Schauber v. Jackson

This court having decided that the construction of the will of William Appel is properly before them on the bill of exceptions, the first question for consid- ■ eration is, whether by that will the real estate was devised to the executors or descended to the heir at law, until they di

Being perfectly satisfied with the reasoning of the chief justice in the court below on this point, and which is supported by the decision of the former judges of the supreme court, in Jackson v. Burr, ( 9 Johns. Rep. 104 ,) I shall not attempt to review the authorities at large on this question.

This case is not properly likened to those which frequently arise upon the construction of wills, on the question whether a fee is devised or only an estate for life. In most of those cases, there can be very little doubt of the intention of the testator to devise the inheritance ; but that intention is frequently frustrated by the carelesness or ignorance of those who prepare testamentary papers, in omitting the ordinary words which are considered necessary in law to create a perpetuity. In all such cases, the anxiety of courts to carry into effect the intention of the testator, induces them .to seize hold of any expression or provision in the will which may be considered evidence of an intention to convey a fee. Thus the words forever, all my estate, all my right, all my property, and others of similar import, have been considered sufficient to carry the whole interest of the testator to the devisee; and for the same reason, a charge upon the person in respect of the estate, as the payment of debts or legacies, has been considered sufficient to carry the fee by implication. But notwithstanding this strong leaning of the courts in favor of the devisee, and the reasonable presumption that the testator intended to give an estate of inheritance, cases have frequently occurred where there was not sufficient in the wifi to take the case out of the rule of law, that all the estate which is not legally and sufficiently devised to some other person must go to the heir, whatever may have been the intention of the testator. Thus in Denn, ex dem. Gaskin, v. Gaskin, (Cowper's Rep. 657,) where the testator gave his heir at law a disinheriting legacy, and then devised his lands to his nephews, but without any words of perpetuity, it was held that they only took a life estate, and that the fee descended to the heir. And Lord Mansfield and Mr. Justice Ashurst declared that although the intention to disinherit the

In some cases, also, of executors and trustees, a devise in fee by implication has been allowed, where the general objects of the will could not otherwise be carried into effect, and where it was evident that the testator intended they should have such estate. (Oates v. Cook, 3 Burr. 1684. Jackson v. Martin, 18 Johns. Rep. 31 .) But there cannot be the same reasons to induce the court to seek out some particular expression in the will for the purpose of giving the estate to the executors by implication, where the intention of the testator, as to the final disposition of his estate, can be carried into effect under a power of sale, as well as under the devise to the executors; and the first is recommended as the better method of disposing of the estate by will.

In this case there was no direct devise of any part of the legal estate to the executors ; they had a naked power to sell the estate and distribute the proceeds. It was not necessary to have the title to the estate to enable them fully to carry into effect the intentions of the testator. If the legal estate descended to the heir, it would be divested the moment they executed their trust. The testator undoubtedly intended that his oldest son should have no advantage over his other children by right of primogeniture; and he effectually provided for this by authorizing and directing a sale of the property by the executors, and an equal division of the proceeds of the sale ; hut probably he thought it was also necessary, agreeable to the common notion, to give to the heir at law a disinheriting legacy. This was not necessary; and there being no good devise of the legal estate, either to the children or to the executors, it could not prevent the descent of the estate upon the heir at law, who, in such cases, holds the same in trust for those entitled to the proceeds thereof under the will until the execution of the power of sale.

The next question is as to the evidence of the pedigree of the lessors of the plaintiff below. The evidence on this subject was the will of William Appel the patentee, made in 1729, and proved in 1733, in which he describes his son Simon as his heir at law, and gives him a disinheriting lega

The only remaining question, and the most important one in this case, is whether there was any evidence which would have warranted the jury in finding that the patentee, or his executors, or heirs, had divested themselves of the title to

