author: Judge Burnet :

text:
    *Catharine Brown v. Charles Farran.
    Certificate of relinquishment of dower sufficient, if it contain a substantial enumeration of the acts required by the statute, though the words be not followed. An inveterate practice for a series of years not to be departed from.
    This was a bill in chancery for the assignment of dower, against a person claiming under the alienee of the husband. The wife had joined in the deed of alienation, and the case turned upon the validity of the following acknowledgment:
    “ Before the undersigned, within and for the same county, personally appeared David Brown, and Catharine Brown, his wife, who being made acquainted with the contents, and being examined, separate and apart, the wife from the husband, acknowledge the above indenture to be their voluntary act and deed, for the uses and purposes therein mentioned.”
    The case was adjourned here for decision from Hamilton county.
    Brooks, for complainant:
    The objections to the deed are:
    1. It does not appear by the certificate, that the petitioner ever did either sign or seal the deed.
    2-, It does not appear that she acknowledged the signing and sealing before the witnesses, or before the justice.
    3. By the acknowledgment before E. Stone, it does not appear she acted without any fear or coercion of her husband.
    4. E. Stone does not sign in his official character as justice of the peace.
    5. He had no authority to make any other certificate than the one the law prescribed.
    In order to come at the meaning of the legislature, it is natural to examine the act previous to the one under which the deed was made, providing for the execution and acknowledgment of deeds, passed in February, 1805. 1 Stat. 150. By this law, a deed would have been valid without subscribing witnesses, if duly acknowledged before a judge or justice, or it would have been valid if proved by subscribing witnesses, without any certificate of acknowledgment. If the parties adopted the former mode, the law required the certificate should state the wife acted without coercion or compulsion of her husband. The statute of 1818 required her to act, not only without coercion, but *also without any fear of her husband ; hence it plainly appears, that the statute of 1818 was intended to guard more effectually the rights of the wife against the husband’s power than the statute of 1805. It is the sole object of section 2 of the statute of 1818 to guard the rights of the wife by the most explicit and strongest language possible, against that influence which the law always presumes the husband exercises over her. This certificate may all be true, and yet it may be also true that the wife, in the first instance, was influenced to sign the deed through fear of-her husband’s displeasure; it may also be true, from aught that appears on the certificate, that the petitioner never even saw the two first witnesses whose names appear on the deed. The law requires she shall acknowledge before two subscribing witnesses, and that the certificate should state that she declared before the justice she had so acknowledged, as appears by the word, “ did and now doth.” The legislature intended to guard against all possibility of collusion between the husband and witnesses, and justice; hence it has made one a check uj>on the other. The law requires the contents of the deed shall be made known to the wife, when separate from the husband; the certificate states, the contents were made known to David and Catharine Brown, and the presumption is they were together. Although it appears they were examined apart, it does not appear that while separate and apart from the husband the wife acknowledged anything, for the language is, “acknowledged the above indenture to be their voluntary act,” etc. But under my view of the statute, the simple fact that the certificate does not state she had acknowledged the deed before the witnesses, renders it void beyond all question.'
    We have shown the most material points'of distinction between two statutes, by which it appears that of 1818 is remedial in its nature.
    A statute ought to be so constructed, that if it can be prevented, no clause, sentence, or word shaft bo superfluous, void, or insignificant. 6 Bacon Abr. 380. If this certificate is valid, then the words of the statute, “ of her own free will, etc., without any fear,” etc., as well as the words “ signing and sealing,” are void and insignificant. It may be contended that the word voluntary, cures some of the defects *of the certificate, but it can not satisfy the word “ did,” as used before the words, “and now doth,” for it is in the present tense, and can not prove a voluntary acknowledgment before the witnesses. The certificate is either good, or it is absolutely void. The court can presume nothing in favor of the certificate, because the presumption of law is, that the wife can do no legal act; that she is under the dominion of her husband: every exception to this rule is either established by usage, or by statutory enactment; hence, it seems to follow, if permitted by statute to do any legal act, it must be done in the manner prescribed by that statute. The conveyance of a feme covert, except by some matter of record, is void, and not merely voidable. 2 Bl. Com. 293. It is an inflexible principle of law, never yet, as I can find, departed from, either by courts of law or equity, “ that where certain formalities are required by act of Parliament, and these are omitted, the court can not remedy the omission. “ 1 Mad. Ch. 52.” So when a bill of sale of a ship was made, as a collateral security, and the papers, etc., were delivered, but there was no recital in the bill of sale, of the registry, as is required by 25 Geo. 2, Lord Thurlow held, it could not be supplied in equity. 3 Bro. Ch. Cas. 57. There is no relief in equity, upon a promissory note, void in law, for want of a stamp. 5 Ves. 240. An amnesty deed, not according to the amnesty act, is void. 6 Ves. 745. There is the same rule of property in equity as in law ; and the same exposition of the statute law. 1 P. Wms. 109. If an affirmative statute, which is introductive of a new law, direct a thing to be done, in a certain manner, that thing shall not, even although there are no negative words, be done in any other manner. 6 Bac. Ab. 377; Plow. 206; 6 Mass. 307. Apply this principle to the present case. Our statute of 1818 is affirmative; it is introductive of a new law, clearly distinguishable from the law of 1805; it has directed the certificate shall be made in a certain manner ; yet the thing is done in another manner. When the statute 27 Hen. 8, provided jointure in lieu of dower, we find it was no bar, unless the statute was strictly pursued. 2 Bl. Com. 138. If the foregoing authorities are law, if these long-established rules, which have served as land-marks in the disposition of real property, are still binding, it does seem to me this deed can not be sustained. The defendant has *conceded most of the defects before enumerated, and has attempted to cure them by his interrogatories. But parol evidence is inadmissible, in aid of a defective acknowledgment. In this case, “ the plaintiff offered to prove, that the feme covert had said, that if the acknowledgment was not sufficient, she would make it again, or do any other act to make it good; but the judge said, she should have appeared before the proper tribunal, and declared her consent in the manner pointed out by the laws of the country. We may regret that the unskillfulness or negligence of the scrivener, has led to this error, hut we are bound to say, ita lex scripta est, and the party must abide by the consequences of his own act.” 1 Bin. 470, 479. “ The deed of a, feme covert must be acknowledged conformably with the statute, and certified agreeably to the laws of the country where it is executed.” 1 Tyler, 42; 2 Har. & McHen. 38. And this court have decided the same point, in the case of the Lessee of Atkinson v. Dailey, 2 Ohio, 212. A lease or deed, not executed according to law, does not convey title, “ and was properly rejected.” Where a bond had been given by husband in trust, to secure to his wife five hundred pounds, in ease she survived him, on a bill brought for the wife’s dower, parol evidence to show that the bond was intended, at the time, to be in lieu of dower, and that the wife had acknowledged it to be so, can not be allowed, being within the statute of frauds and perjuries. 3 Atk. 8. You can not add anything to a written agreement to affect land by parol evidence, for it is contrary to the statute of frauds and perjuries, as well as the rule of common law. 2 Atk. 384. Parol evidence that the justice had duly examined a feme covert, was refused. 1 Taylor, 139. Parol evidence is inadmissible to prove the wife was privately examined, or even to explain a deed, unless there was a charge of fraud in obtaining it. 2 Hayw. 68; 1 Des. 345. The court can not remedy the omission, which it might do, if parol evidence were admissible.
    Fox, for defendant:
    The authorities on the subject of the validity of acknowledgment of deed are somewhat numerous in the United States, but as the point now to be settled is of vast importance *to the people in this section of the state, I must beg the indulgence of the court, while I cite, and extract from such of them as I have been enabled to examine. I venture to say that in all of the cases, the rule is laid down that a substantial compliance.with the statute is all that is required, and that the courts will presume many things in favor of a defective acknowledgment. In Robins’ lessee v. Bush, 1 Har. & McHen. 50, it was certified that “ Robert Grundy, and Judith his wife, which said, being by us first examined as the law requires, they both acknowleged the within written deed, and the premises therein contained, unto the within Robert Ungle,” etc. In this case the parties who claim in opposition to the deed offered to prove the deeds were obtained by fraud, and that the wife did not know the contents of'the deed; and although the provincial court instructed the jury that the indorsement on the deed, and the acknowledgment thereon, was not according to law, yet, on a bill of exceptions to this opinion, the court of appeals reversed the judgment of the provincial court.
    In Webster’s lessee v. Hall, 2 Har. & McHen. 19, this objection was taken; the certificate stated that the wile, “being by us privately examined, did declare that she made the same acknowledgment free and willingly of her own accord and consent,” etc. The statute, 1 Maryland Statutes, 127, requires that the persons taking the acknowledgment, “ shall examine her privately, out of the hearing of her husband;” although these last words were entirely omitted, the acknowledgment was supported, and that, too, in a case where the statute requires “that the person or persons so examining her, shall, in a note or certificate of the taking of the said acknowledgment, certify her examination and acknowledgment thereupon,” and the statute also declares that ;n such manner “ feme coverts shall be barred and not otherwise.” This same decision was made as well in the general as in the court of appeals.
    In Hoddy’s lessee v. Harryman, 3 Har. & McHen. 581, the certificate set forth, “ and at the same time came Susanna, wife of, etc., and acknowledged the land and premises to be the right, title, and estate of the said Geo. Harryman, his heirs and assigns foroverr according to the direction of an act of assembly in such cases made and provided.” This acknowledgment *was made under the [145 statute last cited, and although it does not show that any private examination was had, the court of appeals, on a writ of error, held the acknowledgment good and legal. ,
    In Lessee of McIntire v. Ward, 5 Binney, 296, the magistrate did not certify that the contents of the deed were made known to the wife, although the act of Pennsylvania directs that the person taking the acknowledgment “ shall read, or otherwise make known to her the full contents of the deed,” and yet the acknowledgment was held sufficient. The court say, page 301, “No particular form is necessary. The words of the act need not bo used if its directions are substantially complied with. This court would be departing from the line of its duty, if it were studious to avoid conveyances by objections founded merely upon form.” In Shaller et al. v. Brand, 6 Binney, 435, the acknowledgment was not more certain or particular than the present one, indeed it would be difficult to find any two acknowledgments written at different times so similar in their language; it meets every objection the complainant’s counsel have made to our deed; if one is defective, the other is equally so, and the laws of Pennsylvania and Ohio, on this subject, are almost word for word the same. The remarks of Chief Justice Tilghman, page 438, on the subject of acknowledgments, are full of good sense. “We have always declared that it was sufficient if the law was substantially complied with, and on any other principle of construction, the peace of the country would be seriously affected, as the cex’tificates of acknowledgments of deeds have generally been drawn by persons who were either ignorant, or disregarded the words of the act of assembly.” Again, “It is not straining the expressions voluntary consenting thereto, too far to say> that they imply, she declared that she executed the deed voluntarily, and that is sufficient.” Yeates, 441, says: “It can not be doubted that a woman’s voluntary consent excludes all idea of coercion or compulsion. Surely the complainant’s counsel has never read this case last cited, or he would not attempt to discuss the “ question.” Again, in Lessee of Talbot, 1 Peters’ Cir. Ct. U. S. 188, an acknowledgment in almost the same words used in the case of Shaller et al. v. Brand was held sufficient. The court say, “We have attentively considered the cases of McIntosh v. *Ward, and Shaller v. Brand, and feel no hesitation in declaring our entire approbation of the fundamental principle upon which they are both decided. That principle is, that the form of the certificate is immaterial, provided the directions of the law are substantially complied with.”
    In ,15 Johns. 89, the magistrate only certified that the husband and wife came before him “to acknowledge this indenture to be their act and deed," and it was held that the certificate could not be held to mean merely that the parties came merely to acknowledge, but that they actually did acknowledge, etc.

