GRIER, Circuit Justice.
This case has been learnedly, laboriously and on some points [57]*57very ably argued, and we congratulate tbe parties and the counsel that, after twenty-two years of litigation, there is now a prospect that, in three or four years at farthest, those who are entitled to the large estate in suit, will be permitted to enjoy it, and that those who are not, will cease to indulge in vain hopes respecting it.
The first question for our decision, is whether the 11th section of the act of 1794 has been repealed by the 7th section of the act of 4th April, 1797. If so, then all other parts are unimportant. Let us inquire what are the principles laid down by the sages of the j law to govern questions like the present. j
1st. “An act of parliament may be repealed j by the express words of a subsequent stat- i ute, or by implication.” j
2nd. “If a subsequent statute contrary to | a former have negative words, it shall be a repeal of the former act.”
3rd. “Every affirmative statute is a repeal by implication of a precedent affirmative statute, so far as it is contrary thereto; for i ‘leges posteriores priores contrarias abro- ; gant.’ ”
4th. “A later act has never been construed to repeal a former act, unless there be a contrariety or repugnance in them, or at least some notice taken of the former act, so as to indicate an intention in the law-giver to repeal it.” The law does not favour a repeal by implication unless the repugnance is quite plain. Dore v. Gray, 2 Term R. 365. Also, when two acts are seemingly repugnant, yet If there be no clause of non obstante in the latter, they shall, if possible, have such construction that the latter may not be a repeal of the former by implication. [Foster’s Case,] 11 Reports, [Coke,] 63.
To come to the case before us. The act of 4th April, 1797, was made, says Chief Justice Tilghman, (Cresoe v. Laidley, 2 Bin. 286,) for the express purpose of supplying the defects of the act of 19th April, 1794. The latter act purports to be a supplement to the former. The 5th section, where the cases omitted in the former act, and intended to be supplied, are commenced, has this preamble: “Whereas the provisions of the act to which this is a supplement, appear to be incomplete,” &c., and proceeds in that and the following sections, to supply certain casus omissos of the act of 1794, and ends the last section in these words: “and that the second section of the act to which this is supplementary, be, and the same is hereby repealed.” Now the legislature have declared, in express terms, that they repeal the 2nd section of the act of 1794 only. There is, therefore, no express repeal of the 11th section. There is no provision in the latter law, which negatives any provision of the 11th section of the former. The issue of the half-blood shall inherit, says the former, in preference to more remote kindred of the whole blood, and there is not a syllable in the last act, which is contrary to this provision of the first. There is no repugnancy between them. The latter was made to supply omissions of the former, and yet, without directly repealing the 11th section, it is contended that the 7th section of the latter act creates a casus omissus by implication, because it omitted to re-enact what already had been provided for in the 11th section of the first act.
In the case of Bevan v. Taylor, 7 Serg. & R. 403, cited at the bar, the supreme court of Pennsylvania declared that the act of 1794, and its supplement of 1797, should be construed as one act. The 11th section of the former applies only to the inheritance of real property, and the 12th section, which appears to include both real and personal, provides for the issue of brothers and sisters of whole and half-blood only by implication, or negative pregnant, and wholly omits the case where there are both. The 7th section supplies this oversight or omission; first, in case there are brothers and sisters, or their representatives, both of the whole and half-blood; and, secondly, provides for the distribution of the personalty when there were no brothers or sisters of the whole blood, but brothers and sisters of the half-blood; but, in supplying this omission, it unnecessarily included the inheritance of the realty, which had already been provided for in the 11th section of the original act; and, moreover, neglected to include the issue of the half-blood, which still remained a casus omissus as regards the personalty, by the omission of the words or “their lawful issue,” in the supplement. Construing this act of 1794, with its supplement of 1797, as one act, we have, then, this case: a latter section unnecessarily repeats some of the provisions of the former section, and omits others. This omission does not, I think, amount to a repeal of what is not repeated.
