The Bank of Hamilton, Plaintiff In Error v. the Lessee of Ambrose Dudley, Jun Defendant

• Decision Date: 01 January 1829
• Parties: THE BANK OF HAMILTON, PLAINTIFF IN ERROR v. THE LESSEE OF AMBROSE DUDLEY, JUN., DEFENDANT
• Court: U.S. Supreme Court

27 U.S. 492

2 Pet. 492

7 L.Ed. 496

THE BANK OF HAMILTON, PLAINTIFF IN ERROR v. THE LESSEE OF AMBROSE DUDLEY, JUN., DEFENDANT.

January Term, 1829

THIS is a writ of error to a judgment rendered in the court of the United States for the seventh circuit and district of Ohio; in an ejectment brought in that court by the defendants in error, against the present plaintiffs for part of lot No. 103, in the city of Cincinnati.

The plaintiff is heir at law of Israel Ludlow, who died seised of the premises in the declaration mentioned. The defendant claimed under a sale and deed made by the administrator of the said Israel Ludlow, in pursuance of certain orders of the court of common pleas for the county of Hamilton.

The case depends on the validity of this deed.

In August 1788, the territorial government of Ohio enacted, 'a law establishing a court of probate.' The first section enacts that 'there shall be appointed one judge of probate in each county whose duty it shall be to take the probate of last wills and testaments, and to grant letters testamentary and letters of administration, and to do and perform every matter and thing that doth or by law may appertain to the probate office, excepting the rendering definitive sentence and final decrees.

In 1795, an orphans' court was established, and it was enacted that where persons die intestate and leave lawful issue, 'but not a sufficient personal estate to pay their just debts and maintain their children, it shall be lawful for the administrator or administrators of such deceased person to sell and convey such part or parts of the said lands or tenements for defraying their just debts, maintenance of their children, &c. as the orphans' court of the county where such estate lies, shall think fit to allow, order and direct from time to time.'

In the year 1802, Ohio became an independent state. The constitution, in the article which respects the judicial department, declares that 'the court of common pleas in each county shall have jurisdiction of all probate and testamentary matters, granting administration, the appointment of guardians, and such other cases as shall be prescribed by law.' In April 1803, the judicial courts were organized; and the court of common pleas, after a general grant of original jurisdiction, was empowered to examine and take the proof of wills, to grant administration on intestate estates, and to hear and determine all causes, suits, and controversies of a probate and testamentary nature.

In June 1805, the territorial ordinance of 1795 was repealed.

At the trial of the ejectment in the circuit court, after the plaintiff had closed his evidence, the defendants offered in evidence a deed from the administrators of Israel Ludlow deceased, to Andrew Dunseth, for the premises in the declaration mentioned. 'They also offered in evidence duly certified entries and copies of orders from the records of the court of common pleas within and for the county of Hamilton state of Ohio, of which the following are true copies, viz. '2d of February 1804: Letters of administration granted unto Charlotte C. Ludlow, John Ludlow, James Findlay and James Pierson, on the estate of Israel Ludlow deceased, and their bond with William Ludlow and James Smith as securities for their faithful administration." At May term in the year 1804, date 8th of May 1804, the following order was made, viz. 'The administrators of the estate of Israel Ludlow deceased exhibit an account current and pray the court to issue an order for the sale of real property to defray the debts due from the estate, &c. John Ludlow and James Findlay sworn in court. The Court order so much of the real property to be sold as will meet the said demand, except the farm and improved land near Cincinnati together with the house and lots in Cincinnati.' At the August term of the said court in the year 1805, a supplemental order was made of which the following was a copy, viz. 'The administrators of I. Ludlow deceased, on application to the court to extend the order for the sale of property to discharge the debts arising from the estate: whereupon the court allow the administrators to sell the house and lots in the town of Cincinnati and any other property, except the mansion house and farm in the country so that the sale do not amount to more than ten thousand dollars. This entry considered as of May term 1805.'

It was in evidence that the sale was made agreeably to the provisions of the law adopted from the Pennsylvania code by the governor and judges of the north western territory on the 16th of June 1795, entitled 'a law for the settlement of intestate estates;' that the deed was duly executed, acknowledged and proved.

