Burr v. Sim

• Decision Date: 11 February 1839
• Citation: 33 Am.Dec. 50,4 Whart. 150
• Court: Pennsylvania Supreme Court
• Parties: BURR v. SIM & Others.

4 Whart. 150

33 Am.Dec. 50

BURR v. SIM & Others.

Supreme Court of Pennsylvania.

February 11, 1839

IN ERROR.

1. The English rule that in the case of an absent person, of whom no tidings are received, the presumption of the continuance of life ceases at the end of seven years, is adopted in this state.

2. But the presumption of death, as a limitation of the presumption of life, must be taken to run exclusively from the termination of the prescribed period; so that the jury are bound to presume that the person lived throughout the whole period of seven years, unless there are circumstances in evidence to quicken the time.

3. The circumstances which are sufficient to take a case out of the operation of the rule, must be such as show that the individual was at some particular date, in contact with a specific peril.

4. Mere general perils are not sufficient; and, therefore, the departure of a person for the Spanish Main, in or about the year 1792, without any account of him ever having been received down to the year 1837, was held not to be sufficient to authorise a direction to the jury that they might infer his death to have taken place in or before 1797.

5. It is not error in a judge to tell a jury that a witness was " a very willing witness," and that " very little confidence was to be placed in her testimony:" nor to remark upon the strength or absence of evidence, or to suggest presumptions arising from the relationship and conduct of one of the parties.

6. It seems that a party may except to a charge generally, and is not bound to state or specify at the time, the particular parts of the charge objected to.

THIS was a writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action of ejectment, brought by George Sim, Margaret Sim, Jean Anderson and Peter Nicholson, against Postrema Burr, to recover a messuage and lot of ground, situate on the north side of Mulberry (or Arch,) street between Second and Third Streets in the city of Philadelphia.

The property in question, together with an adjoining house and lot, belonged, in the year 1782, to the Rev. George Craig, a clergyman of the Episcopal Church, who in that year made his will, wherein he authorised and directed his executors, to sell his real estate, and to pay the proceeds into the hands of two persons, to be held by them in trust for his son Archibald Cummings Craig, to apply the interest thereof to his maintenance and support during his minority, and to pay the principal to him on his arriving at full age. The houses were not in fact sold, after the death of the testator. Archibald Cummings Craig, the son and devisee of the testator, arrived at the age of twenty-one years, and died on or about the 5th day of September, 1797, unmarried and without issue; but having made a will, by which he devised to Mrs. Marcia Ross, wife of Captain David Ross, of the city of Philadelphia, " or to her heirs and assigns, one three story brick house in Arch street, No. 63." And added " Further I wish to give unto Dr. William Curry, of the city of Philadelphia, one other three story house in Arch street, No. 65; " which house was the subject of this ejectment.

Dr William Currie died in the year 1828, leaving two children viz., Isabella, married to J. G. Williams, and William, who conveyed all his interest in the premises to the said J. G Williams. The defendant, Postrema Burr, came into possession during the lifetime of Dr. William Currie, as his tenant. The said J. G. Williams was admitted to defend as landlord.

The heirs of Archibald Cummings Craig, on the part of his father, were the issue of a paternal uncle and aunt who resided in Scotland. They were the plaintiffs in the ejectment.

The mother of A. C. Craig was twice married; first to a Dr. James Currie (the brother of Dr. William Currie,) by whom she had issue one son, William James Currie; and second, to the Rev. George Craig, by whom she had issue also one child only, Archibald Cummings Craig. His next of kindred on the mother's side, after his half-brother, were two first cousins, viz., 1st, John Ewer Sword, 2d, Ann Sword, married to Dr. Nathan Dorsey, and the issue of another first cousin.

The case was tried on the 28th of April 1834, when, under the directions of the Court, a verdict was rendered for the plaintiffs. The case was removed to this Court by writ of error; and it was decided by this Court, that by the directions in the will of the Rev. George Craig, to sell his real estate, this property was in equity converted into personal estate, and that on his electing to receive it as real estate, A. C. Craig took it as a new acquisition, and not as coming to him ex parte paterna, and, consequently, that it went to the heirs ex parte materna, as well as to those ex parte paterna. This Court also decided, that Dr. William Currie took only a life estate in the premises under the will of A. C. Craig.^[a1]

A venire de novo having been ordered, the cause came on for trial again, before STROUD, J., on the 15th of February, 1837, when the will of the Rev. George Craig was given in evidence, and the facts already stated with respect to the pedigree of the plaintiffs and the kindred of the first cousins, ex parte materna, were admitted.

