APRIL, 1810. Alexander V. that she left no heir, nor made any disposition thereof in her life-time that we know of, and that she was no alien at the time of her death, and therefore we find the said thirtyfive acres of land escheat to the honourable proprietors of Greenup. this Northern Neck, as by the said inquisition doth, and may more fully appear. Know ye, therefore, that for divers good causes, &c. we have given, granted, &c. unto the said Thomas Turner, &c. the said 35 acres of land, &c. ly. ing, &c. and bounded as followeth; to wit: Beginning, &c. to the beginning. Together, &c. To have and to hold, &c. yielding and paying, &c. Provided, &c. Given at our office in Lancaster County, &c. Witness our agent and attorney fully authorized thereto, dated, &c." By this it appears that in the time of the proprietorship of the late Lord Fairfax, great ceremonies were deemed necessary, and were used in obtaining patents for escheated lands in the Northern Neck, but I have not been able to procure the form of an escheat patent, without that territory. It appears, however, that, in the times of the proprietorship of Lady Culpeper and Lady Fairfax, less ceremony was used in obtaining such patents, than in later times; as they had sometimes been used without a prior inquest of office; but still there was a particular recital of previous ceremonies having been observed, according to the rules of the office; as appears by the preamble of a patent issued to Edward Turbervile; which is as follows: "MARGURITTE LADY CULPEPER, Catharine Lady Fairfax, Proprietors of the Northern Neck of Virginia, To all, &c. Whereas Edward Turbervile, of the County of Richmond, hath set forth to our office, that Randolph Davenport died seised of 115 acres of land in the County of Westmoreland, and left no heirs behind him, nor did dispose thereof by will; whereupon the same escheats to us the said proprietors; and thereupon a certificate according to the rules of the office issued to make the same public, which being returned with an endorsement under the hand of Thomas Sorrell, Deputy Clerk of the said County, certifying that the same was duly APRIL, 1810. published, and no person appearing to dispute the title to the said escheat, and the said Edward Turbervile moving to Alexander be preferred to escheat the same, Know ye, therefore, &c. Greenup. that for divers good causes, &c. we, &c. have granted, V. made over, &c. unto the said Edward Turbervile, &c. all our right, title, &c. in and to the said 115 acres of land, &c. situate, &c. and bounded, &c. To have and to hold, &c. yielding and paying, &c. Provided, &c. Witness, &c. In the patent before us there is a bare recital, " that by virtue of an entry made in the office of the late Lord Proprietor of the Northern Neck, bearing date, the 6th of April, 1778, and in consideration of the ancient composition of 17. 5s. sterling paid by Christopher Greenup into the treasury of this Commonwealth, there is granted to the said Christopher Greenup, 235 acres and 30 poles of land, by survey, bearing date the 17th day of March, 1788, lying, &c. which said tract or parcel of land was escheated from a certain Jonathan Monkhouse, deceased, and bounded as followeth, to wit," &c. and the plaintiff produced no other title paper, or writing, in support of his title. And all the evidence, that the land in question had escheated from Jonathan Monkhouse, is an assertion in Greenup's entry, that the said Jonathan Monkhouse dying intestate, and without any known heir, the said land, part of a tract of 625 acres granted to John Hough, escheated to the Lord Proprietor. In the margin of the entry (as appears by a copy from the register's office) there is a note: "Advertisement issued, and entry and advertisement fees paid." What were the rules in the proprietor's office, at the time Greenup's entry was made, we are not informed. But I find that on application at the office for a grant of escheated land, the first step was to advertise the same. What further steps were necessary (according to the rules of the office) to entitle the petitioner to a grant we have no information. But, in the case before us, it does not appear, that there was any publication whatever, or any APRIL, 1810. Alexander V. other step taken by Greenup, between the date of his entry in 1778, and the survey in 1788, about eight months before he obtained a patent, which appears to me too defective to support his title to the land in controversy; and therefore Greenup. that the instructions given to the Jury, as stated in the bill of exceptions, were erroneous. Judge BLACKSTONE, in the 3d volume of his Commentaries, page. 259. when speaking of the inquests of office, in England, observes, "that they were devised by law, as authentic means to give the king his right by solemn matter of record, without which he, in general, can neither take, nor part from any thing. For," says he, " it is part of the liberties of England, and greatly for the safety of the subject, that the king may not enter upon, or seize any man's possessions, upon bare surmises, without the intervention of a Jury." If that be a sound general principle in England, where many of the people's rights must yield to prerogative, how much more forcibly does it apply, in our republican government? Upon the whole, I concur in the opinion that the judgment be reversed. Judgment