Giles v. Little (104 U.S. 291)

ERROR to the Circuit Court of the United States for the District of Nebraska.

This was an action for the recovery of lot No. 6, in block 54, in the city of Lincoln, Nebraska.

The following are the material averments of the petition:--

'On June 10, 1869, and thence up to his death, Jacob Dawson was seised and possessed of divers real and personal estates of great value, and had a wife named Edith J., and six children who were on said day minors, and some very young, and all without any property whatever, his wife being seised and possessed in her own right of real and personal estates of the value of ten thousand dollars and over.

'On said day the said Jacob made his last will and testament, which contained the following sole bequest: After all my lawful debts are paid and discharged, the residue of my estate, real and personal, I give, bequeath, and dispose of as follows, to wit: To my beloved wife Edith J. Dawson I give and bequeath all my estate, real and personal, of which I may die seised, the same to remain and be hers, with full power, right, and authority to dispose of the same, as to her shall seem meet and proper, so long as she shall remain my widow; upon the express condition, that, if she shall marry again, then it is my will that all of the estate herein bequeathed, or whatever may remain, should go to my surviving children, share and share alike; and in case any of my children should have deceased, leaving issue, then the issue so left to receive the share to which said child would be entitled. I likewise make, constitute, and appoint my said wife Edith J. to be executrix of this my last will and testament.

'On the twenty-second day of June, 1869, the said Jacob died at Lancaster County in this district, leaving him surviving his said wife and six children. The said will was duly proved and admitted to probate in the proper court of said county, and letters testamentary thereon were issued out of said court to the said Edith J., who took upon her the execution of said trust.

'The personal property, whereof the said Jacob died possessed, was duly inventoried and appraised at $958; and among the real estates whereof, at his death, the said Jacob was seised, was that certain piece or parcel of land known and described as follows: Lot number 6, in block 54, in the city of Lincoln, in said Lancaster County, except six inches off the entire east line of said lot, which supports the east party-wall of said lot; which lot is of the value of $5,000 and over.

'On the twenty-seventh day of April, 1870, the said Edith J., by her certain deed of conveyance, dated on said day, and duly executed and acknowledged, conveyed the said premises to one Cody, by warranty deed, which contained no reference to nor recited the power in said will, and by divers mesne conveyances from said Cody, the said defendant Little claims and pretends that he is seised in fee of said premises; and he is now in possession thereof by the defendant May, as his tenant.

'On or about the fifteenth day of November, 1879, the said Edith J. intermarried with one Pickering.

'One of the said children of the said Jacob died intestate without issue, and the survivors being in indigent circumstances have joined in a conveyance of the said premises, bearing date Sept. 15, 1869, and duly executed and acknowledged, whereby they conveyed the same in fee to one Burr and one Wheeler, who by their deed have duly conveyed the same to the plaintiff. And by reason of the premises the said plaintiff has become and is seised in fee of said premises above described, and is entitled to the immediate possession thereof; the defendant Little, under the alleged title derived to him as aforesaid, unlawfully keeps the said plaintiff out of possession thereof.'

There was a general demurrer to this petition, which the Circuit Court sustained, and gave judgment for the defendants.

This action of the court is assigned for error.

Mr. James M. Woolworth for the plaintiff in error.

Mr. T. M. Marquett, contra.

MR. JUSTICE WOODS, after stating the case, delivered the opinion of the court.