Nicholas Heyl and Wife against Mitchell

[Pittsburg, Monday, September 9, 1811.] Nicholas Heyl and Wife against Mitchell. In Error. The widow of an officer or soldier in the Pennsylvania line, who was slain in battle, or died in the service, without leaving a child or children, is entitled to donation land, according to the pay and rank of her husband, absolutely in fee simple, and not in trust for the heirs of her husband, after her death. This was an ejectment for 200 acres of donation land in Mercer county, to which Heyl and wife the plaintiffs claimed title in the following manner: A certain Charles Hoffman, who served in the revolutionary war as a master musician in the Pennsylvania line, died in the service iu the month of September 1780, without issue, leaving a widow Rachel Hoffman. On the 9th October 1786, a patent for the tract in question was issued to the said Rachel as “the widow of Charles Hoffman, musician, deceased, to hold to her, her heirs and assigns for ever, in trust nevertheless for the use of her and the children of the said Charles Hoffman, deceased, according to the laws of this commonwealth.” Rachel, the widow, died. Catharine the wife of Nicholas Heyl, was the only child of John N. Hoffman deceased, the sole brother of Charles Hoffman, and heir at law to Charles. The defendant claimed under a conveyance from Rachel the daughter and heir of Rachel Hoffman the widow of Charles, by a former husband. The only question was whether Rachel the widow took *the land in fee simple, or whether she held it in trust for the heirs of her husband, after her decease; and the Common Pleas of Mercer being of opinion that she took in fee simple, a bill of exceptions was tendered, upon which the question came before this Court. The point turned entirely upon certain resolutions and acts of assembly, the material parts of which are as follows: On the 29th March 1779, the legislature of Pennsylvania adopted the following resolutions: “First, that in addition to the continental bounty of two hundred dollars, there be given on the part of the state, sixty-six dollars and two-thirds of a dollar, to every recruit, who since the 23d day of January last, has been, or who may hereafter be enlisted to serve during the war, the whole making one hundred pounds; one-half of which to be paid at the time of enlistment, the other half on joining the corps into which the recruit may be enlisted. Secondly, That seventy-five dollars be allowed to every officer appointed to the recruiting service, for every recruit he may from this time enlist., that shall pass muster. Thirdly, That at some future period, this house will by a suitable gratuity, recompense the services of such of their veteran soldiers, as may have engaged and shall continue during the war. Fourthly, That the provision made by this house, of half pay to the widows of officers, be extended to the widows of soldiers in like circumstances.” Journals of Assembly, 1779, page 348. On the 21st February 1780, they passed additional resolutions, to promote the raising of four companies for the frontier service; and as an encouragement to the officers to raise men, and the men to enlist, the supreme executive council were authorized to offer over and above the pay and rations then allowed to the officers of the federal army, as follows: “ To the officers, one hundred dollars levy money, for every able bodied recruit who shall pass muster, to be paid to the officer enlisting him. A complete suit of clothing, &c. And every commissioned officer, non-commissioned officer and private, who shall render faithful service to the state, and continue therein during the war or till honorably discharged, shall be entitled to the same gratuity of land, as the commissioned, non-commissioned officers and privates in the service of the United States and ^belonging to this state are or shall be entitled to. That the said lands be liable to location only in the counties of Westmoreland, Bedford, and Northumberland, that the right of location be not assignable, and that the legal representatives of any officer or soldier falling in battle with the enemy, be entitled to the same proportion as such officer or soldier would if living be entitled to.” Journals of Assembly, 427. On the 7th of March 1780, “ the house took up the consideration of the quantity of land to be allowed to the officers and privates belonging to this State in the federal army, and resolved upon the following allowances: To a major-general 2000 acres, &c. &c. To every private 200 acres.” Journals of Assembly, 441. By an act of the general assembly passed the 12th of March 1783, the legislature in compliance with their resolve of the 7th March 1780, appropriated a certain district of country between the Alleghany river, &c., and the western boundary of the State, for the sole use of fulfilling and carrying into execution the said resolve ; and by the seventh section of the act it was provided as follows, “ that all officers and private men entitled to land as aforesaid shall and they are hereby directed to make their respective applications for the same within two years.after peace shall be declared ; and should any of the said officers, non-commissioned officers or private men, die before their respective applications shall be made, as before directed, then their heirs, executors or administrators respectively, are hereby permitted to make such applications within one year after the expiration of the aforesaid time; and in case the said officers, non-commissioned officers, and private men, their heirs, executors or administrators, shall neglect so to do within the times limited as aforesaid, then and in such cases it shall and may be lawful for any person or persons whatsoever to apply to the land office, locate and take up such parts or parcels of said lands, upon such terms as the legislature shall hereafter direct, as may remain unlocated by the said officers, non commissioned'officers, and private men, their heirs, executors and administrators.” 