author: Lowrie, J.

text:
    Keisel versus Earnest.
    1. A vendor of land in Pennsylvania cannot claim the way-going crop.
    2. One tenant in common of land cannot be sued in trover by his co-tenant for his portion of the crop grown on the land.
    3. Where one tenant in common is permitted by less than the whole of the other heirs to occupy the premises as tenant, his interest as tenant in the wav-going crop cannot exceed the shares of which he was the lessee.
    4. Proof that one heir demanded rent for the use of his share of the land for the year 1848, is no evidence of a lease by him for the year 1849 with the way-going crop, where the person in possession is a co-tenant and cannot be dispossessed by another co-tenant.
    5. Mere permission by some of the co-tenants for another of the co-tenants to enter upon the premises, no terms being fixed, does not constitute a tenancy for a year, but at most a tenancy at will of the interest of the parties agreeing to the occupancy.
    6. A tenant in common in possession is bound to account for the rents and profits.
    7. If he were a tenant at will, his right to emblements was barred by his joining in a proceeding in partition under which the premises were sold.
    8. If under a judgment in partition obtained during the first year of the co-tenant’s occupancy, even under a lease, the premises are sold during the second year of his occupancy, the law will not infer a lease for the second year merely from his possession during the first year, for such inference is incompatible with the demand for partition made in the first year.
    9. A co-owner of land has no right to claim as against a purchaser, under proceedings in partition, a way-going crop put out by him after the order for sale of the premises under the proceedings in partition to which he was a party; and especially when such co-tenant gave no notice at the sale under the partition, that he claimed as tenant a right to a way-going crop, and the deed to tbe purchaser contained no reservation of such claim.
    Error to the Common Pleas of Montgomery county.

    This ^vas an action in trover, brought to November Term, 1850, by Eli Earnest v. James Keisel, to recover damages for an alleged trover and conversion of wheat in the straw, which had grown on. about four acres of ground. February 26,1852, verdict for plaintiff for $108.15 damages with costs.
    Eli Earnest, the plaintiff, on the 81st day of March, 1848, entered into possession of a tract of 40 acres and 108 perches, of land, situate in Upper Dublin township, and continued thereon two years, viz., until the 1st April, 1850; and he claimed to have occupied the premises as tenant. In the fall of the last year he was there, viz., in 1849, he sowed a field of about four acres of wheat, which was in the ground when he left the premises on the 1st of April, 1850.
    James Keisel, the defendant, on the said 1st of April, 1850, succeeded Eli Earnest in the possession of the said land, as the purchaser thereof; and about the 4th of July following, cut and harvested the grain growing thereon: and upon claim being made for the grain by Eli Earnest, the previous occupier, Keisel refused to permit him to cut it, and cut and took it away himself; and to recover damage for the taking of the grain the action was brought.
    On the trial the defendant denied that Eli Earnest was a tenant of the premises; and also claimed, that the grain claimed by the latter had passed to himself by a sheriff’s sale of the land on which it was growing, held October 16, 1849 (while Earnest was in possession), in pursuance of a proceeding in the Court of Common Pleas, for the partition of the said tract of land among the heirs of Baltzer Earnest, deceased.
    Baltzer Earnest died September 8,1829, intestate, seised in fee simple of several tracts of land, of which the said tract of 40 acres and 108 perches aforesaid was a part, leaving a widow, Catharine, and five children and three grandchildren as heirs. On the 17th August, 1830, the heirs of Baltzer Earnest, deceased, by deed conveyed to Catharine, the widow, the said tract of 40 acres and 108 perches of land, for and during her natural life, as her full dower and thirds in all the lands and tenements of which Baltzer Earnest died seised, subj ect to all the restrictions and conditions to which tenants in dower by the laws of this Commonwealth are subject when dower is legally assigned; she releasing her dower and thirds in the remaining lands, which were immediately partitioned or distributed among the heirs. The said tract of 40 acres and 108 perches was accordingly so taken and occupied by the widow until her death, on the 18th of April, 1847, whereupon the same reverted to the heirs of said Baltzer Earnest, the elder, and to their heirs and assigns.
    At the widow’s death, Samuel Earnest was in possession of the premises as her tenant, and remained thereon till April 1, 1848, when Eli Earnest entered as aforesaid. There was no lease of the premises to Eli, from the heirs, shown at the trial. The only evidence on the subject of a tenancy by him, was as follows, viz., that William Earnest, an heir, and Samuel Evans, intermarried with an heir of Baltzer Earnest, deceased, had previously given their consent to Eli, that he might enter as tenant; but no time was mentioned for the duration of the term, and nothing was said about any sum he was to pay as rent.

      It was also shown by the plaintiff below, that Christian Keisel and Ann his wife (who was also an heir) had. subsequently, to wit, in October, 1849, brought an action against him, and recovered $35, as the share of the said Ann of rent, for use and occupation of the premises, for the year ending April 1, 1849.
    This was the only testimony in the case going to show a tenancy of the premises. There was no testimony showing any agreement or acquiescence, on the part of the remaining heirs, that Eli be in possession as tenant.

