UNITED STATES SUPREME COURT DECISIONS ON-LINE

A devise of "all the estate called Marrowbone, in the County of Henry, containing by estimation 2,585 acres of land," carries the fee.

This was an ejectment brought in the Circuit Court of the United States for the Middle Circuit in the Virginia District in which John Doe, a subject of the King of Great Britain residing without the State of Virginia, lessee of John Lambert, another subject of the King of Great Britain, complains of Richard Roe, a citizen of Virginia, residing within the said state, and claims possession of a messuage and tenement containing 156 acres of land in the County of Henry, being part of a tract of land called Marrowbone.

The jury found the following special verdict, viz.,

"That George Harmer, being seized in fee of the lands in the declaration mentioned, on 25 June, 1782, made a paper writing, purporting to be his last will and testament, all written with his proper hand and signed by him, which will we find in these words"

" In the name of God, Amen. I, George Harmer, of the Commonwealth of Virginia, being perfectly well and of sound mind and memory, do make and ordain my last will and testament in manner and form following, that is to say all the estate, both real and personal, that I possess or am entitled to in the Commonwealth of Virginia I hereby give and devise unto my friend Thomas Mann Randolph of Tuckabo, and Henry Tazewell, of the City of Williamsburgh, in trust, upon these conditions that when John Harmer, my brother, now a subject of the King of Great Britain, shall be capable of acquiring property in this country, that they or the survivor of them do convey or cause to be conveyed to him in fee simple a good and indefeasible title in the said estate, and in case the said John Harmer should not be capable of acquiring such right before his death, then that my said trustees or the survivor of them do convey the said estate in manner aforesaid to John Lambert, son of my sister, Hannah Lambert, when he shall be capable of acquiring property in this country, and in case John Lambert should not, before his death, be capable of acquiring a title to the said estate, then I direct the same to be conveyed

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to my sister, Hannah Lambert, if she, in her lifetime, can acquire property in this country."

" But if the said John Harmer, John Lambert and Hannah Lambert should all die before they can acquire property legally in this country, then I desire that my trustees aforesaid may cause the said estate of every kind to be sold, and the money arising from each sale, together with intermediate profits of the said estate shall be by them remitted to the mayor and corporation of the City of Bristol in England, to be by them distributed according to the laws of England to the right heirs of my said sister, Hannah Lambert, to whom I hereby give all such money, excepting the sum of £100 lawful money to each of the aforementioned trustees, which shall be paid out of the first money arising from the sales aforementioned, or from the profits arising to my heirs. In witness whereof, I have hereunto set my hand and affixed my seal this 25th of June, 1782."

"We find that on 12 September, 1786, the said George Harmer, being seized as aforesaid, duly executed another writing testamentary, which we find in these words:"

" In the name of God, Amen. I George Harmer, being sick and weak in body, but in perfect mind and memory, do give and bequeath unto Doctor George Gilmer, of Albemarle County, all the estate called Marrowbone, in the County of Henry, containing by estimation 2,585 acres of land; likewise one other tract of land in said county, called Horse Pasture, containing, by estimation, 2,500 acres; also one other tract in the county aforesaid containing, by estimation, 667 1/2 acres of land, called the Poison Field. It is my desire that all my negroes, horses, and other property be sold, and after paying my debts, the balance, if any, be remitted to my nephew, John Lambert, out of which he shall pay his mother five hundred pounds. . . ."

"Afterwards, on 12 or 13 September, 1786, he departed this life without revoking the will or writing testamentary last mentioned and without any other revocation of the will first mentioned than the said writing testamentary of 12 September, 1786. We find that John Harmer, mentioned in the paper writing of June, 1782, departed this life about the year 1793. We find, that John Lambert, named in the paper writings

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aforesaid, the lessor of the plaintiff, and, if capable of inheriting lands in Virginia, heir at law to the said George Harmer; that he was born in England on or before the year 1750; that he has never resided in any of the United States of America, and is and ever has been, from the time of his birth, a subject of the King of Great Britain. We find that George Gilmer aforesaid, under whose heir and devisees the defendant holds, died in the month of November, 1793. We find that in the December session, 1798, the General Assembly of Virginia passed an act which we find at large in these words:"

" An act vesting in the children of George Gilmer deceased, certain lands therein mentioned (passed January 12, 1799)."

" Section 1. Be it enacted by the general assembly that all the right, title, and interest which the commonwealth hath or may have in or to the following lands lying in the County of Henry, which George Harmer, by his last will and testament, devised to a certain George Gilmer, and which, since the death of the said George Gilmer, it is supposed have become escheatable to the commonwealth, to-wit, one tract called Marrowhone, containing, by estimation, 2,585 acres; one other tract called Horse Pasture, containing, by estimation, 2,500 acres; and one other tract called the Poison Field, containing, by estimation, 667 1/2 acres, shall be, and the same are hereby released to, and vested in, the children, whether heirs or devisees, of the said George Gilmer, deceased, to be by them held and enjoyed according to their respective rights of inheritance or devise under his will, as the case may be, in the same manner as if the said George Gilmer had died seized of the lands in fee simple, and an office had actually been found thereof, saving, however, to a certain John Lambert, who, as heir at law to the said George Harmer, claims the said lands, and to all and every other person or persons, bodies politic and corporate (other than the commonwealth) any right, title or interest, which he or they might or would have had in or to the said lands, or any part thereof, against the said children and devisees, if this act had never been made."

" Section 2. This act shall commence in force from the passing thereof."

"We find that George Harmer was at the time of his death seized in fee of the lands in the

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declaration mentioned, which are of the value of $3,000 dollars, and that George Gilmer, at the time of his death, was seized of the same under the devise to him from the said George Harmer. We find the lease, entry, and ouster in the declaration mentioned. On the whole matter, if the court should be of opinion that the law is for the plaintiff, we find for the plaintiff the lands and tenements in the declaration mentioned, and 20 cents damages, and if the court shall be of opinion that the law is for the defendant, we find for the defendant."

Upon this verdict, the judgment of the court below was for the defendant.

The transcript of the record contains a bill of exceptions by the defendant to the refusal of the court to the admission of testimony to prove that George Harmer, at the time he made the will in favor of Gilmer, declared to the person who wrote it that it was his intention to give Gilmer the fee simple.

There was also an agreement of counsel that if the court should be of opinion that the first will ought not to have been admitted in evidence because not proved before a court of probate, then so much of the verdict as relates to that will should not be considered as forming any part of this case. clubjuris

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