On the part of the defendants a witness, Mrs. Marcia Ross, was called, the material part of whose testimony was as follows:--

" I knew Archibald Cummings Craig. He died in 1797; I think in September. I knew his mother. Her maiden name was Margaret Haly. Her first husband was Dr. James Currie. He was a doctor of medicine. There were children of that marriage. There were two children. The eldest died in infancy. The youngest was William James Currie. He was alive in 1792. I don't know any thing further than what I have heard his family say. I have no personal knowledge. I have heard his mother say that he left this country for South America; and also his late uncle, Dr. William Currie, I have heard repeatedly say it. They said it was in 1792 he left this country. He embarked from New York." Being cross-examined, the witness said, " Mrs Craig died in 1793, about September, of the yellow fever. I don't know if Mrs. Craig's mother died before or after her. It was from the family I heard that he sailed from New York; all my knowledge is derived from them. I never saw the young man. I can't say exactly how long before Mrs. Craig's death I had conversation with her. I was very young at the time; just turned of fourteen. Mrs. Craig lived in Arch-street, No. 63, the house devised to me. My acquaintance commenced with her in the year 1793. Perhaps about June 1793. I never saw William James Currie at any time to my knowledge. Archibald C. Craig lived with his uncle, Wm. Currie for some time after his mother's death, and then went to lodgings. He lived with his mother before. I was intimately acquainted with A. C. Craig. I never heard in what vessel William J. Currie went, nor in what capacity he went. All my knowledge of the former marriage is derived from the family. William J. Currie was the intimate friend of my husband, Captain David Ross. They were educated together. I was no relation of Mrs. Craig. My husband was a relation of the Currie family. The grandmother of William J. Currie was a Miss Ross, daughter of the Rev. George Ross of New Castle. Dr. James Currie had other brothers besides Dr. William Currie, but they were dead before my time. One was living. I think his name was John. I did not know him. I believe he left children; but I don't know them. I did not hear to what part of South America William J. Currie went. He was not brought up a mariner. As I was informed, I think he was going there to settle. I heard from both Dr. Currie and Mrs. Craig, that he went away in 1792. Previous to my acquaintance with Mrs. Craig, I had not any acquaintance with the Currie family." And being re-examined in chief, the witness said, " Dr. William Currie left two children, William and Isabella, who is now Mrs. Williams. William is dead."

The defendants' counsel then produced and read in evidence the will of Mrs. Margaret Craig, the material part of which was as follows:--

" After my funeral charges and other debts are discharged, I do hereby devise, bequeath, and leave, all my real and personal estate to my beloved son, William Currie; excepting my gold watch, rings, and a suit of mourning, to my dear son Archibald Craig. But if my son William Currie should die unmarried, or if being married should die without issue, then, and in that case, it is my will and direction, that the whole of my personal and real estate, shall descend and devolve on my nephew Richard Currie, his heirs and assigns forever. And for the performance of this my last will and testament, I do hereby constitute and appoint the Revd. Dr. Sam'l M'Gaw, and Dr. William Currie, my joint executors."

The defendants' counsel then read in evidence the notes of the testimony of Hugh Ferguson, a witness examined on the former trial, and who had since died. He stated on his cross-examination, that

" George Craig married Margaret Haley, and I believe her name was Currie before she married George Craig. I believe her husband's name was James Currie. I can't recollect positively. I have an impression that there was a son by the first marriage. Don't recollect hearing of his death. I think it probable that his name was William, as he had an uncle of that name, Dr. Currie. I think the late Dr. Currie was brother of the first husband of Mrs. Craig. I think there was no other than one son. * * * * * * * * I believe Dr Currie was the brother to the first husband, and of course, uncle to the half-brother. I can't speak positive as to their being such a half-brother. It is my impression...