Dunn v. Evans

Ohio Supreme Court

Dunn v. Evans

7 Ohio 169

CourtOhio Supreme Court

DecidedDecember 15, 1835

StatusPublished

Cited by1 cases

This text of 7 Ohio 169 (Dunn v. Evans) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dunn v. Evans, 7 Ohio 169 (Ohio 1835).

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Opinion

*Judge Lane

pronounced the opinion of the court:

. The fourth clause of the statute of descents of 1824, then in force, ’2 Chase’s Stat. 1313, see. 1, preferred the brothers and sisters of the intestate of the half blood to the next of kin to the intestate of the blood of the ancestor, from whom the estate descended, provided such next of kin were more remote from such ancestor ■.than his brothers and sisters, or their representatives. So that in this case, if Ather Evans, the brother in the half blood of James F. Penn, had been living at the time of his death, the land would have descended to him.

And it makes no difference with the right of Ather Evans, that his birth occurred after the death of James F. Penn. Although lands descend to him who is heir at the intestate’s death, by the operation of the feudal rule, that the freehold should not be in abeyance, this descent may be defeated at any time, by the birth of a nearer heir. Co. Lit. 2, 6; 3 Cruise’s Dig. 230; 3 Wils. 516; 3 Atk. 203. To prevent the supposed evils of a shifting inherit.ance, in a case like this, the Virginia statute of descents requires [171]*171from the heir the capacity of taking at the intestate’s death» Tucker’s Blackstone, 1803, 2 Appendix, 12.

The plaintiff, in argument, claims the profits of the land, in the-interval between the death of James F. Penn, and the birth of Ather Evans. His right to such profits seems well grounded, 5 Co. Lit. 11, 6, n. 4, and cases cited; but his bill is not adapted to-such relief. His purchases of the land were at various times,, some before and some after the birth of the present owner, and the plaintiff acquired no interest in them until his purchases. The settlement of these claims will require the taking of a very complicated account, to which all parties in interest must be made parties, and an entire new frame of bill is necessary for this-purpose.

Bill dismissed, reserving all right to account, either in law or equity.

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*Judge Lane

pronounced the opinion of the court:

. The fourth clause of the statute of descents of 1824, then in force, ’2 Chase’s Stat. 1313, see. 1, preferred the brothers and sisters of the intestate of the half blood to the next of kin to the intestate of the blood of the ancestor, from whom the estate descended, provided such next of kin were more remote from such ancestor ■.than his brothers and sisters, or their representatives. So that in this case, if Ather Evans, the brother in the half blood of James F. Penn, had been living at the time of his death, the land would have descended to him.

And it makes no difference with the right of Ather Evans, that his birth occurred after the death of James F. Penn. Although lands descend to him who is heir at the intestate’s death, by the operation of the feudal rule, that the freehold should not be in abeyance, this descent may be defeated at any time, by the birth of a nearer heir. Co. Lit. 2, 6; 3 Cruise’s Dig. 230; 3 Wils. 516; 3 Atk. 203. To prevent the supposed evils of a shifting inherit.ance, in a case like this, the Virginia statute of descents requires [171]*171from the heir the capacity of taking at the intestate’s death» Tucker’s Blackstone, 1803, 2 Appendix, 12.

The plaintiff, in argument, claims the profits of the land, in the-interval between the death of James F. Penn, and the birth of Ather Evans. His right to such profits seems well grounded, 5 Co. Lit. 11, 6, n. 4, and cases cited; but his bill is not adapted to-such relief. His purchases of the land were at various times,, some before and some after the birth of the present owner, and the plaintiff acquired no interest in them until his purchases. The settlement of these claims will require the taking of a very complicated account, to which all parties in interest must be made parties, and an entire new frame of bill is necessary for this-purpose.

Bill dismissed, reserving all right to account, either in law or equity.

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Bluebook (online)

7 Ohio 169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunn-v-evans-ohio-1835.

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