
    Nancy Brown and Others versus Simeon Wood and Wife.
    Where a will had beén proved twenty years, by the oath of two only of the three subscribing witnesses, without accounting for the absence of the third, and without any record of previous notice to the heirs; it was presumed that suffi cient reasons existed for the absence of the third witness, and that notice was duly given to the heirs.
    A devise of all the testator’s “ estate, real, personal, and mixed; goods, chattels, and estates whatsoever, or wheresoever they may be found, belonging unto me for any cause whatsoever,” were holden to carry a fee in the real estate of the testator.
    Of the seisin of a devisee of an estate in common necessary to vest the estate in the devisee. [There must be an actual entry by him, or something equivalent.—Ed.]
    This was a writ of right, and the action was submitted to the determination of the Court, upon the following statement of facts agreed by the parties.
    About the year 1787, Adam Wellman, father of the testator hereafter mentioned, died seised of the land demanded in this action, leaving, three lawful children, his only heirs, and leaving [ * 69 ] also two children, which he had by *one Mercy Wellman, who was reputed to be his wife, but whose children, it is admitted, could not take with the legitimate children before mentioned, although they were considered by their said mother as co-heirs, and always claimed as such. The three heirs were Samuel W., Rebecca W., one of the tenants, and Adam W.—Samuel W. died about two years after his father.
    After the death of the first-named Adam W., viz. in July, 1789, the said Mercy had dower assigned to her in the demanded premises, although not legally entitled thereto, and she still holds the same. Some time afterwards Rebecca W. was married to Simeon Wood, the tenant, and on the 28th of January, 1800, they joined in a conveyance of all the interest in the estate, which descended to her from her father, and from her brother Samuel, to Mercy W., who, with her children, and the lawful heirs of the first-mentioned Adam W., had occupied the land in question from the time of his decease, forming one family.
    Afterwards Adam W., the testator, left the family of Mercy W. and was lawfully married to Nancy Brown; soon after which, viz in January, 1800, he made his will, containing the following devise, viz., “ I give and bequeath unto my well-beloved wife, Nancy Well-man, all my estate, real, personal, and mixed; goods, chattels, and estate whatsoever, or wheresoever they may be found, belonging unto me for any cause whatsoever,” and constituted his wife sole executrix. Soon after which he died; and the will was proved by the oaths of two of the subscribing witnesses, the third not being examined, nor any reason assigned on the record why he was not present and sworn. There was no recital of notice being given before the probate. The said Nancy declining the trust of executrix, administration with the will annexed was committed to one Timothy Wellman.
    
    
      Mercy W., knowing of the will, still continued in the undisturbed possession of the premises, holding the same for all who [ * 70 ] were interested in it. Believing, however, * that her two children were entitled to shares in the first-mentioned Adam W.’s estate, as well as the three heirs before mentioned, and that Nancy W. was entitled to the share of her husband, the testator ; she was ready to deliver up her share, or to pay over to her a fifth part of the rent (which she conceived to be her proportion thereof) when called upon. But the said Nancy never received nor demanded any rent, nor did the said Mercy ever offer to pay her any.
    The said Mercy W. continued her occupation of the premises until March, 1816, when the present tenants, claiming a moiety thereof, as the inheritance of Rebecca Wood, petitioned for partition; which being granted, the parcel of land demanded in this suit was set off to the petitioners (no one of record opposing their right thereto), and they are now in possession of the same.
    
      Timothy W., when appointed administrator, gave bond according to law, and in March, 1804, was duly licensed to sell so much of the real estate of the testator as should be necessary for the payment of the debts due from the estate. A sale at auction was accordingly duly notified in the same year, but no sale was effected at that time; but in August, 1816, the said Timothy, administrator as aforesaid, and claiming authority under the said license, sold all the estate of the testator at auction, for a sum very incompetent to the payment of the debts due from the estate. He never paid any of the debts, nor rendered any account of his administration; and it is agreed that his sale at auction was illegal and void.
    Soon after the death of Adam W., the testator, Simeon Wood demanded the estate in question in right of his wife, and continued such demand until he effected his partition; but his claim was continually opposed by Timothy Wellman, jun., one of Mercy W.’s children, on the ground that he was himself entitled as one of the heirs of the first-mentioned Adam W. in his own right; and Wood’s claim was likewise opposed by Mercy W., on the ground that he had no * interest in the estate in right of his wife. [ * 71 ] But at the time of making such opposition, the said Timothy, jun., did not live on the land, nor constitute a part of his said mother’s family. The said Mercy W., without authority or opposition from the heirs, removed a warehouse standing on the land which descended from Adam W., the father, to another part of the same land, converted it into a dwelling-house, and received rent for the same for many years, for which rent, as well as the rents or profits of the land demanded in this action, she has never accounted to any person. The said Timothy W. was of age when the said Adam W. died.
    The demandants are heirs at law of Nancy W., wife of Adam W., the testator; and the said Nancy W. died in the year 1804.
    Judgment was to be entered for the demandants, or the tenants, as the opinion of the Court should be upon the facts stated. The cause was argued at the last November term, and continued to this term under advisement.
    
