Henry Beard, William Beard, Lewis Hawkins and Mary His Wife v. John Rowan

• Decision Date: 01 January 1835
• Citation: 9 L.Ed. 135,9 Pet. 301,34 U.S. 301
• Parties: HENRY BEARD, WILLIAM A. BEARD, LEWIS HAWKINS AND MARY HIS WIFE v. JOHN ROWAN
• Court: U.S. Supreme Court

34 U.S. 301

9 Pet. 301

9 L.Ed. 135

HENRY BEARD, WILLIAM A. BEARD, LEWIS HAWKINS AND MARY HIS WIFE v. JOHN ROWAN.

January Term, 1835

IN error to the circuit court of the United States, for the Kentucky district.

John Campbell, a native of Ireland, who emigrated to the state of Virginia, before the revolutionary war, and continued to reside in Kentucky until his decease, which took place in October 1799, was the owner of a tract of land situate above and below the mouth of Bear Grass creek, on the Ohio; comprising the land on which, by an act of the legislature of Virginia, the city of Louisville was laid out. Upon the erection of a part of Virginia into a separate state, these premises become a part of the state of Kentucky.

At the time of the making of his last will and testament, 25th of July 1786, John Campbell, who was never married, had a brother of the whole blood, Robert Campbell, also a citizen of the state of Virginia, a father, a half brother, named Allen Campbell, and a sister of the whole blood, named Sarah Beard, who was a widow and had children. His father, half brother and sister were natives of Ireland, and subjects of the king of Great Britain and Ireland in 1786. The father of John Campbell died before him. By his will, which was duly proved and recorded on the 13th of January 1800, John Campbell devised his estate both real and personal, to James Milligan, William Elliot, and Phillip Ross, and the survivor and survivors of them, in trust for the uses and purposes stated in the will.

The provisions of the will of John Campbell, out of which the controversy between the parties to this case arose, were the following:

'I do further direct that after the decease of my said father, all the profits of my lands within five miles of the mouth of Bear Grass, shall be annualy paid to the guardian of my said half brother, Allen Campbell, during his minority, to be applied to his education and maintenance, if so much be required therefor; if not, then the overplus to be laid out on interest by my said trustees, till my said half brother shall arrive at the age of twenty-one years or marry; but upon either of the said contingencies happening, the aforesaid profits shall then and thenceforth be paid to my said half brother, for and during the term of five _____, and if within that time my said half brother shall become a citizen of the United States, or be otherwise qualified by law to take and hold real estate within the same I then direct that my said trustees, or the survivors or survivor of them, shall convey to him, my said half brother Allen Campbell, his heirs or assigns, in fee simple, all the lands hereinbefore described in this devise; but if my said half brother shall not within the time aforesaid become a citizens as aforesaid, I then direct that my said trustees, or the survivors or survivor of them, shall sell and dispose of the aforesaid lands hereby directed to be conveyed to him on two years' credit, with interest from the date, to be paid annually, and the money and interest arising from such sale to be transmitted to my said half brother, to whom I give and bequeath the same. It is my further will and desire that, in case my said half brother shall die before the expiration of the aofresaid term of five years, after his arrival at the age of twenty-one years, the land intended by the next preceding clause to be devised to him, shall be sold by my said trustees on two years' credit, and the money arising from such sale, when received, shall be transmitted to the guardians of the children which my said half brother may leave, to be by the said guardians lent out on interest, and an equal division shall be made thereof amongst them; but should my said half brother become a citizen of the United States of America, or be otherwise qualified to hold real estate within the same before his death, it is then my will and desire that he shall have the sole and absolute disposal of all the estate hereinbefore devised and bequeathed to him, notwithstanding he may not have obtained deeds therefor, from my said trustees. It is my further will and desire that, in case my said half brother shall die before he shall become qualified to hold real estate as aforesaid, and without children or a child, my said trustees shall make sale of the lands hereby directed to be conveyed to him, as is before directed, on two years' credit, and that the money arising by sale be appropriated to the use of my said sister, Sarah Beard, and all the children which she hath, or may hereafter have, to be lent out on interest, as is directed in the several devises, bequests and limitations hereinbefore made to them; the interest and principal to be transmitted, and their proportions thereof respectively to be the same, and subject to the same rules, limitations and conditions as are directed and prescribed in the cases of the other before mentioned devises and bequests to my said sister and her children.