      In Troup v. Haight, 1 Hopk. Ch. 267, the acknowledgment required by the statute is, “ that no such acknowledgment shall be taken unless the officer taking the same shall know or have satisfactory evidence that the person making such acknowledgment is the person described in, and who has executed such deed,” etc. The officer had merely certified that “ Samuel S. Haight, who is to me well known, personally appeared,” etc., but did not certify him to be “ the person described in, and who has executed such deed,” etc., and yet the court held it sufficient.
    But there is another ground upon which this acknowledgment ought to be supported; it is the practice and usage of persons taking acknowledgments, ever since the first settlement of the Miami country. I will venture to assert that at least two-thirds of the acknowledgments taken in this county, prior to the year 1820, are no bettor than the present one, many of them much worse. The court will perceive by the list of acknowledgments certified by the recorder, that the acknowledgments from the year 1795 until 1820, taken by justices of the peace, and the judges also, are not more explicit than the present one. Even the deed given by ’Squire Stone to Dover, under whom the complainant’s husband claimed, is in every respect as defective as this deed is, and none of Mr. Stone’s certificates are more explicit. I do not think a single case can be found where Mr. Stone has certified an acknowledgment at greater length than the present one. If the community have been in an error for thirty years, it is better that error should be consecrated by the court/than that they should make a decision which would open the door for a general litigation.
    *The Supreme Court of the United States, in the case of McKeen v. Delaney, 5 Cranch, 29, felt the necessity of adopting the construction given to the Pennsylvania act upon this subject, that although they believed that the words of the statute had never authorized the construction it had received, yet they would not give a different construction to the act. They say: “ The court yields the construction which would be put on the words of the act to that which the courts of the state have put on it, and on which many titles may probably depend-”
    The remarks of Justice Yeates, 6 Binney, 442, upon this point, are very just and correct.
    The court also, in 11 Sergeant & Rawle, 347, placed their opinion on the general inaccuracy which prevailed with justices of the peace; “for,” say they, “if the acknowledgment was void, then all deeds thus acknowledged by feme coverts would be void; and the registering of all instruments, so acknowledged, would be a nullity.”
    The remarks of the chancellor in the case of Troup v. Haight, 1 Hop. 267, are 'peculiarly appropriate to this branch of the case. He says: “The most usual form has, I believe,-been that which adopts the language of the statute; but various other forms have been used; and certificates, expressed in language used in this instance, have certainly been very usual in all parts of the state. Certificates like this have been considered and treated as sufficient during twenty-seven years; and a decision that they are not valid would subvert titles to lands to a very great extent. They have been held sufficient not merely by the recording officers, but by judicial officers who have taken acknowledgments, and have composed their certificates in this form by judges of the Supreme Court, judges of the county court, masters of this court, and commissioners. This general usage, thus long continued and hitherto unquestioned, has great force, and the practical construction of the law by so many public officers, though not given upon adverse litigation, must still have much the weight of judicial decision. The construction which considers these certificates as a substantial compliance with the law is liberal, but it is not violent or unreasonable. This construction has prevailed so extensively and for so long a period, that it possesses high ^authority; and to pronounce these certificates void would be a most dangerous innovation.” In Jackson v. Guman, 2 Cowen, 567, the same point was decided, and an acknowledgment sustained for no other reason than this, that the practice of persons taking acknowledgments had given a construction to the act.
    Storer, on the same side, argued upon the same grounds and authorities.
    Hammond, in reply:
    The argument of the defendant proceeds on the principle th'ai the laws of 1805 and 1818 are substantially the same. This illustrates the counsel’s notice of substantial eonformhy. The law of 1805 did not require the wife to acknowledge the execution in presence of witnesses. It was sufficient if the deed were executed by the wife, without witnesses, if she acknowledged its execution before the proper officer. The acknowledgment before witnesses is an additional requisite, superadded by the act of, 1818. When before the officer, under the act of 1805, she was only required to declare that the original execution was voluntarily made. A subsequent or existing repugnance was of no consequence. By the law of 1818 the privilege was secured to the wife of retracting her original voluntary execution and acknowledgment before witnesses when she came before the officer.' And by the latter law the word “fear ” is substituted for “ compulsion.” It is only to reflect a moment to determine they are words of very different import. The fear of compulsion; the fear of displeasure; the fear of giving offense.