II. As to the meaning of the term, in Pennsylvania, ‘heir-at-law.’ The language of some of our statutes, as well as that of eminent lawyers belonging to the bar and bench, do seem undoubtedly to favour the argument of John Aspden’s counsel; that the term has been generally used in Pennsylvania, to designate the heir at common law. Let us however look at this matter further. By the charter granted to Mr. Penn, the laws of England “for regulating and governing of property, as well as for the enjoyment of lands and succession of goods and chattels," were introduced and established in Pennsylvania, to continue till they were altered by the legislature of the province. But the canons of descent of the common law were soon changed; and as early as 1683 it was enacted “that the estate of an intestate shall go to his wife and child or children, and if he leave no wife, child, or children, it shall go to his brothers and sisters, if any there be,” &c., &c. After-wards the act of 1705 gave the eldest son a double share. But, without attempting to [58]*58give a history of the legislation on this subject, it may suffice- for the present to say that, although the policy of her legislation was to distribute the estate of an intestate equally amongst the next of kin, no attempt was made to provide a complete canon of descents and distribution till 1794. This act was soon found to have many omissions, and was further amended by a supplement in 1797. In the meanwhile the courts construed these acts strictly, giving the inheritance to the heir at common law in all cases where a contrary direction was not given to it by the plain words of the statute. Johnson v. Haines’ Lessee, 4 Dall. [4 U. S.] 64; Cresoe v. Laidley, 2 Bin. 279; Jenks’ Lessee v. Backhouse, 1 Bin. 91. The common law of England, as governing cases not specially provided for by statute, was never totally abolished till the revised code of 1833 was adopted. Hence, the language and phraseology of the English courts continued to be used in the courts of Pennsylvania, sometimes, perhaps, without regard to proper distinction or absolute correctness of diction; and here, as there, the term "heir-at-law” was not nnfrequently used as an abbreviation, substitute, or equivalent for the expression “heir at common law.”
In section 8, of the act “For the Better Settling of Intestate’s Estates,” passed in 1705, (3 Smith’s Laws, 156,) the heir at common law is described with accuracy as “the next heir according to the course of the common law.” But in the supplement to that act, passed in 1764, (Id. 160,) and in section 4 of the principal act, the phrase “heir-at-law” is somewhat inaccurately used to distinguish the elder son from his brothers and sisters. In Johnson v. Haines’ Lessee, 4 Dall. [4 U. S.] 65, Chief Justice M’Kean uses the expressions “heir-at-law” and “heir at common law” indiscriminately to designate the same person. In the cases of Jenks’ Lessee v. Backhouse, 1 Bin. 91, and Cresoe v. Laidley, 2 Bin. 279, reported in the volumes of Mr. Binney, while the very learned and accurate reporter, in his syllabus, carefully uses the phrase “heir at common law” only, the counsel, of whom the reporter was one, and sometimes the court, have used the shorter expression “heir-at-law” as synonymous. Without venturing to assert that these and other instances to be found in our reports are evidences of careless diction, or of an inaccurate application of the language of English lawyers to the peculiar legislation of Pennsylvania, I may say, it is an usus loquendi peculiar to a class; it has not the force of authoritative definition, or of judicial decision, where the question is directly brought before the court. On the other hand, we have a case more like an adjudication of the point. In Ruston v. Ruston, 2 Yeates, 61, the question was made whether a proviso in a devise of land (by will, dated in 1784) to the eldest son, directing the payment of a sum of money, was a condition. It was argued that it could not be so, for the “heir-at-law” only can enter for the condition broken, which heir the defendant himself was. To this it was answered, that in Pennsylvania all the children are “heirs-at-law,” or the “heir-at-law” of the father; and with this Chief Justice M’Kean, who delivered the opinion of the court, agreed, and said, “the defendant could not be considered, in this case, as heir-at-law in Pennsylvania, where, if, at that time, a person had died intestate, his real estate would have descended to all his children equally, the eldest son having only a double portion or share, and therefore the devise may even be considered as’ a condition.” In this same view, in another case, (French v. MeIlhenny, 2 Bin. 20,) when the two expressions come to be considered together, and therefore to be considered accurately, Chief Justice Tilghman observes, “In England the eldest son is heir; but here the law is more equitable, and the children together are considered as heirs.” The persons on whom the law of Pennsylvania casts the estate of an intestate, if more than one, hold as tenants in common, or as co-parceners do in England, and in correct legal phraseology may be styled the ‘lawful heir,’ or the ‘heir-at-law.’
