Thaw v. Falls

• Citation: 34 L.Ed. 531,10 S.Ct. 1037,136 U.S. 519
• Parties: THAW v. FALLS et al
• Decision Date: 23 May 1890
• Court: U.S. Supreme Court

136 U.S. 519

10 S.Ct. 1037

34 L.Ed. 531

THAW v. FALLS et al.

May 23, 1890.

This was an action of ejectment, brought December 12, 1882, by Columbus Thawagainst Maria Ritchie, to recover possession of an undivided half of lots 1 and 4, in square 160, in the city of Washington. At the trial on the general issue, before Chief Justice CARTTER, the plaintiff introduced evidence that his father, Joseph Thaw, died in 1840, seised and possessed of these lots under a title derived from the United States, and leaving a will, dated February 26, 1840, and duly admitted to probate in the same year, which, omitting the formal commencement and conclusion, was as follows: 'Imprimis. I hereby appoint and constitute my beloved wife, Eliza Van Tyler Thaw, to be the guardian of my two youngest children, to-wit my daughter Columbia Thaw, and my son Columbus Thaw, and to act in trust for them in all things as fully as I would do if living. It em. I give and bequeath to my said beloved wife, Eliza, all my property of every description, real and personal, to hold and enjoy during her natural life in trust for the equal benefit and maintenance of herself and of my daughter Columbia and of my son Columbus, the two children above named; and, if either of them shall die before arriving at the age of majority, then she is to hold the whole property as above for the equal benefit of hereself and the survivor of the two above-named children; or if both of the said children shall die before their mother, my said hold the said property wife, Eliza, shall hold the said property during her natural life for her sole own use and benefit; and in no case shall she, my beloved wife, Eliza, be deprived of the use of any part thereof during her natural life for the maintenance of hereself and of the two children aforesaid while they or either of them shall live, or of herself while she shall survive them both. Item. I give and bequeath to my two children above named, Columbia and Columbus, in equal parts, to their heirs and assigns, forever, all my estate, real and personal, that shall remain at and after the death of their mother, my said wife, Eliza: or if either of them shall not survive their mother, then I will that the surviving one shall have the whole. Item. If both of my said children shall die before their mother, then, on the demise of the last survivor of them, I give and bequeath to my beloved wife, Eliza, to her heirs and assigns, forever, for her own proper benefit, all my estate of every description. I do, moreover, hereby constitute and appoint my beloved wife, Eliza Van Tyler Thaw, above named, the sole executrix of this, my last will and testament, and authorize her to administer and execute the same without giving security in any way whatever.'

The plaintiff also introduced evidence tending to show that his mother, Eliza V. Thaw, died in February, 1866; and, for the purpose of showing a severance of the joint tenancy, claimed to have existed between himself and his sister Columbia Thaw in these lots, put in evidence a deed, dated May 16, 1848, from his sister and one Henry Walker, of their interest in these lots to Agricol Favier; a deed, dated October 22, 1874, from a trustee appointed in a suit in equity for the partition of Favier's real estate after his death, purporting to convey the whole of these lots to one Ingersoll; a deed of the lots, dated May 24, 1878, from Ingersoll to Mary J. France; and the will of Mrs. France, admitted to probate in January, 1881, devising all her real estate to the defendant.

It was admitted that the real estate sought to be recovered was worth more than $12,000, and that the defendant was in possession thereof, claiming title adversely to the plaintiff. The defendant claimed title under a deed of the two lots to Favier from Eliza V. Thaw, dated March 17, 1848, purporting to be executed pursuant to an order of sale made, upon her petition, by the orphans' court for the county of Washington, in the District of Columbia, and approved by the circuit court of the United States of the District of Columbia, sitting as a court of chancery. In support of this defense, the defendant offered in evidence, and the court admitted, against the objection and exception of the plaintiff, the following maters:

(1) From the office of the supreme court of the District of Columbia, a book entitled 'Chancery Rules No. 4,' of its predecessor, the circuit court of the United States of the District of Columbia, containing this entry: 'No. 344. Eliza V. Thaw, guardian, to Columbus and Columbia Thaw, infant children of Jos. Thaw, dec'd. Petition, exhibit, decree of orphans' court. 1844, Oct. 12. Decree affirming decree of orphans' court.'

