
    Lessee of Jenks against Backhouse.
    Saturday, December 31st.
    A trust estate in Pennsylvania descends in case of intestacy, to the heir at common law.
    UPON the trial pf this ejectment before Shippen C. J. and Smith j. at a Circuit Court for Bucks in May 1802, the plaintiff shewed a regular title to the premises in question,~ being part of a large patent, in Lawrence Growdon, who by his will devised the residue of his estate, including the lands in controversy, to his two daughters Grace and Elizabeth. Elizabeth and Thomas Nicholson her husband, and Grace and Joseph Gallowau her husband, who in his own right was entitled to one twenty-fourth of the patent, executed a deed of partition, and a^ottecland granted the premises in question by certain numbers, to Joseph Gallo-way and Grace his -wife and to the heirs of Grace; certain other numbers to Nicholson and his wife, and certain other numberS to Joseph Galloway and his heirs. The deed was duly j á •> acknowledged. At the time of the partition Galloway and wife had issue Elizabeth. Galloway was afterwards attainted of treason, and removed from Pennsylvania to Great Britain, where at the time of trial he remained in full life. After his attainder and departure, his wife died in Pennsylvania, having by her will devised the premises to Abel James, from whom they came to Thomas Jenks, in trust for Elizabeth Galloway the daughter and her heirs. Thomas Jenks died intestate leaving six children; but the lessor of the plaintiff was his oldest son, and heir at common law. The defendant derived his title under the agents of forfeited estates, who upon the attainder of Galloway, sold the premises for his life, supposing him to be so entitled as tenant by the curtesy; but this court having decided 
       that by his attainder the estate of Mrs. Galloway was discharged of the curtesy, this ground was not taken by the defendant. He however resisted the plaintiff’s claim upon two other giounds: First, That in 'Pennsylvania a trust did not descend to the heir at common law, but to all the brothers and sisters under the intestate laws; and that therefore the recovery could be but for one sixth at most. Secondly, That the deed of partition conveyed a life estate to Galloway.
    
    A verdict was taken for the plaintiff generally, subject to the opinion of this court upon two points reserved, which were the defendant’s two objections; and they were now argued by Hopkinson and Tilghman for the plaintiff, and by Ross and the Attorney general for the defendant.
    For the plaintiff it was contended on the first point, that a trust descends in Pennsylvania as it does in England, and is not contemplated in any of the provisions of the intestate law. They relate exclusively to the beneficial estate. The acts pf Assembly which govern this case give the eldest son two shares, the widow her third or moiety, the other children their respective portions; in certain cases they order a valuation, and what is a striking feature, they expose the whole of the intestate’s estate, which is in any manner the object of the law, to the payment of his debts. 1 St. Laws App. 44. 47. It is impossible that a mere trust should be embraced by such provisions. The acts of Assembly are to be construed like a will, in which a general devise of all a testator’s estate does not pass a trust. Attorney general v. Buller. 
      
       Neither will a general assignment by a bankrupt pass a debt due to him as trustee. Winch v. Keeley. 
       The argument ah inconvenienti in our case is very strong; and our judicial decisions recognise the heir at law for various purposes not within the intestate law;' as in the case of an estate tail, where the oldest son has been . adjudged to take.
    _ , Second point. 1 he intention oí the parties was to keep their rights upon the old footing, and merely to sever the possession; though whatever was their intention, they had no capacity to gy tKat deed any estate which was not in existence before. Who were the parties that granted to Galloway and his wife ? Thomas Nicholson and wife, who certainly could not give Galloway an estate in his wife’s lands. It s contrary to the nature of a partition either by writ or deed to alter the estate of the parties; they all continue to be in of their old estate. Co. Litt. 169. b. 117. b.
    
    For the defendant. First point. The intestate laws include within their provisions all legal estates; and if there be an inconvenience, it is for the legislature to remedy it. Its falling into many hands is no objection; for even in England it descends to coparceners, and the children of a coparcener, Co. Litt. 163. b., and to brothers in gavelkind, where all the inconveniences suggested may arise. Indeed the opposite argument allows that if all Jenks,s children were females, they would take the trust among them. The legislature knew that trusts were in existence, and they have used general words. But. it is said general words in a will do not pass a trust; this has been vexata qucestio, and in the case of Marlow v. Smith 
      
       the direct contrary was decided. The reason why a bankrupt’s assignment does not pass a debt owing to him as trustee, is because the statute 1 Jac. 1. c. 15. only says that such debts are to be assigned as are for the benefit of the bankrupt. As to an estate tail, whatever may have been the decision, it does not apply. A man cannot be said to die intestate of that which he has no power to devise. The heir at common law takes per formam doni as the person named.
    