In this case, the presumption that the executor conveyed in pursuance of the power contained in the will, is rebutted by the fact that the executor took upon himself the execution of the will more than forty years before the attainder of Dubois and Delancey, and died at least twelve years before that event, and yet no person ever exercised any acts of own* ership over the property, or made any claim under a convey* anee from the executor during that period of time. If any legal presumption of title in Dubois and Delancey could be raised from the public report that they were the owners, and from the description of boundaries in deeds of adjoining lands about the time of their attainder, that presumption is rebut* ted by the circumstance that the state never made any claim to the land, although it lay within a few miles of Albany, and almost under the eyes of the commissioners of forfeiture ; and therefore the reasonable presumption on the other side is, that the commissioners investigated the subject, as their duty required, and found there was no such title. And the presumption that William Appel, or his heirs at law, have

I am inclined to think the mortgage given by the patentee shortly before his death has been the cause of the obscurity in which this subject is involved; and if it had not been found in the possession of a descendant of one of the mortgagees, I might have supposed that Dubois and Delancey had obtained that mortgage by assignment, which would have accounted for the rumor of their title. This deed of June, 1733, to Reneaudet and others was in fact a mortgage, because the grantor was entitled to redeem by paying the mortgage money and interest within one year from its date ; yet it contained all the usual requisites of an ordinary conveyance, such as covenants of seisin and of warranty, andi for quiet enjoyment, clearly and absolutely acquitted and discharged, if default should be made in payment of the mortgage money, and for further assurance. When John Appel took upon himself the execution of the will, the time of payment had expired, and the amount of the mortgage money and interest then due was probably the full value of the land at that period, in its wild and uncultivated state. These circumstances may account for the neglect of the heirs to assert their title to the land at that time, and of the executor to sell it under the power contained in the will. The subsequent death of those who were acquainted with the true state of the title, and the loss and destruction of papers during the turmoil of the revolution, may account for the neglect of the heirs to assert their title since.

Whether that mortgage ever was paid, it is not material now to inquire. A stranger, in possession without right, is not permitted to set it up as an outstanding title ; and there having been no possession under the mortgage, or admission of the indebtedness for so long a period, it may now be considered as extinguished.

• 1 am not at liberty to express any opinion as to the real state of the facts in this case, which is not founded on the

Oliver, Senator. The recovery in this cause by the plaintiff below, if sustainable, must rest upon the title set up in the lessor Peggy Bogert, as devisee of Magdalena Peltz, one of the daughters of Simon Appel, the heir at law of William Appel the patentee, and in the lessor William Green, as heir at law of Gertrude, the other daughter of Simon Appel, which said Magdalena and Gertrude, the plaintiff below alleges, were the only children of Simon Appel; for the evidence in the case does not make out any pretence of title in any of the other lessors.

It appears that the patent in which the premises in question are comprehended, was granted in 1708 to William Appel, in trust as to one half for the heirs of Harmanus Hagerdorn ; and that in 1713, the patent was divided by a northerly line from its southboundary at the Mohawk river, through the middle to its north bounds, and the east half released by Appel to the heirs of Hagerdorn, and the west half retained by himself in severalty ; that the east half has ever since been held and occupied by or under the Hagerdorn title; and that no act of ownership on the west half has been exercised by William Appel or his heirs since the division, except the following, to wit: In 1733, Appel executed a mortgage thereof to Bancker and Rutgers, to secure the payment of

By the confiscation law, passed in 1779, Oliver Delancey and Peter Dubois were convicted of treason for adhering to the enemy, and their estates forfeited, and they forever banished from this state.

Upon this evidence, the circuit judge charged the jury that the defendant had not proved sufficient to raise a legal presumption that the patentee, or his legal representatives, had aliened the west half of Appel’s patent to Oliver Delancey and Peter Dubois, or any other person, so as to divest the title of the lessors as heirs at law of the patentee, if they were such ; and that in his opinion there was evidence sufficient to entitle the plaintiff to a verdict.

To this charge the defendant’s counsel below took a bill of exceptions, and the jury found a verdict in accordance with the charge. The supreme court have sustained the charge of the circuit judge, and the cause is brought up by a writ of error to this court, to have the judgment of the supreme court reversed.

I shall consider each of these points thus presented, in the order above stated.