But admitting that if this will had used the words “heir-at-law” alone as descriptive of the person to whom the whole estate is bequeathed, there might have been sufficient reason to doubt whether the testator had not intended thereby • to describe the “heir at common law” in contradistinction to the heir-at-law by the statutes of Pennsylvania; we are, nevertheless, relieved from this uncertainty by the second description of the devisee in the will, intended to be explanatory of the first. The testator explains his meaning, by saying he intended to describe the party who would be his “lawful heir,” in case he himself were legitimate. Now, it cannot be pretended that any one, either lawyer or layman, in Pennsylvania, when speaking of his “lawful heir,” refers to the person who would inherit according to the law of England; or that, like the phrase “heir-at-law,” it has been used in any special, peculiar, or professionally technical sense, as an equivalent or abbreviation of the more correct expression “heir at common law,” or “next heir according to the course of the common law.” The statute of 1705 expressly used it in the sense of any person to whom the statute itself gives the estate. How can the court be justified in construing the expression “heir-at-law” in its peculiar professional sense, according to the modus loquen-di of a certain class, and not according to its legal and established definition, as the person or pérsons on whom the law easts the inheritance, when the testator himself has .used another expression, as an equivalent or explanatory of the first, which never was used in that peculiar sense which has been carelessly given to the other, but agrees with [59]*59it in its legal and established definition? Nor is this argument subject to the retort which the lord chancellor said the counsel might have on each other, in Lowndes v. Stone, 4 Ves. 649, where A. devised his “estate to his next of kin or heir-at-law.” “You have a fair retort,” says he, “on each other; one side may contend that ‘next of kin’ means ‘heir-at-law;’ the other that ‘heir-at-law’ means ‘next of kin.’ ” In that case the testator had ignorantly used terms as equivalent or synonymous which are incapable of the same definition. Here the term used as explanatory is capable of the same definition, and relieves the doubt as to whether the first was intended to be used in a special sense, not necessarily included in its general definition.
HI. From what date is the will supposed to speak? The strict and legal meaning which the court assign above to the term “heir-at-law,” and the decision hereafter given on this account on the admission of parol evidence, will render obvious the reasons of our decision on this point, argued by the counsel of the heir at common law, with so much learning. The maxim “Nemo est haeres viventis,” applies; and it follows, that where a testator describes his intended dev-isee or legatee as the person on whom the law, at his death, would cast the inheritance of his estate, his will must, ex vi termini, be construed as speaking at the death of the testator, and not at the time of its execution. 1 Jarm. Wills, 287. It will also dispose of the argument raised by -the same counsel,—
IV. That the expression “first paying” controls the otherwise settled meaning of the term “heir-at-law.” It does not follow, the court is of opinion, because the testator gives some legacies to certain of his half-blood relations, that he intended to exclude them if one or more of them answers at the same time this clear, exact, settled, and legal designation of his will. Let us proceed to consider a remaining considerable point, illustrative of the reasons of our decision on these two last.
V. The admission of extrinsic evidence to show in what sense the testator used the phrase “heir-at-law.” The difficulty presented in this will is not one arising upon a latent ambiguity, as where a testator bequeaths his estate to his nephew, John Smith, and has two or more nephews of that name. On the contrary the testator has described a certain person, or a certain class of persons, as the objects of his bounty: the description given cannot equally apply to two or more. If the testator declares that the haeres factus of his will shall be the same as the law would designate as his haeres natus, if he had died intestate, there can bé no ambiguity to be explained by parol testimony. If A. B. be the person described by the will, it would be a perversion of law to suffer parol testimony to be admitted, to prove that the testator meant C. D. The statute of frauds and perjuries would be annulled. Much of the extrinsic evidence, therefore, which by consent of the court, was conditionally taken and drawn into the discussion of this case, will have to be rejected. Conversations, related after the lapse of half a century, are seldom worthy of credit; and, even if believed, are no evidence of a testator’s true intention. The declarations of a rich uncle to his numerous poor relations, may often be considered as made rather to conceal than to exhibit his real intentions. Again, suppose a testator should devise his property to such of his cousins as should be tenants of the manor of Dale, at the time of his death; and that, at the time the will was made, his cousin A. was tenant, but at the time of his death his cousin B. answered the description in the will; would the court admit evidence to show that the testator always lived, and had died under the impression that A. would be the person that would take under this devise? The will having declared the clear, paramount, and ruling intention of the testator, that a person should' take, who, at the time of his death, should answer to a certain description; the fact that the testator never knew, or always la-boured under a mistake, as to the person who would probably answer to that description, at the time of his death, would not affect the construction of his will.