      
      Mack, for the tenants.
    The will of Adam W. was not duly proved, and consequently the devise to his wife never took effect. It is essential to the valid probate of a will of lands, that the three subscribing witnesses be present and examined, if alive and within the reach of the process of the Court . This Court, in the first case cited, refused to examine the two witnesses, until the third was produced, or his absence accounted for. Another defect in the probate in this case, is the want of previous notice to the heirs of the testator, of the time and place of probate, which is a matter of common right, and not to be dispensed with. There can be no presumption, in this case, in favor of the proceedings, since possession has not followed the devise. If possession had followed the will, perhaps it would be too late to object to the probate.
    The devise was but of an estate for life. The words “ all my estate” do not necessarily convey a fee; and these are the f * 72 ] only words in the will, which can be at all * relied on in the present case . The testator seems rather to intend to embrace the several distinct kinds of property, which he owned, than to limit the estate or interest which the devisee was to have under the will. The words, “whatsoever, or wheresoever they may be found, belonging unto me,” amount to a location of the estate devised, and have the same effect as if he had said, “ all my estate in S.,” which would have created but a life estate.
    The testator was never seised. The supposed widow held the whole estate, claiming a part of it for her illegitimate children; and of one third she was seised as tenant in dower, of which the testator was entitled to the reversion only. But, in fact, the pretended widow held the whole, received all the rents and profits, without accounting, or being called on to account, and made essential alterations in the buildings, such as none but one claiming a fee would presume to make ; and all this without opposition from the heirs, or any claim for possession.
    The devisee never accepted the devise. She never entered upon the land. Indeed she expressly refused to execute the will, knowing probably that the testator had died insolvent, and that she could, therefore, derive no benefit from his intended bounty . Actual seisin is the taking of corporal possession .
    
      Oliver, for. the demandants.
    
      
       2 Mass. Rep. 236, Chase & Al. vs. Lincoln.—12 Mass. Rep. 362.—Powell on Dec. 70.
    
    
      
       3 Wils. 414.—6 D. E. 610.—Cowp. 306. 659.—Cruise, Tit. 38, c 13, § 10,11 15,16. 36.—Doug. 763.—12 Mod. 596.—2 H. Black. 44.—Gilb. on Dev. 22.
    
    
      
       12 Mass. Rep. 461.—Lilly’s Con. 251.—3 Co. 26.—Swinb. 740.—9 Mass Rep 508.—2 Black. Comm. 209.—2 Cruise, 383.
    
    
      
      
        i) 1 Inst. 245, 6.-3 Wils. 527.—Cowp. 217.
    
   Jackson, J.,

delivered the opinion of the Court. The objection to the sufficiency of the probate of the will of Adam Wellman. jun., comes too late. Upon the common presumptions in favor of every judicial tribunal, acting within its jurisdiction, we must suppose that all persons concerned had due notice. The presumption in the present case is strengthened by the knowledge we have, that in many counties it was not customary to mention in the decree that such notice had been given.

We must also suppose that there was a legal excuse for the ab sence of the third subscribing witness to the will. Various reasons may have existed, which would furnish * such an [ * 73 ] excuse; and as to this also, it was not customary to state such reasons in the decree. It is not now a question, whether the will ought to be proved upon the testimony of two of the witnesses, without accounting for the absence of the third. The law is settled that it cannot be so done. But this very rule of law requires us to believe that the absence of the third witness was accounted for in this case, upon the common presumption before mentioned.

