Page:United States Reports, Volume 1.djvu/364

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1788.

many eftates, as thefe proceedings in the Orphan's Courts,  are frequently drawn by perfons not much fkilled in ftrict forms ; and, in the prefent cafe, as the return of the Sheriff has been, that the eftate could not be divided without prejudice to or fpoiling the whole, no wrong or damage feems to have been to any one. For thefe reafons we muft over-rule this objection.

2. The ʃecond exception introduces a queftion, whether a Grand-ʃon, that is, the eldeft fon of the eldeft son of an inteftate, is entitled to an eftate, which cannot be divided, at the valuation, in the fame manner as his Father? and this muft be decided by the words, purview, and intent of the Legiflature, in the two Acts of Affembly which have been already cited. The main intent of thefe acts, appears to have been, that real eftates fhould be divided among the children, or reprefentatives in the defcending line, of an inteftate ; and not defcend to the heir at the common law. But a ʃecondary, and the next intent, feems to have been, to prevent eftates from being fplit and frittered into many parts, to their manifeft prejudice ; and, accordingly, it is provided, that where that would happen, the eldeft fon or heir at law, fhould have his election of taking the land at a valuation, to be made in the manner prefcribed in the Acts.

The reaʃon of a law will have great influence in determining its extent; and on the prefent occafion, the reafon alluded to, is much ftronger in the cafe of a Grandʃon than of a ʃon; for, in this cafe, the diftributive fhares will probably be moft numerous, and confequently, moft injurious of the land by a divifon or partition. The words “ heir at law,” in both Acts, are, in ftrict grammatical conftruction, an expreffion, or fubftitute for eldeʃt ʃon; but the reafon of the law, and the ufage ever fince the paffing thofe Acts of Affembly  (as we have been informed) with warrant a more extenfive and  beneficial interpretation of them. We think, therefore, that this objection likewife fails, as well as

3. The third objection, which we over rule ; Thomas being alone the heir at common law.

4. But the ƒourth exception appears to the Court to be ƒatal.  There ought to have been a provifion made for Samuel Walton,  who had an eftate for life by the curtefy, and yet he is not even named in the ʃentence or decree  of the Court below. When a writ  de partitione ƒacienda is iffued, the Sheriff is obliged to ʃummon all the parties to attended; and, if they do attend, he muft make the partition in their preʃence. The fame thing is not, indeed, expreʃsly required in the partition, or valuation, to be made under the Acts of Affembly ; yet natural juftice, and the conftant rules of all Courts require, that every perfon, who is interefted in the proceedings, fhould be ʃummoned and heard.  3 Mod. 378. It may not, perhaps, be the practice, nor is it neceffary in this cafe, that it fhould be ʃet out in the return by the Inqueft, though we would wifh that to be done ; but is effential to juftice that all parties fhould  in ƒact have notice. On the proceedings before the Orphan's Court, the Appellant has not been made even a party in the decree ; and the prefumption of courfe is, that he was Rh