reversed, and new trial awarded, with a direction, that "upon such trial, the Court below do not permit the patent to be given in evidence." Tuesday, 1. An executor having de estate gene thereof to one and that of his Fitzgerald, Executor of Jones, against Jones. IN a suit in the late High Court of Chancery, brought livered up the May 31, 1793, on behalf of Edward & Richard Jones, rally and the against Daniel Jones, executor of Daniel Jones their father, management for a settlement of the accounts of his executorship, (which of the residu- suit, having abated by his death, was revived against Francis ary legatees, for his benchit Fitzgerald, his executor,) Master Commissioner Rose, to co-legatec; whom the said accounts were referred, reported a balance due nine years and ten months to the estate of 4791. 4s. 10d. June 30, 1790; and subjoined having afterwards elapsed the following observations: "Upon the foregoing account summoned to your Commissioner begs leave to remark that, after great render an ac- delay, and much personal trouble to the defendant in progreater part curing testimony, the accounts are submitted in their pretorship having sent form, though not so complete as could be wished; but, during the when it is considered that upwards of 27 years have elaprevolutionary war; and the sed since the defendant's testator qualified as executor to settlement ta- his father's estate, as also the situation of the country dukingplaceafter before he was count; the of his execu moreoverbeen washeldunreu his death; it ring the greater part of the time he acted in that capacity; sonable rigour to which may be added his being unacquainted with keeping to exact vou items in his ac chers formany regular accounts; it may appear rather surprising they count which should be so correct as they really are. The plaintiffs, by appeared pro- letter to your Commissioner, have excepted as follows: though not We object pointedly to every voucher that is not agreeable bably just, supported by proof. 2. Where the failure to bring an executor to a settlement appears to have proceeded from neglect of the residuary legatees, without any wilful default on his part, interest ought not to be charged on the balance due from him to the estate, except from the date of the decree: neither in such case ought interest to be allowed him on payments to the legatees before the decree; though made in bonds which carried interest. 3. Under circumstances a commission of 7 1-2 per cent. may be allowed an executor on all his receipts and disbursements; the real and personal estate having, in obedience to the directious of the will, been kept together and managed by him. 4. A wealthy testator having bequeathed pecuniary legacies to three of his daughters, to be paid them, "if the money could be raised by his estate by the time that either of them should marry, or come of age;" (without saying any thing about their maintenance or education;) it was held that they were entitled (notwithstanding their legacies) to maintenance and education out of the estate; at least while the legacies were not sufficiently productive. 5. On a settlement of accounts in a Court of Equity, a decree will be rendered against a plaintiff for a balance of account appearing due to a defendant. to law; also to the price of the board; also to the maintenance and schooling of our sisters, as the will does not provide for the same, and also to the charge he (Daniel Jones) made for his services; and, in fact, we object pointedly to every thing but what the law allows.' All the charges supported by regular vouchers are marked thus | Many of the others are satisfactory from the affidavits herewith. filed; and many of the items could not be expected, from the nature of them, to be accompanied with any voucher. There are others, for which it is probable vouchers have been taken, but in the confusion of the times may have been lost or destroyed, and which the testator of the de fendant, if living, could supply by other testimony, which the defendant cannot procure, not knowing where to apply for it: a circumstance which he flatters himself will be considered deserving the attention of the Court. The charge for services objected to above is made by the testator as follows: To the management of the estate and the plantations lying forty or fifty miles, seventy-five pounds per year, and I acted as executor ten years and four months;' which would amount to 7751. As this charge is not sup ported by any testimony, it is rejected, and a commission of five per cent. allowed on the receipts in lieu thereof; but, as this is no more than what is commonly allowed for receiving and paying money, your commissioner is of opinion, that a further allowance of at least 2 1-2 per cent. more ought to be made. The defendant's testator gave up the estate and the management thereof to the plaintiff, Edward Jones, on the 23d of August, 1782, which is stated for the information of the Court, to determine at what period interest ought to commence on the balance due to the estate." To this report a great number of exceptions were taken by the plaintiffs; among which the most remarkable were, in substance, as follows: 1. That no vouchers were produced for many items in the account, which 'might and should have been (as they contended) supported by vouchers. APRIL, 1810. Fitzgerald V. Jones. |