2 St. Laws 88. On the 24th of March 1785, an other act was passed, whose object was to direct the mode of distributing the donation lands promised to the troops. The preamble to the fourth section recites that “ whereas difficulties may arise in determining the cases to .which the said grant of lands by the aforesaid resolution shall extend, and whether the same doth also include the graut of lands promised to the army by congress, be it further enacted, &c. That all officers and soldiers of the Pennsylvania regiments, or of independent corps acknowledged by this state as of the quota of Pennsylvania in the federal army, and officers, being citizens of this state at the time of their entering into the service, not attached to the line of any state, who have served therein until the end of the late war with Great Britain, and all officers, as aforesaid, who have been deranged by the regulations and arrangements of the army, according to the act of congress passed October 1780, or at any subsequent period of the war, together with the widows and children, or either thereoe, of such officers and privates aforesaid, as were slain ia battle, or died in the service, shall be and they are hereby entitled to lands, according to the pay and rank they held last before they left the said service, in the proportions laid down in the resolution aforesaid.” 2 St. Laws 269. By an act of the 6th April 1792, 3 St. Laws 239, it was enacted, that upon the application of any person entitled to donation lands (agreeably to the list submitted by the comptroller general to the supreme executive council) or his legal representative, to the surveyor general within the term of two years from and after the passing of this act, patents should thereupon issue in the usual form. On the 17th of April 1795, the legislature directed the comptroller to complete his list of the persons entitled to donation lands, and the surveyor general, receiver general, and secretary of the laud office, were thereupon ordered to create a lottery to determine the rights of the applicants. By the fourth section of this act, it was enacted, “ that the legal representatives of any person deceased shall be entitled to all the advantages and emoluments of this act, and to draw lots in the said lottery in the same manner and with the like effect, that they might have done if living, *and also to have lots drawn for them if absent, in the manner as above provided.” ■ 3 St. Laws 754. The fifth section of an act passed on the 2d April 1802, enacts, “ that upon satisfactory proof being made to the board of property, by the widow, heir or heirs of any deceased officer or soldier, it shall be the duty of the said board to direct a patent or patents to issue in the usual way, in favor of such widow, heir or heirs for such donation lands, and on the same conditions as the officer or soldier would if living be entitled to.” 5 St. Laws 152. Finally, on the 11th of March 1809 the legislature by an act of that date, declared “ that no patent shall issue on any application which may be made after the passing of this act, to any heirs of the officers and privates who died or were slain in the service of the United States and entitled to receive donation land, under the laws of this commonwealth, except to the widows and children, or either thereof., of such officers and privates. Provided always, that nothing herein contained shall in any wise be taken to affirm or impair the rights of any person or persons on applications as aforesaid, heretofore made.” 9 St. Laws 39. Upon these resolutions and acts, JBaldioin for the plaintiffs in error contended, that the officer himself was the object of bounty, and that although the donation by the commonwealth was not lost by his death, yet those to whom it -was given in that event, were recognized only as derivative claimants who took his place, and for the same quantity of estate that they would have taken, had the object of the public bounty himself obtained the title. This he contended was to be inferred from all the resolutions and acts taken together; and that the utmost to which Rachel Hoffman was entitled, was an estate for her life, with remainder to the heir at law of her husband in fee. Semple for the defendant argued that the act of 24th March 1785 embraced the present case too distinctly to admit of a question.' By this act if a soldier had died in the service, his widow and children if he left both, his children if he left no widow, and his widow if he left no children, became entitled to the lands. It is the only law which pro-for the *case of being slain in battle or dying in the service, and it gives to the widow in the event of there being no children, precisely what it gives to the children if there be no widow, an absolute estate in fee simple, without even a hint at any right in the heir or legal representative. [MAJORITY — Tilghman C. J.] Tilghman C. J. Charles Hoffman deceased was a musician in the Pennsylvania line, in the army of the United States, and died in service in the month of September 1780, intestate and without issue. He left a widow named Rachel, to whom a patent was issued by the state of