Duncan research files of
1850 Blair Co. PA Census
Pg.65, #154, Robert DUNCAN 40 PA laborer
Elizabeth 43 PA
James 17, William 14 PA
Asah (m) 12, Sarah 10 PA
John 8, Ann 6
Matilda 3 PA
(MAD: see also 1850 Bedford Co. PA census; 1860 Henry Co. IL census)
Pg.115, #72, William FOUSE 54 PA farmer
Mary G. BOWERS 21 PA
George TITWELLER 17 PA
Mary DUNCAN 34 PA
Pg.139, #50, Morgan DUNCAN 69 PA farmer
Mary 72 PA
Margaret 26 PA
Jacob DODSON 8 PA
Pg.144, #117, John MUSSELMAN 42 PA farmer $900
David 38 PA farmer $900
Catherine DUNCAN 35 PA
Pg.166, #155, Britana SMITH (f) 60 PA
Malinda DUNCAN 12 PA
1860 Blair Co. PA Census
Pg.208, #1023-1048, Patrick KELLEY 30 IRE ore digger $0-$40
Catharine 25 IRE
Hugh DONCAN 30 IRE Trilon?
Pg.237-8, #134-135, John MUSSELMAN 51 PA farm laborer $1490-$150
David 46 farm laborer
Cath. DUNCAN 45 (PA?)
(MAD: birthplaces blank this township except for head of household)
Pg.239, #143-145, Morgan DUNCAN (m) 75 PA weaver $0-$200
Mary 80 (blank)
Margaret 33 (blank)
Henrietta 17 (blank)
Pg.479, #859-882, James DUNCAN 41 PA day laborer $600-$75
Caroline 33 PA
David 10, Sarah 9 PA
Richard 6, Electa (f) 2 PA
Pg.542-3, #149-157, Samuel DUNCAN 40 PA "Mas Farmer" $4500-$750
Margaret 36 PA (blank) $2500-$0
Anna SMITH 8 PA
Miles SMITH (m) 17 PA farm laborer
1870 Blair Co. PA Census
Pg.275, #102-102, JACKSON, Thomas 43 PA wagon maker $0-$0
Cornelia 39 PA K.house
Ida (f) 14, Byron 11, Mina? 6, Cora 2 PA
Pg.275, #102-103, DURCAN, Margt. 68 PA K.house $1000-$200
Mary 11? PA
(MAD: indexed Margt. DUNCAN)
Pg.315, #180-180, MUSSLEMAN, John 62 PA farm laborer $3000-$1000
David 48 PA farm laborer
DUNCAN, Catherine 45 PA house keeper
Pg.316, #202-202, DUNCAN, Mary 95 PA retired $0-$300
Margarett 50 PA housekeeper
DOBSEN, Jacob 27 PA farm laborer $2000-$800
Pg.462, #95-95, DUNCAN, S.E. (m) 50 PA farmer $11,350-$4,552
Mary 45 PA keeping house
J.M. (m) 48 PA farmer
McMULLEN, Lizzie 18 PA domestic servt.
"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.
"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.132 to 140 (California State Law Library, Sacramento, 2/2004)
SHOENBERGER'S Executors versus HAY et al.; Supreme Court of Pennsylvania, Harrisburg; 40 Pa. 132; July 25, 1861, Decided.
Error to the Common Pleas of Blair county.
This was an action of debt brought in the court below to April Term 1859 by Simon G. Hay (for use of Jacob L. Martin), Samuel Brown, Mary Brown, Valentine Hay, Jacob Biddle, and Catharine Broombaugh, heirs and legal representatives of Valentine Hay, deceased, against John G. Miles and Michael Berry, executors of Peter Shoenberger, deceased, in which, after declaration filed, the following case was agreed upon and stated for the opinion of the court:--
Valentine Hay died in the year 1816, seised of a tract of land in Bedford (now Blair) county, near Upper Maria Forge, having made a will, which was duly admitted to probate in Bedford county. That John Hay, executor of the said Valentine Hay, on the 22d day of July 1816, sold and conveyed the tract of land, of which the said Valentine Hay died seised, to George Hartle, for the sum of $1688.46. That George Hartle subsequently died, and proceedings having been instituted in the Orphans' Court of Bedford county, to make partition and valuation of the said tract of land to and among the heirs of the said George Hartle, and the heirs having all refused to accept the said tract of land at the valuation thereof, on the 28th day of November 1833 an order was issued out of the Orphans' Court of Bedford county to sell the said tract of land, "subject to the dower of the widow of Valentine Hay, deceased, in said premises."