    Eli Earnest being also an heir, it was contended for defendant below, that he must be considered to have occupied the premises as such, and not as tenant.
    On the 30th January, 1849, an action was instituted in the Court of Common Pleas, between the heirs of Baltzer Earnest, for the partition of the aforesaid tract of land, in which all the heirs, including Eli Earnest (who was in possession), except Christian Keisel, and Ann his wife, also an heir, were plaintiffs, and the said Christian Keisel and his wife were defendants. On the 6th of February, 1849, the narr. was filed, and the case was proceeded in to judgment quod partitio fiat, which was rendered March 2, 1849.
    All the heirs having refused or neglected to take the premises at the valuation, an order of sale was granted by the Court, August 31,1849, at the instance of the demandants; which, on September 3, 1849, was issued to the sheriff, who sold the said tract of land at public sale, on the premises, on the 16th of October, 1849, to James Keisel, the defendant below, for $5400, according to the conditions of sale, which were offered in evidence at the trial, and contained no reservation of the grain.
    Eli Earnest was present at the sale, but gave no notice of any tenancy, and made no claim of any reservation of the grain now in dispute, then growing on the land.
    The sale thus made was confirmed by the Court, the purchase-money paid, and a deed for the premises executed from the sheriff to James Keisel, and acknowledged, November 21, 1849. This deed contains no reservation of the grain, and was relied upon by the defendant below as a defence to the action.
    Under this deed James Keisel entered into possession of the land, April 1,1850, and in July following he cut and harvested the grain in dispute.
    J Subsequently to the sheriff’s deed, Eli Earnest, with the other heirs, at the request of the purchaser, executed to him a release for the same premises, dated November 30, 1849.
    Thus, Eli Earnest claimed to recover, for grain sown by him, while in possession of the premises, and afterwards converted by Keisel, the purchaser, who succeeded him in possession; the said Eli being a joint owner of the premises, as co-heir of Baltzer Earnest, deceased, and a plaintiff in the partition in which it was sold; and there having been nowhere a reservation of the said crop, by or for him.
    On the part of the defendant, the tenancy of the plaintiff was denied ; but it was alleged, that if there was such tenancy, the right to the grain growing on the land, passed to the defendant by his purchase of the property at the public sale.
    Smyser, President Judge, inter alia, charged the jury that even in the case of a judicial sale of premises, on which there was a tenant, the right of the tenant to the crop remains, unless the sale was under a judgment prior to the lease. But he charged that the sale under the proceedings in partition, was not a judicial sale: 4 W. & Ser. 184; also Miller on Partition 292. That it was merely a sale by the parties, had ex necessitate, to attain equity of partition or distribution. He referred to the jury the inquiry whether Eli Earnest occupied the premises between April 1848 and.April 1850, as tenant under the owners of the fee, yielding and paying rent; for if he did not live on the premises in that capacity, but merely as part owner of the property, having the same right of entry and occupancy as any of the other tenants in common, then the grain growing on the land would belong to the tenants in common jointly, and not to him exclusively; and would pass by their conveyance to the purchaser, James Keisel. But if he was there as a tenant, yielding and paying rent, and as such put out the crop, then it was his, and continued to be his, notwithstanding the sale, except the one-eighteenth part thereof, which he forfeited by his silence at the sale when he ought to have spoken.
    He said that the right of the plaintiff to recover depends altogether upon his success in satisfying the jury that he stood in the relation of a tenant. “ If he did, your next inquiry will be into the value of the crop, which was converted by defendant to his own use; and for that we refer you to the evidence. After ascertaining its whole value you will deduct l-18th therefrom; and the residue will be the measure of the plaintiff’s damages in this case.” But he observed, that if the jury found “ that he was not a tenant, but lived on the property simply as one of the joint owners, in that capacity and by virtue of his right as joint proprietor,” he could not recover.
    On the part of the defendant a point as follows was submitted:
    There being no reservation of the grain at the time of sale, or in the deed from the sheriff to James Keisel, the purchaser, the grain growing on the premises conveyed by said deed, passed to James Keisel, the defendant, absolutely; and the plaintiff here cannot recover for the same in this action.
    Answer. We cannot so instruct the jury; but say to them as we have said in our general charge, that if plaintiff was tenant of the premises, yielding and paying rent during the two years from April 1848 to 1850, then his right to recover the value of his crop is not affected by anything in the sheriff’s deed; nor is it impaired by anything that occurred at the sale, beyond the l-18th part thereof; to which extent his right would- be forfeited by his presence and silence on that occasion, when the land was being sold without any reservation.
    But if he was not a tenant, then the grain growing belonged to all the tenants in common, and the want of reservation as stated in the point, would in that case vest it in the purchaser.
    Error was assigned: That the Court erred, 1. In instructing the jury that they “must determine for themselves, from the evidence, whether Eli Earnest leased the premises from his co-heirs and co-tenants, and in the relation of tenant put out the crop.” And that “ the jury will see then, that the important inquiry for them is, whether Eli Earnest occupied these premises between April 1848 and April 1850, as tenant under the owners of the fee, yielding and paying rent.” 2. In making the cause turn on the finding of the jury, whether or not Eli Earnest was tenant of the premises at the time he sowed the grain. 8. In submitting to the jury the question as to whether the plaintiff was tenant of all the heirs, during the period from April 1, 1848, to April 1,1850; as there was no evidence in the case to warrant it. 4. In referring to the jury the question, whether the plaintiff was tenant of the premises for the year ending April 1, 1850, when there was no evidence whatever in the case, going to show that he was tenant during that period. 5. In charging the jury that, “ By the conveyance of his (the plaintiff’s) estate in the land, he must be held to grant all that is properly appendant or appurtenant to the land and his estate in it: this would pass his right as owner to his share of the rents; but it no more included his right as tenant to the growing crop, than if that crop were growing on different premises altogether from those conveyed.” 6. In charging that although there was no reservation of the grain in the conditions publicly read, at the sale at which Eli Earnest was present, and he gave no notice of his claim, yet he was only concluded as tenant by his silence as to l-18th of the rent. 7. In charging, “ But, if he was there as tenant, yielding and paying rent, and as such put out the crop, then it was his, and continued to be his notwithstanding the sale, except the l-18th part thereof, which he forfeited by his silence at the sale, when he ought to have spoken.” 8. In charging that, “ The right of the plaintiff to recover depends altogether upon his satisfying (the jury), that he stood in the relation of tenant. If he did, your next inquiry will be into the value of the crop. After ascertaining its whole value, you will deduct l-18th therefrom, and the residue will be the measure of the plaintiff’s damages in this case.” 9. In refusing to answer affirmatively the defendant’s point, and in answering it as he did. 10. In charging that the sheriff’s sale of the premises was not a judicial sale.
    The case was argued by Hancock for plaintiff in error.
    — It was alleged that there was not evidence of tenancy and of its extent to warrant its submission to the jury. That the heirs being tenants in common, each one could lease only for himself. Comyn on Land, and Ten. 21-22.
    But if the tenancy existed, it was contended that it was determined by the proceedings in partition: Miller on Partition 119; 2 Harris 134, McClure v. McClure. The entire interest of the parties (the crop included) passed by the sheriff^ sale: Sallade v. James, 6 Barr 144.
    It was contended that the sale was a judicial sale; and if a tenancy intervened between the judgment in partition and the sale, whether between the parties or the parties and a stranger, the tenancy with its incidents was determined by the sale.
    The tenancy, if any existed, at its commencement was for no definite period, and therefore was for only one year; and as it expired on the 1st of April, 1849, neither the parties, nor any of them, had power, after the judgment in partition, to extend the tenancy so as to bind the purchaser under the judgment in partition. The sale passed the premises and the appurtenances, rents, &c., and no interest remained in the heirs or any of them. The deed conveyed the premises, for such estate, as the decedent, B. Earnest, held it.

      Boyd, with whom was Stinson, for defendant in error.
    It was contended that the plaintiff in the action was a tenant; and that where a tenant continues to hold the demised premises till after the commencement of a second year, he remains tenant: 4 Bawle 123.
    It was contended that the tenancy was not dissolved by the judgment quod partitio fiat. That the proceedings in partition could not have this effect, because the title to the land was not changed merely by the entry of the judgment; the estate, of the heirs was not divested: 7 Barr 238. The whole proceedings in partition are in fieri until the deed is acknowledged by the sheriff and delivered to the purchaser: Miller on Partition 161; 4 Law

      J. 231; Mitchell v. Harris, 6 Watts 32; 7 Id. 159; 8 Ser. & R. 315 ; 14 Id. 193.
    It was said that the case did not fall within the rule of Sallade v. James, 6 Barr 144; for in partition the judgment creates no encumbrance or lien subject to which the tenant takes the property, as in the case referred to. It is but the initiatory step taken to have the property disposed of.
    It was contended that the sale was not a judicial sale: 4 W. & Ser. 184; Miller on Partition 292. It was a sale made by the parties, the owners of the fee, through the sheriff, who acted both as the agent for the parties and the Court; and as such, what passed by that conveyance ? The sale passed the fee to the purchaser. The plaintiff below was entitled to the l-18th part of the fee as one of the owners of the fee. He did not hold the title to the grain as owner of the fee, but as a tenant; he therefore being entitled to l-18th of the fee, and not reserving his right to the grain growing upon that purpart of the fee, it passed to the purchaser by his deed. But as to the balance, he remained in precisely the same situation as if he had no other interest than a tenant, which could not be divested by a sale made by a landlord under similar circumstances.
    As to the matter of notice, reference was made to the case of Hood v. Fahnestock, 1 Barr 474.
   The opinion of the Court was delivered by

Lowrie, J.

— The learned judge was right in declaring that Earnest could not be his own lessee, and that, when he voluntarily joined in the proceeding by which the title was conveyed to Keisel, he parted with the proportion of the growing crop that corresponded with his share of the land; for, after some trouble in Pennsylvania, it is now settled that a vendor cannot claim a way-going crop. But this proposition leads directly to another; that, at the worst, Keisel was owner of the crop in common with Earnest, and could not be sued in trover for taking the exclusive possession of it.

