Allen v. Lyons

1 F. Cas. 486, 2 Wash. C. C. 475

• Court: United States Circuit Court
• Decided: January 15, 1811
• Status: Published

Opinion

WASHINGTON, Circuit Justice,

charged the jury. The case of Hylton v. Brown, [Case No. 6,980,] is express, that in an ejectment against other than the proprietor, or one claiming under him, it is not necessary to show tbe title out of him, if a right of entry is proved. Secondly; tbe orphans’’ court has a general jurisdiction, as to intes-tates’ estates, and to direct a sale for payment of debts, which it appears was necessary in this case, and it is not competent to this court to examine tbe order of that court, which remains in full force. Thirdly; whether William Clark was tbe heir to Elizabeth, and became entitled to her one-seventh, is a fact proper for the jury. It is forty-eight years since this order was made by the court, confirmed by them, and the conveyance to Thomas Campbell, in all which time, no pretence of title, adverse to William-Clark’s, and those claiming under him, has been set up; and in this ease, the plaintiff and defendant both claim under bis title. In such a case, the jury may presume that Elizabeth Clark died intestate, and without issue, by which William became entitled to her one-seventh. Fourthly; the ambiguity in the case of Thomas Campbell’s will is latent, and may be explained by parol evidence. It does not appear that he had any lot on Third street, but he had one bn Fourth street, and that was in the ocupation of R. H. If the jury are satisfied that this was the lot intended, and are also satisfied upon the third point; their verdict ought to be for the plaintiff. Verdict for the plaintiff.