That in pursuance of the said order of the Orphans' Court of Bedford county, the said tract of land was sold on the 26th day of December 1833 to Samuel Green, for the sum of $825, "subject to the dower of the widow of Valentine Hay," and that said sale was confirmed by the said court on the 28th of January 1834. That Samuel Green sold the said tract of land, on the 4th day of April 1834, to Peter Shoenberger, for the sum of $825, "subject to the payment of the dower of the widow of the late Valentine Hay, deceased, which is $562.82." That the widow of the said Valentine Hay is deceased, and that the plaintiffs are the children and heirs of the said Valentine Hay. The will of Valentine Hay -- the deed of Valentine Hay's executor to Jacob Hartle -- the order of the Orphans' Court of Bedford county for the sale of said tract of land, and the deed by Samuel Green to Peter Shoenberger, and the will of Peter Shoenberger, are to be considered a part of the case stated. Dr. P. Shoenberger paid to the widow of Valentine Hay the annual interest on the dower, as it is called, down to the 1st April 1851, being the time when a lease for life or four years (in case of the testator not living to the end of the said four years), from the said Peter Shoenberger to John W. Duncan, commenced, after which time the said John W. Duncan paid whatever interest was paid, if any, to the said widow; which said lease is made a part of this case stated. Dr. Peter Shoenberger devised the tract of land, hereinbefore described, to his executors, in trust for the use of his daughter, Martha K. Duncan, for and during her natural life, and upon her death he devised the remainder to her children. The devise was made in the following form, that is to say:--
"Seventhly. I devise to my executors, hereinafter named, the survivors and survivor of them, and to my administrators for the time being, with the will annexed, for and during the natural life of my daughter, Martha Duncan, in trust for the use and benefit of my said daughter, Martha Duncan, for and during her natural life, the following-described real estate, that is to say, Bloomfield Furnace, with all the lands and tenements thereto belonging, and of which the following is a schedule, viz.:" &c. (Then follows an enumeration and description of the lands by tracts.) "Also, I devise to my daughter, Martha Duncan, in trust as aforesaid and same manner, the Upper and Middle Maria Forges, with all the farms, lands, and tenements thereto belonging, situate in Blair county, and designated in the following schedule, viz.:" &c. (Then follows a list of tracts by description in detail, in which is included the Valentine Hay tract, hereinbefore mentioned.) After all the lands included in the devise aforesaid were described and enumerated, the will proceeds as follows, viz.: "And I direct that the rents, issues, and profits of the said hereinbefore-described real estate so devised in trust for the use and benefit of my daughter, Martha Duncan, shall be regularly and annually paid to my said daughter, Martha Duncan, for her sole and separate use, free from the control or disposition of her present or any other future husband whom she may at any time have during her natural life, and, upon her death, I devise the same to her surviving children, and the lawful issue of such of her children as shall be then dead, leaving lawful issue, as tenants in common, in equal shares, such issue to take, in equal parts, the share only which would have been taken by his, her, or their parent, had such parent been living at the time of the death of my said daughter, Martha Duncan, the said surviving children, and the lawful issue of such as shall be then dead at the time of the death of my said daughter, Martha, to have and to hold the said lands and tenements hereby devised to them, upon the death of my said daughter, Martha Duncan, as a remainder as purchasers, and not by descent."
If the court be of opinion that the plaintiffs ought to recover from the defendants the dower that remains a charge upon the said tract of land, and subject to which Peter Shoenberger purchased the same, then judgment to be entered for the plaintiffs for the sum of $562.82, with interest from the 1st day of July 1854, the time of the death of the widow of Valentine Hay; but if not, then judgment to be entered for the defendants -- the costs to follow the judgment, and either party reserving the right to sue out a writ of error therein. Either party to have the right to take a writ of error.