'And whereas I conceive it to be greatly to the interest of the several devisees herein before mentioned, to become citizens of America, and take possession of such parts of my estate as are hereby intended for them, respectively, instead of selling the same, and receiving the consideration thereof; I do therefore direct that all and every such devisee shall have a right to receive their respective proportions of whatever lands may be undisposed of at the time of their becoming qualified to take and hold the same, and that my said trustees, or the survivors or survivor of them, shall make fair and equitable divisions accordingly, and convey to them their respective proportions as aforesaid; and should my said sister come over to America before that part of my lands hereby intended for her and her children shall be disposed of by my trustees; I then direct that the same shall not be sold, but that the profits thereof shall be annually appropriated to the use of her and her children as aforesaid, until her children shall come of age, or marry; but that whenever any one of them shall arrive at the age of twenty-one, or marry, his or her proportion of such land shall be conveyed by my said trustees, or the survivors or survivor of them, in fee simple, provided such child shall be capable of holding the same. I hereby direct that upon all sales, which shall be made of any part of the property herein directed to be sold, good landed security shall be taken for the payment of the purchase money in specie. I do declare, that it is my will and desire that no part of my estate, of any kind, shall go to my brother R. C., in any manner whatever, and as unforeseen events may happen which may make it prudent to delay making the sales herein directed to be made, I do therefore authorize my said trustees, or the survivors or survivor, to use their or his discretion therein so as to guard against such inconveniences and losses, as there may be danger of the estate suffering by precipitating the sales. I also authorize them or him to alter the times of credit upon such sales, should it be found to the interest of the estate so to do.

'I do hereby revoke all former and other wills by me made.

'In witness whereof, I have hereunto set my hand, and affixed my seal, this 25th of July 1786.

'JOHN CAMPBELL, [SEAL].

'Signed, sealed, published, and declared by the testator as and for his last will and testament, in presence of us, who subscribed our names as witnesses, in his presence, and by his desire. HARRY INNIS, T. PERKINS, CHRIST. GREENUP.

'The executors named in my last will and testament are James Milligan, as aforementioned; Charles Simms, of the town of Alexandria, in the county of Fairfax, attorney at law; Richard Taylor, and _____ of Jefferson county; William Elliot, of Westmoreland county, and state of Pennsylvania; and Philip Ross, of the county of Washington, in the same state.

'JOHN CAMPBELL.

'I, John Campbell, have this day erased the name of James Sullivan from the number of my executors, as he has destroyed in my life time the confidence which I would wish to repose in a man that would, in my opinion, be worthy to act for me after my death.

'JOHN CAMPBELL.

'April 5th 1791.'

In the circuit court of the district of Kentucky, the plaintiffs in error of sued out a writ of right on the 6th day of January 1830, and an alias writ of right on the 3d day of June 1830, against John Rowan, the defendant in error, and claimed one hundred acres of the land near the mouth of Bear Grass; Henry A. Beard as a citizen of the state of Ohio, and the other plaintiffs as citizens of Missouri. The defendant in his plea claimed ninety-five acres of the premises in question, and disclaimed as to the residue; put himself on the assize; and prayed recognition to be made, whether he or the plaintiffs, had the greater right to hold the premises so claimed by him.

The cause came on for trial at the November term 1831 of the circuit court, and the following facts were agreed upon to be used on the trial.

'The parties in this cause agree to the following facts, to wit: First. That John Campbell was born in the kingdom of Ireland; that he came to the United States of America prior to the revolutionary war; that he continued to reside in the said United States, from the time of his migration thereto, until he departed this life in the month of October 1799, in the county of Fayette, in the state of Kentucky, where he then resided; that on the 25th day of July 1786, he made and duly published his last will and testament, bearing that date, with an indorsement thereon dated the 5th day of April 1791; that said will and indorsement were duly proved and recorded on the 13th day of January 1800, in the county court of the said county of Fayette; and that the said John Campbell was seised, in fee simple, at the time of his death, of the premises in question in this action, and that he died without ever having been married.

'Second. That Robert...