1. I deem it manifest from the evidence detailed in the bill of exceptions, that there were two William Appels in the city of New-York, the one a victualler and the other a vintner; and that the one married a wife named Remerigh, and the wife of the other was named Magdalena ; and the patentee had seven children, and the other' had only five children. The plaintiff below, by his own evidence, shews that the latter was the William Appel whose heirs his lessors claim to be; and he has produced no proof that the children of their ancestor were reduced by deaths from seven to five, which is the number recognized in his will, or that he was both a victualler and a vintner, or that he was twice married, once to a woman named Remerigh, and once to a woman named Magdalena. This evidence, in ‘ a case of so stale a claim as the lessors set up, and one so utterly irreconcileable with their long silence, and the declaration of Magdalena Peltz, (through whom they endeavored to make out a title,) to Elsie Van Dusen during the revolution- . ary war, that all her property consisted of two houses in the' city of New-York, and with the inattention of Gerrit Bogert, a practising lawyer in the city of Albany, and the husband of the lessor Peggy Bogert, the sole devisee of Magdalena Peltz, to the lands in question, situate not more than sixteen miles from his residence, from 1795 till his death in

2. That by the will of William Appel, produced by the plaintiff below, the real estate of the testator passed by implication of law to his executors. I do not mean to impugn the doctrine that a naked power given to executors to sell lands does not vest the legal estate in them. But I consider the power conferred by the will in question, to be coupled with an interest in the executors, as well as a trust to be executed by them ; for they were not merely to sell and divide the proceeds of the sale among other persons, but they were to share in the division thereof, and to retain one fifth in trust for the benefit of the testator’s grandson, until he attained the age of twenty-one years. Hence, the moment the will was proved, and letters testamentary sued out, the executors became responsible as trustees for the income of the real estate until sold, and the avails thereof when sold ; and for the purpose of clothing them with adequate powers to fulfil their trust, they took the legal estate in trust, by implication of law under the will. This doctrnie is fully supported. (Viner, tit Implication, 341. Oates v. Cook, 3 Burr. Rep. 1684. 5 Barn. & Ald. 252. 1 Ves. sen. 485. Denn v. Garkin, Cowp. 657. 1 Caines, 84. 1 Taunt, 279. 4 Burr. 1963.) Indeed it is in my judgment the only sound doctrine applicable to this case, and accords with the undisputed rule of law, that wills are to be construed conformably to the intent of the testator. Here his intent is clearly and pointedly expressed, that his heir at law, as such, should be debarred from any claim or pretence to his real estate ; and for th|t purpose a disinheriting legacy was bequeathed to him, to be paid by the executors. How, then, could the legal estate pass by descent to the heir, without directly violating the plain meaning and directions of the will1? Was it necessary that it should so pass, in order to carry into effect any of the provisions of the will 1 Surely not; for vesting the legal estate by implication of law in the executors, places the entire control in the hands of persons to whom it was the declared intent of the testator to confide the disposal thereof, to the use and purposes directed by his will, without infringing the

3. The facts and circumstances proved in this case, appear to me very strong to warrant the legal presumption that if William Appel, the testator before mentioned, was the patentee of Apple’s patent, he in his life time, or his executors after his death, have parted with and released his title to other persons. The facts and circumstances to which I allude are, 1. That no original muniments of the title thereto have been produced, nor has the non-production thereof been in any manner accounted for by the lessors of the plaintiff in the court below, who claim the title by descent from the patentee. This omission on their part is a just ground of presumption that their claim is not well founded. 2. That no act of ownership by the patentee, or the lessors, or any of their ancestors, is proved during the period of about ninety years ; but on the contrary, it is proved that Magdalena Peltz, one of the two co-heiresses of Simon Appel, the heir at law of William Appel, through whom the lessors claim by descent, in the revolutionary war disclaimed owning any

These facts and circumstances which I have detailed, in my view of this case, warrant a conclusive legal presumption that the patentee’s title has long since been sold and conveyed, either by himself or his executors, pursuant to the powers contained in his will. (7 Wheaton, 109. 6 id. 481. 12 Ves.jun. 265. 10 Johns. R. 378.) And it must be remembered, that though this presumption might have been rebutted by evidence explanatory of those facts and circumstances, and accounting for the non-claim of the lessors of the plaintiff during so long a time, yet no such explanation has been attempted on their part.