On hearing, the court below gave judgment for the plaintiffs. The case was thereupon removed into this court by the defendants, who assigned for error the entering of judgment for plaintiffs.
J. G. MILES, for plaintiffs in error. -- The question is, Does Martha K. Duncan take the land devised cum onere, or must the charge which rested upon it in the lifetime of the testator be paid out of his residuary estate? It is believed that the case of Bell's Executors v. Bell, 32 Pa. 311, conclusively settles the point against the defendants in error. The decree of the Orphans' Court of Bedford county for the sale of the land as the property of George Hartle, deceased, ordering the sale to be made "subject to the dower of the widow of Valentine Hay, deceased, in said premises," the deed from Adam Black, administrator of Hartle, to Green, made in pursuance of and in conformity to the decree, and the deed from Green to Shoenberger, in the habendum of which, are the following clauses, viz.: "Subject, however, to the payment to the said Samuel Green of the sum of $550, part of the consideration-money above mentioned, and for which the said Peter Shoenberger has given his judgment-notes bearing even date herewith, and subject also to the payment of the dower of the widow of Valentine Hay, deceased, and which the above tract of land was subject to in the hands of the said Samuel Green," all show a charge in favour of the widow of Valentine Hay, standing in the title devised to Martha K. Duncan, similar in its nature to statutory dower, and so treated and called in the decree of the court and in the deeds themselves. A judicial sale of the land, as the property of either Green or Shoenberger, upon the judgment of a third person, would not have extinguished the charge in question: Dewalt's Appeal, 8 Harris 236. The case of Campbell v. Shrum, 3 Watts 60, cited to support the position taken by Hay's heirs, was the case of an action of covenant founded upon articles of agreement, sealed by both parties, in which the one party sued the other for not paying the debt of the first to a third person. The payment of that debt, under the terms of the agreement, was adjudged to be the principal consideration of it, and, therefore, in the case of an unexecuted contract, signed by both parties, held to amount to a covenant to pay it. It was very unlike the case of a deed conveying the legal title subject to a charge, which adhered to it in its various stages of transmission to the present owner, under the will of Dr. Shoenberger.
In addition to the leading case of Bell v. Bell, the following authorities are clear to the point that the residuary estate is not liable upon the facts of the case: Keyzey's Executor v. Keyzey, 9 S. & R. 73; Toller on Executors 419; 2 P. Wms. 664; 4 Kent's Com. 421; Hoff's Appeal, 12 Harris 204; 1 Maddock's Ch. 592; 3 Ves. 128, note (a) under case of Woods v. Hunting-ford; Butler v. Butler, 5 Ves. 534.
In the absence of any proof to that effect, two leading facts prove that Dr. Shoenberger did not make the debt in question his own:--
1st. In the deed from Green to him there is evidence of a discrimination in that respect between the two dowers which encumbered the land at the same time, to wit, the one in question and the other in favour of the widow of Hartle. The one shows personal obligation, the other none.
2d. The testator paid the annual interest to Mrs. Hay during the time only when he was in the possession of the land.
E. HAMMOND, for defendant in error. -- The question presented for adjudication is not as stated by the plaintiffs in error, whether Martha Duncan takes the land devised, cum onere, but whether the estate of Dr. Shoenberger is bound to pay the claim set forth in the case stated?
Dr. Shoenberger purchased the land from Samuel Green for $825, "subject to the payment of the dower of the widow of the late Valentine Hay, deceased, which is $562.82." This constituted, on the part of Dr. Shoenberger, an agreement to pay, in addition to the $825, the sum of $562.82. The payment of the sum of $562.82 is part of the consideration for which the land was conveyed to Dr. Shoenberger: Campbell v. Shrum, 3 Watts 60; Blank v. German, 5 W. & S. 36.
It is evident that the estimated value of the land by Green and Dr. Shoenberger embraced the money for which this suit has been brought, and that it was deducted or retained by Dr. Shoenberger, he paying Green the estimated value of the land less the sum of $562.82. A conveyance in consideration of the assumption of a lien on the land renders the grantee liable to pay it, and is a valuable consideration.
