Page:United States Reports, Volume 1.djvu/363

352 

1788.

give bonds in the office of the Clerk of the Court, unto the other grand-children, for their reſpective ſhares ; but no ʃuch bonds or ʃecurity have yet been given.

On theſe proceedings an appeal is brought before this Court; and, upon the argument, the counſel have done great juſtice to their reſpective clients. It was our wiſh, however, that the opinions and practice of the ſeveral Orphan's Courts of Pennʃylvania, had been aſcertained in caſes of this deſcription; and that we might be informed, whether any caſe, upon ſimilar principles, had been ever determined in the Supreme Court; for we ſhould be exceedingly cautious in pronouncing a judgment that might ſhake eſtates held in this way. As we have not yet obtained full ſatisfaction on this head, we would ſtill wiſh to defer giving our opinion; but that we think it proper, from the length of time the cauſe has been under adviſement, to proceed upon the lights we have received.

On the part of the Appellant, ſix exceptions have been taken to the proceedings in the Orphan's Court.

1. That it is no where mentioned, who are the Repreſentatives of Elizabeth Willis, the inteſtate; nor into how many parts the eſtate ſhould be divided; but the whole is left to the Sheriff.

2.That the Court have adjudged the eſtate to a Grandʃon; whereas they had no authority to go beyond the firſt degree in the deſcending line.

3. That even if the Acts of Aſſembly did impower the Court to go farther, to wit, to the grand-children, yet that the adjudication ought to have been to all the children of the eldeſt ſon, and not to his eldeſt ſon excluſively.

4. That no proviſion is made for the Appellant, Samuel Walton, who is tenant by the curteſy of his wife's ſhare, to wit, of a third part, in three parts to be divided.

5. That the judgment is uncertain with reſpect to the valuation money ; in-as-much the amount of each ſhare is not particularized, not the time of payment limited.

6. That the partition ought to have been made by one inqueſt, if practicable; but, if not practicable, and ſo returned, the valuation ought to have been made by another inqueſt; and that, on the whole no eſtate can be veſted in Thomas Willis by his acceptance at the valuation, as no ſecurity has yet been given for the money.

The weight of theſe exceptions depends upon the due conſtruction of the Act of Aſſembly, entitled, “ An Act for the better ſettling of the inteſtates eſtates,” the ſupplement to that Act, and the practice under both of them.

1. With refpect to the firʃt exception; we think it would be well for the party praying for a partition of an inteſtate's real eſtate, to be particular in the names of the perſons entitled to ſhares, and of the purparty of each; and in this reſpect to purſue the form of a declaration in partition, and of the return of a writ de partitione facienda. But to reverſe an inqueſt for this omiſſion, would certainly affect many