      Second point. The intention of the parties is to govern; but it must be collected from the deed, which explicitly allots and grants an estate for life to Joseph Galloway. The only question is as to their power, which hardly admits of doubt, since the wife was a party and acknowledged the deed. She certainly may join hoi' husband in conveying her estate to a third person. and may limit it by use to her husband and herself for life, with remainder to her right heirs; and this is the same thing.
    Reply. 'A trust will certainly descend to parceners, not because the intestate law has so ordered it, but because they form • . y J together but one heir. Co. Litt. 163. b. But although the equitable estate goes to all the sons in gavelkind, the trust does not, nor to the youngest son in borough-english; the heir at law must always enter for a condition broken. Wellock v. Hammond. 
      
    
    
      
      
        Lessee of Pemberton v. Hicks, ante 1.
    
    
      
      
         5 Vez. jr. 339.
      
    
    
      
       1 D. & E. 619.
    
    
      
      
         2 P. Wm. 198
      
    
    
      
      
        Cro. Eliz. 104.
    
   Yeates J.

delivered the opinion of the court.

The first point reserved is whether the trust descended by the intestate laws of this state to the six children of Thomas Jenks deceased, or to the lessor of the plaintiff, his oldest son and heir at the common law.

However general the words of our intestate act may be, it cannot be asserted that the legislature contemplated trust estates as governable thereby. None of the provisions which have been made by our municipal laws, seem applicable to interests purely legal. To speak of a widow having dower in lands vested in her husband on special trust and confidence, without any beneficial interest in him, but for express specified purposes; or of children succeeding to the reversion of one moiety thereof after her death; or making partition thereof, or in case the same cannot be divided without prejudice to or spoiling of the whole, proceeding to a valuation; or selling the same for payment of debts and maintenance of minor children, in defect of personal estate in the decedent; and a variety of other cases which may be put, would sound very harshly in the ears of a lawyer, and be deemed solecisms.

We cannot make laws, but we are bound faithfully to interpret them according to their true intention, and must never suppose that the legislature have been guilty of palpable absurdities, where their public acts are susceptible of a rational com struction. The division of a fiduciary interest into many parts in different proportions, and vesting it thus split up, in many instances in minors, incapable of discharging the functions of the trust, would be attended with many inconveniences. The adverse doctrine does not impair the principle of equality amon8 ^le children of a common parent, adopted by the policy our laws. In the case of an estate tail after the death of the tenant in tail, it has been determined at Tori Nisi Prius that pjg p^p,. at common law shall take the lands thus intailed. He cjajmg^ jj- js sai(P5 through his ancestor per formam doni; yet as to the purpose of taking he is considered as the heir of the father. The strong ground of the decision I take to have been, that it had been the uniform received opinion of the profession, that such a case was not within the true spirit of the intestate acts, that many estates have been held under it, and that it would be highly dangerous at this time to impeach the doctrine. This argument holds in all its force in the present instance. From the best inquiry we have been able to make, and concurring as we do, that the vesting of a trust by the rules of descent at common law will best answer the ends of its creation, that our intestate acts only respect beneficial and not confidential interests, and that the application of them to trusts would produce many difficulties and mischiefs, we feel no difficulty in declaring that the trust in this instance became vested in the eldest son of Thomas Jenks the trustee.

On the second point we have no doubt. We do not think it was the intention of the parties to the partition, to vest Joseph Galloway with any other interest in the land than he had previous thereto. He was tenant by the curtesy initiate of an undivided right, and the only object of the deed appears to be that they should hold the right in severalty. Indeed’ it has been truly said that it was not competent to the parties to extend. his interest in the lands.

On the whole we conclude that judgment should be entered for the plaintiff for the whole of the lands recovered by the verdict.

Judgment for Plaintiff.  