HUNTINGDON CO. PA
COURT RECORDS
 

"Reports of cases adjudged in the Supreme Court of Pennsylvania" by Thomas Sergeant & Wm. Rawle, Jun.; 2nd edition, revised and corrected; ("Sergeant & Rawle") Vol.1 pgs.110 to 123 (California State Law Library, Sacramento, 1/2004)
      CLUGGAGE and others against the Lessee of THOMAS DUNCAN; Supreme Court of Pennsylvania, Southern District, Chambersburgh; 1 Serg. & Rawle 110; October, 1814, Decided.
      Error to the Common Pleas of Huntingdon county.
      This was an ejectment for a tract of land, which the lessee of Thomas Duncan, claimed under an application of November 4th, 1776, No. 1812, by Lawrence Peterson, for 300 acres of land, including Turkey Hill. On the 4th of January, 1767, a survey was made under this location, of 441 1/2 acres, by Richard Tea, the deputy surveyor, but it was never returned. The plaintiff, however, in order to show that it had been made for one George Armstrong, gave in evidence a list of surveys made for the said Armstrong, which had been found in the office of the deputy surveyor, and which was admitted to be partly in the handwriting of the said Richard Tea, and partly in that of Robert McKenzie, his assistant. He also proved that Armstrong had paid the fees for surveying. A judgment was obtained by William Dowell against George Armstrong, in 1768, which was revived by scire facias, and judgment thereon in 1797, at the suit of Grace Parr, surviving executrix of William Dowell against James Blain, administrator of George Armstrong. Execution was issued under this judgment, and the land was sold to Duncan, the plaintiff's lessee, and conveyed to him by the sheriff's deed, dated June 2d, 1801. On the 4th August, 1801, the board of property granted an order to re-survey for Thomas Duncan. A re-survey was accordingly made by William Wilson, under the direction of Colonel Canan, deputy surveyor, and duly returned. Duncan had contracted to sell to Hugh Logan, and now sued for the use of his heirs.
      The defendants admitted themselves to be in possession of 100 acres, and 90 perches of the land, which they claimed by virtue of a settlement of Francis Cluggage, and also of a settlement of Jacob Hare, who had sold his right to Francis Cluggage. They then gave evidence to show that Francis Cluggage began to improve in 1780 or 1781, saying he had purchased of Hare, and that he lived near the land in 1783, although he did not reside on it until 1798. It was admitted that he had a survey of 100 acres and 90 perches, but on what authority it was made, it did not appear.
      The defendants offered in evidence the deposition of William Samuels, dated August 24th, 1797, regularly taken under a rule of court in another ejectment, brought by the lessee of Hugh Logan against Francis Cluggage, for the land in question, and which had been discontinued in 1801, before the institution of the present suit, which was in 1805. The plaintiff's counsel objected to the reading of the deposition, and it was rejected by the Court, to whose opinion the defendants excepted.
      The defendants then gave in evidence the deposition of one Gabriel Peterson, which stated that his father Lawrence Peterson, about the year 1763, improved a tract of land on the south-east side of Turkey Hill, cleared and fenced in between 3 and 5 acres, on which he built a cabin and raised corn; that about the same time Jacob Hare made an improvement on the north-west side of Turkey Hill, adjoining the settlement of his father; that his father and Jacob Hare shortly after showed him the line which they had run between them, running along the top of the hill from Black Log Mountain to Shade Mountain; that some time after, when Armstrong was surveying land in that county, in consideration of Lawrence Peterson and Jacob Hare hunting for his surveyors, he agreed to take out locations for each of their tracts, and to have them surveyed; that at this time Hare had cleared and fenced two or three acres, and had raised corn thereon; and that both Hare and Lawrence Peterson had built their cabins for the purpose of holding the land, and remained there about a year, when they were driven off by the Indians.
      On the 25th March, 1780, Hugh Logan purchased the title of one William Winton, which he claimed by virtue of an improvement on the land. On the 12th February, 1795, he obtained a patent, which recited a deed poll from Lawrence Peterson to himself.
      It appeared that in the fi. fa. or in the vend. exp. which were issued against Armstrong, the plaintiff was named as the executrix of William McDowell, instead of William Dowell.
      The defendants also offered a variety of evidence to show that they had been in the actual possession of a part of the land in question, for more than twenty-one years previous to the commencement of this suit.
      It appeared further, that Gabriel Peterson had set up a claim to the land in dispute, under his father Lawrence Peterson, which was tried in 1801, before his honour Judge YEATES, and in which the plaintiff was nonsuited.
      The evidence being closed, the defendant's counsel prayed the court to charge the jury as follows:
      1. That there were no facts proved, from which the jury could presume that the survey on Lawrence Peterson's application was for the use of George Armstrong.