    By the act of 1805 nothing was required but a private acknowledgment of a former voluntary act, and that was the single act of executing, signing, sealing, and delivering the deed. If this were done voluntarily, and acknowledged before the officer to have been so voluntarily done, without coercion or compulsion, then the deed was obligatory. But more is required under the statute of 1818. Besides the signing, sealing, and delivering, which constitutes the execution of the deed, it must be acknowledged before witnesses, and subsequently before an officer, accompanied by a declaration *that the first acknowledgment was voluntary, and that the then acknowledgment is voluntary also.
    The law of 1818 is plainly intended to introduce a new rule as to the mode of a married woman convoying her estate. It empowered her in section 6 to create an attorney and authorize him to convey. As this put her more in the power of her husband than the former law, it was deemed right to extend to her a more effective protection against the abuse of that power, and the requisites of execution are increased for that purpose.
    We have seen that the law requires a separate examination- before the officer, and a separate or individual declaration by the wife, of certain acts previously done, and of certain facts, as existing at the time of the acknowledgment.- The certificate in question imports from beginning to end a joint act of the husband and wife. Lot it be taken as true, and let it be conceded that all if fairly imports took place, and nothing more, would such a state of facts be even a substantial compliance wi.tb the law of 1818, upon the principles of the defendant’s counsel himself? They appeared together before .the justice. The wife was separately made acquainted with the contents of the deed, and separately examined, which being done, the husband and wife jointly acknowledged that the indenture was their then voluntary act and deed. Nothing more can possibly be extracted from the acknowledgment as cei’tified. There can be no ground for pretending that the separate examination extended to any fact not certified. The wife was separately asked if she acknowledged the paper to be her act and deed, and she answered in the affirmative. This certainly would not be sufficient under the law of 1818, although it might be so held under that of'1805. The declaration required by the act of 1818 is, that she acknowledged the deed bef'oi’e the witnesses voluntarily and without the/ear or coex-cion of her husband, and that she now does so again acknowledge it. If she did not make this declaration, the deed was not so acknowledged as to conclude her.
    The cases cited by the. defendant’s counsel all proceed upon the px’ineiple that the certificate of the officer, of itself, impox'ts that the law was complied with, though not in its very terms, in all its important and essential requisitions. If *this certificate does not import the proper facts, then the cases are in no respect similar. ]

    The cases from Harris and McHenry, cited by the defendant’s counsel, are not of much importance. The fix’St was differently decided by diffex’ent courts, and upon the final appeal the decision is not reported. The second case turned upon the single omission of the words, “ out of the hearing of her husband.” The certificate was otherwise full and ample. It was adjudged sufficient, but no reason was given. The third case, though decided in favor of the validity of the certificate, was so decided after much difference of opinion, and seems to have been rested on these words, “ according to the act of assembly,” embodied in the certificate, in which there is not much force. In the same book, 3 Har. & McHen. 430» there is a directly contrary decision,
    In 5 Binney, the question arose upon the fact that the certificate did not state that the contents of the deed wore made known to the wife in terms. The court decide upon the ground that the fact, though not expressly stated, is sufficiently and substantially expressed. So in 6 Binney, where the terms “ voluntarily consenting thereto,” were deemed equivalent to the requisitions of the law, the court go no farther than to decide that the terms used import a substantial compliance with the law; that is, they imported that what the law requires was, in fact, transíicted. The doctrine is the same in Peters. But in all the cases the certificates imported a more full compliance with the law than the one under consideration; under the law of 1805 this certificate might be held sufficient. That law required nothing but an original voluntary execution. But the law of 1818 required two subsequent voluntary acknowledgments; and it should appear in the certificate that the wife declared to the justice that in each acknowledgment she acted voluntarily, and that her volition was without feat' or coercion. The terms, “ to be her voluntary act and deed," can not fairly be made to comprehend the three distinct acts required by the statute, because the wife might so consider it, although it never was acknowledged before the witnesses, and although her acknowledgment proceeded from a secret fear, but from no open act of coercion on the part of the husband.
    *In the laws of the states referred to by the defendant’s counsel, the term fear is not used; and the circumstances connected with its introduction into our own law in 1818 require that it should have some importance attached to it. It was intended to increase the security of the wife, by protecting her against an act performed under the impulse of fear, though not otherwise coerced, and, except as to her own secret motives, voluntary. It is a great mistake to suppose that the act of 1818 is no more than a substantial re-enactment of the then existing law. Its provisions are different, not from inadvertence, but evidently from design ; and a correspondent change was required in the fact of acknowledgment, and, consequently, in the certificate of that fact.
    It is argued, that although the certificate be held defective, it must now be sustained, because most of the certificates made by justices, for a series of years, are of the same defective character. This argument is supported by authority, resting on a sort of necessity to patronize ignorance. But it is not carried quite so lar as to permit ignorance to remodel the laws of the land. It allows an apology for the inartificial performance of official duty, but goes no further. The counsel here propose to shut up the statute book, and open in its place that of the recorder. They say it matters not what the legislature required, the question must be decided by- the acts of the justice. This, I think, is going a little too far ; besides, this statute is too recent, the practice under it too short, to permit that practice to determine the rights of parties. The complainant is not to be divested of her rights, upon a presumption that she agreed to part with them, which presumption is to be deducted from the alleged ignorance of the justice of the peace. This really seems to be the true shape of the argument.
   Opinion of the court, by

Judge Burnet :

The complainant sets up a claim of dower in a lot of ground in the city of Cincinnati, of which her husband was seized in fee during coverture, and which he sold and conveyed to the defendant for a valuable consideration, by deed bearing date December, 1818. The deed was signed and sealed by the complainant and by her husband, and attested by two subscribing witnesses.

*An acknowledgment was made at the bottom of the deed in the following words : “ State of Ohio, Hamilton county, ss. Before me, the undersigned, a justice of the peace within and for said county, personally appeared David.Brown, and Catharine Brown, his wife, who having been made acquainted with the contents, and being examined separate and apart, the wife from the husband, acknowledged the above indenture to be their voluntary act and deed, for the uses and purposes therein mentioned. In witness,” etc.

■The deed was executed in December, 1818, after the act of 1805 was repealed by the act which took effect in May, 1818, and which was in force at the time of the execution and acknowledgment. This statute provides that the deed shall be signed and sealed by the husband and wife, and shall be acknowledged before two subscribing witnesses, who shall attest the same. ' It also provides that it shall be acknowledged before a judge, or justice of the peace, who shall examine the wife separate and apart from her husband, and shall read or otherwise make known to her the contents of such deed, and if upon such examination she shall declare that she voluntarily, and of her own free will and accord, without any fear or coercion of her husband, did, and now doth acknowledge the signing and sealing thereof, the said judge or justice shall certify the same, etc.

It is contended, on the part of the complainant, that this acknowledgment is not in conformity with the requirements of the statute, and that it does not, for that reason, bar her right of dower in the premises.

Some of the objections taken to this acknowledgment do not require to be specially reviewed ; as, for example, that the magistrate has not signed it officially, and that the signing and sealing do not appear to have been acknowledged, either before the witnesses or before the justice. To the first of these objections, it is sufficient .to say that the magistrate has described himself, in the body of the certificate, as a justice of the peace, which renders it unnecessary to add his title of office to his name.

The second objection is not strictly correct in point of fact. The signing and sealing was acknowledged before the subscribing witnesses, at the time of the execution, who have ^attested the same as the statute directs, and the instrument was acknowledged, by both husband and wife, to be their voluntary act and deed, before the magistrate, which could not be the fact, unless they had signed and sealed it; for signing and sealing are indispensably necessary to create a deed. This declaration, therefore, is a virtual and substantial acknowledgment of the signing and sealing, both of which are required, by the statute, to create a deed.

The third objection is that it does not appear from the certificate that the wife acted without any fear or coercion of her husband. It is true that those words are not contained in the certificate, but the justice certifies that she acknowledged the deed to be her voluntary act, and if voluntary, it could not have been done under the influence of fear or coercion. The term voluntary is defined to be, acting without compulsion, acting by choice, willing, of one’s own accord. The declaration of the wife, then, on her separate examination, excludes the idea of fear or force. If she executed the instrument willingly, of choice, and of her own accord, as her admission before the justice imports, she could not have been under the influence of fear, much less of coercion. An act done in consequence of fear can not be done willingly and of choice. The one unavoidably excludes the other, so that the magistrate, although be has not used all the words given in the statute, has taken one which includes the substance of all the others.

