Lessee of Levy v. M'Cartee

THIS case came before the court on a certificate of division in opinion of the judges of the circuit court of the United States for the southern district of New York.

In that court the lessee of the plaintiffs instituted an action of ejectment for the recovery of certain real estate in the city of New York. The jury found the following special verdict.

And the jurors aforesaid, upon their oaths aforesaid, do further find, that, at the time of the commencement of this suit, to wit, on the 22d day of April in the year 1828, the said defendant, Peter M'Cartee, was in the possession of the lands and premises in question in this suit, known and described as a house and lot numbered forty-seven, fronting on Murray street, in the city of New York. And the jurors aforesaid, upon their oaths aforesaid, to further find, that Philip Jacobs, late of the city of New York, on the 6th day of October, in the year 1818, was seised in fee simple of the said premises in question, and on that day the said Philip Jacobs, being so seised thereof, and leaving no child born to him, the said Philip Jacobs, but his wife Elizabeth was then pregnant of a female child, which was born alive on the 23d day of January in the year 1819, which female child continued to live until the 5th day of April in the year 1821, and then the said child died without issue. And the jurors aforesaid, upon their oaths aforesaid, do further find, that the said Philip Jacobs was born in Germany, and that he came to the city of New York before the year 1772, where he resided in that year, and that he continued to reside there until his death. And the jurors aforesaid, upon their oaths aforesaid, do further find, that the said Philip Jacobs had one brother only, and his name was Simon Jacobs, who was also born in Germany, but who went to England, and resided in London from the year 1765 till his death, in the year 1807; that said Simon Jacobs never came to America; that said Simon Jacobs had two sons, to wit, Jacob and Abraham; that the said son Jacob came from London to New York in the year 1808, and remained at New York a short time and then went to Canada, where he soon after died, having never been married; and the other son of said Simon Jacobs never was in America, and now resides in England: and the said Philip Jacobs also had a sister, who was born in Germany, and lived and died there, leaving several children, born and residing there. And the jurors aforesaid, upon their oath aforesaid, do further find, that the father and mother of the said Philip Jacobs were born in Germany, and they both died before the death of said Philip Jacobs. And the jurors aforesaid, upon their oaths aforesaid, do further find, that Leipman Cohen was brother of the mother of the said Philip Jacobs; that the said Leipman Cohen and his wife, were also born in Germany; that they had children, three sons, to wit, Philip, Moses and Elias; and three daughters, Jane, Mary, and Catharine; that all the said children of Leipman Cohen were born in Germany; that said Leipman Cohen, with his said children, removed to England many years before the year 1822, and continued to reside in England until his death. And the jurors aforesaid, upon their oaths aforesaid, do further find, that the said Philip, son of Leipman Cohen, came from London to America, and resided in South Carolina from the year 1772 until the year 1786, when he died without issue, having never been married. And the jurors aforesaid, on their oaths aforesaid, do further find, that Moses Cohen, son of the said Leipman Cohen, came from London to the city of New York in the year 1772; that in the same year the said Moses Cohen went to Charleston, in South Carolina, where he married Judith de Lyon; that he soon after removed to Savannah, in Georgia, and resided there from the year 1774 until his death, which occurred in the year 1791; that the said Moses Cohen had two daughters of his said marriage, to wit, Rhina and Bella, who were born in Charleston or Savannah aforesaid, and the said Rhina is now forty-one years of age, and is the widow of Mordecai, and was such widow at the commencement of this suit; the said Bella Cohen is now forty years of age; and the said Rhina and Bella have resided