      WALKER, President, delivered the charge of the court. The facts of superintending a survey, and paying the fees of surveying have always been considered prima facie evidence of ownership. This presumption, however, like every other, may be rebutted by direct proof. We are of opinion, that there is presumptive evidence sufficient to justify a jury in presuming, that the location in the name of Lawrence Peterson belonged to George Armstrong.
      2. That if the jury believed the testimony of Gabriel Peterson, relative to the engagement of George Armstrong, to take out applications for Lawrence Peterson and Jacob Hare, then any location taken out by George Armstrong will enure to the use of Jacob Hare, and those claiming under him, so far as the same covers the original claim of Jacob Hare.
      Suppose that Armstrong did engage to take out the locations for Hare and Peterson. If the contest were between Armstrong and Peterson, Armstrong could not recover. But such a parol agreement, suffered to lie over a long time, could not avail against an innocent purchaser; and such an one would hold the land discharged of the trust.
      3. That the deed from William Winton to Hugh Logan is evidence, that Hugh Logan held adversely to George Armstrong, from the date of that deed, and that the plaintiff's suit is barred by the act of limitations.
      Although Logan did purchase from Winton, and held adversely to Armstrong, yet as he afterwards purchased the right of Armstrong, such adverse holding will be no bar to his recovering on Armstrong's right.
      4. That as to all the land which was in the actual possession of Francis Cluggage, for twenty-one years previous to the institution of this suit, the plaintiff was barred by the act of limitations.
      All the lands actually within the fence of Francis Cluggage, or the defendants, will be protected by twenty-one years of adverse continued possession, prior to the institution of this suit.
      5. That the patent granted to Hugh Logan, and the deed poll therein recited, must estop the plaintiff in this suit from alleging title in his lessor.
      The plaintiff is not estopped.
      6. That the discontinuance of the suit, Hugh Logan v. Francis Cluggage, in 1801, and delaying to institute a new suit, or give notice of an intention to do so, until 1805, are circumstances from which the jury may presume an abandonment, or fraud, in Logan, provided, in the mean time, Cluggage or the defendants made valuable improvements on the land.
      It is always considered as a circumstance against a plaintiff, from which a jury may presume an abandonment, if he discontinues and lies by, whilst valuable improvements are made upon the land. In this case, the jury will judge from the circumstances. There is no proof of any house having been built between 1801 and 1805. Let the delay avail the defendants as much as it can. It appears to the court to be very slight proof.
      7. That the interest of George Armstrong had not been legally transferred to Thomas Duncan.
      Either the fi. fa. or the venditioni exponas under which the land was sold to Duncan, named the testator of the plaintiff William McDowell, instead of William Dowell. We are of opinion that the sale does, nevertheless, vest the title in Duncan. This is no court of error. We cannot notice exceptions unless they avoid the proceedings. The act of assembly makes the sale good, although the proceedings should be reversed for error. The sums mentioned in the executions are the same, and the defendant is the same. There can be no question, but that they are the same case, and that what is now objected to as a fatal error, is only a clerical mistake.
      8. That if the jury believe, that the survey returned by John Canan was made by the consent of Hugh Logan, then the plaintiff cannot recover any land not included in that survey.
      This point does not apply to the present case, as there is no land in controversy, which is not included in both surveys.
      The Court also charged the jury, that Gabriel Peterson having set up a claim to the land, and instituted a suit, which was tried in 1801, and decided against him, was strong presumptive evidence that his father Lawrence Peterson had no title, under which the defendants could shelter themselves; and that as to the claim of Hare, there was no pretence of title, under which they could be protected.
      The defendants' counsel tendered a second bill of exceptions, which was sealed by the Court.
      COUNSEL: S. Riddle, for the plaintiffs in error.
      Huston and Duncan, for the defendant in error.
      (opinion) TILGHMAN, C. J. This ejectment was brought in the name of Thomas Duncan for the use of the heirs of Hugh Logan deceased. The plaintiff derived his title from an application in the name of Lawrence Peterson, dated 4th of November, 1766, on which a survey was made by Richard Tea, (deputy surveyor, 6th January, 1767. This survey was not returned, but the plaintiff alleges it was made for the use of George Armstrong, who paid the surveying fees. A judgment was obtained by William Dowell against George Armstrong, on which an execution was taken out by his widow and executrix, Grace Parr. The land in dispute was levied on and sold by the sheriff, to Thomas Duncan, who sold to Hugh Logan, but did not execute a conveyance. The defendants claim under a settlement made by Francis Cluggage deceased, and also a settlement made by Jacob Hare, whose right Francis Cluggage purchased.
