that end of the tract in the lifetime of John Ormsby, and have held in severalty under those deeds to this day; and when Mary Swazy brought her ejectment against Sidney Gregg for her share, she set up title under these deeds of her father, and held by the Statute of Limitations, and set up a claim to a half of the balance under her mother’s title.
After the death of John Ormsby, Sen., his son, Oliver Ormsby, took possession of the balance of this tract, together with the lands which had belonged to his father, and he and his heirs have had the possession since. In 1816, Oliver Ormsby petitioned the Orphans’ Court to divide this tract of sixty acres between him and his sister, Sidney Gregg, but never proceeded further in the matter.
Mary Ormsby, who has always resided in Mississippi, was born in 1791. In 1810, (while yet a minor, under the age of twenty-one,) she married. Her first husband died in 1814, and in 1815 she married Gabriel Swazy.
In 1829, Gabriel Swazy and wife brought an action for partition of this tract, in which a verdict and judgment were rendered for defendants, which were afterwards reversed in the Supreme Court. Nothing further was done in that suit.
Afterwards, in 1.830, they brought an ejectment in the United States Court against Mrs Gregg and Oliver Ormsby, in which a verdict was rendered for defendants.
Afterwards, in 1833, they brought another ejectment against Oliver Ormsby alone for her share in the thirty acres now in dispute in this suit, and recovered a verdict and judgment for the one-fourth of this tract. The defendants sued out a writ of error, which was never prosecuted; and the plaintiffs, without proceeding to take possession, conveyed all their title to the plaintiffs in this case, (by deed, dated the 10th of May 1838,) who have instituted this action of ejectment.
The defendant requested the court to charge the jury on the following points.
1. That if they believe from the facts that Oliver Ormsby took possession of the tract in dispute as his own, and did acts thereon indicating such claim and ownership, the jury ought to presume an ouster of defendants.
2. That the taking possession of the land, and the bare perception of the profits from 1805 till the bringing of this ejectment in 1838, in connection with the state of the family of Jean Ormsby at the death of her husband, and the possession of Mrs Gregg of thirty-seven or thirty-eight acres of the whole tract of sixty-two acres, are circumstances from which the jury ought to presume an ouster; especially after 1814, when Mrs Swazy was discovert; and that such presumption would bar the plaintiffs from recovery.
3. That the eighteenth section of the Act of 1794 applies as well to real as personal estate, and presents a complete bar to the recovery of the plaintiffs, they having permitted seven years to elapse without laying their legal claim to the land in dispute.
4. That under that Act, Mrs Swazy (being discovert in 1814) was bound to lay a legal claim to the land in dispute within seven years after her discoverture; ahd if she has not done so, the plaintiffs cannot recover.
The court below thus instructed the jury;—
Greer, President. — The plaintiffs in this case have shown a good title to at least one-fourth of this land, and will be entitled to recover to that amount, unless the defendants can sustain the defence which they have now set up, the validity of which we must now consider.
The defendants contend, first—
That the plaintiffs’ right of action is barred by the limitation of seven years, contained in the Act of 1794, sect. 18, which is as follows: — “ All such of the intestate’s relations, and persons concerned, who shall not lay legal claim to their respective shares within seven years after the decease of the intestate, shall be debarred from the same for ever. And provided,” &c. &c. It is contended that this Act extends to real as well as personal property, and is, as regards the claims of heirs under an intestate estate, a repeal of the Statute of Limitations of 26th March 1785.
This point has been urged with great learning and ingenuity by the learned counsel for defendants, all of whose ingenious arguments it is unnecessary here to notice; suffice to say, it must strike every one as a strange circumstance, and one powerful reason for doubting the validity of their conclusions, that though it is now near half a century since the passage of the Act in question, this is the first time such a construction has been contended for in a court of justice. It would certainly be a strange anomaly in the policy of the law which would bar a tenant-in-common claiming by descent in seven years, and give a tenant-in-common by purchase twenty-one years.
Besides, this claim must be made within seven years of the death of the intestate (Jane Ormsby), and if John Ormsby had lived one year longer, as none of these heirs could lay “legal claim” to their mother’s estate during the lifetime of their father, it would necessarily follow that they would all have been barred, and the whole property would have escheated to the state, or belonged to the first occupant.
Suppose a man dies intestate, leaving a tract of land and two sons, who have migrated to Mississippi, and do not return in seven years after their father’s death to make “legal claim,” does the estate escheat, or go to the next of kin as if the sons were dead, or to the first occupant ? A very slight view of the whole provisions of this Act, of the preceding and subsequent sections, will at once convince that it is not justly subject to a construction involving such absurd consequences.
It is entitled, “ An Act directing the descent of intestate real estates, and the distribution of their personal estates.” The first thirteen sections direct on whom real estate shall descend, and how personal estate shall be distributed.
The 14th section directs the order of the payment of the debts of the intestate.
The 15th and 16th provide that the administrator shall not be compelled to make distribution for a year, and that distributees shall give bond to refund in case debts should afterwards appear.
