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We think the doctrine in that case is entirely sort to forced inferences and conjectural reason correct. The certificate of the clerk cannot ings, or possible, or even probable suppositions of
the points raised and actually decided by those make the papers above mentioned a part of the courts. The court must see, plainly, that the derecord; nor can the statement of counsel in the cision was either directly made of some matter motion for a new trial, authorize us to say that within the purview of the 25th section of the Act certain questions were raised, and certain opin such as'It was, without necessarily involving such ions given upon such evidence. It does not matter. follow that the court admitted that the opin: the Supreme Court 'can resort to ascertain its ap
It is to the record, and to the record alone, that ions imputed to them were given at the trial, pellate jurisdiction, in cases decided in the Supreme because they have not disavowed them in over- or Superior Court of a State. ruling the motion. On the contrary, it might register which has been obtained without conform
A policy of insurance on a vessel sailing under a sometimes happen that such a motion would be ing to the requisitions of the laws of the United overruled, because the court had not given the States relative to the registry and enrolling of vesinstruction mentioned in the motion. There is sels of the United States is not void, and an action
may be maintained on such a policy to recover a therefore nothing in the record that could war- loss sustained by the assured. The policy may not rant us in assuming that the papers referred to have been
designed to aid, assist, or advance any were offered in evidence, nor that the opinions self, and only remotely connected with the use of ascribed to the court were actually given. the certificate of registry. There are cases in which These facts should in some mode or other be a contract may be valid, potwithstanding It 18 reauthenticated by the court itself. This court motely. connected with an independent Illegal trans
action; which, however, it is not designed to ald have constantly adhered to this rule, and the or promote. Suppose a vessel had been actually cases upon the subject were carefully reviewed forfeited for some antecedent megal act, are all and considered in the case of Crowell v. Ran: I though there is no illegal object in view, and the
future employment void, dell, 10 Peters, 368, and the rules there stated forfeiture may never be enforced ? must be considered as too firmly settled to be shaken.
IN N error to the Supreme Judicial Court of the The writ of error in this case must therefore State of Maine. be dismissed.
The original action was assumpsit on a policy
of insurance, dated July 17, 1833, upon the This case came on to be heard on the tran-schooner called the Mary, and owned by said script of the record from the Supreme Court of Polleys, for the term of one year, commencing the State of Ohio in and for the County of on the 11th of said July-sum insured, $3,000. Scioto, and was argued by counsel; on consid. The schooner during the said year, on June 10, eration whereof, it is ordered and adjudged by 1834, was totally lost. The general issue was this court that the writ of error be, and the pleaded. same is hereby dismissed, for want of jurisdic- It appeared on the trial that a sloop was tion
built in 1816, and was enrolled by the name of the Sophronia, and was again enrolled in the
custom-house in Portland by the same name, 157") THE OCEAN INSURANCE COM- built upon the keel, floor timbers and naval
March 24th, 1822. That schooner Mary was PANY, Plaintiffs in Error,
timbers of the said sloop Sophronia, and the
size enlarged nearly twelve tons, and the name WILLIAM POLLEYS, Defendant in Error. of the Mary given to her after being 80 en
larged, and that this was known to the defend. Jurisdiction, court to look to the record alone ants at the time of executing the policy; and
to ascertain-insurance on vessel not having ! that the certificate of Mark Leavit was prolegal register.
cured by said Polleys, and presented to the cus.
tom-house to obtain the enrollment of the The settled construction given by the Supreme schooner Mary, without any fraudulent intent Court to the 25th section of the Judiciary Act of to deceive or defraud, but with a fair and that section, It must appear on the face of the rec- honest intention, as the jury believed. But that ord of the State court, either by express terms, or the enrollment of the sloop *Sophronia ["158 by clear and necessary intendment, that the ques
was not first surrendered and delivered up at tion of the construction of a clause of a statute of the United States did actually arise in the State the custom-house before the issuing of the encourt; not that it might have arisen or have been rollment of the Mary, which was on the 3d day applicable to the case ; and that the question was
of June, 1833. actually decided : not that it might have been de. cided by the State court against the title, right, The counsel for the original defendant, on the privilege, or exemption set up by the party If, trial, objected to the admission in evidence of the therefore, the decision made by the State court up: enrollment of June 3, 1833, as contrary to the the construction of the statute contended for by laws of the United States; but the judge overthe party appellant, no case is made out for the ruled the objection, and it was admitted; and exercise of the appellate jurisdiction of the Su- the counsel fürther insisted that schooner on the preme Court.