      The first exception taken by the defendants was to the opinion of the Court of Common Pleas, on a point of evidence. The defendants offered the deposition of William Samuels, taken in a former ejectment brought by Hugh Logan, in his lifetime, against Francis Cluggage. The plaintiff objected to this deposition, and the Court rejected it. Had the deposition been taken in an action between the same parties, for the same land, it would have been evidence. But this is not the case. The former ejectment was by Hugh Logan, this by Thomas Duncan. It is said in answer, that this ejectment being for the use of Hugh Logan's heirs, is in equity their ejectment. This is very true, but when we take an equitable view of the case, we must look at both sides. When Logan brought the former ejectment, he was not master of Armstrong's title. Having afterwards bought that title of Thomas Duncan, the present ejectment was brought. So that in truth, the two actions rest on different titles, and it might be doing injustice to the plaintiff to introduce a deposition taken under different circumstances. The points of inquiry may be different, and consequently it may be necessary to ask different questions of the same witness. The plaintiff then has the law of his side, the two actions being between different parties on the face of the record, and so also, in my opinion, he has the equity. The deposition therefore was not evidence. The counsel for the defendant after the evidence was closed, requested the opinion of the Court, on eight points, which are next to be considered.
      1. "That there are no facts from which the jury can presume, that the survey on Lawrence Peterson's application, was for the use of George Armstrong."
      The Court were of opinion, that the facts proved, afforded sufficient ground for a presumption in favor of Armstrong; but at the same time, they left the matter to the jury. The facts proved, were, that Armstrong paid the surveying fees, and that this survey was included in a letter to Richard Tea, from his assistant, Robert McKenzie, containing a list of surveys made for George Armstrong. When an application was entered, the presumption was, that it was for the use of the person in whose name it stood; but it was so common a practice for applicants to make use of the names of other persons, in trust for themselves, that it does not require very strong evidence to counteract the first presumption. Superintending the survey or paying the fees, has generally been deemed sufficient, unless rebutted by evidence, that the person so superintending or paying, acted as an agent; or unless possession or some act of ownership appeared in favour of the person, in whose name the application was entered. In this case there is not only the paying of the fees proved, but also, the return of the assistant surveyor to his principal, which is a very strong circumstance; so that I think the jury would be warranted in presuming the property to be in Armstrong.
      2. "That if the jury believed the testimony of Gabriel Peterson, relative to the engagement of George Armstrong, to take out applications for Lawrence Peterson and Jacob Hare, then any location taken out by George Armstrong, will enure to the use of Jacob Hare, and those claiming under him, so far as the same covers the original claim of Jacob Hare."
      On this point, the opinion of the court was against the defendant, who claimed under Hare. If an application had been entered in Hare's name, it would have been notice that the legal foundation of the title was in him, and the verbal agreement of Armstrong would have strengthened that foundation, so that a purchaser under Armstrong could not have sheltered himself under the plea of ignorance of Hare's title. But as no application was entered in the name of Hare, it would be most unjust and contrary to all principle, that a secret verbal promise, should be set up against a bona fide purchaser for valuable consideration, without notice. Such was Thomas Duncan, who purchased Armstrong's right at the sheriff's sale. I am of opinion, therefore, that he could not be affected by any equity in Hare.
      3. "That the deed from William Winton to Hugh Logan, is evidence, that Hugh Logan held adversely to George Armstrong, from the date of that deed, and that the plaintiff's suit is barred by the act of limitation."
      It seems, that Logan had purchased the right of one Winton, who set up a title by settlement, before he made the purchase of Duncan. But this does not prove that Logan held adversely to Armstrong. A man may purchase as many titles as he pleases. Nothing is more common than to buy a bad title, in order to get rid of a troublesome adversary. But it is an extraordinary attempt, to make Logan set up the act of limitation against Armstrong's title, whether he will or not. No man is obliged to take advantage of the act of limitations. So far therefore, as Logan was concerned, he had a right to say, that the act of limitations should not be set up against the title of Armstrong. If the defendant can protect himself by the statute, he has a right to do so. But then he must stand upon his own possession, and not call in the plaintiff to assist him. I agree therefore on this point with the Court of Common Pleas.
      4. "That as to all the land which was in the actual possession of Francis Cluggage for twenty-one years previously, to the institution of this suit, the plaintiff was barred by the act of limitations."
      The opinion of the court was, that the statute was a bar as to all land inclosed within fence, and no more. This opinion was right; Cluggage had no survey, therefore there was nothing to which his possession could refer, but his inclosure. If one has possession by inclosure of a part of a tract of land, which has known boundaries, and at the same time claims the whole, this is sufficient possession of the whole, and the act of limitations will operate in favour of the whole, provided no other person has possession in fact or in law. But if another person has possession of part of an adjoining tract, the lines of which interfere, in such case the law adjudges the possession of the uninclosed part to be in him who has the best right, and the act of limitations will have no effect except as to the part which is actually inclosed.
      5. "That the patent granted to Hugh Logan, and the deed poll therein recited, must estop the plaintiff in this suit from alleging title in his lessor."