Even if Earnest, though one of the tenants in common, might be entitled to a lessee’s privilege of a way-going crop, it could not exceed the shares of which he was lessee; and, since one tenant in common in possession is not presumed to be the lessee of his co-tenants, his title as lessee must be measured by the testimony. As to some of the shares, we discover nothing that even looks like evidence that he was lessee of them; and as to the others, the testimony is entirely inconsequential.

The proof that one heir demanded rent for the use of his share of the land for the year 1848, is no evidence of a lease for 1849 with its way-going crop, when, as tenant in common, Earnest could not be dispossessed by a co-tenant. Two of the other heirs say that they allowed him to enter as tenant; but this does not make him a lessee, for no terms were fixed; and the most that could be made of such a permission is that it constituted him tenant at will of those shares. The proper result of the evidence is that Earnest was a tenant in common in possession, and bound to account for the rents and profits to his co-tenants. If he had been properly allowed to take the crop, it would have added to his liability to his co-tenants, and given them a profit out of the land after their title had ceased. If he could be regarded as a tenant at will, he might be entitled to emblements at common law; but even that right is barred when the tenancy is terminated by the act of the tenant, as it was here by his joining in the proceedings of sale.

When we find all the co-tenants, in January, 1849, joining in an action of partition of the land, and Eli Earnest one of the plaintiffs, it is impossible to infer from his possession in 1848, even if under a lease, that he was to hold for the year 1849, as on a lease from year to year; for such an inference is entirely incompatible with the demand for partition made before the first year had run out. Even the judgment that partition be made, 2d March, 1849, preceded the termination of the first year’s possession. Thus the implication of a tenancy from year to year of any share of the land is necessarily excluded.

But when we notice some other matters, this claim appears still more remarkable. It was ascertained that the land would not divide, and, in August, 1849, the Court ordered it to be sold. It must have been after that this crop was put in, and yet it is plain justice that one tenant in common has no right in this way to extend his interest in the land to a period beyond the sale in partition, a proceeding intended to alter the relations of all the parties to the land.

Add to this that, at the sale, there was no notice that Earnest was a lessee of any of the shares or was claiming a way-going crop; that the deed contains no reservation of it; and that Earnest is a substantive party to it, conveying all his interest in the land; and we are at a loss to see any just or legal reasons for his claim to a way-going crop.

Judgment reversed and new trial awarded.


source: Caselaw Access Project

license: Public Domain

text:
    Sellers versus Licht.
    1. The widow of an intestate, before taking out letters of administration, held a vendue of her late husband’s property, and sold a eanal-boat to the defendant, on three months’ credit, the purchaser to give security for his purchase before delivery. About five months afterwards, the widow obtained letters of administration, and brought suit for the price of the boat:

      Held, that, if the boat had been delivered, the title of the plaintiff being perfect before suit, the defendant had no right to object that the title of the plaintiff was imperfect at the time of the sale and delivery, he not having renounced the sale before the plaintiff’s title was perfect and the price demanded.
    5. But if the sale and delivery were disputed, it was error in the Court to assume it.
    Error to the Common Pleas of Lehigh county.

    This was an action of assumpsit by Eve Licht, administratrix of the estate of Joseph Licht, deceased, v. Henry Sellers, to recover the price of a canal-hoat. The boat belonged to her husband at his death, and before administration, viz., on 30th December, 1846, she sold it at public sale, and it was purchased by Sellers.
    It was alleged on the part of the defendant, that, at the time of the sale, the plaintiff stated that the boat should not be taken unless security were given. The boat was not moved, but it was testified that the defendant employed a person to clean it out. On the part of the defendant it was alleged that possession of the boat had not been delivered by the plaintiff, and that the vendee had disaffirmed the contract of sale before grant of letters of administration. No security wab given. On 24th May, 1847, the plaintiff received letters of administration on her husband’s estate.
    After the administration the purchase-money of the boat was demanded, and being refused, suit was brought.
    Jones, J., charged that the sale was voidable by the purchaser before administration. He could have refused to take the boat; and if he had done so, no action could have been maintained against him on the part of the vendor; but he could not take the boat and refuse to pay for it.
    He further charged that the demand of the plaintiff, after administration, was a confirmation of the sale on her part. He further charged, “ up to that time, he (the defendant) had a right to rescind the purchase. Did he ever do that; did he say or do anything which evinced an intention, before that day, to renounce and give up his purchase ? That is the question of fact which it is for you to determine from the evidence on both sides.”
    Verdict was rendered for the plaintiff for $140.

      Error was assigned, 1. To the first part of the charge quoted, it being alleged that the jury should have been instructed that, under the circumstances, the sale conferred no title and imposed no obligation on the purchaser. 2. That the remarks of the Court were calculated to mislead the jury as to the question of delivery. 8. That the Court charged that the confirmation of a voidable sale by the vendor alone was sufficient to bind the vendee, notwithstanding his disaffirmance. 4. That the Court limited the right of rescission by the purchaser to the time of the grant of letters of administration. 5. That there was no evidence that those letters had been exhibited to Sellers. 6. That the charge taken together was calculated to mislead the jury. 7. To the admission in evidence of the Sale made by the plaintiff in her private capacity.

      Stiles and Brown, for plaintiff in error.
    — It was alleged that the boat had never been delivered; that there was, in this case, no necessity for notice of disaffirmance by the vendee, as the sale was void: Story on Sales, § 204. The affirmance of the sale by the vendor alone was insufficient. The sale should not have been admitted in evidence.

      Reeder, for defendant in error.
    — The substance of the charge was that the receipt by the administratrix of the price would have validated the sale; that although up to that time the vendee had a right to rescind, yet he could not do so after administration and demand of the money. It was contended that in point of law there was no error in the charge. That as the defendant did not tender the bid and demand compliance, it was to be presumed that he consented to the delay. That the letters of administration related back to the death of the intestate: 1 Williams on Executors 334; Id. 527, &c.; 5 W. & Ser. 445; Moore 126; 1 Salk. 295; 1 McCord 132; 23 Pick. 128; 12 Mees. & Wels. 226.
   The opinion of the Court was delivered by

Lowrie, J.

— The widow of Joseph Licht, before taking out letters of administration, held a vendue of her late husband’s personal property, and sold a eanal-boat to Sellers on three months’ credit, the purchaser to give security for the payment before delivery. About five months afterwards she obtained letters of administration, demanded the price, which was refused, and hence this action.

This transaction may have been a bargain and sale, or a sale and delivery. If the latter, the learned judge was right in saying that, if Sellers did not renounce the sale until her title was perfect and the sale confirmed by her demand of the price, then he was bound to pay. He could not complain of a sale and delivery without title, if the title' was complete when payment was demanded.

But it may not have been a ease of sale and delivery. There was some equivocal evidence that Sellers exercised acts of ownership, but she refused to deliver without security, and perhaps did not deliver, and this fact ought not to have been assumed. The Court ought to have instructed the jury how to treat the case if they found that there was no delivery and no, assumption of possession which she might treat as equivalent. But this view is excluded when the Court says : “ Did he do anything (before administration granted) which evinced an intention to renounce his purchase ? That is the question for you to determine.”

Suppose it a case of bargain and sale merely. Then, for want of title, her contract was broken as soon as made. Eor the broken contract he could demand damages, and she could not demand performance. Especially is it plain that she could not demand performance until she was ready for it and tendered it on her part. But even if she had tendered performance after so much delay, he might have refused to accept it.