The 17th section refers to cases of adminstration cum testamento annexo; and then comes the 18th section, the one now in question, declaring “ that all such of the intestate’s relations and persons concerned who shall not lay legal claim to their respective shares,” &c. Respective shares of what? Lay legal claim to what? To the distributive shares just mentioned, not to the realty certainly ; for the law had cast the inheritance on certain persons who had become seised by act of law; it was not vested in the administrator to be by him distributed in shares to the heirs: the heir takes by descent, immediately, by act of law, and if more than one, as tenants-in-common of an undivided interest; they may divide among themselves into shares, where and how they please, or they may let it alone; and the Statute afterwards provides a way in which one can compel the others to make partition.
It is true that in the previous sections of this Act the undivided interest of the co-heirs has been called their shares, whether with exact etymological accuracy, I shall not stop to inquire; but the real estate is not vested in, or delivered to an administrator for distribution. On whom, then, is this legal claim to be made, without which the claimant is to be debarred ? The possession in law, as well as the title, is cast upon the heir, whether he be in Pennsylvania or Missouri. Does this Act create a forfeiture, unless the absent heir make entry or bring ejectment in seven years ? and if so, in whose favour ? Does the commonwealth take by escheat or forfeiture, or the co-heir, who may have entered in good faith as tenant-in-common ? If such were the meaning of this section of the Act, it is strange that more apt phrases could not have been found to express it. The eulogies on the legal accuracy and perspicuity which characterize this Statute, might surely have been spared if such pregnant consequences have now for the first time to be discovered, hid under such obscure and vague phraseology.
But I think the Act is not justly liable to such censure. The subject matter of the five preceding sections of the Act, was the distribution of the personal estate by the administrator. The policy of the Act is to limit a time within which the administrator may be liable to dormant and unknown claims, after he has fairly paid out the residue in his hands to the known claimants to a distributive share. Besides, in seven years a person who has departed the country, and not been heard from by his friends, is presumed to be dead: there should, therefore, be some time fixed when the present and known claimants can compel the administrator to pay over the money in his hands, and leave him without the apology that he is detaining it for expected or possible claimants.
If, therefore, the words “respective shares” be construed to refer to the subject matter of the sections immediately preceding, which speak of the distribution of the personalty only, there can be no doubt about the grammatical accuracy of the expression in this section, and it is vindicated from the charge of oracular obscurity and absurd consequences.
But even if the construction contended for by defendants were correct, yet the proviso to the Act allows seven years to the claimant clear of disabilities; it is not like the Statute of Limitations, which, when it begins to run, overruns all disabilities, and which has been construed not to allow of cumulative disabilities. In this case, Mary Ormsby, now Mary Swazy, under whom the plaintiffs claim, has never been but one year of her life free from disability of infancy or marriage since the death of her grandmother, in 1799.
You are instructed, therefore, that the first point of defence is not sufficient to bar the plaintiffs’ recovery.
The only other ground of defence is the Statute of Limitations. As this depends on matter of fact, and the testimony of the witnesses as to the acts and intentions of Oliver Ormsby, it will be for you to decide it, under the principles now to be stated to you by the court; and this question, on nearly the same facts, has been already tried before me several times, and my opinion has been reviewed and affirmed by the Supreme Court. I shall content myself at this time by repeating the principles of law as then laid down by me, as also the opinion of the Supreme Court on the same subject.
(The Court here readfrom their own opinion, in 10 Watts 164,5, 6, so far as the opinion does not refer to a state of facts not in evidence in this case; and also the opinion of Sergeant, J. 10 Watts 189, 190).
It will be for the jury to say then, from the testimony, whether Oliver Ormsby entered in hostility to the claim of his niece; or whether they can discover, from the acts or declarations of Oliver Ormsby before 1825, any ouster of Mary Swazy; if so, they will find for the defendants; if not, they will find for the plaintiffs.
A question has been made as to what amount you should find for plaintiffs, provided your verdict should be in their favour. Plaintiffs claim that they have shown title to one-half, and that as their ejectment is brought for one-third, they may therefore recover the one-third. Defendants allege that the plaintiffs can only recover something less than a fourth; what proportion that is, they have not elucidated in the argument.
The court instruct you, therefore, if you conclude to find for the plaintiffs, on the principles already stated to you, that you find the one undivided fourth part of the premises in dispute.
To these instructions of the court, both plaintiffs and defendants excepted.
Errors assigned:
1. In answering the third and fourth points put by defendants against the defendants.
2. In not answering the second point at all, as required by the statute.
3. In the answer to the second point.
It has been repeatedly held that the Act of Limitations does not apply in case of a trust. A fund in the hands of an administrator or executor is an express trust; and, therefore, the 18th section of the Act of 1794, would not be applicable to personal estate, so as to protect the personal representative from the claim of an heir. 14 Serg. Rawle 394; 4 Watts 177; 6 Watts 379. If, therefore, the Act is not applicable to personal estate, it must have been intended in accordance with all other principles of the intestate laws, to disencumber real estate so as to remove difficulties from the way of its improvement. The use of the words, “heirs,” “recover,” “ hold and enjoy,” in the Act, seems to indicate it being applicable to real estate. The word “ share” is as often used in Act of Assembly in reference to real as personal estate. The Acts of 1693 — of 1697 — of 1700 — of 1705, in relation to intestate estates, were all referred to, and their phraseology compared with the Act of 1794.
contended that the Act of 1794 was applicable exclusively to personal estate, and was intended to enable the personal representative to settle the estate within the time limited by the Act, without the risk of further demand from heirs not known. The policy and system of the'intestate laws were all reviewed and examined.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