Whether covenant would be the proper form of action, where it appears that he had not executed the deed, but was a party to it, and held under the conveyance, it is unnecessary to decide; for if covenant would not lie, an action on the case would, and the agreement in writing would be sufficient evidence: Dubbs v. Finley, 2 Penna. State Rep. 397. But debt and not covenant is the proper action: Maule v. Weaver, 7 Pa. 329. See McCracken's Estate, 29 Penna. State Rep. 426, as to liability of defendant.
In the case of Bell's Executor v. Bell, relied upon by the plaintiffs in error, there was no covenant to pay the "statutory dower in favour of a widow of a former owner." The suit was brought by the devisee of the land against the estate of the devisor.
Dr. Shoenberger could not, by leasing or disposing of the land in any way, change his liability under the covenant and agreement in the deed by Green to him. In his will he directs his executors to pay his just debts and funeral expenses, and the expenses of the administration of his estate, out of his personal estate not hereinafter specifically bequeathed, and his real estate not specifically devised; and thereby intended the lands specifically devised in his will to pass to the devisees free from any encumbrance. It cannot be doubted that Dr. Shoenberger became personally liable to pay the sum of $562.82; and if so, his executors are directed to pay the same in his will.
MILES, in reply. -- Dower is an estate in the nature of a rent-charge, not an encumbrance upon land: Power v. Power, 7 Watts 212; Thomas v. Simpson, 3 Pa. 69; 3 Id. 70; Shaupe v. Shaupe, 12 S. & R. 12. It is a continuing charge during the life of the widow of a deceased husband, different from the debts and encumbrances which formed the subject of the cases referred to in the argument of the counsel of the defendants in error: McCracken's Estate, 29 Pa. 428.
Every case cited on the other side was ruled upon the force of an agreement back of the deed, except Maule v. Weaver, 7 Pa. 329, where it was held that an action of covenant could not be sustained against a grantee of a deed recited to be an indenture inter partes -- sealed alone by the grantor, in which was contained a covenant on the part of the grantee to pay a rent reserved out of the land. That was the only point ruled in the case.
Our case is not that of a first grantee, but of a testator, who in his lifetime occupied the position of a third in the chain of connection between the original proprietor, Valentine Hay (the dower of whose widow was a charge upon the land), and the testator's devisee. It is clearly distinguishable from the cases relied upon in the opposite argument, and strictly within the ruling of Bell v. Bell. Dr. Shoenberger was a third grantee of the legal estate charged with a continuing dower, conveyed by a deed-poll subject to such charge. In regard to such a deed, the rule of construction would be different from that which would govern a paper sealed by both parties. See Poyntell v. Spencer, 6 Pa. 256. The principles settled after an elaborate discussion by most eminent counsel in the case of Walker v. Physick, 5 Pa. 193, must rule this case.
This same principle is found in Royer v. Ake, 3 Penna. Rep. 464; Wiedner v. Foster, 2 Id. 25; Thomas v. Connell, 5 Pa. 14; Wickersham v. Irwin, 2 Harris 108, 110, 111; Berry v. McMullen, 17 S. & R. 87; Doe v. Provoost, 4 Johns. 66; Hogan v. Jackson, Cowper 304, 305.
Upon the question of the intention of the testator, there is nothing in the will to take the case out of the rule laid down in the case of Bell v. Bell. The same reasons exist in this case as in that, for holding that there is a total absence of an intention manifested to exonerate the land from the charge, and to throw it upon the residuary fund.
The opinion of the court was delivered, July 25th 1861, by
THOMPSON, J. -- This was an action of debt against the plaintiffs in error, to enforce an alleged undertaking of their testator to pay off a dower; subject to which, on the 4th of April 1854, he purchased and accepted a conveyance of a certain piece or tract of land, formerly belonging to Valentine Hay, deceased, and which, by his will, he devised before the same became payable, to Mrs. Duncan, his daughter. Is it a debt chargeable to the residuary estate of Dr. Shoenberger, or does the devisee take the land cum onere?