With regard to the estate devised, it is most clearly a fee simple. The testator gives “ all his estate, real and personal,” which is sufficient to pass a fee. The words “whatsoever and wheresoever” cannot possibly be understood as intended to describe the local situation of the estates devised. They were obviously intended to include, with more certainty, every thing the testator had to bestow

As to the seisin of the testator, at the death of his father, he was, with the widow and the other heirs, in possession of the premises. The inheritance of his share was cast upon him by the law, and he, with each of the other children, was seised according to his right. The subsequent assignment of dower could only take from him an estate for the life of the widow; leaving him the reversion in fee in his part of that third, and his whole original estate in the residue.

The seisin of the devisee was undoubtedly necessary in order to pass the estate to her heirs. 1 H. Black. 1, Dally vs. King. It is objected that the devisee refused the trust of executrix; and that she never received any rent, nor personally exercised any act of ownership in the land devised. As to part of it, she was entitled to a reversion only, after the estate in dower, so long as Mercy W. held under that assignment of dower. As to the residue, she was entitled to the seisin and possession, subject to the right of the administrator to sell the land for the payment of the debts of the testator; and the natural presumption * in every [ * 74 ] such case is, that the bounty will be accepted, as it drew after it no charge or risk of loss.

But the freehold is not by law cast on the devisee, as it is on the heir; and there must be an actual entry by him, or something equivalent to it, to give him a seisin. At the death of the testator, the mother, Mercy W., was in actual possession; and if she held and claimed adversely to the devisee, the latter could not be said to be seised. But if she held as tenant in common with the devisee, admitting the title of the latter, she may be considered as seised to the use of the devisee; or, as it is commonly expressed, the seisin of the one tenant in common may be considered as the seisin of both. Now, it is expressly stated that she did so hold and claim in behalf of herself and the other tenants in common, including the devisee. On such a state of facts, the devisee could not have maintained an action of trespass against Mercy W. The latter had not entered unlawfully ; she had not, in fact, ousted the devisee, nor even claimed a right to hold her out. She was not then seised, in fact, of that portion of the estate which she ad mitted to belong to the devisee. Neither was any one else seised, adversely to the devisee; and it follows that she herself was seised, through the agency of her co-tenant, who held it for her use. The possession was not vacant; the title was not in abeyance ; the devisee had alone the right to be seised; and as no other person was seised, the seisin was necessarily in her.

It is true that a person could not be thus seised against his will; and the devisee might, by some express disavowal or disclaimer, have prevented this constructive seisin in herself. But no such express dissent appears.

The case of Sterling vs. Penlington, Vin. Abr. Tit. Curtesy, A pl. 11, is expressly in point. The mother there held one third as tenant in dower, and the residue for her absent son. When her daughter, with the husband of. the daughter, demanded possession of the son’s part, the mother refused, imagining the son [ * 75 ] was still alive, and claiming * to hold the land for him. The daughter died; and it afterwards appearing that the son had died before that time, it was decided that the seisin of the mother, as tenant in common with the daughter, gave the latter a sufficient seisin to make her husband tenant by the curtesy. In that case, the daughter had never been actually seised; and her right was denied by the person in possession. But as this arose from the mother’s mistake in supposing her son to be then living; and she claimed for him, and not for herself; and the ground, on which she claimed, was not inconsistent with the title of the daughter, when the facts were ascertained, she never having intended to deny that title; her seisin, although apparently adverse, was considered to be the seisin of the daughter also. This case is also cited in Viner, Joint tenant, P. a. pi. 5, and is to be found in 2 Equ. Cas. Air. 730, where it seems to have been taken from Viner.

The demandants must recover the whole that was assigned to the tenants on the petition for partition. That partition is valid and effectual, at least as far as it respects the tenants. It seems also to be conclusive on Mercy Wellman, if the demandants are willing to adopt and confirm it. Both parties admit the right of Mercy W. to a moiety of the whole land; and so long as it was held undivided by her and the tenants, the demandants must have brought their action against the tenants for an undivided moiety. A recovery in such an action would have taken away all the estate the tenants had. The partition ought not to benefit the tenants, nor prejudice the demandants. The latter ought, in the present action, to recover all the estate which the tenants have in the land. If the demandants should now recover only an undivided moiety of the land held by the tenants, it would lead to an expensive and useless circuity of action. The demandants, in that case, in order to obtain their right, must recover against Mercy W. a moiety of the land held by her. She must then recover against the tenants the remaining moiety held by * them. This [ * 76 ] would destroy the partition, which appears to be satisfactory to all the parties interested ; and thus this course would lead to two, or perhaps three, other suits, to effect what may be as well accomplished in this one.

Tenants defaulted.  