But the supreme court, in their opinion, assume certain positions which it may be proper for me breifly and respectfully to consider.

The first is, that the plaintiff in error does not hold under any claim of title, and therefore the doctrine of presumption

It has been said that the doctrine of presumption is admitted only in favor of possessors claiming right; but I ask, where is this distinction to be found, and on what principle of law is it sustainable 1 Has not the possessor the best title as between him and a plaintiff in ejectment who does not shew a subsisting paramount title 1 and if he has, is he to be ousted of his possession because the plaintiff once had a paramount title, with which he has long since parted 1

The next position of the supreme court is, that the presumption against the lessors of the plaintiff is not avail

The last position of the supreme court seems to be, that from the lapse of time and the absence of proof of ownership by any grantees of Appel’s executors, it may be presumed that the right of such grantees (if any there have been) is extinguished. This position, I apprehend, is wholly untenable ; for the executors were authorized and required to sell and convey in fee, and if they have so sold and conveyed, I cannot imagine how the title could be extinguished so as to produce a reversion to the heirs of Appel. The doctrine of extinguishment, when applied to a mortgage or lease, is perfectly intelligible; for when the mortgage is satisfied or lease surrendered, the fee reverts by operation of law, in the one ease to the mortgagor or his heirs, and in the other to the les

The result of my opinion upon the whole case is, that the circuit judge erred in charging the jury that there was not sufficient evidence before them to prove or warrant the presumption that the heirs of Appel had been divested of their title by any kind of alienation, and that the evidence was sufficient to entitle the lessors of the plaintiff to a verdict; and therefore I am for reversing the judgment of the supreme court.

Stebbins, Senator. The lands in controversy in this cause are situated in the county of Saratoga, and are part of a tract granted by letters patent to William Appel in 1708. The father of Schauber, the defendant below, entered upon the premises when in a wild state, about half a century since, without any claim of title, and frequently acknowledged that the owner was unknown to him, and applied to others for information in regard to the title, for the avowed purpose of purchasing. Not being able to find in whom the title was vested, he continued clearing and cultivating the land, building upon and improving it until his death, and then transmitted his possession to his son, the defendant below. The plaintiffs below claimed title as the descendants and heirs of William Appel, the patentee, through his eldest son and heir, Simon Appel.

The cause comes up upon a bill of exceptions taken at the circuit, by which it appears that the question of pedigree was

The defendant, to shew that the plaintiffs were not entitled to claim the premises by descent from William Appel, introduced his will, bearing date in 1729, by which he bequeathed to his son Simon twenty shillings for his birth-right, to be raised and levied out of his estate, wherewith he utterly excludes, debars and precludes him from having or claiming any other or further pretensions, claims and demands whatsoever, as being his heir at law, or by any other pretence whatsoever. He then bequeathes certain articles of personal property to other children, and £25 to his son Johannes, to be raised out of monies arising from the sale of his real and personal estate. He then authorizes, empowers, orders and directs his executors to sell and dispose of his whole real and personal estate, as well in New-York as elsewhere, (except the personal estate before bequeathed,) either at public or private sale, and declares their conveyances valid and effectual to convey all his estate. He directs the monies arising from such sale to be applied, first, to pay the legacies, and the balance to be divided, one fifth to each of his sons Simon and Johannes, one fifth to each of his daughters Magdalena and Engeltje, and one fifth to his grandson Jacobus Berry, the share of the grandson to be retained until his maturity or marriage in the hands of the executors, and in case of his death, to be divided among the four children above named. He then appoints hi's son Johannes and daughter Engeltje executors of his will.- On the 9th of August, 1738, Engeltje filed her renunciation as executrix, and the will was proven and letters testamentary granted to Johannes.

According to the English law in force at the time of the death of William Appel, the patentee, his eldest son Simon, under whom the plaintiffs below claimed, would have been entitled to the estate in question as heir of his father, unless the descent was broken by or under the provisions of this will. But although the plaintiffs below may have established their heirship through Simon Appel, by competent testi

The bill of exceptions sets out the testimony at length, and states that the judge declared his opinion that the evidence was not sufficient to prove or authorize the jury to presume that William Appel, the patentee, or his heirs or representatives, had aliened the premises in question to any person, so as to divest the title of the lessors as heirs, provided they were such; hut that the evidence was proper to be considered by the jury in determining whether the lessors were such heirs, and that in his opinion, the evidence was sufficient to warrant the jury in finding a verdict for the plaintiff, but that was a matter of fact proper for their consideration. The defendant excepted to this opinion, and the jury found a verdict for the plaintiff, upon which the supreme court have rendered judgment.