(2) From the same office, the only paper on file there in said case No. 344, certified by E. N. Roach, register of wills, under date of April 29, 1844, to be 'a true copy from an original filed and recorded in the office of the register of wills for Washington county aforesaid,' and consistingof a petition addressed to the judge of the orphans' court for that county, dated March 29, 1844, signed by Eliza V. Thaw, and having annexed to it a certificate of a justice of the peace to her oath that 'the facts contained in the within petition are true, to the best of her knowledge and belief, together with the order of the orphans' court thereon, which petition and order were as follows:

'To the Hon. N. P. Causin, Judge of the Orphans' Court of Washington County: The petition of the subscriber respectfully represents that she has paid all the debts due by her deceased husband, Joseph Thaw, and that the property left by the deceased is insufficient to support her and the children provided for in the will of the deceased; and a portion of the estate belonging to the deceased consists of two vacant and unimproved lots of ground situate, lying, and being in the city of Washington, in the District of Columbia, to-wit, lots numbers one and four, in square number one hundred and sixty. Your petitioner respectfully prays that the court will deem it expedient, and cause the said lots to be sold for the purpose of relieving the immediate wants of the petitioner, and for the support and education of the children named in the will of the said Joseph Thaw, deceased, and that an order may be granted for the sale thereof at as an early a day as practicable; and, as in duty bound, will ever pray, &c. Eliza V. THAW. 29th March, 1844.'

'Orphans' court of Washington, D. C. In the case of the petition of Eliza V. Thaw, executrix and guardian to Columbia and Columbus Thaw, minor children of Joseph Thaw, deceased. This case coming on to be heard in the orphans' court on the petition, exhibits, accompanying proofs, and representation of said Eliza V. Thaw, in her capacity as guardian and executrix aforesaid, the same were by the court read and duly considered; and thereupon it is by the said court, this 29th day of March, 1844, ordered, adjudged, and decreed, provided that the circuit court of the district of Columbia for the county of Washington, sitting as a court of chancery, shall, by its proper order in the premises, approve thereof, that the said guardian, for the petitioner's minor children of said Joseph Thaw and herself, be, and she is hereby, authorized and empowered to sell the said real estate mentioned in said petition at public or private sale, after such notice by advertisement as she shall deem reasonable and sufficient, on the following terms, viz., either for cash or on credit, at the option of the said guardian, and on the full payment of the purchase money and interest, and on the ratification of the sale by this court, to execute to the purchaser, his heirs or assigns at his or their cost and request, a valid and sufficient deed of conveyance in fee-simple of the said premises, with all the right and estate therein of the said Columbia and Columbus Thaw, minor children aforesaid: Provided, that the said guardian, before proceeding to act hereunder, shall file with the register of wills her bond, with security, to be approved by the judge of this court, in the penalty of seven hundred and fifty dollars, with the usual condition for the due and faithful performance of the trust reposed in her as guardian of said children, and immediately after making said sale to report the same under oath to this court. NATH'L POPE CAUSIN.'

(3) Certified copies of two bonds, each executed by Eliza V. Thaw as principal, and Henry Walker and John Walker as sureties, to the United States. One of these bonds, dated March 22, 1844, was in the penal sum of $725, and upon the condition that if 'the above-bounden Eliza Van Tyler Thaw, as guardian to Columbia and Columbus Thaw, orphans of Joseph Thaw, of Washington county, deceased, shall faithfully account with the orphans' court of Washington county, as directed by law, for the management of the property and estate of the orphans under her care, and shall also deliver up the said property agreeably to the order of the said court or the directions of law, an shall in all respects perform the duty of guardian to the said Columbia and Columbus Thaw, according to law, then the above obligation will cease. It shall otherwise remain in full force and virtue in law.' The other bond, dated May 17, 1845, was in the penal sum of $750, and upon this condition: 'Whereas, Eliza V. Thaw, by a decree of the orphans' court of Washington county aforesaid, and confirmed by an order of the circuit court of the District of Columbia for the county of Washington aforesaid, has been appointed trustee to sell the real estate of the late Joseph Thaw, mentioned in said order, for the support and maintenance of Columbia and Columbus Thaw, minors, as will more fully appear by the said decree, reference being thereto had: Now, the condition of the above obligation is such that if the above-bounden Eliza V. Thaw do and shall well and faithfully perform the trust reposed in her as trustee...