The next objection is the want of a declaration that the wife did acknowledge the deed before the subscribing witnesses, and that she does acknowledge it before the j ustice. The statute does not, in terms, require such a declaration. The counsel have considered the sentence to which this objection relates as elliptical, and have supplied the omission in their own way. I am willing to admit that the passage is susceptible of the construction they have given it, though the provision would be perfectly useless, as the attestation of the subscribing witnesses furnishes evidence of the first acknowledgment, which it is their duty to hear before they affix their names to the deed. But it is subject to a more serious objection. Cases may arise in which a feme covert signs and seals a deed involuntarily, yet without objection, but with a determination not to acknowledge it before a justice. *On further information and reflection, her objections may be removed; she may become not only willing, but anxious to complete the conveyance by a full and free acknowledgment before a justice of the peace, but on the construction contended for she can not do it without affirming a deliberate falsehood. Now, it is not presumable that the act was intended to prohibit the completion of deeds under such circumstances, or to require it to be done at the expense of the truth; and yet this must be the consequence if the alleged omission in the law be supplied in the manner proposed. It does not appear distinctly from the statute what the term did relates to, whether to the acknowledgment before the witnesses to the signing and sealing, or to anything else. The sense will be complete and equally, if not more useful, by reading that she did sign and seal the deed, and now doth acknowledge the signing and sealing thereof; and this construction is favored by the consideration that no other part of the section requires a declaration from tho wife that she did sign and seal. If this be the correct reading of the elliptical clause, it is contained substantially in the certificate of the magistrate, as we have before seen.

It will not be seriously contended that the magistrate is bound to use the same language that he finds in the statute. The legislature have not undertaken to prescribe a form of acknowledgment that is to be literally pursued. If the certificate contains the substance of the law, though in the language of the officer, it is sufficient. On any other principle, it is a matter of doubt whether the records of the state contain a solitary deed with a valid acknowledgment. It is, however, safe and prudent to adopt the language of the act, with but little, if any variation, and yet it would be attended with destructive consequences to consider such an adherence as essential to the validity of an acknowledgment.

It may become a question, then, how far the magistrate may deviate from the words of the act. I would answer the inquiry by saying that his certificate must contain the substance of everything required by the law. No substantial part of the provision-can be dispensed with. It must appear expressly, or by irresistible inference from the language of the certificate, that the wife was acquainted with the nature of the deed, that she was examined apart from her husband, *that she acknowledged the deed, and admitted that it was her voluntary act, in such terms as necessarily excluded the influence of fear or coercion.

"When the legislature were providing this mode of conveying real estate, by femes covert, in lieu of the common law method, by fine, they must have had two objects in view; first, to simplify the transaction, and secondly, to protect the wives of the grantees-against the exercise of an improper influence by their husbands; and if the requirements of the law are substantially adhered to, these objects will be accomplished, although the officer does not literally pursue the language of the statute. If it would have been proper, at any time, to require such an adherence, it is certainly too late to require it now. A different practice has prevailed since the first establishment of the territorial government, which can not be corrected, without incalculable mischief, and if it had been the opinion of the court, when they were considering and deciding this case, that the words of the statute -ought to be literally copied, and that such should have been the course from the beginning, they would have resorted to the maxim, communis error facit jus, rather than encounter the consequences of shaking the title to an indefinite portion of the state. No law can require the correction of an error in its construction, which has long existed, and has been generally acquiesced in; Lord Coke says, not even Magna Charta. But I do not feel the necessity of resorting to-this maxim. The law, as to the form of the certificate, is directory, though, as to. its substance, it is imperative. The one may be varied; the other must be adhered to. It evidently appears from the certificate on this deed, that the wife was examined apart from her husband; that she was made acquainted with the contents of the deed; that she acknowledged the deed, and admitted it to be her act, and that she acknowledged it to be voluntary on her part. These statements, in substance, embrace everything required by the law, and virtually negative the existence of everything which the law was intended-to prevent. If she understood what she was doing, and, in the absence of her husband, admitted that she had done it, and that she did it voluntarily, which implies the absence of fear or coercion, her rights have had all the protection which the law intended to afford, and she *can not be permitted to revoke her deed, for any defect in form.

I am aware that the mode of conveyance by femes covert, given by our statute, is a substitute for the more difficult mode of conveying by fine in open court, evidenced by the record, and that it was intended to afford equal security to the parties concerned ; and I admit that no construction of the statute can be correct that necessarily impairs that security. The acknowledgment, therefore, must be by the wife in person, in the absence of her husband, before an officer named in the statute, and must be evidenced by his certificate on the deed itself, in an official form. This exposition of the law, while it admits some latitude of inference from what the certificate actually contains, excludes the right of resorting to parol testimony to supply an omission. If any essential part be not distinctly stated, or fáirly inferable from other facts that are stated, the defect can not be remedied, whatever may be the consequence.

In considering this case I have felt it my duty, in accordance with the views of the court, to place it principally on considerations arising from the policy and practice of the state, as far as they are sustained by the principles of law. It will be found, however, on examination, that the cases cited from New York, Pennsylvania, and Maryland, by the defendant’s counsel, go the whole length of sustaining the doctrine maintained in this case.

The bill must be dismissed.


source: Caselaw Access Project

license: Public Domain

text:
    *Executors of Decker v. Executors of Decker.
    Devise to J. D. of a tract of land, “ free and clear from any incumbrance, except as hereinafter mentioned,” “ with a limitation over, in case devisee die without issue,” followed with directions that, in “consideration” of the devise, J. D. should pay at different periods, to different persons: Held, that J. D. is only personally liable for the sums appointed to be paid in his lifetime. The amount falling due after the death of J. D. is a charge only upon the land devised.
    *This cause was adjourned here for decision from Pickaway county. It was a bill in chancery, and the object was to obtain the true construction of a will. The facts involved in the cause are as follow:
    In 1815, John Decker, by his last will and testament, devised to his son, Jacob Decker, eight hundred and thirty-five acres of land, at the estimated value of eight thousand three hundred and fifty dollars, “ free, and clear from any incumbrance, except as hereinafter mentionedin consideration of which devise, he requires the said Jacob to pay to seven of the children of the said John Decker the sum of four hundred and forty-four pounds eight shillings and ten pence, Virginia currency, each, in payments of one hundred pounds per year; the first payment to be made to the eldest son, on May 1, 1816; the second, to thenext son (the devisee), on May 1, 1817, and so on, until payments of one hundred pounds each had been made to all those seven; and in the next course of payments, commencing with the oldest son, and going on in the same routine as before, the whole payments were to be settled up. But out of the first payment to each of those heirs was to be deducted the amount advanced to them by the testator, in his lifetime. To his two unmarried daughters, Elizabeth and Rebecca, he required the said Jacob to pay one thousand dollars each, on their marriage day, which was to be holden as one of the yearly payments, directed in the will, and was to postpone the payment which would be then due to the next of the seven first-named children, and the residue of six hundred and fifty dollars each, was to be paid to the said daughters, in their proper place, among the other payments. The will further provides, that if the devisee, Jacob Decker, should die without issue, that then the estate devised to the said Jacob, “ after the rest may have their legacies, shall revert back to the rest of my children and their heirs, to be equally divided among them.” In 1823, Jacob Decker died without issue, having paid up to the several heirs all that by the terms of the will became-due in his lifetime. Having disposed by will of his own estate, and made complainant his executor, this bill is filed to settle the rights of the executors of the two estates under the wills. There are no facts in dispute. The principle involved in the construction of John ^Decker’s will being settled, the parties can adjust the estates.
    Ewing, for complainant:
    We contend that the legacies are sums arising out of land devised, and properly chargeable upon it, and that they do not attach to the person of the devisee, until they become due; that they-are not like notes or bonds, payable at any future day, debitum inpresentí solvendum in futuro, but that they attend the estate devised, until the day of payment arrives, when they become the personal debt of him who then has the estate by the will. We admit that Jacob Decker was bound to pay all the legacies that became due in his lifetime, while he was the owner of the estate; but when the estate left him, and went to the remaining heirs, they took it incumbered with such legacies, as became payable after it fell into their hands. This is a case sui generis. I can find nothing like it in any of the books; but there are certain familiar principles, applicable to the construction of devisees, which, applied to this, will obviate the difficulties which seem to attend it.
    1. It is an invariable principle in the construction of wills, that every devise shall be intended to have been made for the benefit of the devisee; and so strong and absolute is this legal intendment, that it is made to control the construction of the will. As if land be devised to A. without words of inheritance, he shall take but a life estate. But if it be devised to him, “ upon his paying,” or, “ so that he pay,” etc., a sum of money, however small, he shall have an estate in fee; for it is possible, say the books, that his life-estate might determine, before the profits of the land would repay 'him, and so the devisee would be injured, and not benefited by the-devise. But if the sum be charged upon the estate devised, and not upon the person of the devisee, he shall have but a life estate, or he can in no event suffer loss by the gift. 6 Johns. 192; 6 Cruise, 253, 254; 10 J. N. 153; 1 Atk. 502, 510. Resting this case, then, •on the same principles on which those cases rest, and taking it as -an unvarying canon, in the construction of devises, that the devise shall be intended to have been made for the benefit of the devisee, we say that the estate being here limited to the life of the *devisee, the legaciess hould he holden a charge upon the estate, and’ not on the person; otherwise, the devisee might be injured by the gift; but this the more especially, as the words of the will will bear that construction.
    2. And it is laid down in Pawlet v. Pawlet, 3 Vent. 366, 367, that when a legacy is charged upon a real estate, if the person entitled to it (the legacy) die before - the day of payment, it sinks into the 1 and, for the benefit of the inheritance. Vide 1 Atk. 502, 510.
    On the same principle, I conceive, that when a life estate in land is devised subject to a legacy, and the devisee dies before the legacy becomes due, that the charge attaches, or rather continues attached to the estate and merged in it; and that a burden devised by the testator goes the same way with the benefit, and is lapsed by the death of the party to be charged, as well as of the party to be benefited, if he dies before the charge or benefit attaches.
    'Scott and G-rimke, for defendants:
    Although it is contended by the defendant that the legacies of .John Decker are not a charge upon the land, it is not intended to be asserted that the land may not be a fund out of which they, or a part of them are to be eventually paid. But the devise of the land is to Jacob Decker, in consideration of his discharging the legacies to his brothers and sisters, language which is too strong, precise, and unequivocal to be controlled by any subsequent declaration, and which words, by force of their technical meaning, as well as the plain and manifest intention of the testator, .have given the estate absolutely to Jacob, and have therefore made the legacies a debt due by himself. In consequence of which the personal property of Jacob Decker is, as in all other cases, the primary fund out of which the debt is to be discharged, and the real estate •can only be brought in aid of the personalty, provided this last is deficient. The bill, therefore, is defective in not averring a failure <of assets sufficient to pay the legacies due by Jacob.