In the exercise of the appellate Jurisdiction of voyage in which she was lost was sailing under the Supreme Court on the decisions of State circumstances rendering her liable to forfeiture courts, the Supreme Court is not at liberty to re
for a violation of the laws of the United States, NOTE:--The record for the purpose of showing and that, therefore, a policy on a vessel pursuJurisdiction in the Supreme Court of the United ing such a voyage was not valid, or legal and States of a writ of error to a state court-see note binding; but the judge also overruled this ob
What record must show respecting the presenta-jection as insufficient to bar the action. The tion and decision of a Federal question in order to confer jurisdiction on the Supreme Court of returned a verdict for the original plaintiff.
cause was thereupon submitted to the jury, who the United States of a writ of error to a state court-see note to 63 L.R.A. 471.
The defendant prosecuted this writ of error.
The case was argued by Mr. Fletcher for the | The record shows that this position was denied, plaintiffs, and by Mr. Webster for the defend and thus the jurisdiction exists in this court. ant.
The law applicable to the facts of this case is For the plaintiff, the following points were clear and explicit. By the Act of Congress of submitted :
December 31, 1792, 2 Laws U. S. ch. 146, 1. That the certificate of enrollment of the when a ship or vessel is altered or increased in schooner named in the policy of insurance, en burden, or changed from one denomination to rolled by the name of the Mary, was procured another, she must be registered anew, but by by said Polleys but a short time before the com- the same name, and the original register must mencement of the year for which she was in. be delivered up; a penalty of five hundred dolsured, knowingly in direct violation of the lars is imposed for the violation of this prostatute of the United States then in full force, vision of the law: and by the 27th section of of which statute he was bound to take notice. the act, using a register, falsely or fraudulently
2. That the enrollment of said schooner thus obtained, if used knowingly, forfeits the vessel. procured by said Polleys, by a new name, was The Act of February 8, 1792, puts coasting entirely illegal, and wholly null and void. vessels under the same regulations as those pro
3. That said Polleys, by not delivering up vided by the Act of December 31, 1792, "conthe original certificate of registry, incurred a cerning the registering and recording of ships penalty of five hundred dollars; and by being and vessels.” By a circular letter from the registered by a new name, the schooner lost her Secretary of the Treasury, providing for the national character, and could no longer be execution of these laws, the collector is prodeemed a ship or vessel of the United States. hibited licensing, or enrolling, or registering a
4. That said certificate of enrollment was ship or vessel, unless her previous register is knowingly used for the schooner on the voyage
delivered up. upon which she was lost during the year for The registering of vessels has been required which she was insured, she not being then act by all commercial nations. The object of those ually entitled to the benefit thereof. That such regulations is the encouragement of ship builduse of said enrollment was illegal, and a di- ing, and to prevent frauds on individuals. 3 rect violation of the twenty-seventh section of Kent's Commentaries, 139. The conduct of the act aforesaid; and the schooner was thereby the defendant in error was contrary to the polirendered liable to forfeiture.
cy of the law, and in violation of it. No justi. 6. That a policy of insurance on a vessel pros. fication is offered for this act; and it is certain ecuting a voyage under a false and unlawful that if the collector had known the proceeding, enroliment and certificate thereof, and in vio- he would not have given the register. By the lation of a statute of the United States, in the register, a character was given to the vessel manner aforesaid, is not a binding contract, to which she was not entitled. She was, in fact, and cannot be enforced in a court of law. liable for foreign duties. 6. That the said certificate of registry being
What are the legal consequences of such pro& void, useless, and illegal document, the ceeding? These are stated in che points subschooner while sailing under its pretended mitted to the court. The schooner was ensanction, was not seaworthy; and that the im- titled to a register as the Sophronia, not as the plied warranty of seaworthiness was on that Mary; the register "originally granted (*160 account violated.
to her should have been delivered up to be can159*) *Mr. Fletcher, for the plaintiffs in er. celled, and when registered anew, her enlarged ror, said that on the question whether this court capacity and the other alterations which had had a right to entertain jurisdiction of this been made in her, should have been stated. The writ of error to the Supreme Judicial Court of defendant in error was answerable or those Maine, all the cases were collected in the opin violations of the law, and he cannot be perion of this court in the case of Crowell v. Ran-mitted to recover on a contract growing out of dal, 10 Peters.