Now the meaning of the term “heir-at-law,” I consider to be settled, and that there is nothing within the four corners of this will which explains or controls that meaning, or shows any intention of the testator to use the word in any other than its technical legal import, to wit, “as the person or persons on whom the law would cast the inheritance of his real estate at his death.” I consider the established principles of law, which bear upon the question, being the result of all the cases, to be clearly and correctly stated in the valuable treatise on wills, by Mr. Jarman. 2 Jarm. Wills, c. 28.
1st. Like all other legal terms, the word “heir,” when unexplained and uncontrolled by the context, must be interpreted according to its strict legal import, in which sense it obviously designates the person or persons appointed by law to succeed to the real estate in case of intestacy.
2nd. It is clear, therefore, fhat where a testator devises real estate simply to his heir, or to his heir-at-law, or his right heirs, the devise will apply to the person or persons answering this description at the time of his death.
3rd. The circumstance, that the expression is “heir” (in the singular,) and that the heir-ship resides in, and is divided among several individuals as co-heirs, would create no difficulty in the application of this rule of construction; the word “heir” being in such cases used in a collective sense, as comprehending any number of persons who may happen to answer the description.
[60]*604th. It is true, that with respect to personalty, it is often doubtful whether the testator employs the term “heir” in its strict and proper acceptation, or in a more lax sense, as descriptive of the next of kin, or the person or persons appointed by law to succeed to property of this description. Where the gift to the heirs is by way of substitution, this latter construction has sometimes prevailed, an example of which occurs in the case of Vaux v. Henderson, 1 Jac. & W. 388, note, where a testator bequeathed to A. £200, “and failing him, by decease before me, to his heirs,” and the legacy was held to belong to the next of kin of A., living at the death of the testator. Sir R. P. Arden, M. R., in Holloway v. Holloway, 5 Ves. 399, was strongly disposed to give the same construction to the word “heirs” applied to personalty, though his opinion, on another question, rendered the point immaterial.
5th. But cases of this description must not be understood to warrant the general position that the word “heirs,” in relation to the personal estate, imports next of kin, especially if real estate be combine'd with personalty in the gift; which circumstance, according to the principle laid down by Lord Eldon, in Wright v. Atkyns, 19 Ves. 299, affords a ground for giving to the word, in reference to both species of property, the construction which it would receive as to the real estate, if that were the sole object of disposition. Thus, in the case of Gwynne v. Muddock, 14 Ves. 488, where a testator gave all his real and personal "estate to A. for life; adding, after her death, “her nearest heir-at-law to enjoy the same,” Sir William Grant, M. R., held that the heir-at-law took both the real and personal estate, not the realty only, the testator having blended them in the gift.
6. And even where the entire subject of the gift is personal, the word “heir,” unexplained by the context, must be taken to be used in its proper sense, nor will the construction be varied by the circumstance that the gift is to the heir in the singular, and there is a plurality of persons conjointly answering to the description of heir. Thus, under the words “to my heir £4,000,” three co-heiresses of the testator were held to be entitled; Sir J. Leach, M. R., observing, “where the word is used, not to denote succession, but to describe a legatee, and there is no context to explain it otherwise, then it seems to rue to be a substitution of conjecture in the place of clear expression, if I am to depart from the natural and ordinary sense of the word heir.” Mounsey v. Blamire, 4 Russ. 384.