      Before Logan purchased of Duncan, he had obtained a patent for the land, in which is recited a deed poll from Lawrence Peterson to Logan. The observations, in my opinion, on the 3d point will apply to this. There is nothing like an estoppel. Logan found great difficulty in coming at the right title. He purchased three different titles, including the deed from Lawrence Peterson, if such a deed really existed. We know very well that these deeds poll are often fabricated. Fictitious names are often used in entering applications, and the real owners sometimes take the liberty of making a deed, and signing a fictitious name to it. It is a practice to be reprobated. How the fact was here I know not; but supposing it to be a genuine deed, it does not estop the grantee from purchasing another title, and defending himself under it. The defendants were neither parties nor privies, to the deed poll from Peterson to Logan, and therefore have no right to set it up as an estoppel.
      6. "That the discontinuance of the suit, Hugh Logan v. Francis Cluggage in 1801, and delaying to institute a new suit, or give notice of an intention to do so, until 1805, are circumstances from which the jury may presume an abandonment, or fraud, in Logan; provided, in the mean time, Cluggage, or the defendants, made valuable improvements on the land."
      To this the Court very properly answered, that the jury might judge of the matter, although in their own opinion, as there was no proof of any houses being built from 1801 to 1805, the delay was a circumstance of but small moment.
      7. "That the interest of George Armstrong hath not been legally transferred to Thomas Duncan."
      The defendants contend that Armstrong's interest did not pass, because either in the fi. fa. or vend. exp. the plaintiff is named as Grace Parr, executrix of the last will and testament of William McDowell instead of William Dowell. This is no more than a clerical error, which the Court, from which the writ issued, would amend at any time, and even if error were brought, the Superior Court would order an amendment. The Court of Common Pleas, therefore, was right in saying that the proceedings could not be declared void in this collateral manner.
      8. "That if the jury believe that the survey returned by John Canan was made by the consent of Hugh Logan, then the plaintiff cannot recover any land not included in that survey."
      To this the Court of Common Pleas assented, but remarked that it did not apply to the case before them, as there was no land in controversy, not included in Canan's survey.
      On the argument in this Court, the plaintiffs in error brought forward two other exceptions to the charge of the Court -- the whole of which has been laid before us.
      1. "The Court erred in saying, that Gabriel Peterson's failing in his action, was strong presumptive evidence against the title of his father, Lawrence, under whom he claimed."
      I can perceive nothing like error in this. The plaintiff claimed under his father; after the evidence and arguments of counsel closed, the Court charged in favour of the defendant; upon which the plaintiffs suffered a non pros. Why did he suffer it, but from an expectation that the verdict would be against him? If the verdict had been against him, would it not have been a strong presumption of the defect of his father's title? And where is the difference between a verdict and a non pros. under such circumstances?
      2. "The Court erred in saying, that as to the claim of Hare, there is no pretence of title under which the defendant can be protected. It should have been left to the jury to decide, whether Hare had abandoned his claim by settlement."
      Where the matter is at all doubtful, it should be left to the jury. But abandonment is not in all cases a matter of fact. It may be a conclusion of law from facts. Where a man makes a settlement and leaves it for a great length of time, it does not signify for him to say, that he keeps up his claim. The law declares that such verbal claims have no avail, against the act of relinquishing the possession. And in such case I consider it as the right of the judge to declare the conclusion of law. I am therefore of opinion that here is no error.
      On the whole, my opinion is that the judgment should be affirmed.
      (opinion) YEATES, J. The plaintiffs have assigned for error, that the Court have over-ruled the deposition of William Samuels in evidence. It consists of the declarations of Lawrence Peterson, in whose name the application was taken out six years afterwards, that George Croghan had given him the tract of land called Turkey Hill; and that he (Peterson) and Jacob Hare, under whom the plaintiffs claimed, had agreed upon the hill as the consentible line between them. There is this capital objection to the deposition, independently of others to the greater part of it, that Samuels was in full life at the time of the trial. The deposition was taken under a rule of Court in another cause for the same land, wherein the lessee of Hugh Logan was plaintiff, and Francis Cluggage defendant, whose children are the plaintiffs in error. It was admitted on the trial, that Mr. Duncan is but a mere trustee, having contracted to convey the land to Hugh Logan, and that this suit is carried on for the use of his heirs. There may be said, therefore, to be a privity of interest and estate between the real suitors here and the parties to the former suit. But it ought to have been shown that proper efforts were used to obtain the attendance of the witness, that he was sought for and could not be found, or that he was disabled by sickness from attending. (Gilbert's Law of Evidence, 61, 62. and the authorities cited.) The 48th rule of practice of this Court, that a deposition taken under a rule of Court may be read in evidence without further proof, if the witness is resident within this state, and above 40 miles of the place of trial, will not remove this objection, because it evidently relates to witnesses examined in the same cause, and has always been so understood.
      Whether there was such an adverse possession in the plaintiffs in error, or their father, of the lands in controversy, as took away the defendants' legal right of entry, was a fact submitted to the jury for their decision, upon the contradictory proofs. This affords no cause of error, or ground of complaint. I know not what else could be said to the jury, after stating the variance in the testimony, unless the Court had thought proper to give a more decided opinion, or declare (what I think they would be justified in) that the weight of evidence showed that the limitation act did not apply.
