
    Harvey et ux. and Others v. Borden.
    October Term, 1795.
    Feme Covert — Privy Examination — Commission.—The commission for taking the privy examination of a feme covert must be directed to. and executed by, those who are in fact Justices of the Peace, but thejr need not be so named in the commission or certificate; they will be presumed to be such until the contrary appears.
    Benjamin Borden being seised of a considerable real estate, by his will devises as follows, viz: “My will is, that all my lands and estates in New Jersey be sold, and all my lands on Bullskin, Smith’s Creek, and North Shenando, and all my entries every where, and all my lands on the waters of James Kiver, should be sold, excepting1 5,000 acres of land that is all good, I give to my five daughters [by name] that is 1000 acres of good land a piece to every one of the said five acres, (meaning daughters) above mentioned, to them and their heirs and assigns for ever.” He then cjirects ail the rest of his lands to be sold as aforesaid (excepting the tract he then lived on), and be equally divided between his wife, his three sons and six daughters. He then appoints his three sons his executors, and empowers them to execute deeds for the lands which he had sold, and ordered to be sold. Only two of the executors named in the will, qualified. The testator was possessed of 92,000 acres of land on James River, as well as of other tracts on Catawba, a branch of the same river.
    Joseph Borden the plaintiff in this cause, claiming under James Pritchard and wife (the latter being one of the five daughters of the testator) filed his bill in the High Court of Chancery against Harvey and his wife (the latter of whom is the heir at law of Benjamin Borden, the eldest son and executor of the said testator) for an allottment and conveyance of the 1000 acres devised to Mrs. Pritchard by the clause before mentioned. The bill states that Benjamin the younger had purchased the shares of the other four daughters, and had received a conveyance from Worthington the former husband of the fifth daughter, *(now Mrs. Pritchard,) under whom the plaintiff claims, but that she was not privily examined as the law directs, in consequence of which his title to her share was invalid.
    The answer states that the part to which the daughter, under whom the plaintiff claims was entitled, was set apart by the said Benjamin Borden the younger, out of a tract of 20,000 acres on James River; that he sold considerable quantities of land to discharge the debts of the testator, and he insists, that if the plaintiff is entitled to the quantity now claimed, it ought to be laid off out of the 20,000 acre tract.
    An amended bill was filed for the purpose of making certain persons defendants, who are stated to be in possession of 2,218 acres ■on Catawba, of the best land which belonged to Benjamin Borden the elder, under a voluntary conveyance from their mother Mrs. Harvey, the female defendant, and heir at law of Benjamin Borden the younger, and praying to have the 1000 acres claimed by the plaintiff laid off out of those lands.
    The new defendants insist, that the plaintiff ought to have his 1000 acres laid off out of the large tract on James River, and not out of the Catawba lands, as there was not in the latter tract as much land, as wonld satisfy the bequest of 5,000 acres, and of course that tract could not have been contemplated by the testator, in the devise to the daughters.
    By the report of sundry commissioners, appointed by an order of the Court of Chancery to state the situations, ascertain the quantities, and describe the boundaries of the lands, whereof Benjamin Borden the elder died seised, and particularly of such parts as had been allotted by Benjamin the younger, to any of the daughters of his testator, it appears, that Benjamin Borden the testator, at the time of his death, was possessed of sundry tracts on Catawba, amongst which was 2,218 acres, reputed to be his best land, and which the commissioners think more nearly answers the description of that devised to his five daughters, than any other.
    It does not appear from any part of the record, that the commissioners who took the privy examination of Mrs. Pritchard, (who with her husband conveyed the land in question to the plaintiff,) were justices of the peace; they are not stated to be such in the commission, nor in the certificate. The deed from Mrs. 'Worthington, (now Mrs. Pritchard) and her husband to Benjamin Borden the younger, and which for want of her privy examination was void as to her, describes the .1000 acres thereby intended to be conveyed, to be on one of the branches of James River.
    'x'The decree of the High Court of Chancery was as follows, viz: “That the defendants or such of them as are in possession of 1000 acres of land herein after directed to be assigned to the plaintiff do resign the said possession, and convey the said 1000 acres of land to the plaintiff at his costs, and pay to him so much of the profits of the said land since the commencement of this suit as shall exceed (if they do exceed) the value of the permanent improvements on the said land made by Benjamin Borden the younger, and by the defendants;” and commissioners were appointed to assign to the plaintiff one thousand acres of the land mentioned in the reports, to which Benjamin Borden the elder was entitled, and which is in possession of the defendants, or-some of them, causing the said 1000 acres of land to be laid off by the county surveyor, in one entire parcel and in a convenient form; and to examine, state and settle the said account of profits and to estimate the said permanent improvements.
    Prom this decree the defendants appealed.
    Marshall for the appellant.
