Thomas Leland and Cynthia Leland His Wife, Lemuel Hastings, George Carlton and Elizabeth Waite Carlton His Wife, William Jones Hastings, Jonathan Jenks Hastings, Lambert Hastings, Joel Hastings, Hubbard Hastings and Harriet Maria Hastings, Plaintiffs v. David Wilkinson

• Decision Date: 01 January 1836
• Citation: 9 L.Ed. 430,10 Pet. 294,35 U.S. 294
• Parties: THOMAS LELAND AND CYNTHIA B. LELAND HIS WIFE, LEMUEL HASTINGS, GEORGE CARLTON AND ELIZABETH WAITE CARLTON HIS WIFE, WILLIAM JONES HASTINGS, JONATHAN JENKS HASTINGS, LAMBERT HASTINGS, JOEL HASTINGS, HUBBARD HASTINGS AND HARRIET MARIA HASTINGS, PLAINTIFFS v. DAVID WILKINSON
• Court: U.S. Supreme Court

35 U.S. 294

10 Pet. 294

9 L.Ed. 430

THOMAS LELAND AND CYNTHIA B. LELAND HIS WIFE, LEMUEL

HASTINGS, GEORGE CARLTON AND ELIZABETH WAITE CARLTON

HIS WIFE, WILLIAM JONES HASTINGS, JONATHAN JENKS

HASTINGS, LAMBERT HASTINGS, JOEL HASTINGS, HUBBARD

HASTINGS AND HARRIET MARIA HASTINGS, PLAINTIFFS

v. DAVID WILKINSON.

January Term, 1836

ON a certificate of division in opinion between the judges of the circuit court of the United States for the district of Rhode Island.

The case was submitted to the court by Mr Whipple, for the defendant, on a printed argument. No counsel appeared for the plaintiff.

Mr Justice M'LEAN delivered the opinion of the Court.

The matters in controversy in this case are contained in certain points, on which the judges of the circuit court for the district of Rhode Island were divided; and which have been certified for decision to this court, under the act of congress.

The plaintiffs brought their action of ejectment against the defendant, to recover possession of the land in controversy; and they claim as the heirs at law of Cynthia Jenks. It was proved that Jonathan Janks, who was seised of the premises, and who died in January 1787, devised the land to his daughter Cynthia, a few days before his decease.

The defendant's counsel gave in evidence a certain deed, executed by Cynthia Jenks, executrix, to Moses Brown and Ariel Wilkinson, dated the 12th of November 1791, and a certain bond or warrant of the same date.

Also the petition of Cynthia Jenks to the general assembly of Rhode Island, representing that she was executrix of the last will and testament of Jonathan Jenks, late of Winchester, in the state of New Hampshire, deceased; and that the personal property being insufficient to pay the debts of the estate, she obtained authority from the judge of probate to make sale of so much of the real estate of the deceased as should be necessary to pay the debts. And that under this authority she sold and conveyed certain lands in the state of Rhode Island, as belonging to the estate, and received a part of the consideration money; and the balance was to be paid when the deed executed by the petitioner should be ratified by the general assembly. The residue of the purchase money was represented to be absolutely necessary to pay the debts of the estate, and a ratification of the deed &c. was prayed.

In the lower house, June 1792, 'it was voted and resolved, that the said petition be received, and that the said deed and the same is hereby ratified and confirmed, so far as respects the conveyance of any right or interest in said estate, mentioned in said deed, which belonged to the said Jonathan Jenks at the time of his decease.' And in the upper house this resolve was read the same day, and concurred in.

The questions adjourned to this court are as follows:

1. Whether the confirmatory act, above stated, is sufficient to divest the title of the plaintiffs, if the sale of Cynthia Jenks, the executrix, confirmed by that act, was not necessary to pay the debts of her testator, Jonathan Jenks.

2. Whether the burthen of proof of the existence of such debts, and the insufficiency of the personal estate, and also of the real estate, which the said Jonathan Jenks, by his said will, authorized his executors to sell, and pay the same, or of either of said points, is on the defendant.

3. Whether the said confirmatory act is prima facie evidence of the existence of such debts, and of such insufficiency of personal estate and real estate, so authorized to be sold as aforesaid.

4. Whether the...