Now, we have not here a legacy of money to “heirs” by way of succession; nor is there a syllable in the will indicating that the testator had any peculiar meaning of his own attached to the words “heir-at-law,” or “lawful heir,” or that he used the word “heir” as a synonym for “relations” or “next of kin.” On the contrary, he calls it his “estate,” and not only so, but his estate “real and personal,” and the person or persons designated to take it, are designated as the “heir-at-law” or “lawful heir.” It is manifest that the testator did not intend that his property should be divided into real and personal after his death, and be given to different persons, but that the person or persons on whom the law would cast the inheritance of his lands at his death should have his personal property, subject only to the payment of debts and legacies.
Our decision on these five points disposes of every part of the ease of John Aspden, the heir at common law. He has no claim to this estate, on any view of the case which we can take. But now arises a new question between new parties. The two parties of the half blood, neither of whom could get anything if the heir at common law was the person designated, and who therefore combined their forces as friends to dispose of his claims, now raise a question between •themselves which they had reserved ^as against him, and upon which they now dispute separately with one another as strenuously as they before did jointly on the other question with the heir at common law. Assuming rightly that the estate is to go to whomsoever the law would cast the inheritance of the testator’s lands; the Harrisons —the heirs ex parte paterna—claim the whole estate. And whether they shall have it all, or whether they must share it with the heirs ex parte materna, their late co-operators, the Hartleys, against the heir at common law, is this new question. The court apprehends fully the argument of the Harrison heirs. As being the only heirs ex parte paterna, they contend that they alone fulfil the description of “heir-at-law,” or “lawful heir” of the testator, to the exclusion of the half blood ex parte materna; that the term heir has reference to an inheritance, and the question as to what person is designated by that term depends on the realty which is to be inherited; that this designation of the testator’s intention to give his personalty to his heir,, instead of his next of kin, cannot depend on the validity of his title to the estate which the testator expects him to inherit. Thus, in England, if a man dies seised of lands which came to him by descent from his father, and without children, his cousin of the whole blood of his father will be his heir; but if his estate came to him from his mother, his cousin of the whole blood ex parte materna would be his heir. That, therefore, the term “heir-at-law,” as designa-do personae, in a will, has reference, ex necessitate, to something dehors, or without the will, which must be known in order to ascertain the intention of the testator. That the law of Pennsylvania, while it substitutes nearer kindred of the half blood to more distant kindred of the whole blood, adopts the same principle, viz. that the heir must [61]*61toe of ttoe blood of ttoe first purchaser. That the testator having never owned any property, except that which" came to him from his father, and having never voluntarily parted with it, but having tenaciously claimed it all his life (believing his attainder and ttoe forfeiture of tois property was not only unjust tout illegal), must be supposed to designate and intend toy ttoe description “heir-at law or lawful heir” only such person or persons as would stand in- that relation to the property which he expected to descend to his heir. That if it is competent to receive parol testimony as to what estate he died seised of, and how the title to it devolved upon him, it is equally competent to ascertain in this way what property he claimed or supposed would descend to his heir, especially as it appears on the face of the will that he supposed himself seised of some real estate, and his intention must be the same whether he was right or wrong in that claim, belief, or supposition. And consequently, that the testator having never owned or claimed to own any property but that which was devised to him by his father, his nephews and nieces of the maternal half-blood would have inherited nothing from him, and the description of heir-at-law or lawful heir could not possibly attach to them.
The court acknowledges the force of this argument. Let us then consider the question, 1st, on the undisputed fact that the testator was not seised of any real estate at the time toe made tois will, or afterwards; and, 2d, consider whether the unfounded belief that he was the rightful owner of certain property which was devised to him by his father, can be received to vary the result.