In entering upon the investigation of the merits of this cause, a serious • embarrassment arises from the manner in which the bill of exceptions is framed. Instead of confining an exception to a single point of law, as is its legitimate office, the loose practice seems latterly to have grown up, of spreading the whole testimony upon the record, then representing the judge as using some general expression in his charge going to the whole merits of the cause, and excepting to that opinion. This practice has lately met the severe animadversion of Ch. J. Marshall, in 11 Wheaton, 276. He says, “ To bring all the testimony offered at the trial of a cause at common law, instead of facts, into this court, by bill of exceptions, or otherwise, is a practice which, to say the least, is extremely inconvenient. Its tendency is to convert this court from a tribunal for the decision of points of law into one for the investigation of facts, and for weighing evidence. If counsel may spread the whole testimony upon the record, and then, by a general exception to the charge, enable himself to take advantage not only of a mis-direction5 but of any omission to notice any question which may be sup

Two of the prominent points raised in the cause before us in this court are, whether, by the will of William Appel, the estate was devised to his executors, and whether the evidence was sufficient to warrant the presumption of a conveyance by the executors after the testator’s death.

The embarrassments presented by the bill of exceptions are in determining whether the first point was raised at all at the circuit, whether the latter was submitted to the jury or not, and in weighing the testimony upon which it is founded.

The first point “ may be supposed to have arisen,” because it was material; but the bill does not inform us otherwise, than that the judge ruled the testimony insufficient to prove that William Appel aliened in his life-time, and sufficient, in his opinion, to entitle the plaintiff to a verdict. The second point was undoubtedly the one most strenuously urged ; but ^depended upon the weight of evidence, and the bill does not distinctly complain that the judge refused to submit the evidence to the jury. I should infer, however, from the charge, that that question was not submitted to the jury as a question of fact, and the charge is excepted to in general terms.

Although, on the ground of mis-direction, the exception may be considered as raising the point, most certainly the rules of convenience and correct practice should require exceptions to be more pointed and precise.

In the supreme court, both questions have been considered as arising upon the bill of exceptions, and discussed; and, perhaps, they should be here, especially considering that this is by no means the first case in which this looseness of practice, in this respect, has been tolerated. The first enquiry, then, is, in whom did the real estate of William Appel vest at the time of his death 1 In my judgment, it vested in his executors by implication, and in trust for the children among whom the proceeds of it were directed to be divided. The argument that the executors took a fee in the estate because they had a power of sale coupled with an interest in the pro

There are many cases in which, where an estate is conveyed coupled with a power, such an estate is held to pass as is necessary for the execution of the power. (1 Ves. sen. 485.) But the question here is, whether any estate is conveyed. There is none in express terms; but if there is an estate by implication, then, indeed, the executors have a power coupled with an interest, but neither the power of itself, nor an interest in its execution, raise an estate by implication. The power does not, because if it did, all powers-would draw an estate after them, and the distinction between naked powers and those coupled with an interest would be done away. An interest in the proceeds produced by the execution of the power does not, because the implication is not a necessary one. Such an interest is perfectly consistent with .the residence of the estate in any other person, until the execution of the power, and needs not the estate to uphold it.

It appears to me, therefore, that where the question is, whether any estate is conveyed, the doctrine of naked powers and powers coupled with an interest, is inapplicable, and does not apply until that question is settled; and the enquiry. . arises, what is the nature of the estate 1

In all questions arising upon the construction of wills, the intention of the testator, as evidenced by. the language of the instrument, is conceded to be the enquiry, and when ascertained,. is to be carried into effect, if not repugnant to the rules of law.