Judgment reversed and new trial awarded.


author: Woodward, J.

text:
    Reitenbaugh versus The Chester Valley Railroad Company.
    1. When a railroad company is about to appropriate the property of individuals, they are required by the Act of 19th February, 1849, entitled “ An Act regulating railroad companies,” to apply to the owner of the property and endeavor to agree with him as to the compensation; unless the owner be absent or legally incapacitated, and they have no right to petition for the appointment of viewers until such effort has been made.
    2. In the petition should be set out the names of the owners whose property is desired, the fact that they cannot agree as to the compensation, or that the owner is absent or legally incapacitated to contract; and the statement of fact should be verified by affidavit.
    3. The-Act in question does not require the Court to have the owners summoned to answer the petition, but it would be a good practice to have them notified to appear, or at least to have them notified before viewers are appointed. And where the owner is absent beyond the reach of process, or incapacitated to contract, it is indispensable that the Court should appoint guardians and make such decree or order as may be necessary to protect the interests to be affected; and the names of the parties shall be disclosed in the petition for the view.
    4. The Act contemplates that notice be given to each owner of the time and place of the meeting of the viewers on his premises, and the evidence of notice should be submitted to the viewers, and returned with their report. The same day may be fixed for views of different properties.
    5. The quantity, quality, and value of the lands or materials required should appear on the face of the report; and it should there be stated that there has been a comparison of the advantages and disadvantages; and the amount of damages, and to whom payable, should be reported.
    6. Consequential damages are not to be estimated unless provided for in the Act of incorporation, and Acts of incorporation are constitutional though no provisions be made for such damages. But to enable the Court to judge whether the assessment has been according to law, the report should exhibit the grounds of the assessment.
    7. This Court will not inquire into complaints of inadequacy or exeessivaness of damages. The law does not provide for bringing up the evidence, and the review will be confined to errors appearing on the face of the report.
    Certiorari to the Common Pleas of Chester county.

    On the 7th May, 1851, a petition by the President of the Chester Valley Railroad Company, incorporated by Act passed on 22d April, 1850, was presented to the Court of Common Pleas of Chester county, in which it was represented that the said company was desirous to enter upon and take certain real property in said county, on and near the line or route of the said railroad; and was desirous to make proper compensation therefor to the owner or owners thereof, in conformity to the 7th section of the Act of Assembly of this Commonwealth incorporating said company, passed 22d April, 1850, and the 10th and 11th sections of an Act entitled “ An Act regulating railroad companies,” passed on the 19th February, 1849; “ but that the said company cannot agree with the owner or owners thereof for the compensation proper for the damages done, or likely to be done to or sustained by such owner or owners, and that no compensation could be agreed upon for reasons contemplated and mentioned in the said 11th section. And also praying the Court to appoint seven freeholders as viewers, and to appoint a time for said viewers to meet at or upon the premises where the damages are alleged to be sustained,” and justly and equitably to decide and report, &e., and further to make such further orders as shall enable the company to make to the owner or owners the compensation provided for in the said Acts of Assembly, and as shall protect the company from further liability in the premises.
    The Court appointed seven persons as viewers, to meet on the premises on the 2d June next afterward; and ten days’ notice of the time and place of meeting to be given to the parties in interest. The viewers to meet at 10 o’clock of said day.
    On 28th July, 1851, the report of viewers with drafts was filed; and on the 30th July, the report was read and confirmed nisi, with leave to all parties to file exceptions within ten days. On the part of Reitenbaugh and others exceptions were filed, and rule was granted to show cause why the report should not be set aside. Exceptions on the part of other persons were subsequently filed. The exceptions on the part of Reitenbaugh were as follows :
    1. It ought to have appeared to the Court, prima facie, by affidavit, or some other form of evidence, that an effort had been made with the freeholders through whose land the road passes, to agree upon the compensation to he paid to them before an order issued.
    2. No offer was made by the said railroad company to settle with the exceptor, nor was any attempt or effort made by said company to agree with him on the amount of compensation to be paid by said company, either before or since the said petition, was presented, or said order issued.
    3. The order to the said freeholders does not pursue the requisitions of the Acts of Assembly, on which the same is founded.
    4. The time for the assessment of the damages done, or the compensation to be made to each freeholder through whose property the road passes, ought to have been fixed and appointed in the order.
    5. The petition ought to have set forth the names of the several persons through whose property the road passes, and who were entitled to compensation.
    6. The order appoints the 2d day of June for the freeholders named in the order to meet on the premises, and directs notice of that time to be given to the parties in interest; yet the freeholders-did not meet on the premises, of which your exceptor is seised, on that day, nor was any notice giyen to him of any meeting at that time.
    7. The compensation to be made to the owners of the lands through which the road passes, could not be ascertained without the examination of witnesses; yet the said freeholders declined to examine witnesses as to the damages heretofore done to the ex-ceptor, although earnestly pressed and urged so to do.
    8. The return of the jury ought to set out particularly the matters for which damages are allowed, which is not done.
    9. The jury ought to have reported the several subjects of injury for which they allowed compensation, and which they considered, in order that it might appear of record in case future injury should occur, whether that particular injury was or was not within the contemplation of the said freeholders.
    10. The report of the jury does not distinguish, as it ought to have done, between past and future damages.
    - 11. The said freeholders have awarded to this exceptor the sum of eight hundred dollars, which is entirely insufficient to compensate him for the damage which he has sustained, and must necessarily sustain by reason of the said railroad passing through his property.
    12. The said freeholders have not stated for what injuries the said damages or compensation has been allowed.
    13. The said' freeholders do not appear to have allowed any damages for the injuries likely to be done by the use of locomotives.
    14. The said freeholders do not appear, by their report, to have allowed damages or compensation for all the lands occupied by the road, nor to have at all considered the damages likely to arise in future.
    15. The said freeholders do not appear to have allowed any compensation for a large amount of limestone taken from his premises in the construction of the road, which limestone was not less than two thousand dollars in value.’
    16. The said freeholders do not appear to have allowed the ex-ceptor any compensation for the fence, necessarily erected by him at the time the road was in part made through his premises, to protect his crops from injury.
    17. The said freeholders do not appear to have allowed the ex-ceptor, and have not (as your exceptor believes) allowed him any compensation for the depreciation of the value of his property which must be occasioned by the road.
    18. The said freeholders have not allowed compensation for all the injuries which the road must occasion to the property of the exceptor, and have not in this respect obeyed the order of Court or the requisitions of the law.
    19. The said petition of the said Chester Yalley Railroad Company is insufficient; the said ■ order is irregular and has been illegally executed, and the said report of the said freeholders is' not in conformity with the law.
    The facts stated in the exceptions were affirmed to.
    In the report of the viewers, it was stated that they met at the time and place appointed in the order (after being qualified, the requisite notice having been given), and proceeded, by adjournment from time to time, to view the premises and estimate the damages, and they reported that they award to the persons named the amount set opposite their respective names, &c.
    An examiner was appointed to take depositions, and depositions were taken.
    On 15th March, 1852, the exceptions were dismissed, and the report was confirmed.
    Exceptions to the decree of the Court were filed : 1. That the Court erred in’ overruling the first exception.
    2. From’ the 2d to the 7th inclusive, that the Court erred in overruling the several exceptions numbered in the same manner; 8. In overruling the tenth exception; 9. In overruling the eleventh exception; 10. In overruling the thirteenth exception; 11. In overruling the nineteenth exception.
    The case was argued by Bell and Lewis, for plaintiffs in error.

      Smith and Hichman, contra.
   The opinion of the Court was delivered by

Woodward, J.