In the case of Wolveridge v. Steward, 3 Moore & Scott 561, it was held in the Exchequer Chamber (opinion of the court by Lord Denman, C. J.), on an indenture sealed by both parties, the words "subject nevertheless to the payment of the yearly rent and performance of the covenants and agreements reserved and contained in the said indenture of lease," &c., being inserted in the habendum, did not, without the intent otherwise appeared, imply an agreement or covenant to pay the rent and perform the covenants; that the words in that place naturally import or qualify the generality of the words which precede them, and his lordship cites the definition of the office of a habendum from Co. Litt. 6: "It doth qualify the general intendment of the premises; and the reason of this is, for that is a maxim of law, that every man's grant shall be taken by construction of law, most forcible against him." His lordship also in that opinion explains a seeming difference between that case and Barnett v. Lynch, 5 B. & C. 597, determined in the King's Bench. The difference arose out of the difference in the instruments, and perhaps form of action, but it is more apparent than real.
Without affirming the principles of this case expressly, our court has done so impliedly, by looking, notwithstanding the words, to the entire agreement for the evidence of intent to make the debt or encumbrance the debt of the grantee in the conveyance. Thus, in McCracken's Estate, 29 Pa. 426, the intent was deduced from the act of the assignee buying but an equitable interest, and procuring an assignment of the contract between the original vendors and his assignor to himself; which it was thought evinced an intent to be bound as his assignee was bound. So, too, this intent was thought to be evinced by the testator's will, in the manner in which he devised his estate. So in Bell's Executors v. Bell, 32 Pa. 309, words such as exist here were held not sufficient of themselves against the improbability that any man would so contract as to tie up his estate indefinitely from final administration, until the widow's dower should become payable.
In Walker v. Physick, 5 Pa. 193, the words were, "under and subject to the payment of the said rent, as the same shall accrue, for ever," in the habendum. Mr. Justice Kennedy, in an elaborate opinion at Nisi Prius, considered these words in the same light as did Lord Denman in Wolveridge v. Steward, as a qualification of the estate granted, and also to save responsibility under the words "grant, bargain, and sell." In affirming that case in banc, Gibson, C. J., says the true rule of interpretation is the intent of the parties. This of course denied to the words, per se, the effect of a covenant, or a personal promise to be liable. Many reasons, derived from results which might flow from holding them to have the force of an agreement to pay, are given in that case, proving what has already been said, that such a conveyance does not, per se, imply a personal covenant to pay without regard to the enjoyment of the property.
The same principle was held in Wickersham v. Irwin, 14 Pa. 108. But Mr. Justice Rogers denied what has sometimes been asserted, that buying, subject to encumbrance merely, created no privity of contract. That the assignee, and so with his successors, were liable for ground-rent only on privity of estate arising from the "actual or beneficial enjoyment of the premises, or the right of possession and enjoyment."
These authorities are sufficient to establish, beyond doubt, that the words in the habendum, in the deed by Green to Dr. Shoenberger, "subject also to the payment of the dower of the widow of Valentine Hay, deceased, and which the above tract of land was subject to in the hands of the said Samuel Green," do not, of themselves, the deed not being sealed by the latter, import a covenant or a promise by acceptance of it, to be personally answerable to discharge the dower. The dower having become due and payable after the doctor's death, and after the estate had passed by devise to Mrs. Duncan, upon no principle of privity of contract or estate is his estate answerable to discharge the encumbrance.
As we see no indication whatever, outside of the words used, evincive of an intent to make the payment of the decree a personal obligation by the testator, we are clearly of opinion that the case must be reversed. It is not, in principle, distinguishable from Bell's Executors v. Bell, already cited, and which followed abundance of authority, as appears by the citations therein. In the case in hand, the dower was not even counted as part of the purchase-money. That was $825 for the land, "subject to the payment of the dower," &c., "which is $562.82." "I have no doubt," says Gibson, C.J., in Walker v. Physic, "that they actually meant no more than to say the grantee was to take an encumbered estate, without recourse to the grantor for a breach of the statutory covenant arising from the words "grant, bargain, and sell." And the fact that the encumbrance was not included in the purchase-money, is a strong circumstance that this was the understanding of the parties. I need do no more than to notice one or two cases relied on by the defendant in error.