In this case, the intention of the testator most manifestly, was, that the estate should not descend to the heir, for he excludes him. in the strongest language applicable both to the land itself and the rents and profits. His intention is equally manifest that the estate should be sold by his executors, and the proceeds divided among all his children. To say the least, therefore, it was consistent with his intention that the estate should vest in the executors until sale; and I take'the

It is conceded that there must be express words or necessary implication to disinherit an heir. (2 Vern. 572.) And Lord Eldon remarks, in 1 Ves. & Beame, 466, “ with regard to that expression, necessary implication, that in construing a will, conjecture must not be taken for implication ; but necessary implication means not natural necessity, but so strong a probability of intention, that an intention contrary to that which is imputed to the testator cannot be supposed.” Lord Mansfield also held, in Roe v. Sommerset, (5 Burr. 2608,) “that a strong probable implication is sufficient; it needs not be a necessary one.”

With these explanations of the terms, necessary implication, the doctrine would seem to me to be applicable to a case where the intention of the testator was. much more doubtful than in the case before us ; and the cases, I think, shew that it has been so applied.

In the case of Horton v. Horton, (Cro. Jac. 74,) the devise was to the heir after the death of the testator’s wife, and it was held, that the wife took an estate for life by implication. The reason assigned is, that unless the wife took the life estate the heir must, it being devised to no other person ; but as it was clearly the intention of the testator, although not so expressed in terms, that the heir should not take until after the death of the wife, the wife was held to take a life estate, that being the implied intent of the testator. The case intimates, that had the devise been to a stranger after the death of the wife, the wife would not have taken a life estate, because the heir might take it, there being no intention to exclude him expressed. The same doctrine is found in Cro,

In the case of Roe v. Sommerset, (5 Burr. 2608,) the testator held a leasehold estate for 99 years, if he or his daughter Betty, or one John Búrdale, should live so long ; and he devised the estate to his daughter Mary, after the death of his daughter Betty. It was held that Betty took a life estate by implication. So, where the testator devised to one of four daughters, co-heiresses, after the death of his wife, the wife was held to take a life estate by implication. (2 Vern. 723.)

The two last mentioned cases are certainly not as strong as the preceding ones ; for in neither is the devise to the person who would take as heir. The presumption of the testator’s intent to postpone the heir is therefore not so strong.

In the first case, Lord Mansfield says, the presumption is a probable one, and that is sufficient; in the last, the presumption is raised from the circumstance that the devise is to one of four co-heiresses.

The principle of all these cases I take to be, that where the intention is manifest to postpone the heir, the law raises an estate by implication.; and in the case before us we have the express declaration of the testator that the heir should, in no event, take the estate.

It is said, however, that he has not given it to any other person. It is true, he has not in express terms; if he had, it would most certainly not be a case of implication, for the doctrine rests upon a want of sufficient words to constitute a technical devise.

In none of the cases above mentioned is there any devise in terms to the persons who were held to take by implication; and the only evidence of the intention of the testator that they should take is, that he postpones the heir until their death.

In this case, we have more. We have the express directions of the testator that the executors should sell the estate, divide the proceeds and retain the share of the grandson until his arrival at age. Can there be a doubt that he intended they should take the estate for that purpose, when he expressly excludes the hen-1 The case of Markham v. Cooke,

There was no devise in terms of the land to any person; but the intention of the testator was that the annuities should be paid out of the lands by his executor, as in this case, that the children should share the proceeds of the land. The case of Gillard v. Gillard, (5 Barn. & Ald. 785,) is very similar. Richard Gillard, the testator, gives several legacies, and one to John, his heir, to be paid by his executors, and charges his real estate with the payment. He then appoints Richard Gillard sole executor of all his lands forever, and leasehold property, &c. It was held that the executor took the fee.