      It may be supposed that inconvenience and hardship might be the result, if this construction is given to the will. It may be said that although in this instance, the last testator, *Jaeob Decker, has actually died worth movable property sufficient to pay all the legacies, yet it may have been otherwise; and if he had also alienated the land in bis lifetime, the legatees would be left absolutely destitute, and without any means of enforcing the payment of the sums due to them. But these inconveniences are continually occurring, in consequence of the necessity that the> rules of law should be general ones, and in consequence of the inability of a vast majority of testators to comprehend the whole-force and extent of those rules. If the testator, John, did intend that the legacies should be a charge primarily, on the land, nothing would have been easier than to have said so. And he would, in pursuance of this intention, have devised the land to his executors, to be sold, or in order that his executors should sell it. Either of which is the appropriate course when it is intended to change the order in which assets are ordinarily distributed. Indeed, nothing but a devise of this nature would enable the land to be «sold, in any other way than by an application on behalf of the executor to the court of common pleas for license to sell. A devise of land to executors to: be sold, implies a strong personal trust and confidence, and therefore dispenses with the necessity of an application to the court. But no other case does.
    It is doubtful, however, whether the inconvenience supposed can in reality occur, whether the land be primarily or only secondarily liable. And if it can not, then there can be no pretense, in the absence of plain and positive intention, and of precise and unequivocal phraseology, for declaring these legacies a real, rather than a personal charge. Land is in almost every one of our states liable to the payment of ail the debts of the testator, provided his personal property is not sufficient for that purpose.- But in some instances, the heir to whom the land has descended, or the devisee to whom a more independent estate has been transferred, have before the ascertainment and settlement of the debts of the estate, sold the land to a bona fide purchaser; and in both cases the court have decided, whenever the question has been made, that the land may be reached even in the hands of such bona fide purchaser, and applied to the discharge of those debts which the personal fund is insufficient to pay. Thus, in Gore v. Brazier, 3 Mass. 523, land devised, and which^had been aliened by the devisee to a Iona fide purchaser, was pursued and was converted into a fund for the discharge of the debts of the testator. The law relative to this subject is the same in that state as in Ohio, and the opinion of Parsons may be considered as settling this once difficult and intricate question. In Graff v. Smith, 1 Dall. 481, the heir sold the land over which he supposed he might exercise an entire and perfect control. But it was, notwithstanding, rendered liable in his hands to the payment of the debts of the testator. These decisions may at first appear extraordinary when it is considered that an executor has only a naked authority, and no interest in the real estate. But, as remarked by Parsons, the law which declares lands to be liable to the payment of debts would be nugatory, if the heir or devisee were permitted to sell it discharged of the debts. It is true, in the cases to which I have referred, the contest has been between the purchaser and the creditors, or legatees of the first devisor; and here, in the event supposed, of a sale by Ja'cob Decker in his lifetime, and upon the supposition, also, that the legacies are his debt, it may be supposed difficult to find an analogy to the cases cited. But there are three kinds of charges : charges on the land, charges on the person, and charges on the person in respect to the land devised. The first is the only instance in which the land is primarily liable.' In the second, it is secondarily so, and is so declared by the testator whose will is duly recorded, and of which every purchaser is bound to take notice, as without it he can not make out a chain of title. It is true the distinction between these various kinds of charges is very subtle, even as stated by Cruise, and it may be as well contended that the legacies are a mere personal charge, as that they are a charge upon the person, in regard to the estate in his hands.
    The question, whether a charge is a personal or real one, has generally arisen in wills, when it is doubtful whether the testator intended to devise an estate in fee, or only life estate. And it has been universally decided, where the charge is personal, that a fee simple is devised, and where the charge is on the land, that an estate for life only is devised ; the reason of which distinction is obvious. Jackson v. Bull, 10 Johns. The direction in the will, says Mr. Justice Story, in Wright v. Denn, 10 Wheat 224, “ is that James do pay Hannah and ^Abigail the sum of fifty pounds each, when they come of age, but it is not said or implied anywhere in the will that these legacies shall be a charge upon the land.” “The direction is personal, and must be a charge on the person, only unless it can be shown from other parts of the will that the testator charged it on the land.” So in 2 Marshall, 229, the charge was declared to be a personal one, although the arguments in favor of its being a real charge must have been very strong. But there are other parts of the will of John Decker which denote that he intended the legacies to be only a personal charge. He manifests a strong desire that the estate should be left in his family, and declares that it shall go over to others of the family, in the event of Jacob’s dying without issue. The whole estate is limited over, on this event, and after the payment of the legacies. But if the legacies were first to be paid, if the land were the appropriate fund for the discharge, and he must be supposed to have known this if he intended them to be a real charge, then in no event, could his intention, that the land should go over on a certain contingency, be accomplished. If the legacies are a charge on the land, they were so in the lifetime of Jacob Decker, as well as after his death. Then this strange and manifest inconsistency and injustice would result. The land is exactly sufficient to pay all the legatees and also Jacob a sum equal to the largest of the bequests. The land is sold, except so much as will be sufficient to .give Jacob this sum. The devise over is thus defeated by the testator himself, except as to that small part which is sufficient to remunerate Jacob for the difficult task he has undertaken, and that very part is the only portion of the estate which is made to go over, and over which Jacob is deprived of all control. Now the first testator, John, intended two things: 1. That the legacies should be paid by Jacob; and 2. That the estate should be limited over on a certain event. Both will be accomplished, if the charge is declared a personal one. One only can be attained, if it is decreed to be a real one. Indeed, there are unanswerable reasons why a •charge should be declared to be personal rather than real, if the will is at all doubtful. The legatees have a stronger security for the payment of their bequests in the first case. Two funds are provided for their payment—the land devised by the first devisor, *and the j>ersonal propertyleft by the second devisor. In the latter case, the first fund only is available.
    It may be said that the limitation is too remote, being on an indefinite failure of issue. But in the first place, it is immaterial how this may be. “ We are seeking for the intention,” says Tilghman, in a case in Binney. And in the second place, although, it is admitted that no question was once more agitated, yet it is contended that it is now settled, that dying without issue means dying without leaving issue, and does not convey the idea of an indefinite failure. The cases of Jackson v. Anderson, 16 Johns. 382, and Millege v. Lamar, 4 Dessaussure, 617, have put this question to rest.
    This devise of an estate in fee simple is also inconsistent with the idea that the land is charged with the legacies. If, where the charge is personal, the estate must necessarily be a fee, 10 Johns. 158, the converse must also hold, and whenever a fee is given, it •affords demonstrative proof that the intention was to give an estate in fee simple. In 3 Serg. & Rawle, 487, note, Tilghman says, a devise with an obligation to pay large sums of money is a devise in fee simple. But such an estate is inconsistent with any other estate than that of a fee from rent. In 3 Serg. & Rawle, 359, the •court held a covenant entered into by three sons, to whom the father had conveyed land, not to be a real one, but only binding the person, and that if it were real, ejectment would lie. And then there is no remedy by bill in chancery, for the remedy at law is plain and adequate. Indeed, whether the legacies are a real charge or operate as a condition, which are the views the most favorable for the complainant, the remedy is at law. 1 Bac. 632, 633; 4 Cruise, 428, Criekmer’s case, and Curtis v. Wolverton, there cited.
    There is another class of cases which shed a good deal of light on this subject. It is settled that where a party incurs a debt, to secure the payment of which he creates an incumbrance on land, and dies intestate or after devising the land, that the land thus incumbered with the debt is primarily liable in the possession of the heir or devisee, and that the heir or devisee of such first heir or devisee can not be relieved by having the burden thrown on the personal fund. Thus in Shafto v. Shaf'to, note to 2 P. Wms. 664, the devise of land, subject to a mortgage made by his devisor, covenanted for the ^payment of the debt, the question being whether the personal estate of the devisee should not be liable. The chancellor decided that the land was primarily liable because the original debtor had created a charge upon it, and although as between his heir and personal representatives the latter should have been made to relieve the former, yet it was different as between the heir and personal representatives of the second devisor. The same rule was declared in Tankerville v. Fawcett, 2 Bro. 57. Lord Kenyon there says: “ Where an estate descends or comes to one, subject to a mortgage, although the mortgage be afterward assigned, and the party enters into a covenant to pay the money borrowed, yet that shall not bind his personal estate.” The case of Tweddel v. Tweddel, 2 Bro. 101, is to the same effect. In Woods v. Huntingford, 2 Ves. 128, R. H. mortgaged land for the payment of a debt. The land was afterward conveyed to the use of John,, and was then reconveyed to R. H. The question was between the heir and personal representatives of R. H. which estate should pay the debt. The land being to the use of John, who joined with his father in a covenant for the payment of the money, he was considered the original debtor, and being afterward reconveyed to R. H. it was decided that it would have been primarily liable after the death of R. H., if he had not made the debt his own by entering into a new mortgage. Thus a clear and satisfactory rule has been established by these cases, that whenever a party has incurred a debt, and has created a charge upon land in order to secure the payment of it, and then devised the land, the land is secondarily liable, as between his real and personal representatives; but that as between the real and personal representatives of his devisee the land is the primary fund. And the determination of this case would, therefore, seem to depend upon the mere question whether the legacies are a debt due by old John Decker. And we believe it requires no argument to prove that they are not; that they are a gratuity instead of a debt. But as an estate in fee simple, which necessarily presupposes an unincumbered estate, is devised to Jacob, and as the whole estate is given over, after the death of Jacob, and not merely the residue, after the payment of the legacies, no alternative remains but to consider the charge a personal one, and then *the legacies are a debt due by Jacob, and not by John, and the consequence is, that as between the real and personal representatives of the former the land is only secondarily liable. Jacob has affirmed the will, as the bill itself shows, and in the language of the will, in consideration of the devise of the land, he has assumed the debt, and has accordingly discharged a great part of the legacies. Indeed, some light is necessarily thrown on this subject by the conduct of Jacob, in his lifetime and by his last will. It is not meant to be asserted that his construction of the will is decisive of the meaning which should be attached to it; but in a doubtful case, and where the intention is wished to be discovered, the opinion of the devisee and executor is of some importance. No part of the land, as appears by the bill, has yet been sold for the discharge of the legacies, but they have nearly all been paid by Jacob out of his other property. And in his will he desires that all his debts should be paid out of his personal property in the first instance. If the intention of John Decker is at all doubtful, Jacob is the person who would best apprehend that intention ; and the bill averring that the other legacies are paid, and praying for a sale of the whole land, shows that those legacies have been paid by Jacob as a debt due by himself. In whatever light, therefore, we view this question, there appears to be no reason to-consider them as a real charge, which would be inverting the usual order in the distribution of assets; but there appears to be every reason to believe that it was the intention, as the language of the will plainly imports, that they are a charge upon the person only.
   Opinion of the court, by