      There is no evidence positive or presumptive, from which it may be collected that the application was entered by Francis Cluggage, or for his use. We know that the names of other persons are frequently made use of, in order to evade the regulations of the land-office established on the 17th June, 1765, that no application should be received by the secretary for more than 300 acres to any one person, without the special order of the proprietors, or the commissioners of property. The practice probably was adhered to for the emolument of the officers, after it had been shown by experience that the precaution was fruitless as to its effect, in the absence of other proof direct as to the ownership of the application. Activity in procuring the application to be effectuated, and payment of the surveying fees, have always been regarded as presumptive evidence of property in the party. The presumption will stand until the contrary be proved. I have witnessed several instances wherein recoveries have been decided, upon the ground of the surveying fees having been paid by the plaintiffs. I take it to be the duty of the presiding judge to give to the jurors his opinion in cases of presumptive evidence of the facts which may be fairly inferred; he ought to enlighten their understanding, but not to lead them by the nose, according to the phraseology of Clive, J. in Francis v. Baker, 5 Bac. Abr. 246, (1st ed.) If he errs in detracting from the just weight of testimony, or laying undue stress upon any part of it, the remedy of the party is by motion for a new trial. And we are bound to presume that the Court will grant the motion, upon being satisfied that an error has been committed. The observations of the president are fortified by the consideration that Lawrence Peterson did not pursue his claim under the application. Whether there was any engagement by Armstrong to enter application for the use of Lawrence Peterson, was a fact submitted to the decision of the jury under all the circumstances of the case. But as to the plaintiffs in error, their claim of title, as well as their father's, was under the supposed improvements of Jacob Hare, said to have been begun in 1760, but deserted in 1763, and to which he never returned.
      I cannot conceive how the purchase made by Hugh Logan, of a supposed Lawrence Peterson, of his title to the lands in question, or his obtaining a re-survey and a patent thereon, can operate as an estoppel against his heirs, who have instituted the present suit in the name of Mr. Duncan, for their use. No law or rule of morals forbids a man who has obtained a conveyance for land, which will not confer a good right, from purchasing in another title from the true owner. A man may lawfully have two strings to his bow; and the sound string is not vitiated or impaired in its effect by the unsound one.
      I fully concur in the charge of the Court, that the discontinuance of Hugh Logan's ejectment in 1801, and the delay in instituting a new suit until 1805, are circumstances from which an abandonment may be presumed; particularly where the suit lies by, while valuable improvements are made in the mean time on the land by the party in possession. But in this intermediate period little improvement was made, which the profits of the premises did not fully compensate. No building was erected thereon between 1801 and 1805. But here was a delay of which the jury will judge from the circumstances. Let it avail what it can. To the Court below it appeared to be slight proof of an abandonment of title by Logan or his heirs, and I do not dissent from them.
      Upon the whole, I am of opinion that no such error appears in the course of this trial, as would justify us in reversing the judgment of the Court of Common Pleas; and, therefore, I am for affirming the judgment.
      BRACKENRIDGE, J., concurred.
      Judgment affirmed.
 

"Pennsylvania state reports, comprising cases adjudged in the Supreme Court of Pennsylvania" cases decided May, October, and November 1861; by Robert E. Wright, Vol.IV; Vol.40, pgs.82 to 89 (California State Law Library, Sacramento, 2/2004)
      BUCHANAN versus DUNCAN et al.; Supreme Court of Pennsylvania, Harrisburg; 40 Pa. 82; July 24, 1861, Decided.
      Error to the Common Pleas of Blair county.
      This was an action of ejectment brought in the Common Pleas to July Term 1854, by George Buchanan, against Daniel Duncan and Samuel Duncan, for the undivided half of a tract of land in Tyrone township, Blair county, in which the following case was stated for the opinion of the court, in the nature of a special verdict:--
      The premises described in the writ of ejectment, was the mansion tract of Samuel Kyle, late of Sinking Valley, Blair county, deceased, and was the only tract of cultivated land owned by him in Sinking Valley, and is the land described in the will hereinafter mentioned as the "Sinking Valley Farm."
      The said Samuel Kyle died in the year 1827, leaving a widow, Jennet Kyle, and two daughters, viz., Nancy, then intermarried with George Buchanan, the plaintiff in this case, and Margaret, intermarried with Samuel Duncan (one of the defendants).