1st. It is not true, either in legal or popular parlance, that there can be no heir where there is nothing to be inherited. A man’s children and other kindred may be described or designated as heirs, whether they take anything from their ancestor or not. Thus, in Counden v. Clerke, Hob. 31a, it is said: “But this (ttoe words ‘right heirs male’) hath a divers consideration in cases of descent, and in case of purchase. For the word heir is sometimes taken absolutely, and as the Grecians call it, ti’thuH,, or simpliciter, sometimes xaia n , or secundum quid, or per ac-cidens; sometimes in abstracto, standing naked by itself, or of itself; and sometimes in concreto, clothed with land or rent, in respect of which he may be heir, as the word is here. For example, ttoe younger son in borough English, is heir, and all the sons in gavelkind; whereof the reason is, because the custom of those lands is, that they must descend to the younger sons, or all the sons; so they are heirs secundum quid of those lands, in point of descent, or when they descend, for then they are within the custom that gives ttoe inheritance.” Hence, a bequest of personal estate “to my heir-at-law,” or “right heir,” would not be void for want of some person to take, even though the testator should not die seised of real estate. And whether a bequest by a man seised only of property by inheritance from his mother, to tois “right heir,” or “heir-at-law,” would be interpreted as describing tois right heir simpliciter or in abstracto, and not his heir secundem quid, or special heir of the particular estate, is possibly an open question. But in a case in 3 Lev. 406, (Godbold v. Freestone,) an heir ex parte materna limited (by deed) several estates, with reversion to his “right heirs,” and it was decided that the reversion should go to his right heirs secundum quid, that is, to his heir ex parte materna.
Now, admitting that a devise of Blackacre “to his heir-at law,” or “right heir,” by a testator who inherited it from his mother, would be construed as a devise to his heir ex parte materna, or his heir quoad hoc, and that such person would hold by descent, and not by purchase, on the supposition that the testator meant to describe the person who would, at his. death, be the lawful heir of the thing devised; and admitting that a bequest by the same person of all his real and personal estate to his heir-at-law would be construed as a designation of the person on whom the law would cast the estate of Blackacre at his death, it is evident that it is the character impressed upon the thing devised of descending to the heir, and to which the testator is supposed especially to refer, which is seized upon by the court to justify them in thus narrowing or changing the general term heir-at-law or right heir, so as to mean his special heir, or heir quoad hoc; and their desire to follow that canon of descent which requires the heir of an estate to be of the blood of the first purchaser. But in case of a bequest of personal estate to the testator’s heir-at-law, when he has no special heir, there is no reason for departing from the plain and obvious meaning of the term, nor is there any character impressed upon the thing devised which can restrain it to the blood of the first purchaser. For I do not join in inclination of opinion with Sir R. Pepper Arden, who, in the case of Holloway v. Holloway, 5 Yes. 399, was inclined to think, though he did not assert nor decide, that a bequest in trust for “such person as shall be my heir or heirs-at-law,” should be construed “heirs quoad the property,” meaning “next of kin.” But I concur with what he was further inclined to say in the same case, “that in such case the court would consider the testator as the first purchaser,” and, as a consequence thereof, would give a bequest of personalty to “my heirs-at-law,” or “right heir,” or “lawful heir,” the same designation as if it had been a devise of lands acquired or purchased by the testator. But to apply these principles more especially to ttoe case [62]*62before us. The testator left at his death a nephew, A., of the paternal half-blood, and a nephew, B., of the maternal half-blood (who, for our present purpose, may represent the two stocks of relatives,) and a cousin, C., of the whole blood ex parte paterna. C. was his heir presumptive at the time this will was made, in 1791. But when a testator describes his heir-at-law, or lawful heir, as the person that shall take his property, he intends such person or persons as • shall be found to sustain that character or description at the time of his decease, by the law of the country of his domicile. By the law of Pennsylvania, the persons who would answer to that description in 1824, when the testator died, are A. and B. By that law, they together constitute the lawful heir of the testator in the abstract or simpliciter, and are preferred to C. They take the personal estate by purchase, as the persons described in his will. There is no real property which either would take in exclusion of the other. The terms heir-at-law, or lawful heir, as descriptive of the person to take, are not narrowed by accident to a particular subject, nor are we required to look to the exception in the act, or compelled to give to general terms a special application, in order to conform to a principle of law which excludes the heir general, in order to continue the inheritance of the blood of the first purchaser. The exception in the act, which constitutes one of them as heir to the exclusion of the other, through an accidental quality attached to the thing to be inherited, has not occurred, and the question of preference does not arise. Being, therefore, equally within the description of persons entitled to take under the will, they must take jointly.