— When a railroad company is about to appropriate the property of individuals, they are required by the Act of Assembly of 19th February, 1849, entitled “An Act regulating Railroad Companies,” to apply to the owner of the property wanted, and endeavor to agree with him on the compensation, unless the owner be absent or legally incapacitated. Nor have they a right to petition the Court for viewers until such effort has been made; and when they do petition, they should set forth the names of the owners whose property is desired, the fact that they cannot agree on the compensation, or that the owner is absent or legally incapacitated to contract, and verify their statements by the affidavit'of some person having knowledge of the facts.

The Act does not require the Court to summon the owners to answer the petition, but considering that the selection of viewers is a most important step in the proceedings, and that one party is in Court, it would be a good practice to bring in the other, or at least to give him notice before viewers are appointed. And where the owner is absent, which means beyond the reach of process, or is under age, insane, feme covert, or otherwise legally incapacitated to contract, it is indispensable that the Court should make such appointments of guardians, and such decrees and orders concerning notice, as may be necessary to protect the interests to be affected. And that the Court may know the condition of the parties interested, and what orders the occasion requires, their names should be disclosed in the petition for the view.

When the view is awarded, the Court are to appoint a time not less than twenty nor more than thirty days thereafter, for said viewers to meet at or upon the premises where the damages are alleged to be sustained, of which time and place ten days’ notice shall be given by the petitioner to the.,said viewers, and the other party. This contemplates a notice to each owner of the time and place of meeting on .his premises. A railroad company that obtains a view without disclosing the name of a single owner, and then gives a whole neighborhood notice of a day for commencing the examination, and adjourns the view from time to time, has not complied with the requirements of the statute. The notice should inform the owner when the viewers are to be on his premises, not when they are to commence traversing the route of the railroad, and leave him to watch their arrival. And that the Court may see that parties have had the requisite notice, the evidence of it should be filed with the viewers, and returned with their report. There can be no objection to the same day being appointed for different owners, nor to adjournments from day to day, if each owner has the notice prescribed by the statute of the time when his premises are to be viewed.

Then as to the matter of the report, the statute requires that the viewers shall estimate and determine the quantity, quality, and value of the lands to be taken and occupied, or of the materials to be used and taken away, regard being had to the advantages and disadvantages likely to result to the owner; and on a fair and just comparison of these, they are to estimate and determine what damages, if any, have been or may be sustained, and to whom payable.

It should appear on the face of the report what the quantity, quality, and value of the lands or materials to be taken are. The advantages and disadvantages likely to result, cannot reasonably be set down in detail, but the fact that there has been a comparison of them should be certified, and the amount of damages, and to whom payable, should be distinctly stated.

On the subject of what is called consequential damages the doctrine settled in this Court is, that they are not to be estimated unless provided for in the Act of incorporation, and Acts of incorporation are constitutional, though no provision be made for such damage: Monagahela Navigation Company v. Coons, 6 W. & Ser. 114; Henry v. The Pittsburgh and Allegheny Bridge Company, 8 W. & Ser. 85; Mifflin v. Railroad Company, 4 Harris 193.

What damage is to be considered consequential and not direct, is a question which the adjudged cases must answer, and which I will not discuss here, because it does not arise out of the report before us. But to enable the Court to determine in every case whether the viewers have confined their assessment of damages to the subject-matter provided for in the general law, or in special Acts' of incorporation, it is apparent the report should exhibit the grounds of the assessment. Unless it does so, it is in vain to object that the viewers allowed damages that were consequential in their nature.

Equally vain is it to complain of inadequate or excessive damages, for such exceptions involve inquiries into facts, which we have several times declined to make. There is no provision for bringing the evidence upon the record, and unless the error of the viewers appear on the face of their report, we have no corrective power.

These observations have been suggested by the nineteen exceptions filed to the report before us, and by the eleven errors assigned to the opinion of the Court in confirming the report; and it is believed that every material point raised by these multitudinous exceptions and errors has been sufficiently answered in what has been said. Whatever exception is thought to be unanswered, is considered groundless.

But the proceeding before us cannot be sustained. It is defective in almost all points. The president of the company applied by petition to the Common Pleas of Chester county, for a view'of certain property lying in Chester county, on and near the line of the route of the railroad, without naming an owner or alleging an attempt to agree with an owner, and without verifying by affidavit such facts as he did allege. Viewers were appointed, and they report that they met at the time appointed, notice having been previously given, and assessed damages to some thirty-eight persons who are named in their report for the first time. It does not appear from the report that these persons were served with notice, or that they were present at the view, nor does it appear for what cause damages were awarded to them. Except in three instances, there is nothing said of the quantity, quality, or value of the land taken, and it does not appear that there was any comparison of advantages and disadvantages.

A report so studiously regardless of the requirements of law, ought never to have been confirmed. Indeed, upon so imperfect a petition,’a view ought not to have been awarded. Erom the root upward the proceeding is defective. At best such proceedings are out of the course of the common law, and therefore the statutory requisitions should be strictly pursued. When rights of property are to be divested by force of law, against the consent of the owner, he is entitled to full notice of every step in the process, and to a faithful observance of all such solemnities as are prescrjbed.

The whole of these proceedings are set aside at the costs of the company.


author: Lewis, J.

text:
    Hood’s Estate.
    1. Tie duties of sovereign and subject are reciprocal, and any person who is protected by a government in his person or property, may be compelled to pay for such protection.
    2. Personal property, in consideration of law, has no fixed locality, but follows the person of its owner, and is subject to the law of his domicil, and may be taxed by the government under which he resides.
    3. The domicil of origin is presumed to continue until it is changed by acquiring a domicil elsewhere. No temporary sojourn in a foreign country will effect such a change.
    4. When neither the personal property taxed nor the domicil of its owner is within this state at the time of his death, such property is not subject to a collateral inheritance tax by virtue of the laws of this Commonwealth.
    5. A person, born a citizen of Pennsylvania, removed to Cuba, settled there and engaged in the trade of that island; the presumption in favor of the continuance of the domicil of origin no longer existed, and the burden of disproving the domicil of choice lies on him who denies it.
    6. The long residence of the testator in Cuba under circumstances indicating an intention to remain there, neither his investments in Pennsylvania or. his concern in a mercantile house here, or his occasional visits to this state, effected a change in the place of his abode; nor can the expression of his desire to be buried in the land of his birth, and the execution of that wish by his executor, nor the death of the testator in France, change the state of the case as it existed at his death.
    7. The laws of Cuba requiring the profession of the Catholic religion as a preliminary to the issuing of letters of domicil, and the will of the testator containing a recital of his profession of such faith, and that he was authorized by his letters of naturalization to dispose of his property by will, such acts are too decided to be repelled by slight evidence.
    8. But it would be contrary to morality for the state of Pennsylvania to claim the advantage of a fraud perpetrated in such profession; and all persons who claim under the will of the testator made in Cuba, are hound to treat such professions as true.
    This was an appeal on the part of the Commonwealth from the decree of the Register’s Court, reversing the decree of the Register of Wills, for the City and County of Philadelphia, who adjudged the payment of a collateral inheritance tax on certain bequests, or legacies, in the will of William Hood, deceased, viz.; a tax on $80,000 bequeathed to Sarah Clement and her daughters, and on various other legacies, in all amounting to $200,000. The legatees, except one Julius Le Blanc, to whom $20,000 was devised, lived in Pennsylvania. Upon other property inventoried, in the register’s office, Philadelphia, consisting of stocks, &c. amounting in all to above $74,000, the tax was paid; but that imposed by the register on the legacies was resisted by the executor in Philadelphia, on the ground that the property out of which the legacies were to be paiq[, was not within this state when the testator died, and that he was not domiciled in the state at the time of his death.
    William Hood, the testator, was born in Philadelphia, in' 1786, and died on 18th January, 1850, in or near to Paris, in France, where he had gone in the previous summer for the benefit of his health, and for medical advice. He went to the island of Cuba] when under twenty years of age, viz., in the year 1814, and he there became engaged in commerce. In 1815 he visited NewYork. In 1816 he visited Philadelphia, where he remained till 1817; and having formed a commercial connection with J. B. Clement and L. Newman, of Philadelphia, he and Clement sailed, in 1817, for Cuba, and there established themselves in Trinidad de Cuba. In 1821 he disposed of his interest in this establishment, to R. R. Stewart, the respondent in this case.
    In the answer of R. R. Stewart, the executor, it was, inter alia, alleged: viz. From 1817, till his death, the permanent residence and domicil of the decedent was in the island of Cuba. In about 1818, he purchased land and servants in said Island of Cuba, and made a coffee estate, and some years afterwards another estate of the same kind, both of which he afterwards parted with.