this conduct. To give the court jurisdiction under the 25th There is a penalty of five hundred dollars imsection of the Judiciary Act of 1789, by which posed for these violations of the law. Imposa writ of error is authorized to the Supreme ing a penalty is equivalent to an express proCourt of the State, the plaintiff must claim some bibition of the act for which the penalty is privilege or exemption under an act of Con- imposed. gress, which had been denied to him by a mis- Knowingly using a false register subjects the construction of the act. There is no necessity vessel to forfeiture. Knowing, as meant by that the claim shall appear on the face of the the statutes, is a knowledge of the facts, and record; if it appear that, unless by miscon- does not require a knowledge of the law. In struction of the act, the court could not have
a former act of Congress, “fraudulently using" made the decision, or given the judgment com- ute; but the Act of 1792 contains the term
a false register, was the language of the statplained of. The record in the case before the court shows Kent's Commentaries, 467; 1 Binney's Rep. 10;
"knowingly.” Cited, Carthew's Rep. 252; 1 more than is required by the decisions of this 5 Barn. & Ald. 335. court. The counsel for the defendants in the
The contract not being binding, cannot be en. State court, now the plaintiffs in error, objected forced in a court of law. I Kent's Commen to the admission of the enrollment of the vessel taries, 291. The Mary was constantly violatinsured, in evidence, as the enrollment was ing the laws of the United States. Every voy. contrary to the laws of the United States, and age was such a violation, and no policy of inthe vessel was liable to forfeiture. A vessel surance could protect her in such proceeding. sailing in violation of the law of the United 12 East, 303; 1 Bos. & Pull. 272; i Marshall Btates could not be insured by a valid policy. on Insurance, 52; 6 Mass. Rep. 101; 1 Emer.
Peters 13 ance, 221.
igon, 542, ch. 12, sec. 14; 2 Bos. & Pull. 35; 2ernment of the United States would have interDouglas's Rep. 467; 7 Term Rep. 187; 1 fered. Cited, 13 Pickering's Rep. 518; 15 Taunton Rep. 241; The Julia, 1 Cranch, 181; East, 364; 4 Taunton, 589; 13 Mass. Rep. 589; The Aurora, 8 Cranch, 203; The Hiram, i 6 Greenleaf's Reports, 68. Wheat. 440; 15 Johns. Rep. 25; 12 East, 200; 17 Mass. 258; 2 Bos. & Pull, 370; 1 Maule & Mr. Justice Story delivered the opinion of Selwyn, 593.
the court: The implied warranty of seaworthiness was This is a writ of error to the Supreme Judi. violated by the vessel sailing with false papers. cial Court of the State of Maine. The original The loss from another cause has no influence action was assumpsit on a policy of insurance, on this principle. The vessel was insured as dated the 17th of June, 1833, whereby the the Mary, when her real name was Sophronia. Ocean Insurance Company insured three thou. This is a breach of warranty. _ Cited, 6 Mass. sand dollars on the schooner Mary, owned by Rep. 220; 7 T. Rep. 105; 4 Taunton, 373; 3 Polleys, at sea or in port, for the term of one Kent's Commentaries, 257; Marshall on Insur year, commencing the risk on the 11th of July,
1833, at noon, and ending the 11th of July, Mr. Webster, for the defendants in error, ob- 1834, at noon. The schooner was totally lost jected to the jurisdiction of the court. It does by the perils of the sea, on the 10th of June, not appear that any statute of the United States 1834, while the policy was in force. At the was misunderstood. Suppose the court had trial, on the general issue, it appeared in evi. said the vessel is forfeited, but the insurance is dence that a sloop was built in 1816, and en. valid; does this give jurisdiction? The enroll rolled by the name of Sophronia, and was again ment, although imperfectly made, was in evi. enrolled in the custom-house in Portland, by dence. Has the Superior Court of Maine de- the same name on the 24th of March, 1822. cided on the effect of an act of Congress ? This The schooner Mary was built upon the keel, does not appear, because one of the parties has floor timbers, and naval timbers of the said a defense connected with the statute. It does sloop Sophronia, the size was enlarged nearly not give this court jurisdiction to revise the de- twelve tons, and the name of Mary was given cision of the court before which the defense to her after being so enlarged; and this was was made. If the State court have decided known to the Insurance Company at the time wrong on the facts, yet it does not appear the of executing the policy. A certificate of one statute has been misinterpreted.