Pennsylvania 9th October 1786, for a tract of donation land “to hold to her, her heirs and assigns for ever, in trust for herself and the children of the said Charles Hoffman according to the laws of this commonwealth.” The wife of Nicholas Heyl is the niece and heir at law of Charles Hoffman. The defendant claims under a conveyance from Rachel, the daughter and heir of the said Rachel Hoffman (widow of Charles) by a former husband. The question is upon what trust did the widow Hoffman take the land by virtue of the said patent? The plaintiff’ contends, that it was in trust for the heirs of her husband. The defendant says that the trust was for herself in fee simple. This will depend upon the intention of the legislature of Pennsylvania manifested in certain laws and resolutions. On the 7th March 1780, the assembly having taken into consideration what quantity of lands should be allowed “to the officers and privates belonging to this state in the federal army,” ascertained the same by a resolution. On the 12th March 1783 an act was passed, the preamble of which recites, “that the general assembly did, by their resolve of 7th March 1780, promise to the officers and privates belonging to this state in the federal army, certain donations and quantities of land according to their several ranks as therein set forth, to be surveyed and divided off to them severally at the end of the war.” The seventh section directs that all officers and privates entitled as aforesaid, shall make application within two years after peace shall be declared, and should they die before application, their heirs, executors or administrators are permitted to apply within one year after the expiration of the said time, and in case of *their failure, it should be lawful for any person to apply to the land-office and take up such land. By the eighth section of this act all alienations made by the officers or privates, before the land is surveyed and laid off, are declared to be null and void. This was a wise and humane provision, but shows that the assembly did not consider the soldiers as having any vested interest, but that the whole was a donation, subject to be modelled at their pleasure. It may be proper to observe too, that the Indian title to the lands after-wards appropriated to these donations was not then extinguished. Hitherto it had not been exactly defiued, what officers and soldiers should be entitled to donation. Some had died in battle, or in the service; and some officers had been dismissed from the service, without any fault, and against their will, by various arrangements made by the congress of the United'States. All these persons were worthy of consideration, but seem to have been omitted in the act of 12th March 1783, which makes use of the general expressions “ officers and privates belonging to this state in the federal army.” At least their case was doubtful, as the words in their strict sense only apply to officers and privates then living and in service. On the 24th March 1785 an act passed appropriating land for the donations, and directing the manner in which it should be laid off and divided. The preamble recites the resolutions of 7th March 1780, and the act of 12th March 1782. The third section mentions that difficulties may arise, “ in determining the cases to which the said grant of land may apply and by the fourth section on which this case turns, it is enacted as follows, “ all officers and soldiers of Pennsylvania regiments, or of independent corps acknowledged by this state as of the quota of Pennsylvania in the federal army, and officers being citizens of this state at the time of their entering into service, not attached to the line of any state, who have served therein to the end of the late war, and all officers as aforesaid who have been deranged by the regulations and arrangements of the army, by the act of congress of October 1780, or at any subsequent period of the war, together with the widows and children or either of them of such officers and soldiers as aforesaid as were slain in battle, or died in service, shall be, and they are hereby entitled *to land, according to the pay and rank they held last before they left the service, in the proportions laid down in the resolutions aforesaid.” The expressions “widows and children or either of them,” include three cases, 1. Where there were both a widow and children. 2. Children and no widow. 3. A widow and no children. The last is the case which we are to decide. What estate wras the widow to take? As it appears to me, the whole in fee simple. There is no mention of heirs or collateral relations. Why then should we insert them ? If the widow is not to take in the manner I have mentioned, how much is she to take and for what estate? If less than a fee simple, it must be for life. But what would a life estate have been worth in a wilderness, in the year 1786 ? What object could be more disconsolate, more worthy of support and comfort, than the childless widow of a soldier slain in battle, or dying in service? Where the soldier was alive, the reward of his services was due to himself. But if dead, it was most reasonable to bestow it on the objects of his dearest affections, his widow and his children or either of them. The case before us falls directly within the words of the law, and as directly within the spirit of it. I am therefore of opinion, that inasmuch as Charles Hoffman left no children, his widow took the land in trust for herself solely in fee simple. Yeates J. and Brackenbxd&e J. expressed their concurrence. Judgment affirmed. [Cited in 4 W. 328.]