      The said Samuel Kyle left a last will and testament, dated the 16th of February, a. d. 1827, which was admitted to probate on the 23d of August, a. d. 1827, and which is in the following words, viz.:--
      "In the name of God, Amen. I, Samuel Kyle, of Tyrone township, Huntingdon county, and Commonwealth of Pennsylvania, being somewhat indisposed in body, but of sound and perfect mind and memory, and knowing the uncertainty of life, and that it is appointed for all living once to die, and in order to premise peace and unanimity amongst those concerned, and for the more easy and ready settling and disposing of that portion of the good things which it hath pleased the Lord to bestow upon me in this life: (Imprimis), I do truly resign my immortal and never-dying soul to Him from whom I received it, who is God of gods and Lord of lords, and my mortal body to the earth from whence it came, to be interred in a Christian-like manner, in full belief that it shall rise in that great and general day when all shall come forth that God may judge them.
      "Item first. I order that all my just and lawful debts be first punctually paid, together with the costs and expenses accruing from my funeral, out of my personal estate.
      "Item second. I leave and bequeath to my well beloved wife, Jennet Kyle, the use and benefit of the old end of the dwelling-house, both above and below, during her natural life, the one-half of the garden, and part of the spring-house for her milk; and I also bequeath to my said wife two of her choice of my beds, bedsteads, and clothes filling for the same; and I bequeath to her the half of what grain that would come to me yearly from the tenant, of wheat, rye, corn, buckwheat, and oats, and ten bushels of potatoes yearly, and also fifteen dollars in cash yearly during her natural life; and she is to have the bay horse, known by the name of Charley, and the bald mare's colt, and her choice of two of the milk cows, and her choice of six sheep out of the flock; and my said wife is to have a sufficiency of pasture in the summer for horses, cows, and sheep, and also a sufficiency of hay of the farm yearly for them in the winter, and stable for horses and cows in the winter; and my said wife is to have half a bushel of flaxseed sowed for her yearly on the farm, and to be put in for her in good ground in good order; and she is to have use of the clock and carpets in the house during her life; and I leave her fifty dollars of the Huntingdon bank stock, with interest on the same until paid; and she is also to have the large copper kettle, and tubs, and kitchen furniture, as much as she thinks necessary for her to keep during her life; and her saddle; and to a sufficient quantity of firewood cut and hauled to her yearly during her life, and to Susanna Campbell during the time of her indenture; and my said wife is to have six of her choice of the chairs in the house; and she is to have also the woollen and linen yarn and cloth, and the wool of flock of the sheep this spring, if not shorent at my decease.
      "Third. I leave and bequeath to Nancy Haggerty one white cow, known by the name of her cow, and I leave also to her six sheep, if there be so many of her mark alive.
      "Fourth. I leave and bequeath to Samuel Edie Kyle Duncan the sum of two hundred dollars, lawful money of the United States, to be paid to his guardian for the use of the said Samuel Edie Kyle Duncan, four years after my decease, and I leave to the said Samuel Edie Kyle Duncan my watch. I leave and bequeath to my dutiful daughter, Nancy Kyle, alias Nancy Buchanan, for the use and benefit of her legal heirs, the one-half of the remaining part of my real and personal property after the aforesaid bequests and legacies are fully satisfied and paid. I leave my said daughter Nancy the one-half of the remainder of the Huntingdon Bank stock belonging to me after what is already bequeathed; also the half of my part of the Indiana and Cambria Turnpike stock, and the one-half of a tract of land in Indiana county, to her and to her legal heirs for ever, and also the half of what money is due me by James Richards, of Armstrong county, or otherwise, if not paid by said Richards, the half of said tract purchased by him from me; and I also bequeath to my said daughter, Nancy Buchanan, the one-half of my land in Sinking Valley, after the decease of my beloved wife, to her and her heirs for ever.
      "Sixth. I leave and bequeath to my dutiful daughter Margaret Kyle, alias Margaret Duncan, for the use and benefit of her legal heirs, the one-half of my estate real and personal, in equal proportion with my daughter Nancy, after the aforementioned legacies are fully paid or satisfied, that is, the half of the remainder of the Huntingdon Bank stock, after the first bequest out of it is fully paid, the half of my part of the Indiana and Cambria Turnpike stock, and the half a tract of land in Indiana county, to her and her legal heirs forever, and also the half of what money is due me by James Richards, for a tract of land bought by said Richards from me, lying in Armstrong county, and in case said James Richards are not able to pay for said tract of land, I leave and bequeath the half of said tract to my said daughter Margaret, to her and her heirs forever; and I bequeath the half of my estate in Sinking Valley, after the decease of my beloved wife Jennet Kyle, to Margaret Duncan and her heirs forever. I do hereby bequeath and leave to wife and executors my library of books, to be amicably, those of a religious nature them, those on arithmetic, mathematics, or the law, to be divided between George Buchanan and Samuel Duncan. And I do hereby constitute, make, and ordain Jennet Kyle executrix, and George Buchanan and Samuel Duncan my sole executors of this my last will and testament, and do authorize these my executors to make sale of any of my back lands or any part of said back lands sold by me, for my said executors to make a deed or deeds of conveyance for the same, as available in law or equity as if I myself were personally present, to the said purchaser or purchasers; and I do hereby utterly disallow, revoke, disannul all and every other and former will, testament, wills, legacies, bequests and executors by me or any before named, willed and bequeathed, ratifying and confirming this and no other to be last will and testament. In witness whereof I have hereunto set my hand and seal this sixteenth day of February, in the year of our Lord one thousand eight hundred and twenty-seven (1827). Samuel Kyle. [L.S.] Signed, sealed, pronounced, and declared in presence of us. William McCormick, Edie Stewart."