within the United States of America ever since their birth. The said Bella Cohen has never been married. The said Rhina and Bella are now alive, and reside in Charleston aforesaid, and are the only children of said Moses Cohen, and are two lessors of the plaintiff in this suit. And the jurors aforesaid, upon their oaths aforesaid, do further find, that Mary, one of the daughters of said Leipman Cohen, was lawfully married to Mordecai Levy, in London aforesaid, where she and her said husband continued to reside until their death; and they had of such marriage five children, to wit, one son named Emanuel, and four daughters, to wit, Jane, Bella, Hannah and Flora, which children were all born in London aforesaid; and they all came to Charleston, in South Carolina, between the year 1788 and the year 1792. The said Bella Levy afterwards married Daniel Hart, and is now his widow, and resides in Charleston aforesaid. The said Hannah Levy is now the wife of Moses Davies, and resides in the city of New York. Said Flora Levy married Michael Emanuel before she came from London to Charleston; and she and her said husband both died in Charleston, in South Carolina, leaving their children there, to wit, Michael, Nathan, Simon, Joel, Charlotte, and another daughter, whose name is unknown. The children of said Flora, by her said husband Michael Emanuel, were all born in England. The said Charlotte, and the other daughter of Flora Emanuel, whose name is unknown, were never married, and they are both dead. And the jurors aforesaid, upon their oaths aforesaid, do further find, that the said Emanuel Levy, the son of Mary and Mordecai Levy, died in the year 1816, leaving lawful issue, to wit, a son named Mordecai Levy, one of the lessors of the plaintiff, now living in the state of South Carolina; a daughter, Flora, who married Chapman Levy of South Carolina, and died in the year 1823, leaving a daughter named Flora, one of the lessors of the plaintiff, now living in South Carolina aforesaid, and six years old. Said Emanuel Levy also left another daughter named Rosina, who was married to the said Chapman Levy after the death of her said sister Flora. The said Chapman Levy and Rosina his wife, are two of the lessors of the plaintiff, and reside in the state of South Carolina aforesaid; and the said Rosina has died since the commencement of this suit, leaving an infant son of her said marriage, named Edward Anderson Levy; and the said Emanuel Levy also left a daughter named Elizabeth, who is now living, aged fifteen years, and is one of the lessors of the plaintiff, and resides in South Carolina aforesaid. All the said children of the said Emanuel Levy were born in Charleston aforesaid, and the said Chapman and all his children were born in Sough Carolina. And the jurors aforesaid, upon their oaths aforesaid, do further find, that Catharine, one of the said daughters of Leipman Cohen, died unmarried and while an infant; that the son of said Leipman Cohen, named Elias, had children and is dead; and that the said Elias and his children were born in Germany, and have never been in America. And the jurors aforesaid, upon their oaths aforesaid, do further find, that the said Leipman Cohen and his wife, and their children, and the said Philip Jacobs and his said brother Simon Jacobs, and their father and mother, were all natives of Germany, and were all Jews. And the jurors aforesaid, upon their oaths aforesaid, do further find, that the said land and premises in question in this suit are of the value of more than two thousand dollars. And the jurors aforesaid, upon their oaths aforesaid, do further find, that, on the 7th day of September, in the year 1818, the said Philip Jacobs, being seised in fee simple of the said lands and premises, made his last will and testament in writing, and signed, sealed and published, and declared the same as and for his last will and testament, in the presence of three credible witnesses, who, at his request, and in his presence, and in the presence of each other, severally subscribed their names as witnesses thereto; that the said will remained unrevoked and uncancelled at the time of the death of the said Philip Jacobs; and which will and testament is in the words and figures following, to wit:

After giving certain legacies, and making provision for his wife, the testator proceeds to dispose of his real estate as follows:

'It is my will, that if, at the time of my decease, there shall be any child of mine alive, that then all the rents and profits of my real estate shall be received by my executors hereinafter named, or the survivor of survivors of them, and be applied by him or them to the support, maintenance and education of such child, until such child attain the age of twenty-one years, or intermarry; and if, from the yearly application of such rents and profits to the purposes aforesaid, there should be a surplus remaining, the said executors, or the survivor or survivors of them, shall, from time to time, in his or their discretion, invest the same in some safe stock, for the benefit of said child, to be paid over to such child at the age of twenty-one years, or on marriage, whichever event shall first take place; and that my said executors, or the survivor or survivors of them, receive for such their trouble and attention such sums as the law may allow. Item-After the payment of all legacies and other bequests contained in this my last will, I do hereby give, devise and bequeath all the rest, residue and remainder of my estate, real and personal, to the Orphan Asylum Society in the city of New York, to be applied to the charitable purposes for which said association was established; this bequest to take effect immediately after all other debts and legacies are paid, if I should leave no child at the time of my death, or, if I should leave a child, then upon the death, intermarriage, or the attaining the age of twenty-one years by such child. Item-I do hereby devise and bequeath unto my said executors, or the survivor or the survivors of them, or such of them as may act in the premises, all my real estate, of whatsoever nature or kind the same may be, subject to the trusts aforesaid; and it is my will, that whenever such child shall attain the age of twenty-one years, or marry, that my real estate be sold by my said executors, or the survivor or survivors of them, or such of them as may act herein, and the one half of the proceeds thereof paid to my said child, if the said child shall attain the age of twenty-one years or marry. And lastly, I do nominate and appoint my worthy friends, Peter M'Cartee, Richard Cunningham and John Anthon, all of the city of New York, Esqs., to be the executors of this my last will and testament. In witness whereof, I, the said Philip Jacobs, have hereunto set my hand and seal, the 7th day of September 1818.

[L. S.] 'PHILIP JACOBS.'

But whether or not, upon the whole matters aforesaid, by the jurors aforesaid in form aforesaid found, the said Peter M'Cartee is guilty of the trespass and ejectment above mentioned, the jurors aforesaid are ignorant; and therefore they pray the advice of the said circuit court of the United States of America for the southern district of New York, in the second circuit; and if, upon the whole matter aforesaid, it shall seem to the said court that the said plaintiff is entitled to the possession of the said land and premises claimed by the plaintiff in this suit, or of any part thereof, then the jurors aforesaid, upon their oath aforesaid, say, that the said Peter M'Cartee is guilty of the trespass and ejectment aforesaid, in manner and form as the said James Jackson hath above thereof complained against him; and in that case they assess the damages of the said James Jackson, on occasion of the trespass and ejectment aforesaid, besides his costs and charges by him about his suit in that behalf expended, to six cents, and for his costs and charges to six cents.

But if, upon the whole matter aforesaid, it shall seem to the said court that the plaintiff is not entitled to the possession of the said land and premises so claimed by the plaintiffs as aforesaid, nor of any part thereof, then the jurors aforesaid, upon their oaths aforesaid, say that the said Peter M'Cartee is not guilty of the trespass and ejectment aforesaid, in manner and form as the said James Jackson hath above thereof complained against him.

And at the October term of the court 1829, the cause came on for argument upon the said special verdict.

And at the said argument before the said judges, it was contended by the plaintiff's counsel, on his part, that the said lessors, Bella Cohen and Rhina Mordecai, were capable of taking the premises described in said special verdict, whereof the said Philip Jacobs died seised, as therein stated, as heirs at law of the said Jacobs, and his said child; and that the said estate descended and came to the said Bella and Rhina, notwithstanding the alienism of the mother of the said Philip Jacobs, and his maternal uncle, Leipman Cohen, and their father; but on the part of the defendant, it was contended by his counsel, that, by reason of the said alienism of the said mother of the said Philip Jacobs, and his said maternal uncle, the said estate did not descend and come to Bella Cohen and Rhina Mordecai; and upon this question, which thus occurred before the said court, the opinions of the said judges were opposed; and upon request of the counsel for the plaintiff, the point on which said disagreement happened is stated as above set forth, under the direction of the said judges, in order to be certified to the Supreme Court of the United States.

The case was argued by Mr Hoffman for the lessors of the plaintiffs, and by Mr Wirt for the defendants.

Mr Justice STORY delivered the opinion of the Court.