Some cases have been cited as similar in principle to this, where it has been held that the heir was not disinherited. I think, however, they are clearly distinguishable, upon the principles above stated. One is the case of Howell v. Barnes, (Cro. Car. 382,) which was a devise to A. for life, and after her death, ordering the executors to sell and divide the proceeds. It was held, that the executors had only a bare authority and not an "estate. The intention to disinherit the heir is wanting in this case, which, we have seen, is always necessary to -raise an estate by implication. Another case is Denn v. Garkin, (Cowper, 657.) That was a devise of a freehold estate to three nephews without words of inheritance ; a legacy of 10s. to the heir at law, and after some other legacies, the residue of personal estate to the nephews. The nephews only took a life estate in the lands. Here also the intention to disinherit the heir was wanting. It could only be inferred from a vulgar notion that a small legacy was evidence of such an intention, which Lord Mansfield held insufficient. There is another case which I believe was not cited in 2 Vern. 572. It was a de

• The next enquiry is as to the question of presumption. The judge declared his opinion that the evidence in the cause was not sufficient in law to prove or authorize the presumption that the premises in question had beemconveyed by William Appelin his life time, or by his heirs or representatives after his death. The plaintiff in error now insists that the judge erred in this conclusion, or, at least, that the question should have been submitted to the jury.

Starkie, in his treatise upon evidence, says, (p. 24,) “ The ground of all presumptions is the necessary or usual connec- • tian between facts and circumstances, the knowledge of which connection results from experience and reflection. A presumption may be defined to be an inference as to the existence of a- fact not actually known, arising from its necessary or usual connection with others which are known.”

In The Mayor of Kingston v. Horner, (Cowp. 102,) Lord Mansfield, speaking of presumptions arising from length of time, says, “ All evidence is according to the subject matter to which it is applied. There is a difference between length of time which operates as a bar tó a claim, and that which is only used by way of evidence : a jury is concluded in the one case, but in the other it is left to their consideration to be credited or not, and to draw their inferences one way or the other according to circumstances.”

Whether a fact which is unknown is to be presumed from its usual éonnection with other facts which are known, would seem to be properly, in all cases, a question for the jury; for the probability of the existence of the unknown fact depends upon the nature and strength of the facts and circumstances known, and the strength of the presumption is measured by the weight and credit given to the facts shewn. A jury is the appropriate tribunal to weigh and appreciate such facts, and deduce inferences from them.

The modern practice of sparing jurors the exercise of their sound discretion upon the facts of a case, taking their formal verdict subject to the opinion of the court, and then presenting the whole facts to the court by means of a case or bill of exceptions, to be passed upon by the court instead of the jury, has necessarily led to adjudications upon matters of fact as questions of law ; and questions of fact which were formerly determined by the jury alone, have now become questions of law, and the jury is said to be concluded by them. As, for instance, in the case of a bond upon which no payment or acknowledgment has been made within 20 years, the court will presume it paid, and the jury are concluded by

But I discover nothing in the facts of this case which should preclude the jury from presuming the conveyance insisted on, if, in their judgment, the facts shewn were sufficient to warrant such an inference. The presumption is not urged as a rule of law binding upon the jury, but by way of evidence, to which the jury may give such credit as it deserves.

In The Mayor of Kingston v. Horner, it was left to the jury to presume a grant from the crown within the time of legal memory.

In Doe v. Prosser, (Cowp. 217,) one tenant in common having been in possession 36 years, it was left to the jury to presume an ouster of the co-tenant.

In Vandyke v. Van Buren & Vosburg, (1 Caines, 84,) a conveyance was presumed in a case where it might have been claimed in favor of the person in possession. So in the case of Jackson v. M’Call, a conveyance was presumed to quiet the possession, not, as the court say, because they thought a grant was really made.

In Jackson v. Woolsey, which was a verdict subject to the opinion of the court, a conveyance by commissioners of partition was presumed.

In the case of England v. Slades, (4 Term R. 682,) one Syburn had taken a lease from George Pyn and underlet to the defendant, and after the expiration of the term, brought an ejectment. George Pyn, the landlord, had died after devising the premises to trustees in trust for John Pyn, to be conveyed to him when he should become of age. The plaintiff claimed under a lease from John Pyn, the cestui que trust, but shewed no conveyance from the trustees. He was non-suited at nisi prius; but the court set it aside, remarking that there was no reason why a conveyance should not be presumed in pursuance of the trust, as it was what the trustees were bound to do, and a court of equity would enforce.