Judge Burnet :

This appears to be an amicable suit for the purpose of obtaining a construction of the last will and testament oí John Decker, as a-guide to the parties in settling the estates which they severally represent.

The question presented is, in some respects, a novel one, and it is not easy to determine with certainty to what class of cases it-properly belongs; whether to that which would make the legacies a charge on the land, or to that which makes them a charge on the person, or to the third, which considers them as a charge on the person in respect to *the land. If they are chargeable on the person, it must be because the testator has devised an estate; for when the devise is of a life estate the’charge is on the land, and not on the person, for an obvious reason, because the estate might terminate before the devisee derived the least benefit from it, and it certainly must terminate with his life. The consequence is, that the value or quantum of the estate, which is the. consideration of the responsibility of the devisee, is to be taken into the account, as one of the guides by which the rules of construction are to be applied.

A devise of the fee has been considered as sufficient to show an intention in the testator to create a personal charge, while a devisa of any inferior interest, as an estate for life, is taken to indicate an intention to charge the land, and not the person of the devisee.

In construing wills, it is an universal rule that they are to be expounded favorably, and according to the intention of the devisor. When his intention can be ascertained, it shall prevail, however defectively it may be expressed.

In the will before us, John Docker does not declare, in terms, whether his son Jacob, on accepting the devise, shall become liable to the payment of the legacies, as a personal charge, or not. It is true, that in consideration of the devise, he requires him to pay the legacies to his brothers and sisters, and if we were confined to this part of the instrument, in ascertaining the will of the testator, we should be apt to conclude that the legacies were a charge on the person. The language is sufficiently strong and explicit, to sustain that interpretation ; but the whole instrument must be examined. One part may explain another, and it is from the operation of the whole that the parts are to receive a construction. On looking into the will, then, we find that these legacies are made payable by installments, and become due at different and remote periods. The testator does not profess to give Jacob a certain unqualified fee in the land ; but on the event of his death, without issue, the whole estate is limited over, in fee, to his brothers and sisters, including the legatees, to be equally divided between them. The land devised, is estimated in the will at eight thousand three hundred and fifty dollars. The legacies to be paid, nominally, exceed that sum, but are subject to a deduction of certain payments, made to the legatees, by *the testator in his life, which are not stated. It is, however, understood, that the difference between the value of the devise, and the sums to be paid, was the estimated proportion of the estate, intended for the devisee, so that if he had received a fee simple in the land, and had paid the legacies, he would have realized nothing more than his proper share of his father’s property. By the estimate of the devisor, the fee of the land, was a fair consideration for the sums to be paid by the devisee; and his liability to pay, was founded, and should depend, on the fact of his receiving such an estate. In 1823, Jacob Decker died, leaving a widow, but without issue, having paid all the legacies that had become due, previous to his death, at which time^ the land by the limitation in the will, passed to his brothers and’ sisters, including the legatees.

This is a concise view of the substance of the will, and of the ■ situation of the parties, and on these facts the question arises, whether the separate estate of Jacob Decker, shall be held liable to ■ pay the residue of the legacies, or whether they attach to and follow the land.

We are bound to admit, that the devise to Jacob, was intended for his benefit, and the will must receive such a construction as will not interfere with that intention. This rule precludes the inference of the defendant’s counsel, that the testator intended to secure two things: first, that Jacob should pay the legacies; and secondly, that the estate should be limited over to his other children. On this supposition, the devise was not only not beneficial, but would operate unjustly and iniquitously. It would in fact, be a devise by the father, of the separate estate of the son, to the amount of the legacies. Jacob would pay the legacies of his father, while, by the provisions of the will, they were enjoying in fee the estate out of which the payments were to be made, and which was to him the consideration of his liability to pay. This would be the result • of the construction which the defendants give to the will, in opposition to the admitted principle that any construction is to be rejected by which the devisee would be injured, and not benefited by the devise. On this ground it has been held that if land be devised to a person on his paying, or, so that he pay, or, on condition of his paying a sum of money, without words of *perpetuity, he shall not be considered as taking a life estate merely, but an estate in fee, because a life estate might determine, before the profits of the land amounted to the sum paid, in which case, the devise would be injurious to the devisee. 6 Johns. 192. On the other hand, it is held that if the payment be expressly charged on the land, the devisee shall take a life estate, because in that case he can in no event sustain a loss. Now, by the application of the same rule, and by a parity of reasoning, the payment of these legacies can not be considered at this time as a charge on Jacob personally, because it is settled that he took by the will only an estate for life, and by holding him liable to pay the legacies, which amount, probably to seven-eighths of the value of the land, he would be greatly injured by the devise.