The facts of Campbell v. Shrum, 3 Watts 60, were, in some particulars, like those in McCracken's Estate. Shrum sold to Campbell, by articles of agreement, an equitable title, which agreement both parties signed and sealed. By these Campbell agreed to buy, for a consideration to Shrum, "subject to the payment of the purchase-money and interest now due, on articles of agreement between Thomas Netly and James Gibson of the one part, and the said Shrum of the other part." It is evident that the principal consideration for the sale to Campbell by Shrum, was, that the former should discharge the arrears then due by the latter, and for which he was liable to be called on at any moment. It was the evident intent apparent in the covenants, as appears in the opinion of the court, which led to the ruling there. No one can doubt its propriety, I think. But it does not conflict with the case in hand. The dower was not payable when Dr. Shoenberger bought, nor did it become so in his lifetime. The estate came to him charged with it, and it is evident he took it to hold as encumbered.
The only other case to be noticed is Maule v. Weaver, 7 Pa. 329. We may dismiss it with the only remark remaining, in view of the case before us, and that is, that the point there decided was that covenant does not lie against a party who has not signed or sealed the instrument sued on. No point of that kind arises here. This was an action of debt, and as there can be no doubt but that it would lie in all cases for the recovery of a specific sum of money, we see no objection to the form of action.
But for the reasons assigned, the judgment is reversed.
Judgment reversed, and judgment for the defendants, with costs.
Armstrong Co. PA Deeds (SLC 9/15/2012)
21-51: 4 April 1855, Samuel Duncan Jr. of Blair Co. PA to Samuel Fiscus of Plumbcreek Twp, Armstrong Co. PA, for $3,400 paid, sell tract of land containing 265 acres and 95 perches in Plumbcreek Twp, Armstrong Co., adj. lands of party of second part and also Wm. Duncan, John Fiscus, and Crooked Creek, being the same land appraised by writ of partition of the Orphans Court of Armstrong Co. on 5 March 1855 to party of first part, with appurtenances, warrant title. /s/ Saml. E.K. Duncan. Wit. A.L. Robinson. Ack. Armstrong Co. PA 4 April 1855. Recorded 4 April 1855. (FHL film 861,235)
22-553/554: 28 Aug. 1857, Joseph Duncan of Allegheny Twp, Armstrong Co. PA, to Samuel E.K. Duncan of Blair Co. PA, for $3,210 paid, sell parcel of land with privileges &c situated partly in Kittanning Twp and partly in Allegheny Twp in Armstrong Co. PA, adj. Center of Crooked Creek, by land of Robert Walker "(of A)", upper corner of the Peach Orchard, by land of John Walker, containing 6 acres and 82 perches with a Grist Mill with all its fixtures, a store house, dwelling house and stable thereon erected ... and privileges, the premises not exceding 4 and 1/2 feet in hight ... being the same land that the widow and heirs of Samuel Walker decd conveyed to said Robert Walker 1 Nov. 1834, recorded Armstrong Co. Vol.10 pgs.349 & 550, and the remainder being a part of a large tract that John Shotts conveyed to Alexander Walker 22 Jan. 1814 recorded Armstrong Co. Vol.5 pg.12 who by his will 21 May 1825 gave to Robert Walker, together with appurtenances, warrant title. /s/ Joseph M. Duncan. Wit. E. Buffington. Recorded 28 Aug. 1857. (FHL film 861,235)