Mark Leavit was procured by Polleys, and The enrollment, although irregularly ob- presented to the custom-house to obtain an entained, was a legal paper. The parties could rollment of the schooner Mary, without any be visited by a penalty, but this was not a for- fraudulent intent to deceive or defraud, but feiture of the vessel. To maintain that a con- with "fair and honest intentions, as the [*162 tract made for the protection of the property jury believed. But the enrollment of the Soof the owner of such a vessel is void, it must phronia was not first surrendered and delivered 161*] "be shown that, by the manner of obtain. up at the custom-house before the issuing of the ing the enrollment, the party was deprived of enrollment of the Mary, on the 3d of June, 1833. any and all property in the vessel; or that the Upon these facts, which appear upon the bill contract was made in aid of an illegal act. of exceptions taken at the trial, the counsel for The case agreed exempts the assured from all the Insurance Company objected to the admisfraud.
sion in evidence of the said enrollment of the The contract of insurance was legal. It had Mary of the 3d of June, 1833, as contrary to nothing to do with the act of the owner in ob- the laws of the United States; but the judge taining an enrollment. It stood separate and who sat at the trial overruled the objection, and apart from all the former transactions. It was the enrollment was admitted. The same counnot like a contract of insurance on a vessel car- sel further insisted that the said schooner on rying an enemy's license, where the license the voyage on which she was lost, was sailing makes the property enemies' property.
under circumstances rendering her liable to for. In reply to the cases cited by the counsel for feiture for a violation of the laws of the United the plaintiff in error, Mr. Webster said they all States; and that therefore a policy on a vessel established that the contract was itself unlaw- pursuing such a voyage, was not valid, or legal ful. In such a case, a court of law will give no and binding. But the said judge also overruled assistance to enforce such an agreement. this objection as insufficient to bar the action.
But the acts of Congress did not make the other points arose at the trial, upon which, forfeiture of the vessel, under such circumstan. however, it is unnecessary for us to dwell; beces, absolute, even if any forfeiture could be cause they are in no shape cognizable by, this enforced. Proceedings against her were neces- court in the exercise of its appellate jurisdicsary The government could alone enforce the tion over the judgments and decrees of the law, and until this was done, the sailing of the State courts, under the 25th section of the Juvessel was lawful. The power to remit for diciary Act of 1789, ch. 20. The jury found any penalty or forfeiture, under such circum- a verdict for the plaintiff (Polleys), which was stances, is given by the statute. Thus, until confirmed by the whole court, and judgment the government had fully manifested its claim, passed thereon accordingly for him. and had refused a remission, no one could al- Two questions have been argued before us. lege anything against the vessel.
The first is, whether upon the face of the record The Mary was a registered vessel of the Unit. any case is made out for the exercise of the aped States, and had a right to protection as such. pellate jurisdiction of this court under the 25th If a revolt had been committed on board of her, section of the Act of 1789, ch. 20. The next it would have been punished. If she had been is, whether the State court has in fact misconattacked by a foreign military force, the gov-Istrued the laws of the United States, upon the
points in controversy at the trial to the preju- | the laws of the United States. In this view, as dice of the Insurance Company.
a matter of evidence proper for the consideraIn our judgment it is wholly unnecessary to tion of the jury on the question of ownership, consider the last question, because we are of it is clear that the decision does not fall within opinion that upon the face of the record no case the appellate jurisdiction of this court under is shown for the exercise of the appellate juris- the 25th section of the Act of 1789, already rediction of this court. The only clause of the ferred to. 25th section of the Judiciary Act of 1789, ch. Then as to the other point. The objection 20, conferring this appellate jurisdiction, which made by the counsel for the Insurance Company is applicable to the present case, is, that where was that the schooner (Mary), on the voyage there is drawn in question in the State court on which she was lost, was sailing under cir. the construction of a clause of a statute of the cumstances rendering her liable to forfeiture United States, and the decision of the State for a violation of the laws of the United States, court is against the title, right, privilege or ex- and that therefore a policy on a vessel pursuing emption set up or claimed by either party, un- such a voyage was not valid, or legal and bind. der that clause of the statute, the settled con- ing. But the judge also overruled this objecstruction of this court is that to bring any casetion, as insufficient to bar the action. The ob. within the reach of the 25th section, it mustjection was founded on the 27th section of the appear upon the face of the record of the State Ship Registry Act of 1792, ch. 45, above recourt, either by express terms, or by clear and ferred to; which declares that if any certificate necessary intendment, that the question did of registry or record shall be fraudulently or actually arise in the State court, not that it knowingly used for any ship or vessel not then might have arisen, or have been applicable to actually entitled to the benefit thereof, accordthe case; and that the question was actually ing to the true intent of this act, such ship or decided, not that it might have been decided vessel shall be forfeited to the United States. by the State court, against the title, right, or with her tackle, apparel, and furniture. The privilege, or exemption set up by the party. If, objection, then, as insisted on by the counsel therefore, the decision made by the State court for the Insurance Company, involved two disis upon the face of this record entirely consist- tinct propositions. The first was that the ent with the construction of the statute con- schooner was sailing on the voyage under cirtended for by the party appellant, no case is cumstances which rendered her liable to for made out for the exercise of the appellate ju. feiture. The second was that the policy on her risdiction of this court.