The estate which Jacob took by the will, does not depend on. ■construction. The limitation over, is express and positive, admitting of no doubt. The only ground, therefore, for construction, Uhat can be occupied by the court, to give effect to the intention of the testator, is that which relates to the payment of the money, and the nature of the charge which it creates. The testator does not declare it to be personal, and the defendants claim it to be such, altogether on grounds of construction, but in violation of the rule we have just noticed.

So long as there was a possibility that the devisee could derive from the will an estate in fee, he continued to pay the legacies in good faith, to an amount far exceeding the value of any advantage he can have received from the temporary occupation of the land. On the ground, then, that the devise was intended for his benefit, his estate ought not to. be further responsible.

It appears to me to follow as a consequence, from this doctrine, that wherever the question whether a legacy to be paid by a.devisee is a personal charge or not, is not expressly settled by the words of the will, but depends on construction; a personal charge ■can not be inferred, unless the operation of the will be such as to secure to the devisee the advantage which is the consideration of such a charge, which, in this case, is a fee simple in the land devised. The question then arises, has Jacob Decker derived such an ^estate from his fatáer’s will ? The defendants do not pretend that he has. Under the limitation of the will, his estate terminated with his life, and from the moment that fact was ascertained, the legacies ought not to be considered as a personal charge, whatever might have been the construction, while the possibility of a fee was compatible with the limitations of the will. That possibility now has ceased. The operation of the will has been to give Jacob .a life estate only, and the responsibility of his representatives should be that'which is created by such an estate.

As the intention of the testator is the polar star by which we are to be guided, it may not be amiss to remark here, that it is impossible to examine this will without coming to the conclusion that the testator intended to secure to Jacob, at least, an equal share of his estate, with his other children; but such an intention is wholly inconsistent with the construction claimed by the defendants, as we have already seen.

But aside from these considerations, it appears to me that the intention and will of John Decker may be collected from the •language of the limitation, which provides that if Jacob should die without issue, the estate, “after the rest may have their legacies, shall revert back to the rest of my children, and their heirs, to be equally divided among them.” That is, if Jacob shall die without issue, the estate shall go to the rest of the children, after such of them, as are entitled to legacies, unpaid, shall have received their legacies. Now, if it was intended that Jacob should pay the legacies in any event, the payment, after his death, would not have been made a condition of the limitation. The estate would have passed immediately, and without condition, to the other children ; but they are to take it after the paj^ment ot the legacies is complete. They must take it, therefore, cum onere, or not at all. A devise made to a person, and his heirs, after paying a sum of money, implies a payment by the devisee, and the ■money to be paid, is a charge on the thing devised. Now, in this case, the limitation over is to the rest of his children, moaning all, except Jacob, after the rest may have their legacies, meaning by the term rest such of the legatees as should not have received their legacies, prior to the death of Jacob. Of course, so much’ of the ^legacies as remain unpaid, and had not become a personal charge on Jacob, at the time of his death, is secured, and by the term of the limitation over is made a charge on the land.

But another view may be taken of this question, which will lead to the same result. The devise is made to Jacob, “free and clear of any incumbrance, except as hereinafter mentioned.” This exception relates to the legacies, and to the limitation over, both of which are to be regarded, in ascertaining the rights and responsibilities of the devisee, because the devise, is, in terms, made subject to them both. When the will was made, and when it took effect by the •death of the testator, Jacob had no issue, and it was uncertain whether he ever would have any. It was, therefore, a matter within the calculation of the devisor, that the limitation would probably have its intended effect, and that Jacob’s interest might prove to be an estate for life only. With that impression on his mind, making the devise subject, not only to the legacies, but to the limitation over, he has virtually left the question, as to the nature of the charge of the legacies, an open one, to be decided when the extent of the incumbrance on the devise should be ascertained. And I confess that I do not see any incongruity, or inconvenience, resulting from this arrangement of the testator. If he bad said in terms, what he has said by implication, and what is certainly a fair interpretation of his will, that Jacob should pay the legacies as they became due, during his life, and that if he should die without issue, the residue should be a charge bn the land, no person would have doubted his meaning, or questioned his right to make such a disposition of his property, and if the rules of interpretation lead to that construction, it is the same thing as if the will had contained it in express words.

It has been remarked before that this is a novel case. It is, in. some respects, a case sui generi, to be settled by the application of general principles, without the aid of adjudications; but keeping in view the intention of the testator, and the principles by which devises are construed, we are satisfied that the legacies did not continue a personal charge, after the possibility of an estate of inheritance had determined, by the death of the devisee, and that from that time they *have been a charge on the land, in the hands of the legatees, to whom it was limited over by the will. Or, in other words, that these legacies were intended by the-testator, to be raised out of the land, and were not to be a personal charge till they should become due, and that they should then attach to the person, who might have the estate by the will.

The consequence of this opinion is, that the representatives of Jacob Decker can not be required to pay any part of the legacies, which had not become due and payable at the time of his death.


author: Judge Hitchcock : Judge Burnet’s

text:
    Trustees of Wayne Township, Jefferson County, v. Trustees of Stock Township, Harrison County.
    Person gains a legal settlement in a township, though warned on first settlement to depart, if the warning is not repeated every year.
    This was an action of debt for moneys paid in support of a pauper, and was brought for the purpose of obtaining an adjudication, which of the townships were chargeable with the support of the pauper. It was an amicable suit and was prosecuted upon an agreed case, and adjourned for decision here, by the Supreme Court,, sitting in Harrison county.

      The material facts are as follows: Previous to the year 1821^ the pauper resided with her father in Wayne township, Jefferson county, and had obtained a legal residence there. In April, 1821, her father removed and settled in Stock township, Harrison county, and carried the pauper with him. On July 10, 1821, the overseers of the poor of Stock township warned the pauper to depart, which warning was repeated on June 8, 1822, and December 14, 1823, and again within one year from the last warning. On October 8, 1825, the overseers of the poor of Stock township transported the pauper to Wayne township, and left her there; when, by order of the trustees of Wayne township, she was sent back to Stock, and again, on the 31st of October, sent by the trustees of Stock to Wayne, where she had since been supported; and this action was instituted to recover the money expended in her support, and to decide upon which township she was chargeable.
    ♦Leavitt, for plaintiffs.
    Beebe, for defendants.
   Opinion of the court, by

Judge Hitchcock :

Such is the situation of our country, that this court is rarely called upon to give a construction to the “ act for the relief of the poor.” While the people of older states and communities have been oppressed with heavy taxes for the support of paupers, we have been measurably free from this burden. So fertile is the soil, and so various are the modes of employment, that with a reasonable share of industry and economy, almost any individual, arrived at years of discretion, possessed of health and sound intellect, may obtain a comfortable subsistence in Ohio. None but the unfortunate need claim the support of public charity. The time, however, must and will arrive, when questions of great importance to the community, growing out ot the poor laws, must be settled, and it is desirable that they should be settled correctly.

The general principle pervading the law is, that every pauper shall bo supported by the township where he or she may have been last legally settled. We are now called upon to give a construction to section 4 of the before-named act. This section provides in what manner a person may gain a legal settlement. As the question is important, it is to be regretted that the counsel employed in the case should not have given it a careful examination, and submitted to the court an argument containing the result of, their investigations. This, however, has been neglected. I have not had recourse to the statutes oí all the different states of the Union relative to this subject, but as far as my examination has extended, I find no law similar to our own. Of course, we can expect to derive but little aid from the decisions of courts in our sister states.

This section of the statute provides, “that any person or persons (other than those hereinafter provided for) residing one year in any township in this state, without being warned by the overseers of the poor, for said township, to depart the same, shall be considered as having gained a legal settlement in such township.” “That every indented servant, legally ^brought into this state, shall obtain legal settlement in the township, where such servant first served his or her master, or mistress, the space of twelve months.” That “ every married woman, during coverture, and after her husband’s death, shall be considered as legally settled in the place where he was last.legally settled ; but if he shall have no known place of legal settlement; then she shall be considered as legally settled in the place where she was last legally settled before marriage.” The subsequent parts of the section point out 'the manner in which a person likely to become chargeable is to ■be warned to depart the township, and the proceedings in addition ■to such warning.

