Allen v. Lyons

Case No. 227. Ejectment — Title to Support — Orphans’ Court —Jurisdiction — Wills — Construction — Latent Ambiguity. 1. In an ejectment against any other person than the proprietary, or one claiming under him, it is not necessary to prove the title out of the proprietaries of Pennsylvania, if a right of entry is proved. 2. The orphans’ court, established by the laws of Pennsylvania, has a general jurisdiction, as to intestates’ estates, and to direct a sale of real property for payment of debts; and it is not competent for this court to examine the order of that court, whilst it remains in force. 3. The jury, after forty-eight years since the order of the orphans’ court, and a conveyance under it, without any pretence of an opposing title in all that time, may presume one dead, intestate, and without issue, alleged to have been so at the time of the proceedings of the court. 4. When, in a will, a devise was of a house and lot in Fourth [Third] street, Philadelphia, and the testator had no property in Fourth [Third] street, but he had a house and lot in Third [Fourth] street, it is a latent ambiguity, and may be explained by parol testimony.

[At law. Action of ejectment. Tried by jury. Verdict for plaintiff.] The plaintiff, in tracing bis title, began with a deed from one R. to William Carter, dated April 1733, granting a rent charge out of this ground, being a lot in Philadelphia;' a deed from R. to Benjamin Clark, of tbe fee simple of the lot, charged with the rent,, in 1738: the will of Clark, devising this lot to his wife for life, and to his seven children; deed from the widow and five children to Thomas Campbell, of five-sevenths of the lot: an order of the orphans’ court, authorizing the administrator of William Clark, (the son of Benjamin Clark,) to sell the remaining two-sevenths, being his own one-seventh, and the part of a deceased sister, who, it was alleged, but not proved, died without issue, by which William Clark became her heir, dated in 1762: the return and report of the sale, confirmed by that court, and a deed founded thereon in 1762, for the other two-sevenths to Thomas Campbell: tbe will of Thomas Campbell, by which he-devises bis lot on Third street, in tbe occupation of R. H., to his daughter, the lessor of the plaintiff. This property lies on Fourth street, and it appeared from the tax-books, and accounts of the executor of Campbell,, that the lot in question, about the time of the making of Thomas Campbell’s will, was-in the occupation of R. H., and that the rents were received for Sarah, the lessor of the plaintiff, down to 1771. In 1781, this property was confiscated, as belonging to Mr. Allen, the husband of tbe lessor of tbe plaintiff, and be is now dead. Tbe defendant’s counsel objected, first; that tbe plaintiff should show the title to be out of tbe proprietaries. Secondly; that it did not appear that the orphans’ court were authorized to direct a sale of William Clark’s share. Thirdly; that it did not appear that he was heir to his sister of her one-seventh. Fourthly; the devise is of a lot on 'Third street, and this lies on Fourth street; and parol evidence is inadmissible to explain it.