      In 1823 or 1824, he removed to the town of Cienfuegos, the capital of the colony of Fernandina de Juagua, on said island, and afterwards purchased from various Spanish subjects a large quantity of land in the neighborhood of said town, and in the said colony, and made a sugar estate, called La Carolina, to which he after-wards added another small sugar estate, formerly called Ormiga.
    The said decedent owned, also, stores in the said town of Cienfuegos, and just previous to his death, built a large dwelling-house in said town.
    Whilst thus domiciled as a planter in the island of Cuba, the decedent had correspondents in Philadelphia, who were employed in selling his crops and transacting his business in this place. The decedent visited the United States at different periods from 1817 to 1849, sometimes on business, sometimes to see his friends and relatives, and sometimes on his way to and from Europe; but on no occasion did he ever intend to return to the United States, or to make it his residence, but always considered himself .as domiciled and resident in the island of Cuba, where his fortune lay.
    His last visit to Philadelphia was in the spring of 1849, when on his way to France for the benefit of his health, and to consult a physician. During this visit to Europe, the deceased died at Paris, on the 18th January, 1850.
    The respondent further stated, that on the 19th April, 1843, when his will, in Spanish (a copy of which, with a translation thereof, was annexed), was made by the said decedent in the town of Cienfuegos, in the colony of Fernandina de Juagua, in the island of Cuba, the said decedent was a resident of, and domiciled in said island, and authorized to dispose freely of his property by virtue of letters of naturalization which he had obtained from the Spanish government. The will was made according to the Spanish forms, and in the mode prescribed by the Spanish law, and was signed by the decedent, and remained under the charge of the notary public, who furnished, at the request of the decedent, the copy which is now in the register’s office of Philadelphia.
    It was further said, that the papers which were proved as codicils, were all executed by the decedent whilst on temporary visits to the United States, he being then, and at the time of his death in Paris, a naturalized Spanish subject, and domiciled and resident in the island of Cuba.
    Also, that he had the said copy of the will and the codicils proved before the register of wills for the city and county of Philadelphia, who granted to him letters testamentary on the 27th February, 1850. That on the 28th March, 1850, he filed with the register an inventory of all the personal property of the decedent in the United States, including seven certificates of loan of the city of Cincinnati.

      He further stated, that he had paid the collateral inheritance tax on a farm held by the decedent in Montgomery county, Pa.; and also on whatever personal property there was in the United States of America, and which had in any manner come into his hands, excepting on such sums only as he believed may be necessary to cover a claim which has been made against the said estate, and which was in a course of litigation; and that he had filed an account of his administration with the register.
    He further stated, that he had never proved the original will in the island of Cuba; nor had he in any manner acted in any way with regard to the estate in the said island, nor intermeddled therewith. But he further stated, that by the said codicils, or some of them, he the respondent, and James Carstairs, were appointed trustees to receive the sums directed to be paid to Mrs. Sarah Clement and her daughters by William H. Stewart, out of the net two-thirds of the crops of the Cuba estate belonging to the said William H. Stewart by virtue of the said Spanish will; and that this respondent and the said James Carstairs, as trustees aforesaid, have received on account of the same, from the said William H. Stewart, the sum of $30,000.
    He further stated, that he had not supposed that this sum of $30,000 was subject to the collateral inheritance tax of Pennsylvania, because the testator was a naturalized subject of Spain, and domiciled and resident in the island of Cuba; that his will was made in said island, according to the Spanish laws, and the whole estate passing under it was within the Spanish jurisdiction, and the sums to be paid to the said trustees were to be from the crops of an estate not situated in Pennsylvania, nor in any of the United States of America, but in the said Spanish island of Cuba.
    Further, that William Hood, at his death, left neither father, mother, widow, or issue, but one brother, Joseph Hood, and four sisters, viz., Eliza A. Hood, Mary Ann Robertson, Sarah Clement and Rachel Stewart, who, according to the laws of Pennsylvania, were his heirs at law.
    In his will, dated at Cienfuegos, the 19th April, 1843, the testator stated that he was born in Philadelphia; he expressed his belief in the mystery of the Holy Trinity, “ and in all the other articles which our Holy Mother, the Catholic Apostolic Roman Church, does believe, preach, confess, and teaches.” It is further stated that he has no legitimate descendant, being a single man, nor ascendants of any kind, his mother being dead; and he added, “being authorized to dispose freely of my property by virtue of the letters of naturalization which I have obtained from the Spanish government;” he appointed his nephew, William H. Stewart, a citizen and resident of Philadelphia, as his “ only and universal heir” of all his goods, claims, rights, actions, and future successions. He appointed two persons, viz., Don Julian Aviles and Don Julio Leblanc of Cienfuegos, and Robert Stewart of Philadelphia, as his executors. There were no legacies given by this will.
    In a codicil executed in Philadelphia, October 26, 1843, he directed William H. Stewart, his devisee, to keep his sugar estate called Carolina in good order; to pay to the creditors and also William H. Clement, according to an agreement between himself and Clement, 200 hogsheads of sugar annually, until his debts were paid; and the balance of the crops, after paying the expenses and $1500 per annum to his sister, till her legacy was paid, he disposed of, viz.: one-third to the use of his nephew, and the residue in the payment of certain legacies, all amounting to $100,000.
    In another codicil dated at Philadelphia, on November 22,1847, he stated that as his sugar estate has much increased, he directed .his heir to pay double the amount to his legatees, so that his heir will pay $200,000.
    In a letter to William H. Stewa.rt, dated Philadelphia, May 12, 1849, and which he desired said Stewart to consider as part of his will, he desired the dwelling-house he was then having built in Cienfuegos to be finished, and when done to be given to Julius Leblanc, who had, as his agent, managed his sugar estate.
    On the part of the Commonwealth it was stated, that at the time of the death of the testator, he owned stocks in the United States, and some other personal property, of the value of about $74,000; also a farm in Montgomery county, Pennsylvania; and also an interest in a limited partnership entered into on the 1st January, 1848, to expire on 1st January, 1851, in which he had invested $10,000.
    The collateral inheritance tax was paid on the inventoried property ; but the register, in addition to such payment, charged a collateral inheritance tax on the $80,000 payable to Sarah Clement and her daughters, and on the other legacies amounting in all to $200,000 ; and from such decree appeal was taken to the Register’s Court. By that Court, on March 20, 1852, it was decreed “ that the decree of the register made on 25th November, 1851, be reversed, and that the legacies payable out of the crops of the sugar plantation, situated in the island of Cuba, are not subject to the collateral inheritance tax.”
    From such decree appeal was taken on the part of the Commonwealth, and exceptions were taken, 1. To the reversal of the order of the register; 2. In decreeing that the legacies specified in the order of the register, and referred to in the decree of the Register’s Court, were not subject to collateral inheritance tax. 3. In not dismissing the appeal by the executor.