*was therefore void. Now, the first [*164 163*] "Let us now apply this doctrine to might have been most fully admitted by the the circumstances of the present case. The first court, and yet the second have been denied, objection was to the admission of the enrollment upon the ground that the policy was a lawful of the Mary as evidence to the jury upon the contract in itself, and only remotely connected ground that it was "contrary to the laws of the with the illegal use of the certificate of regis. United States;” meaning, undoubtedly, that it try; and in no respect designed to aid, assist, or was obtained contrary to the requirements of advance any such illegal purpose. We all know the Act of Congress concerning the registering that there are cases where a contract may be and recording of ships or vessels, passed on the valid, notwithstanding it is remotely connected 31st of December, 1792, ch. 45. That act, in with an independent illegal transaction, which, the 14th section, provides, among other things, however, it is not designed to aid or promote. that when any ship or vessel which shall have The case of Armstrong v. Toler, 11 Wheat. R. been registered pursuant to the act, shall be 258, presented a question of this sort, and was altered in form or burthen by being lengthened | decided in favor of such a contract. But cases or built upon, or from one denomination to might easily be put where the doctrine itself another, or the mode or method of rigging or would admit of a far more simple and easy il. fitting, the ship or vessel shall be registered lustration. Suppose the Mary bad been reanew by her former name; otherwise she shall paired in port, and the shipwrighits had known cease to be deemed a ship or vessel of the the circumstances under which she had obtained United States; and upon her being registered the new certificate of registry, would they in anew, the former certificate of registry is to be consequence of such knowledge alone have lost delivered up to the collector; and if not so de- their title to recover for their own work and livered up, except where it is destroyed or lost labor? Suppose a vessel had been actually for: or unintentionally mislaid, the owner is made feited by some antecedent illegal act, are all liable to the forfeiture of five hundred dollars. I contracts for her future employment void, al. Now, it is observable that the present policy though there is no illegal object in view, and contains no warranty or representation of the the forfeiture may never be enforced ? national character of the Mary; and therefore In order to bring the present case within the the only assignable reason for offering the new jurisdiction of this court, it must clearly ap. enrollment (as it is called), meaning the new pear on the face of the record that the State certificate of registry, in evidence was to estab. court did decide against the construction of the lish the ownership of the vessel to be in Polleys. laws of the United States insisted on by the In. For this purpose it was clearly admissible, how. surance Company; for if the court did decide ever irregularly or wrongfully this enrollment in favor of that construction, and yet held the may have been obtained at the custom-house. policy valid upon other grounds consistently The court, might, therefore, very properly have with that decision, we have nothing to do with admitted the paper in evidence for this purpose, the latter point, and have no right to inquire and, for aught that appears on the record, act whether it was a just application of the general ually did so, without in the slightest degree principles of commercial law or not. Now, so contesting that it had been obtained contrary to far is it from appearing on the face of the rec:
ont be some decided nited States in: | A United States for the count your washing
ord that the State against the con PPEAL from the Circuit Court of the sisted on by the Insurance Company, that the ton, in the District of Columbia. contrary may be fairly inferred from the lan The appellant, John Walker, filed a bill in guage of the court in overruling the objection. the Circuit Court of the County of Washing. The objection was overruled as "insufficient to ton, stating that James Walker, late of Wash. bar the action,” that is, the action on the pol.ington, by his last will and testament, had be. icy was still maintainable, notwithstanding the queathed to him and to his then wife, Anx Mary “was sailing under circumstances ren- Sophia Walker, since intermarried with George dering her liable to forfeiture for a violation Parker, one third of his real estate, during her of the laws” of the United States.