26-423/424: 29 Nov. 1861, Lewis Thomas and Caroline his wife of Kittanning Twp, Armstrong Co. PA, to Thomas Duncan of Blair Co. PA, for $1,080 paid, sell parcel of land in Kittanning Twp, Armstrong Co. PA, adj. lands of J.E. Brown, Stacy Thomas, S.E.K. Duncan, John Shott and P. Hustman?, containing 60 acres, being part of a larger tract that Stacy Thomas and wife conveyed to Lewis Thomas 22 June 1861, together with appurtenances, warrant title. /s/ Lewis Thomas, Caroline Thomas. Wit. D.B. Heiner, J.E. Meredith. Recorded 17 Jan. 1863. In margin: "See assignment. See Deed Book Vol.30 pg.398." (FHL film 861,237)
26-424/425: 29 Nov. 1861, Lewis Thomas and Caroline his wife of Kittanning Twp, Armstrong Co. PA, to Samuel E.K. Duncan of Blair Co., PA, for $716 paid, sell parcel of land in Kittanning Twp, Armstrong Co. PA, adj. land of John Shott, land sold to Samuel Duncan, land of Stacy Thomas, land of Lewis Thomas of which this is a part, land of Jacob Miller, containing 63 acres and 52 perches, reserving therefrom the school house and lot of ground on which it is erected, being part of a larger tract of land that Stacy Thomas & wife conveyed to said Lewis Thomas 22 June 1861, together with appurtenances, warrant title. /s/ Lewis Thomas, Caroline Thomas. Wit. D.B. Heiner, J.E. Meredith. Recorded 17 Jan. 1863. (FHL film 861,237)
26-457/459: 29 Nov. 1861, Samuel E.K. Duncan of Blair Co. PA to Lewis Thomas of Kittanning Twp, Armstrong Co. PA, for $3,188.50 paid, sell parcel of land partly in Kittanning Twp. and partly in Allegheny Twp., Armstrong Co. PA, on Crooked Creek, adj. land of Robert Walker (of A), Peach orchard, land of John Walker, containing 6 acres and 82 perches with a grist mill etc. (chain of title not copied here), warrant title. /s/ Saml. E.K. Duncan. Wit. D.B. Heiner, J.E. Meredith. Ack. Armstrong Co. 29 Nov. 1861. Recorded 18 Feb. 1863. (FHL film 861,237)
30-398: Deed of Assignment. 14 Aug. 1865, Samuel E. Duncan and Margaret Duncan, one of the heirs and reps. of Samuel Duncan, the within named Vendee "(See Deed Book Vol.26 pages 423 & 424)" for $700 paid by Joseph M. Duncan, transfer to Joseph M. Duncan our interest to the within tract of land and improvements and appurtenances, the said interest being the undivided 1/2 thereof. /s/ Samuel E. Duncan, Margaret Duncan. Wit. Saml. Jones, J.P. Ack. 14 Aug. 1865 in Blair Co. PA. Recorded Aug. 28, 1865. (FHL film 861,239)
30-502/503: 6 Aug. 1864, Samuel E.K. Duncan of Tyron Twp, Blair Co. PA, to Joseph M. Duncan of same place, for $1,200 paid, sell parcel of land in Kittanning Twp., Armstrong Co. PA, adj. land of John Shatt, land sold to Samuel Duncan, land of Stacy Thomas, land of Lewis Thomas of which this tract was a part, land of Jacob Miller, containing 62 acres and 52 perches, excepting the school house and lot of ground on which it is erected, being part of a larger tract of land which Stacy Thomas and wife 22 June 1861 conveyed to Levi Thomas and Levi Thomas and wife Caroline 24 Nov. 1861 recorded Vol.26 pgs. 424 & 25 on 17 Jan. 1863 conveyed to Samuel E.K. Duncan, together with appurtenances, warrant title. /s/ Saml. E.K. Duncan. Wit. John H. Keatley, J. Yorley. Ack. 6 Aug. 1864 Blair Co. PA. Recorded 12 Oct. 1865. (FHL film 861,239)
Bedford Co. PA Deed (from Rose McElfish 4/1993; also FHL film 331,400)
D3-145/6, #23795, 16 April 1878, John Collins Duncan of City of Philadelphia, Gent., appoint my father John W. Duncan of said city, my attorney to demand all money, rents, etc., due me within the Cos. of Allegheny, Blair and Bedford in PA, and to sell or dispose of on credit, etc., all my real estate which I now have or may hereafter become seized, in either or all of those counties and make deeds in my name. /s/ J. Collins Duncan; wit. Angelo T. Freedly?, George T?. Findlay. John Collins Duncan appeared before Notary in Philadelphia on 16 April 1878 to ack. the power of attorney. Rec. 6 June 1878.
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