      George Buchanan, the plaintiff, and Nancy his wife, had issue one child, a daughter, who died in 1833.
      Nancy Buchanan died in 1843.
      Jennet Kyle, the widow of testator, died in 1851.
      Margaret Duncan, wife of Samuel Duncan, died in 1829, leaving a husband, one of the defendants, and issue, Samuel E. K. Duncan, one of the defendants, Joseph Duncan, Matilda Duncan, Margaret Duncan.
      Samuel Duncan and George Buchanan, who were the acting executors of Samuel Kyle, by the consent of Jennet Kyle, the widow, leased the premises from the death of Samuel Kyle till the death of Jennet Kyle, to William McCormick.
      If the court should be of the opinion that George Buchanan is entitled to the possession of the undivided half of the tract of land described in the writ, then judgment to be entered for the plaintiff, that he do have and recover the same with costs of suit. Or if the court should be of the opinion that the said George Buchanan is entitled to the possession of any portion of said tract of land, less than the undivided half thereof, then judgment to be entered that the plaintiff do have and recover such portion.
      If the court should be of the opinion that the said George Buchanan is not entitled to the possession of any part of said tract of land, then judgment to be entered for defendant.
      The court below entered judgment for defendants; whereupon the plaintiff sued out this writ, assigning the giving of said judgment for error.
      S. S. BLAIR, for plaintiff, argued that under the will of Samuel Kyle, his daughter Nancy, the wife of the plaintiff, was so seised of the premises claimed in the writ as to entitle her surviving husband to a tenancy therein by the curtesy, she having died, without issue living, in 1843; and that the isolated clause by which he gives "to his daughter, Nancy Buchanan, one-half of his land in Sinking Valley, after the decease of his wife, to her and her heirs for ever," was not in itself sufficient to support the position of defendants; that the widow of testator had a life estate in the whole tract, which did not terminate until Mrs. Buchanan's death; and that Mrs. Buchanan's interest therein was only a remainder over after the death of Mrs. Kyle.
      That this clause by itself was an executory devise, to take effect on the widow's death, without any disposition of the freehold in the interim; that therefore the law, on the death of the widow, would cast it on the heirs, and thus give Mrs. Buchanan an undivided moiety thereof, and make her seisin complete: 4 Kent 284. But that the other parts of the will show that testator did not intend to give his widow the freehold for life only, because by giving her a portion of the dwelling-house, stable, and garden, with a certain quantity of hay, pasture, grain, potatoes, and fruit, he evidently contemplated that some other person should have possession of the land. There was, therefore, under the will, a potential seisin or right of seisin in Mrs. Buchanan, which was sufficient to raise an estate by the curtesy: Stoolfoos v. Jenkins, 8 S. & R. 175; Chew v. Commissioners of Southwark, 5 Rawle 160.
      SAMUEL CALVIN, for defendants. -- The words "I also bequeath to my said daughter, Nancy Buchanan, the one-half of my lands in Sinking Valley, after the decease of my beloved wife, to her and her heirs for ever," gave to her a vested remainder, and therefore the plaintiff cannot be tenant by the curtesy: Hitner v. Ege, 11 Harris 305. The law favours vested estates; and no remainder will be construed to be contingent which may, consistently with the intention, be deemed vested: 4 Kent 201-206. "A limitation is not to be deemed an executory devise, if it may, by any practicable construction, be sustained as a contingent remainder:" Stehman et al. v. Stehman, 1 Watts 466. But, whether an executory devise or not, was Nancy Buchanan seised? "To entitle the husband to curtesy, the wife must have had such a seisin as will enable her issue to inherit: 4 Kent 29-31; Pritt v. Ritchey, 29 Pa. 71. The cases in 8 S. & R. and 5 Rawle, cited by plaintiff's counsel, show that there must be either an actual or "potential seisin, or right of seisin;" that there must be an actual or constructive possession, or present right of possession during coverture, to entitle the husband to curtesy. The question is not whether there was an actual or potential seisin in Jennet Kyle, widow of the testator, but whether there was such actual or potential seisin, possession, or the right of possession in Nancy Buchanan. Had she "a right to demand and receive the rent," or otherwise to "demand and receive the immediate possession?" Certainly, no such possession, or right of possession, or such receipt of rent, or right to receive it, or to recover the possession, is shown to have been in her.