    The first question in this cause is, whether the ap-pellee has any right at all? Secondly, whether the land decreed, best answers the intention of the testator?
    1st, The act of 1748 Ch. 1, § 6, requires the commission for the privy examination of a feme covert, to be directed to two justices of the peace, which this is not.
    It cannot be denied, but that if the persons to whom the commission was directed were not justices of the peace, the deed could not pass the estate of Mrs. Pritchard, and therefore, the Chancellor has presumed, that they were such as the law required. I cannot discover any ground upon which to raise such a presumption. The commissioners are not stiled justices of the peace in the instrument itself, nor does it appear from their own certificate that they were so. If either had been the case, a presumption might possibly have been created, so far at least as to lay the other side under a necessity of disproving it. It should at least appear upon the face of the instrument that the law has been pursued, or otherwise it can have no legal operation.
    2d, The testator had one tract of 92,000 acres of land on the waters of James River in one body. The lands which are subjected by the decree to satisfy that clause in the will are upon Catawba, a branch of James River, and it appears by the report of the commissioners that there are not five thousand acres of land in this tract. From these facts it seems to follow inevitably, that the large tract of land best answers the intention of the testator, because out of that tract 5,000 acres may be got in *one body, and upon the waters of James River, sufficient to satisfy the will. Whereas the land decreed is out of a much smaller tract than 5,000 acres, and is on the waters of Catawba. In some parts of the will, where the testator speaks of other branches of James River, he calls them by name, clearly shewing, that he knew how to distinguish between James River and its branches.
    Stark for the appellee.
    In no instance do commissions for privy examinations name the persons to whom the3r are addressed as justice of the peace, and if they did, it would not prove that they were so. Neither would the fact be established if the commissioners were to stile tnemselves so in their certificate. The Chancellor was right in presuming that they were magistrates, because the law required them to be so, and if they were not, it was easy for the appellant to repel the presumption by positive proof.
    2d, It appears that Benjamin Borden the younger, disposed of all the good land out of the large tract, and having a general power to sell, under the will, he deprived the appellee of the power of resorting to that tract, even if it had best answered the description. The land on Catawba is in the possession of persons claiming under his heir as volunteers, and therefore they are in no better situation, than he would have been himself. The testator it is proved had not in any of his tracts 5,000 acres of good land in a body, and because that quantity cannot be found in one tract, is the appellee to have no land at all? We are then to come as near it as possible, and however hard it may be upon the appellants, that their land should be taken, yet it is to be attributed to the conduct of their ancestor who has caused it by disposing of all the other good lands.
    Campbell on'the same side.
    The objection to the appellee’s title seems to be built upon a misapprehension of the act of 1748, which is merely directory to the clerk, and does not require that the persons named in the commission should be therein stiled, “justices of the peace.” The words of the law are “that it shall be lawful for the clerk to issue a commission to two or more commissioners being justices of the peace,” 8tc. Whether justices or not, is a fact capable of proof, and the court will presume they were so, until the contrary appears.
    Benjamin Borden' was bound as executor and trustee,
    to reserve 5,000 acres of land, all goods, for the five daughters. He did reserve lands on the Catawba, tho’ not all in a body, nor does the will require it. Nay it appears that that quantity ofij *good land in a body could not have been found in the estate of the testator. But it is said, that the appellee-ought to receive his quantity out of the 92,000 acres of land. Benjamin the younger, has disposed of this land, and therefore it is holden either by purchasers for valuable-consideration, or by volunteers, as the-Catawba lands are holden. If the former,, we cannot touch them. If the latter, may they not object to our claim with as much-reason as the present appellants do?
    The report of the commissioners appointed; by the Chancellor to view the lands, leave-no doubt, but that those on Catawba will best satisfy the intent of the testator, .and-, to that report there is no exception.
    Marshall in reply.
    There is no proof that the 92,000 acres are sold. But if there were-it does not alter the question, which is, do-those lands answer the description given by the testator, better than the Catawba lands? I contend for the reasons first mentioned that they do, and if so, and by the-conduct of Benjamin Borden the younger, such land cannot be obtained by the ap-pellee as he is entitled to by the will, then his claim for compensation will be against the estate of Benjamin Borden, and not against a part of his representatives, who-^ by this decree are to bear the whole loss.
    The opinion of the commissioner will not carry the claim from the 92,000 acres, if that was the tract contemplated by the testator. A part of this tract must at any rate have been taken to satisfy the devise, since there Were not 5,000 acres on Catawba.
    