      B. K. Scott and Hood, in support of the appeal.
    — It was alleged that the estates of the decedent in Cuba were so well managed by Mr. Le Blanc (who was appointed one of the executors), as to require but little, if any, superintendence by the owner. Hence when the documents speak of his presence, after April 19, 1843, they represent him to be in Philadelphia, and never in Cuba. Thus he was found in Philadelphia soon after the making of his will of April 19, 1843, in Cuba, viz.: in October following. So he is found in Philadelphia in December, 1844. Again in November, 1847; and he was in Philadelphia in May, 1849, immediately before his departure for Europe, from which he never returned. It was alleged that these circumstances indicated Philadelphia as his home, his domicil. It was further said that he was not only connected with Philadelphia by the ties of kindred, but that he had been connected with extensive commercial concerns there as a member of a firm composed of himself, Clement & Newman, the latter of whom resided in Philadelphia; and after-wards, on 1st January, 1848, he engaged in another partnership in Philadelphia with Inskeep and others. This last partnership continued till the death of the testator in January, 1850. All the codicils were executed in Philadelphia, where his sisters, brother, and other relatives resided.
    It was said that he did not state in his will that he was domiciled in Cuba, nor describe himself as being of that island: 1 Curteis Ecc. Rep. 846; Phil. on Domicil, 57 Law. Lib. 91, 97. As to the circumstances from which intention as to domicil may be presumed, reference was made to Phillimore 99. All the documents constituting the will of the testator, including an official copy of his will in Spanish, were deposited by him in Philadelphia, and the envelope containing the will was directed to be opened in the presence of his sisters, brother, and others named. It was the place of residence of his kindred: none of them lived in Cuba. To them he left his estate, except a devise to his agent in Cuba of <$20,000. He owned upwards of $40,000 of Philadelphia city stock, and upwards of $30,000 of other stocks in the United States. His body was brought to Pennsylvania and interred in Germantown in a tomb which he had prepared several years before his death. That birth is a material fact in questions of domicil, reference was made to White v. Brown, Wallace Jr. Rep. 217, &c., viz.: Aspden’s Case; 4 Mason C. C. Rep. Catlin v. Gledding ; Virginia Rep. 5; Robinson’s Adm. Rep. 99; 1 Bin. 349; Phil. 102-3, 105; Id. 110-112; 5 Vesey 198.
    In Re Ewing, 1 Tyrw. 91, 1 Cromp. J. 151, 158 (a. d. 1830), it was held that American, Austrian, French, and Russian stocks, the property of a testator domiciled in England, were liable to legacy duty: 7 Mees. Weis. 390-6 ; 13 Sim. 153, 164. The authority of Ewing’s Case was recognised in the case of Alexander’s Estate, 4 Pa. L. J. 448; also in Story’s Con. Laws, 379.

      It was said that it did not appear from the will or codicils that the legacies were payable out of the real estate in Guba, or charged upon it; though it was alleged that if it did, that would not exempt them from the tax. It was directed that “ W. II. Stewart will pay the creditors of W. H. Clement, and also W. H. Clement, according to agreement, 200 hhds. of Muscovad sugar, annually, until the debts are paid. The balance of the crops I wish disposed of as follows,” &c., viz.: one-third for his own use, and then the legacies to be paid. The legacies are thus payable out of what was personal property, viz.: the crops of a plantation after they had been manufactured into sugar and put into hogsheads.
    It was thus contended that the testator, at the time of his death, was domiciled in Pennsylvania; that the sugar crop was taxable in this state; and that such was the case with respect to the horses, mules, and other personal property connected with the real estate in Cienfuegos. The case of Short’s estate, 4 Harris 63, referred to.
    But it was further contended that if Hood, at the time of his death, were domiciled in Cuba, that still the legacies, receivable and distributable, in Pennsylvania were subject to the collateral inheritance tax: 2 Sim. & Stu. 284, Logan v. Fairlie; Ewing’s Case, before cited; Alexander’s Case, also cited; 6 Barr 142, Com’th v. Smith; Short’s Estate, 4 Harris. It was said that the right of a state to impose a tax on legacies, was placed by Mr. Locke on the principle “ that every one who enjoys his share of protection, should pay out of his estate his proportion for the maintenance of the government.” Short’s Estate, before cited. By the Act of 10th April, 1849, it is provided, inter alia, that if “any person or persons having their domicile in another state, territory, or country, shall die, leaving real or personal estate within this Commonwealth, the said estate, whether real or personal, shall be subject to the payment of the collateral inheritance tax.”

      Gadwalader and B,ead, on part of appellee.
    It was contended that after William Hood returned to Cuba in 1817, his domicil was in that island. That his principal connexion with Philadelphia was through his business correspondents, who were employed in receiving and selling his crops ana transmitting to Cuba the proceeds, and such articles as were necessary for carrying on his sugar estates. Whilst there, he made his will in the Spanish language and according to the Spanish forms, in which he professed a belief in the Roman Catholic faith, and states his being authorized to dispose of his property by virtue of letters of naturalization obtained from the government. The copy of the will left in Philadelphia, was not signed by him, and the original remained in Cuba. The codicils, containing, for the most part, bequests 1o his relatives and friends here, were executed while on temporary visits to the United States. These codicils were proved before the register of wills, and letters testamentary were granted to Robert Stewart, one of the executors, and he filed an inventory of the personal property in the United States, and has paid the collateral inheritance tax on it. The original will has not been proved in Philadelphia, and the executor has not interfered with the estate in Cuba.
    The register further charged a tax upon $200,000 bequeathed in legacies to relatives and friends, mostly residing in or near Philadelphia, and to be paid by the heir out of the crops and proceeds of the estates in Cuba. Over such estates, and the rents and proceeds thereof, the executor here had no control: and no portion of the legacies came to his hands except about $40,000, paid to him by the heir, not as executor, but as trustee appointed by the will for some of the parties interested. The register decreed the payment of tax upon the $200,000, and directed a commission to issue to Cuba to examine into the nature of the property there situated, with a view to its taxation. From such decree the executor appealed, and the decree was reversed by the Register’s Court, and this appeal was taken on the part of the Commonwealth.
    It was said that the actual situs of the property on which the tax was sought to be levied, was out of Pennsylvania, and the only question was that of domicil.