      Had not Jennet Kyle a life estate in at least a portion of the land, and had she not a right to receive at least a portion of the rents and profits during her life? Is the income given to her in the will no disposition of the freehold? The widow gets the actual possession of a part of the premises, is to receive one-half of the rents, and to enjoy divers other rights and privileges in the land. And how is the will to be carried into effect? How is she to enjoy these rights and privileges? The testator intended that his widow should have a life estate, or that his executors, his widow being one of them, should have possession or control of the farm during her life, and either rent it or so conduct and manage it, that the widow should enjoy all the rights and privileges granted to her.
      The opinion of the court was delivered, July 24th 1861, by
      STRONG, J. -- In this state a surviving husband is entitled to curtesy of land of his deceased wife of which he had only a potential seisin during her life. Actual possession by the wife or by the husband in her right is not necessary. If she had possession by a tenant for years, or if she had a right to present possession, it is sufficient. The effect is equivalent to that of actual seisin: Stoolfoos v. Jenkins, 8 Serge. & Rawle 167; Chew v. Southwark, 5 Rawle 160. If, therefore, the wife of the plaintiff was, during her lifetime, either actually or potentially seised of the Sinking Valley Farm (the property in dispute), his curtesy became complete at her death, and he is entitled to recover. The whole question in this case then is, what estate in that farm did Mrs. Buchanan take either by descent or under the will of her father? From the will, as well as the case stated, it appears that he left a widow and two daughters -- Mrs. Buchanan and Mrs. Duncan. He first made provision for his widow. To her he left during her natural life "the use and benefit of the old end of the dwelling-house" (on the farm), "the one-half of the garden and part of the spring-house for her milk," "half of the grain that would come to him from the tenant," "a sufficiency of pasture during the summer" for her cow and horses, "a sufficiency of hay for them" in the winter, "the right to have half a bushel of flax-seed sowed for her yearly on the farm, and to be put in for her in good ground in good order," and a right to have a sufficient quantity of firewood cut and hauled to her yearly during her life. He also gave to her an annuity, and various articles of personal property.
      It seems quite clear that neither any one of these provisions, nor all combined, amounted to a devise of the farm to the widow during her life. The benefits secured to her were, at most, certain rights and privileges upon the farm -- not the farm itself nor all its usufruct. As against the owner she could enforce the provisions made in her behalf, but those provisions looked to an owner other than herself to whom she could resort.
      Now had the will stopped here, the Valley Spring Farm would have descended, on the death of the testator, to Mrs. Buchanan and to Mrs. Duncan, encumbered with the charge in favour of the widow, and would have been clearly subject to the curtesy of a husband. But the testator proceeded to make a disposition of all his property. He gave two specific legacies, and also a small pecuniary one to a grandson, and then gave to Mrs. Buchanan, for the use and benefit of her legal heirs, the one-half of the remaining part of his real and personal property after the aforesaid legacies and bequests should be fully satisfied and paid, and he made a similar disposition of the other half in favour of Mrs. Duncan. It is manifest that under this clause of the will the two daughters took a fee simple in all the real estate of which the testator died seised, and which he had not previously devised. If, then, as we think, the farm was not devised to the widow for life, the right to its enjoyment passed to the daughters immediately, subject to the charge, the privileges, and easements created for the widow. Nor is this construction inconsistent with the directions of the will which follow this devising clause. The testator, having made this comprehensive disposition, proceeded to specify the more important items of his property given, both real and personal. With this view he left to Mrs. Buchanan one-half of certain stocks, one-half of a tract of land in Indiana county, one-half of a sum of money due to him for a tract of land sold, or the tract itself, and added: "and I also bequeath to my said daughter Nancy Buchanan the one-half of my land in Sinking Valley, after the decease of my beloved wife, to her and to her heirs for ever." If the rights of Mrs. Buchanan were such only as this last clause standing alone would have conferred upon her, the defendants in error would be right, for then she would have had no title to the enjoyment of the farm until after the death of the widow, and the widow survived her. But such is not the case. This provision is not to be construed without reference to the other parts of the will. Full effect is to be given, if possible, to every provision; and if this is taken by itself the previous gift of all the testator's real and personal property is unmeaning. Placing ourselves in the testator's situation, endeavouring to catch his intention as expressed by his entire will, he seems to have said: I have made provision for my wife, and for all except my two children; I now leave to them all the remainder of my property; of a part, which I specify, there will be no hindrance to their full and immediate enjoyment. Out of the Sinking Valley Farm, however, they must render certain duties to my wife during her life. Of that, therefore, they can only have partial enjoyment while she lives, but after her death their enjoyment shall be unclogged. Such being the meaning of the will, there was a seisin of the farm in Mrs. Buchanan, as to one-half, immediately on the death of her father, even during the life of the widow, and, on Mrs. Buchanan's death, the plaintiff's right to curtesy was complete. It follows that he is entitled to recover.
      The judgment is reversed, and judgment is entered on the case stated for the plaintiff and against the defendants, for an undivided moiety of the tract of land described in the writ.
 

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