2nd. “Can the evidence of the testator’s unfounded belief that he was owner of certain property devised to him, be received to show an intention different from that expressed in his will?” In construing wills it is often necessary to receive parol testimony, as to the property and persons described in it, in order to apply the devises and bequests to the proper persons and things. And in this way a latent ambiguity may be discovered, which must of necessity be resolved by testimony of the same description.
Now, as we have seen, the reason for construing the general terms of description , in a special or narrowed sense, arises from the disposition of the courts to favour the policy of the law, which confines the descent of real estate to the blood of the first purchaser, and the presumption that such was the intention of the testator. And, admitting, for the sake of argument, that the half-blood ex parte materna would have been excluded by this description, if the testator had died seised of his paternal estate, what evidence have we that he would have given it a different destination from that which it now receives, had he believed otherwise? He did not know, when he_made his will, that, before his death, the law of descents would be changed in Pennsylvania, yet, having willed that the law, as it existed at the time of his death should designate the person who should take his property, what right have we to say that he would have made a different will, if he had anticipated the fact of its change? He lived thirty years after the law was changed, and did not change his will on that account. He lived long enough to satisfy any reasonable man that he never would regain his paternal estate. The statute of limitations had twice run against his fancied claim before his death, and yet he made no change in the designation of the person who should take his estate, but left it to the law to settle that question, as the case might be, at his death. We have refused to receive evidence that he lived and died in the belief that his lawful heir would be the son of some of his English cousins. His will, clearly expressed, could not be Interpreted by his false notions, because It would be conjecture to say that he would have changed his will had his notions been different. It is equally conjecture to presume that he would have changed it, had he entertained correct ideas as to his real estate. The testimony introduced on this subject is to limit the description of his dev-isees, or rather to change the destination of his property, unambiguously expressed, both as regards persons and things, to a different person or class of persons, by declarations of the testator of an absurd belief, when it cannot be proved that he would have given a different destination to it, If his knowledge or belief had been different. Such a ’ construction, founded only on conjecture, would annul the statute of frauds, “and leave titles depending on intention to the decision of chance and the sport of opinion.” I am of opinion, therefore, that both stocks of half-blood are equally entitled to the property in dispute, and take it under the description in the will, as “heir-at-law” or “lawful heir;” and that a. different intention, in favour of one class to the exclusion of the other, cannot be inferred, from the fact that the testator had mistaken notions in regard to his ownership of real property, at the time he made his will and afterwards, and" that such evidence cannot be received to narrow the construction of the clear, unambiguous description of his will, as connected with the actual situation of the property and persons referred to in it.
' Let me now say, in conclusion of this long pending, important and difficult case, that although made after careful investigation, and with an anxious desire to arrive at the truth, I feel that my opinion is not so certainly right, as I could desire to feel that it is. And that it is a source of great satisfaction to me to believe that it will be review[63]*63ed by my brethren and myself in the highest tribunal of the country.