life, and in the event of her death, all the right In the exercise of the appellate jurisdiction bequeathed to her is declared to be vested in of this court over the decisions of State courts, his infant son, James Walker. James Walker, we are not at liberty to resort to forced infer- the son, claims the right in fee-simple, after her ences and conjectural reasoning, or possible or death, of the portion of the estate devised by even probable suppositions of the points raised the testator to his wife. The testator in a and actually decided by those courts. We subsequent part of his will bequeathed other must see plainly that the decision was either parts of his estate in fee to other persons, and directly made of some matter within the pur. among them to his said infant son, James view of the 25th section of the Act of 1798, or Walker. The bill then states the particular that the decision could not have been what it estates devised by the will to the complainant was without necessarily involving such matter. himself, and the others of the family of the In the present case we can arrive upon the testator; and alleges the same to have been record at no such conclusion. The consequence devised to them in fee-simple, free and clear is that the cause must be dismissed for want of of any right of the widow of the testator, or jurisdiction.
of his son. We have been furnished with a copy of the Ann Sophia Parker, who was the wife of the opinion of the learned judges in the State testator, James Walker, and her present huscourt in this very case, and we are gratified in band, George Parker, the bill states, insist up165*) *finding that it abundantly confirms on the right of the said Ann to one third of the the deductions which we have drawn from the lots and houses bequeathed by the will; and rerecord. But it is proper to add that that opin- fuse to permit the complainant to dispose of ion, if it had been otherwise, could not have the same, and claim a right to exact one third had any influence upon our present opinion, of the rents thereof, and to have a right to since it constitutes no part of the record; and rent the same as they please. it is to the record, and the record only, that
The bill proceeds to state that the complainwe can resort to ascertain our appellate juris- ant is advised that Ann Sophia Parker and her diction in cases of this sort.
husband have no right in the lots held by him The writ of error is accordingly dismissed for under the will of James Walker, nor has any Fant of jurisdiction.
other person a right to them to his prejudice; but should the court think differently, the bill *states that the property cannot be, (*167
divided without great injury, and that the com166*) *JOHN WALKER, Appellant,
plainant is desirous to sell the lots and property devised to him, and those under whom he
des holds. The complainant states
us GEORGE PARKER et al. Appellees. to have the exclusive control of his own propConstruction of will
erty, and that if the said Ann Sophia has a
right of dower in the property, he asks that The testator devised to bis wife one third of bis the same be assigned to her, and that the and benefit, and also one third of all his real estate cannot be done, that the property be sold, and personal estate forever, for her own proper use rights of the minor be assigned; and if this should be, and by the will is, declared to be yested be allowed for their interest therein. all the right in real property bequeathed to her out of the proceeds of the sale, an equivalent in bis Infant son. The testator then proceeded to devise sundry lots and houses to his mother, bis The bill asks that Ann Sophia Parker, and sisters, his brothers, separately, and his son. These the infant son of the testator, and his testaproperty forever." He then devised the balance of mentary, guardian, be enjoined from setting up his real estate to bis Infant son, forever," be- any claim to the property held by him, or lieved to be certain lots specified in the will. Held; to which he is entitled, under the will of James that the wife
took under the will one third of all Walker; and that he may be quieted in his that his son took a fee-simple in one third of the possession and enjoyment of the premises. The property given to the brothers and sisters of the bill also asks for further and general relief. testator, subject to the devise to his mother, and a
The will of James Walker was made on the fee-simple in all the real estate, specifically devised to him, subject to the devise of one third to his 17th day of September, 1832, and admitted to mother during her life.
The devisee of one of the lots devised to him for probate on the 25th day of September, in the ever, which the court held was subject to the right same year, to one third in the wife of the devisor, and one The material parts of the will are the followthird after her decease, in fee to the son of the devisor, cannot, by a proceeding in chancery, compel
ing: a sale of the property devised or a partition; with
“I bequeath and give to my dearly be. out the court are satisfied It would be for the bene. loved wife, Ann Sophia Walker, one third of it of the infant son to make such sale, and with the whole of my personal estate, forever, for out the consent of all the other parties Interested her own proper use and benefit; and also onelo the property. 10 L. ed.