The plaintiff by his counsel moved to overrule the testimony offered by the defendants' counsel, because the law aforesaid, entitled 'a law for the settlement of intestate estates,' was repealed before the order was made authorizing said sale, and that at the time of making of the said order there was no law of the state of Ohio authorizing the court of common pleas to order the sale of real estate for the payment of debts, &c. of intestates. The court sustained the motion and overruled the defendants' evidence. The defendants excepted to this opinion.

The jury found a verdict for the plaintiff; after which the counsel for the defendants moved the court for the appointment of commissioners, under the occupying claimant law of Ohio, to value improvements. This motion was overruled, and judgment was rendered for the plaintiffs.

The case was argued for the plaintiff in error by Mr Benham and Mr Baldwin; and by Mr Garrard for the defendant.

For the plaintiff it was said, that the defendant in error claims by descent, as heir at law of Israel Ludlow, deceased, who died seised of the premises in question; and the plaintiff claims by purchase from his administrator.

The case is one of deep interest to the present litigants, as well as to all those who hold real estate in Ohio under deeds from administrators, and this class is numerous. Its decision depends upon old statutes which it is proposed to collate, in such a manner as to aid the judgment of the court in expounding them in reference to this case.

These statutes will be found between the periods of 1788 and 1805, and to relate, 1. To the establishment of probate and testamentary courts under the territorial government. 2. Their powers and jurisdiction. 3. The abolition of these courts upon passing from a territorial into a state government. And 4. The organization of new courts of similar jurisdiction, and the modification and repeal of laws relating to testamentary matters.

The facts of the case in reference to which the Court must expound these laws are as follows: Ludlow died the 21st of January 1804. On the 2d of February of that year, administration was granted upon his estate to John Ludlow and others, who gave bond with sureties, as the law required, for the faithful execution of their trust. On the 10th of May 1804, the following proceedings were had in the court of common pleas of Hamilton county, viz. 'The administrators of J. Ludlow deceased exhibit an account current, and pray the court to issue an order for the sale of real property to defray the debts due from the estate, &c. John Ludlow and James Findlay, sworn in court. The court order so much of the real property sold as will meet the said demands, except the farm and improved lands near Cincinnati, together with the house and lots in Cincinnati.' On the 15th of August 1805, the court made another order as follows: 'The administrators of J. Ludlow deceased, on application to the court to extend the order for sale of property to discharge the debts owing from the estate: whereupon the court allow the administrators to sell the house and lots in the town of Cincinnati and any other property except the mansion house and farm in the country, so that the sales do not amount to more than ten thousand dollars—this entry considered as of May term 1805.' The administrators, under the above orders or decrees, sold the lot in dispute and made a deed therefor to Andrew Dunseth, under whom the plaintiff in error claims, which orders and deeds were offered in evidence in the circuit court and overruled.

Whether this evidence were admissible or not, will depend upon the solution of the following propositions:

1. Had the court of common pleas jurisdiction of the subject matter'? 2. Was it competent for that court, upon the application of administrators, to condemn the real estate of intestates to be sold for the payment of their debts, &c. 3. Did the sale and deed of the administrators of the lot in question, pass the legal title to their vendee?

By the law of the territory, adopted by the governor and judges in 1788, and confirmed in 1799, Ohio Laws, 378-9, a qualified jurisdiction over probate and testamentary matters was confided to a judge of probate in each county. This judge had power to grant letters testamentary and of administration, receive guardians chosen by, and appoint guardians for minors, idiots and insane persons: but he had no power to compel executors, administrators, or guardians to execute faithfully their duties. And for this purpose, in 1795, an orphans' court was instituted, with supervisory jurisdiction, to call trustees to account, and to review the judicial proceedings of the judges of probate. Maxwell's Code, 81. At the time the orphans' court was established, in June 1795, a law was adopted from the Pennsylvania code 'for the settlement of intestates' estates,' Maxwell's Code, 90. This statute prescribes the form of administrators' bonds, directs the distribution of the personal estate under the superintendence of the orphans' court; and provides (section 7), upon a deficit of personalty to pay the debts of intestates and maintain and educate the children, &c. for the sale of the lands and tenements for these purposes by the administrator;...