It is to the first clause of the section that our attention is now turned, and the question which arises is, can a person who has been warned to depart the township, gain a legal settlement in the same township, by residing therein one year after such warning, 'the warning itself not having been i-epcated? In favor of the opinion that a repetition of the warning is unnecessary, it may be ■urged that it is required by neither the spirit nor express letter of ■the statute, and that it would be inconvenient to the township officers That a repetition of the warning would be inconvenient to the township officers is not denied; nor is it pretended that such proceeding is required by the express letter of the statute; ■that is, that it is required in so many words, hut the spirit and ¿policy of the law seems clearly to render it necessary. Ohio is a .new state, and policy dictates that in her different acts of legislation, she should go groat lengths to encourage emigration, This can not be done effectually, unless the terms upon which a legal settlement may be gained, are made easy. Under this impression, the law under consideration was undoubtedly enacted. By its provision, it is more easy to gain a legal settlement than in most, if not all, the older states in the Union. But were we to say, that a man once having been warned to depart the township could never thereafter gain a legal settlement in the same township, this policy of the law would be defeated.

Such construction, too, would, in many casos, cause manifest injustice. By the first clause of the section, it is residence, and residence alone, by which a person acquires a legal settlement. A person who had once been warned to *depart, could not by any subsequent act of his own, of the township, or of its officers, gain this privilege. He might accumulate any amount of property, might hold any office, might be separately taxed, and contribute largely for the support of the poor, still it would make no difference. Eventually misfortune might overtake him, his property might be swept away, himself reduced to poverty, and in his old age he might need for his subsistence, aid, similar to that which he had so liberally bestowed upon others. Whence is he to derive this aid? Not from the township where he has spent most of his days, where he has accumulated and expended his property, whose poor he has assisted to support, where are his friends and acquaintances. From thistowhship some forty or fifty years before, he was warned to depart, and there he has no legal settlement. He must be removed to the place where he was last settled, there to linger out the small remains of life among strangers.

By adopting this construction, we should not only defeat the policy of the law, but measurably contradict tho lettor. The words are, “any person or persons residing one year in any township in this state, without being warned,” etc., not from the time of his first arrival; of this, nothing is said. It seems to contemplate one year’s continued residence, without reference to the time when. It may be immediately after tho first arrival; it may be at any subsequent period. And if the overseers of the poor, having once warned, fail to repeat that warning, the individual concerned, may well conclude, that they, as well as the other citizens of the township, are satisfied that he should gain a legal settlement among them.

Upon the whole, we are clearly of the opinion, that, under the statute in question, a continued residence for one year in a township, without being warned, is sufficient to gain a legal settlement. It is not sufficient that the warning shall have been once given ; it must be repeated, so that at no one period there shall have been this continued, uninterrupted residence.

This principle being decided, there is no difficulty in applying it to the case under consideration. Mary Endsly, the pauper, was originally settled in the township of Wayne. She removed, in company with her father, to the township of *Stoek, in the spring of the year 1821. At this time, we must suppose she was of full age, as nothing to the contrary appears from the agreed case. From this latter township, she was warned to depart, July 10,1821, which warning was repeated on the 8th day of June of the succeeding year. She still continued to reside in the township, and was not again warned to depart, until November 14, 1823. Here, then, was a continued residence of more than one year, without interruption, by a warning to depart, by means whereof she gained a legal settlement, and this township is chargeable with her support.

Judgment must, therefore, be rendered for the plaintiff.

Judge Burnet’s

dissenting opinion:

The statement of facts on which this case was submitted pi’osents but a single question, whether a person “who will be likely to become a public charge,” and who has been legally warned by the overseers of the poor of the township into which he removes, within the term proscribed by the statute, can afterward acquire a settlement in that township, by being suffered to reside therein a year after such warning, without being warned a second time. Or, in other words, whether it is the duty of the overseers to repeat the warning from time to time, so as to prevent an interval of twelve months between such warning.

That part of the statute which relates to this question is in the following words: “That any person or persons residing one year in any township of this state, without being warned by the overseers of the poor for such township to depart the same, shall be considered as having gained a legal settlement in such township. And the overseers of the poor on receiving information that any person has come within the limits of thoir township to reside, who will be likely to become a township charge, shall issue their warrant or order to any constable of the township, commanding such constable to warn, such person to depart the township.” The first branch of this section provides how a person moving into a township may acquire a ■ legal settlement therein ; and the second prescribes the duty of the overseers, on receiving information that any suspected person has come to ^reside within the limits of their township. By the first a residence of one year, without being warned, gives a settlement. This, I apprehend, relates exclusively to the first year of their residence. If a person shall reside one year in any township, that is, if he shall come into a township and reside therein one entire year thereafter, he shall, at the expiration of that year acquire a settlement, unless he shall have been warned in the interval; but if he shall have been warned within that year, the law gives him no right. It does not provide for a second term, -within which he may acquire a right by residence under any circumstances.

By the common law paupers have no claims on public officers or public funds. They are to depend on private benevolence and the charity of well-disposed Christians. The right of receiving a support from the township treasury is given by the statute, and it can be claimed in those cases only which come clearly within the statute. The period from which the time of residence that will give a settlement must be calculated, is the day on which the the pauper came into the township to reside; and the question whether he acquires a settlement or not depends on the fact whether he is or is not warned within that' time. If he is not warned he acquires the right; but if he is he does not acquire it. The warning within the year excludes the right and the possibility of subsequently acquiring it.

If the question be asked, did this pauper,-after she removed into Stock township to reside, remain there a year without being warned ? The answer must be she did not; she was warned before the year expired. This being the fact, her subsequent residence, in my view, has nothing to do with the case. On being once legally warned, it was proper for her to return to the place of her last settlement. Her subsequent residence in the township, though permitted, was at her peril, and instead of' securing to her privileges under the law, subjected her to the penalty of being removed by force when the proper period for so doing should arrive. In the meantime she was an intruder, and in that character acquired no rights.

The object of the law was the protection of townships from the charge of supporting persons who have no legal claims on them, and at the same time to apprise such ^persons that they can not acquire a legal claim to support by continuing to reside in the township; for which purpose the first warning within the year is altogether sufficient.

The second branch of the section, which relates to the duty of the overseers, requires them to give but one notice or warning, and it fixes the time when it becomes their duty to give that warning. They must do it on receiving information that a person, who is likely to become chargeable, has come within their town-, ship to reside, and they are not required, under any circumstances, to repeat it. "When it has once been given within the time designated, the officers have discharged their duty, and nothing more is required of them until the suspected person becomes a public charge. Then, and not till then, it is made their duty to remove him. In the interim he may remain where he is, but always liable to be removed when he ceases to have the means of self-support.

If a repetition of the warning had been intended it would have been provided for. If, at the expiration of a year from the first warning, the pauper is to be considered as having come again into the township, and if a knowledge of his continuance by the overseers is to be considered as fresh evidence of that fact, the legislature ought to have said so, and should have made it the duty of the officers to repeat the warning in proper season. Rut as the law now stands, if they have warned the pauper once within the time prescribed, it is made their duty to remove him, when he shall become chargeable, whether more or less than a year has elapsed since the warning was given ; there is no limitation as to time.

It appears to me that the construction put on the first part of the section is inconsistent with the only construction that can be given to the concluding part of it. We are required to construe statutes so that every part may stand, if it be possible, and one part of a statute frequently points out the construction that must be given to another. The first part of the section in question is carelessly drawn, but taken in connection with the concluding part, the meaning of it is apparent. Residing one year must mean a year from the time when a suspected person first comes into the ^township to reside, and with this qualification the case presents no difficulty.

It is generally admitted that the sense of a statute is not. changed by transposing the parts of it. In this case, it appears to me that the parts of section 4 are not placed in their natural order. By changing the order the section will read thus: “ The overseers of the poor, on receiving information that any person has come within the limits of their township to reside, who will be likely to become a township charge, shall issue their warrant or order to any constable of the township, commanding said constable forthwith to warn such person to depart the township by reading said warrant, etc.; and any person or persons residing one year in any township in this state, without being warned by the overseers of the poor for said township to d.epart the same, shall be considered as having gained a legal settlement in such township.” On this reading it seems to be evident that the gaining of a settlement is the consequence of not being warned within a year after the person first moves into the township, that being the only warning required, and consequently the only one referred to, and on this supposition it must follow that a warning within the year excludes a settlement.