The case of Nase v. Peck, ( 3 Johns. Cas. 128 ,) was a writ of right. The demandant claimed under an ancient possession. The tenant had been in possession 38 years, and relied upon that and evidence of a patent granted to a third person prior to either of the possessions. The judge directed the jury to find for the tenant on the ground of outstanding title; but the court say the question was, which had the better right 1 and that it ought to have been left to the jury to presume a conveyance to the demandant under the patent.

These are but a sample of the cases, and I think they shew that the question as to whether a fact shall be presumed or not, is ordinarily a question for the jury.

The facts shewn in this case, from which it was urged that a conveyance of the premises might be presumed from William Appel’s executors so as to defeat the claim of his heir, are, that the heirs do not produce the original letters patent; that by the will of William Appel, his executors were expressly ordered to sell; that all the children were interested, as well as the executors themselves, in having a sale made ; that in 1767, a bond was executed between Magdalena Peltz, under whom the plaintiff claimed, and one Killman, submitting to arbitration certain claims which she set up in behalf of herself and the other persons interested in the will of William Appel, and reciting that she insisted that a certain mortgage was purchased by John or Johannes Appel, with the monies held in trust by him under that will; that until after the revolution, the premises in question were reputed to belong to Delancey and Dubois, who were attainted and left the country; that in 1766, Delancey and Dubois conveyed a tract of land to John Glen covering a part of the Appel patent ; that during the war, Magdalena Peltz, who then resided in Albany, frequently stated that she owned two houses in New-York, and no other property.

■ Notwithstanding the general rule that a-plaintiff in ejectment must recover upon the strength of his own title, without regard to the weakness of that of his adversary, there are some cases where it has been held that the defendant shall not controvert the plaintiff’s title by shewing a better in some third person, as where he entered under the permission of the plaintiff, or as an intruder upon the possession of the plaintiff without such permission, and without claim of title;. or where the plaintiff claims under judgment and execution against the defendant. These are all cases where there are strong reasons why the defendant should be estopped from setting up an outstanding title, and I believe they are all the cases in which he is estopped.

This case is said to belong, to the second class; and the case of Jackson v. Harder, (4 Johns. R. 202,) is pressed as-an authority. That, however, was a case in which the defendant intruded upon the actual possession of the plaintiff In this case, neither the plaintiffs nor any person under whom they claim, ever were in actual possession.

Where a person intrudes without claim of right upon the actual possession of another, there is reason in compelling him to restore that possession before he shall be permitted to shew title in a third person; but I apprehend the reason does not apply in a case of that constructive possession which the law implies, as always following title. Besides, if the title were shewn to be out of the plaintiff, the constructive possession would follow it.

In my judgment, the defendant was not precluded from shewing that the title was out of the lessors of the plaintiff, notwithstanding he might be unable to trace it to himself;

If this conclusion is correct, or if the view taken of the first point is correct, that the estate of William Appel vested in his executors at the time of his death, according to the true construction of his will, then the judgment of the supreme court is erroneous, and ought to be reversed.

On the question whether the judgment of the supreme court should be affirmed or reversed, the opinion of the members of the court was as follows : For affirmance, the Chancellor, Senators Allen, Dayan, Hart, M’Carty, Sanford, Todd, Tysen, Wheeler and Woodward.

For affirmance, 10.

For reversal, Senators Benton, Elsworth, Hager, Laice, M’Martin, Oliver, Schenck, Smith, Stebbins, Throop, Warren and Wilkeson.

For reversal, 12 .

The Chancellor proposed that the court should definitely express the grounds upon which the judgment of this court was pronounced ; whether the court were of the opinion that by the will of William Appel an estate was given by implication to the executors, or whether they were of opinion that the facts and circumstances of the case ought to have been submitted to the jury, so as to have authorized them to presume a conveyance from William Appel the patentee, or his executors. Several members observing that their opinion had been formed only on consideration of the latter proposition, the question as to the legal construction of the will was not put. The other question, however, was put, viz.: Ought the facts and circumstances of the case to have been submitted to the jury, so as to have authorized them to presume a conveyance from William Appel or his executors, if, in the judgment of the jury, such facts and circumstances were sufficient to warrant such inference ? which was decided in the affirmative : Ayes sixteen, noes seven.