      
       Married Woman — Privy Examination — Compliance with Statute. — The principal case is cited with approval in Grove v. Zumbro, 14 Gratt. 514; Tod v. Baylor. 4 Leigh 513.
      See foot-notes to Grove v. Zumbro, 14 Gratt. 501; Hairston v. Randolphs, 12 Leigh 445.
      Deed — Acknowledgment—Ofiicial Character of Persons Taking. — In Hurst v. Leckie, 97 Va. 562, 34 S. E. Rep. 464, it is said; “Itwas also held by this court in Iiarvev v. Borden, 2 Wash. 156, Ware v. Cary, 2 Call 263, and Langhorne v, Hobson, 4 Leigh 224, that it was not essential that the official character of the persons taking the acknowledgment should appear in the certificate, but that it would be presumed that the acknowledgment was made before officers authorized to take it. These cases, however, arose before the enactment of the statute prescribing the form of the certificate of acknowledgment, which had the effect to change the law in this respect. Acts 1813, ch. 10.sec. 2, p. 35; IRev. Code 1819, p. 363."
      The principal case is cited in Harvey v. Preston, 3 Call 499.
    
   ROANE, J.

This is a plain case, and though contained in a voluminous record, the essential parts of it, lie within a small compass. An objection is made to the title of the appellee, because the commission which was to enable Mrs. Pritchard to pass away her estate, was not directed to Justices of the peace. The act of 1748 requires the commission to be addressed to persons being Justices of the peace, but does not prescribe the form of it. It is certainly necessary that the commissioners should in reality answer this description, because the law requires it, but it does not require that they should be so stiled in the commission. The question then is. ought we to presume the fact that they were justices? I think we ought. The law requires the clerk to direct it to such persons,, and he ought not to be presumed to have done wrong. The contrary might have been shewn, and if the party meant to avail himself of this objection he ought to have proved the fact. I can never agree that the party should be surprised at the trial with an objection of this sort, particularly, where the presumption is in his favor.

*As to the location of the land claimed under the will, one thing is evident, which is, that the testator intended to give to each of his five daughters, 1000 acres of good land; and it is not required to lie in one body? But if it had been, the report proves that his intention as to .quality could not in this respect have been fulfilled. It is to lie on the waters of James River, and so I think the Catawba lands do. . But if it could be avoided, the land ought not to be laid oft in small surveys, and as it is in proof that the 5,000 acres of :good land could not have been got in the large tract, in less than 20 surveys, the testator could not have meant that tract. Benjamin the younger, seems himself to have considered the Catawba lands as intended by the testator. Had he then a right to purchase up all the good land, and to impose the bad on the devisees? It is shewn by the report, that there remains no good land unsold, and it would be highly unjust, that the executor should by his conduct deprive any of the devisees of that which the testator intended for them, and the appellants claiming merely as volunteers, stand in the situation of Benjamin Borden whom ‘they represent. I think the decree ought to be affirmed.

ELEMING, J.

'The first objection made by the appellant’s counsel to the decree was, that the commission -was not so directed, or returned, as to pass the estate of Mrs. Pritchard. It is duly executed by the persons to whom it was directed, and the clerk is required to address it to justices of the peace. The deed with the commission is returned, and admitted to record. I do not think that we carry the doctrine of presumption beyond its accustomed limits when we say, that to support this deed, we will intend that the law has been obeyed unless the contrary appear.

The second point respects the location of the land. The Chancellor discovering much ■difficulty in ascertaining what lands would best fulfill the intention of the testator, very properly appointed commissioners to view all the lands of the testator on the waters of James River, and to report thereupon. These commissioners had certainly the fairest opportunity of judging, and after stating that Benjamin Borden the executor, had sold almost all the good land out of the large tract, they report their opinion to be, that the lands on Catawba more nearly answers the description given by the testator than any other. I am therefore of opinion that the decree is right.

The PRESIDENT.

I concur fully in sentiments with the other judges, and for the reasons given by them, I am of ^opinion, that the decree is right upon both points, and ought to be affirmed.  