NOTE, [from original report.] Prom the final decree of the court, which was in conformity with the opinion above given, appeals were taken to the supreme court by the heir at common law, and by the Harrisons’, so far as related to the parts of the estate from which they were excluded: the question of domicil, passed upon in the case of White v. Brown, [Case JSfo. 17,538,] along with the evidence in that case, which was all documentary, being also taken up with this decree. The parties of the half-blood, here again joined their force. Their counsel, maintaining the Pennsylvania domicil, contended that the fact had been established by the verdict of a jury, upon an issue directed for that purpose by the court below: that the judge who directed the issue, was satisfied with the verdict, and refused a new trial: that under such circumstances, a very strong case must be made out, in order to induce an appellate court to send the cause back for a new trial: and that the law upon that subject is well stated by Lord Byndhurst in Collins v. Hare, 1 Dow. & C. 139, in these words, “As the issue was directed for the purpose' of informing the conscience of the equity judge, if the main object was gained it was sufficient. The judges both at law and equity were satisfied with the verdict, and therefore it must be a strong case indeed, that should induce your lordships to send the matter to a new trial, in opposition to the opinion of the late noble chancellor of Ireland, who had a much better opportunity of investigating the facts .on which the case mainly depended, than your lordships have.” An examination of the evidence, which was made by the counsel of the half-blood, showed, they contended, that the weight of it was altogether on the side of the American domicil:
On the other hand, the counsel of the heir at common law. contended that, the • testator’s domicil was England; that the verdict of the jury interposed no obstacle to a decision con-formably to the evidence which appears on the record; that the object of the issue was to instruct the conscience of the chancellor, and like all the other proceedings in the circuit court, is the subject of review in the supreme court: that “the chancellor may, if he thinks fit, make no use whatever of tbe verdict, but treat it as a mere nullity.” Gres. Bq. Bv. 405; [Mem.,] 6 Madd. 58; [Ex parte Bear-mouth. Id.] 113; Harrison v. Rowan, [Case No. 6,141.] They cited a Pennsylvania case, where, on an appeal, the supreme court disregarded a verdict, reversed a decree made in conformity to it, and remanded the case, without sending it to another jury, with instructions to the inferior court to enter a different decree. They relied on the opinion of Coulter, J„ who, in delivering the opinion of the court, said: “It jvas contended by his counsel here, on the argument, that the verdict ought to be. and is conclusive. In a court proceeding according to tbe forms of the common law, the verdict of a jury is of high import and great solemnity; although, even then one verdict is not conclusive in any ease, if against the weight of evidence. The court may set it aside, and grant a new trial. But in a court of equity, its effect and function is entirely different. In that court it is used merely for the purpose of informing the conscience of the court, and is incidental and auxiliary. A chancellor cannot, if he would, surrender his high prerogative and duty of deciding upon facts, according to the convictions of his conscience. In that court, the wisdom of our ancestors deposited tbe faculty of deciding upon facts within its jurisdiction. as well as determining the rules of equity applicable to them. And where, after all, could the power be more safely lodged, especially in cases of trusts and fiduciary transactions? Bong experience, the habit of sifting and comparing testimony, calm deliberation and exemption from local prejudices, seems to give a guaranty for enlightened judgment. A chancellor will examine the notes of evidence by the judge who tried the cause, listen to the explanation of counsel, and, at last, if his conscience is not satisfied, will decide the cause according to his own convictions, and disregard the verdict of the jury.” The counsel argued that there is no writ of error in the case of an issue directed for the information of a chancellor, who may after all, disregard the verdict, and that if the verdict enter into the decision of the cause, they had no other remedy that an appeal, which must necessarily be co-extensive with the final decree of the circuit court. Com. v. Judges of Court of Common Pleas, 4 Pa. St. 302. Domicil, they argued, is a mixed question of law and fact; that it is not the verdict, but the evidence, which exhibits the facts from which a correct estimate may be formed of the sense in which tbe testator used the language in his will; that the jury disregarded the only facts of importance in the controversy; the testator’s education and residence for more than fifty years in England, his English doctrines, prejudices and associations, his long absence from Pennsylvania, his embittered feelings towards that state, and every other consideration, calculated to cast light on the meaning of the terms he used, &c. And they went, as did the counsel of tbe heirs of the half-blood, over the whole case of White v. Brown, already reported. [Case No. 17,538.] The supreme court heard, at great length, the argument on both sides, as to this question of domicil, as well as upon all the questions reported in the present case. But no opinion was ever delivered in that tribunal. The court was equally divided as to affirming the decree, (See Brown v. Aspden, 14 How. [55 U. S.] 25;) and it was therefore simply affirmed. It was understood by the profession, that the chief difficulty with their honours was, the question of domicil: and it is, perhaps, not easy entirely to reconcile the verdict in the case with certain parts of the language of the judge who gave the opinion of tbe supreme court delivered at the same term, in the case of Ennis v. Smith, involving the question of the domicil of General Kosciusco. See 14 How. [55 TL S.) 400. On the effect in law of a judgment by an equally divided court, see Krebbs v. Directors of Carlisle Bank, [Case No. 7,932.]
Equity Docket, No. 1, April sessions, 1828.