    It was said that property was liable to taxation by our law. 1. "Where the estate is found within our jurisdiction: 2. Where the decedent is a domiciled citizen of Pennsylvania, and this subjects to taxation the personalty, which follows the domicil. The Act of March 1850 makes the domicil the criterion in all cases where the actual situs of the property is out of the state; thus placing the law on the same footing on which it stands in England. 15 Jur. 253; 2 Eng. Law & Eq. 397. The case of Logan v. Fairlee, 2 Sim. & Stu. 284, has been overruled. By the English law personal property is considered as being in the place where the owner is domiciled at the time of his death; and our law is the same, except so far as modified by the Act of 10th April, 1849, by which the personalty of foreigners, having its actual situs in this state, is subjected to taxation.
    2. It was contended that the testator at the time of making his will and at his death, was a citizen of Cuba. As to domicil, reference was made to Phillimore on Domicil, sec. 214-15-16; 8 Cranch 279; 1 Wallace, Jr. 264.
    3. It was further said, that the will of the decedent was to be read as the will of a Spanish citizen of Cuba. By it W. H. Stewart was appointed “ only and universal heir.” It was said that the universal heir of the civil law, was considered legally as the

      same person with the deceased; not simply as a successor to the property, but as coming in his place and representing him: 1 Browne's Civil Law 218. A legacy was defined by the civil law to be “ a donation bequeathed by the deceased to be delivered to the legatee by the heir." See opinion in McKonkey’s Appeal, 8 Sams. The heir accepting the estate was charged with the payment of his debts, whether the estate was sufficient or not; but the payment of legacies was within his discretion. The heir there-' fore, and not the executor, by the civil law, was to be looked to for the payment of legacies. They are also in this case bequeathed by the codicil, which in its origin was no more than a letter addressed to the person to whom, or through whom, the testator desired to bequeath something: Bowyer’s Civil Law 155; with the legacies, therefore, the executor had nothing to do.
    4. The situs of the property out of which the legacies are to be paid, is within a foreign jurisdiction, to which the authority of the executor does not extend. If, however, the legacies could be treated as mere personalty, there would be no law for imposing the tax in question upon them. They are not within the reach of the executor, and are subject to the laws of a foreign tribunal. In Alexander’s Appeal, the assets, the legatees, and the executor were all Pennsylvanian, though the testator was domiciled abroad. In Short’s Estate the decedent was domiciled here. In the case in question, the property sought, to be taxed was not within this state when the testator died, and the decedent was not domiciled here; and only in these two ways is property subject to the collateral inheritance tax.
    June 20, 1853,
   The opinion of the Court was delivered, by

Lewis, J.

— In this case, the register decreed that in addition to the sums heretofore paid by the executor, the collateral inheritance tax was due and payable on certain legacies to different persons named in the last will and testament of William Hood, deceased. The legacies amounted to $200,000, and the collateral inheritance ta.x to the sum of $10,000. The executor appealed to the Register’s Court, and that tribunal reversed the decree of the register, and decided that “the said legacies payable out of the crops of the sugar plantation, situated on the island of Cuba, are not subject to the collateral inheritance tax.” The ease comes into this Court on an appeal from the last-mentioned decision. As no question is raised in regard to the manner of bringing the case before us, we proceed to determine the question presented for decision.

The duties of sovereign and subject are reciprocal, and any person who is protected by a government, in his person or property, may be compelled to pay for that protection. As taxes arc to be assessed for the sole purpose" of supporting the government, the propriety of exacting them, the persons and property to be made liable, and the rules for their assessment and collection, are to be determined by its authority. It is, however, ,a rule of the public law, founded upon a principle of justice which no' government can disregard without violating the rights of its citizens, that taxes shall be assessed in such manner that all the citizens may pay their quota in proportion to their abilities and the advantages they derive from the societyVat. b. 1, Ch. 20, s. 240. Personal property, in consideration of law, has no fixed locality, but follows the person of its owner, and is therefore subject to the law of his domicil, and may be taxed for the support of the government under which its owner resides. The attachment which every one feels for his native land is the foundation of the rule that the domicil of origin is presumed to continue until it is actually changed by acquiring a domicil elsewhere. No temporary sojourn in a foreign country will work this change. The journey of Joseph and Mary from Nazareth to Bethlehem is a remarkable instance of attachment to the domicil of origin, and of the rule that taxation follows the domicil. When the decree for taxing the empire was issued, the presence of Joseph in the city of David became necessary in order that he might be taxed in his own city,” for “ he was of the house and lineage of David;” and the presence of Mary was indispensable to a correct registry in relation to the anticipated birth, because the Roman law establishing the first census required the citizens to register the names of their wives and children. By the observance of the rule that taxation follows the domicil, Bethlehem became the birthplace of the Redeemer. This rule is of great antiquity and of high obligation. On the other hand, the taxation of real estate in the place where it is situated is equally well established.

These general principles have been somewhat changed by statute, but no change has been made which authorizes the collection of a collateral inheritance tax where neither the property taxed nor the domicil of the owner was within the state at the time of his death. It is not necessary, on the present occasion, to diseuss the question whether legacies “ payable out of the crops of a sugar plantation in Cuba” are to be regarded as real or personal estate; because in either case they are not the subject of taxation here, if the testator, at the time of his death, had his domicil in Cuba and not in Pennsylvania. In that case, the property would be neither under our jurisdiction, nor protected by our laws. William H. Stewart, who is instituted as “ the only and universal heir,” according to the rules of the civil law, is under no necessity to apply to our laws for aid in obtaining possession of that part of the estate situated in Cuba; and the legatees, without resorting to Pennsylvania tribunals, may enforce their claims, if valid, by a demand upon “the universal heir,” in that island, under the civil law of Spain.

We have said that the domicil of origin continues until it is changed by acquiring one elsewhere. But where a person removes to a foreign country, settles himself there and engages in the trade of the country, the presumption in favor of the continuance of the domicil of origin no longer exists, and the burthen of disproving the domicil of choice is cast upon him who denies it. That the domicil of origin was abandoned in this case admits of no doubt whatever. The decedent’s long residence in Cuba, under circumstances indicating an intention to remain there, sufficiently fixes his permanent domicil in that island. His investments in this country, and the interest he had in a mercantile house here, can work no change in his place of abode. His occasional visits, on business or pleasure, to the land of his birth, have as little effect upon the question. His desire to be buried in his native country, and the execution of that wish by his executor after his death in Eranee, whither he had gone for medical aid, cannot change the state of the case as it actually existed in his lifetime. A residence is established by acts and intentions while the body and soul are united. When they are separated, the question of domicil is at an end. Ho disposition of the inanimate corpse can affect it. Graves and sepulchres are resting-places for the dead, not dwelling-houses for the living.

By the civil law, strangers (who are called aliens and foreigners) cannot make a testament or other disposition of their property in view of death; and if a testament be made when the testator was under no incapacity, and he chooses to become an alien before his death, his testament will be annulled: 2 Domat 279, 280. We have no doubt that this part of the civil law is in force in Ouba. And we are satisfied that under the Royal Decrees of January 17th, 1815, and October 21st, 1817, the profession of the Roman Catholic religion was required as a preliminary to the issuing of letters of domicil. The will contains a particular and carefully worded recital of his profession of the faith so indispensable to the security of his rights, and is equally particular in declaring that he is “authorized to dispose freely of his property, by virtue of the letters of naturalization which he has obtained, from the government.” These solemn professions of his religious faith and of his political allegiance, are acts of a character too decisive to be repelled by slight evidence. There is nothing whatever to justify the belief that these professions were falsehoods, designed only to defraud the Spanish government, and to evade its laws. But if this were the case, it would be contrary to that elevated rule of morality which regulates the conduct of civilized nations for a state to claim the advantages of a fraud perpetrated by one of her own citizens upon a friendly nation. The testator derived great advantages from his domicil in Cuba and the profession of his allegiance to Spain. By means of that profession he had the opportunity of amassing his fortune, and the privilege of disposing of it by will. All who claim benefits derived from his acquisitions in Cuba, are bound to treat his professions as true. The validity of the will, and the rights of the legatees under it, depend upon the existence of his domicil in Cuba. We have no doubt of its existence there in good faith; and we have as little that, so far as regards the particular property under consideration, the Commonwealth has no right to question it.

It is ordered and decreed that the decree of the Register’s Court be afSrmed.