Page:United States Reports, Volume 1.djvu/187

176 

1786.

and, having taken time to confider of their judgments it was this day pronounced by the CHIEF JUSTICE.

M'KEAN C.J.— This caufe was tried at Niʃe Prius in Cheʃter  when the Jury found a fpecial verdict, which contains the following ftatement :– That a certain John Hunter, being feized in fee of the premiffes in queftion, on the 30th of July 1751, made his laft will and teftament in writing, duly executed, and, among other things, devifed in the words following:  ‘‘ I give and bequeath to my eldeft fon James  when he arrives at the age of twenty one years, all and fingular the meffuage, &c. to hold to him, his heirs and affigns for ever.’’ lien, I give and bequeath unto my youngeft fon John, when he arrives to the age of twenty one years, one hundred acres of land, that I bought of John Chad,  known by the name and called Jebu's Hundred,  and the houfe and lot of feven acres of land lying on the fouth weft fide of the Cunneʃtagne road near the Whitehorʃe fign ; to hold to him, his heirs and a or ever.’’   That the eftate devifed to the youngeft fon John is the one in queftion. That afterwards he devifes ‘‘ to his wife Anne the ufe and profits of all his faid lands and tenements, for the maintenance and education of his children, until his faid fons fhould attain to their feveral ages aforefaid fucceffively.’’ That the Teftator died feized thereof, leaving James, his eldeft fon, and John, Margaret, Hannah Elizabeth, Anne, and Mary his children, and alfo Martha, who intermarried with John Rathew one of the Defendants. That the other Defendant intermarried with the daughter Anne. That John, the devifee, died in the year 1769 under age, inteftate, unmarried, and without iffue, living his mother, his brother James and all his fifters. That all the leffor of the plaintiff has the eftate that was in James, who was found to be the heir at law of John.– But whether, upon the whole matter, the defendants to be guilty of the trefpafs and ejectment, the jurors know not &c. in common form.

The queftions that arife upon this fpecial verdict, are two– 1ft. Whether the eftate vefted immediately in John or remained in contingency ‘till he came of age ?– And, if it be a vefted devife, 2dly. Whether the lands indifpute went to James, his eldeft brother, as his heir at common law, or were fubject to diftribution, under the Act of Affembly, amongft his brothers and fifters, as he died interftate, under age, unmarried, and without iffue ?

To prove, that it was a contingent and lapʃed devife to John, the counfel for the defendants cited 3 Bacon's Abr. 478. 1 Burr. 227. and 2 Salk. 415. and infifted, that where the time is annexed to the ʃubʃtance of the gift, and not to the poʃʃeʃʃion, there it is lapfed devife, by the devifee's not living until the time fpecified.

And, to fhow, that if the eftate vefted immediately in John by the devife, upon the death of his father, yet it defcended and was to be diftributed equally among his furviving brother and fifters, they produced the ‘‘ Supplement to an Act of Affembly, intitled, ‘‘ An Act for the better fettling interftates, ’’  paffed the 23d of March  1764, in page 307 of the firft volume of Pennʃylvania Laws :  And alfo