Opinion
05-10-1811
Tunnell and Wife v. Watson and Wife
Attorney-General, for the appellants. Wickham, contra.
The last will of Selby Simpson, of Accomack county, contained the following clauses: " I lend unto my loving wife, after payment of my just debts, all my estate, real and personal, until my daughter Betsy shall arrive to lawful age, or marries; and, after my said daughter Betsy arrives to lawful age or marries, my will and desire is, that an equal division shall be made of the aforesaid estate between my wife, my daughter Betsy, and the child that my wife is now pregnant with. Item; my will and desire is, that if my daughter Betsy Selby, and the child that my wife is now pregnant with, should both die under the age of twenty-one years, and without heirs of their body, that my loving wife shall hold and enjoy all my aforesaid estate for ever."
The child of which the testator's wife was pregnant was born about five or six months after his death, and departed this life, in July, 1796, under the age of twenty-one years, intestate, unmarried and without issue; at which time Betsy Selby, the daughter and devisee of the testator, was also under age, unmarried, and without issue. She afterwards intermarried with John W. Watson, who, in right of his wife, brought an action of ejectment against Tunnell and wife, to recover one half of the deceased child's undivided third part of a tract of land in the county of Accomack, of which the testator died seised in fee-simple.
The jury found a special verdict setting forth the facts above mentioned, and some others, which need not here be noticed: but they did not state whether the deceased child had any other heirs besides his mother and sister.
Note. The will did not mention any children of the testator besides Betsy and the infant with which his wife was pregnant. --Note in Original Edition.
Upon this verdict the county court entered judgment for the defendants, which, upon an appeal, was reversed by the superior court, and judgment entered for the plaintiff. The defendants thereupon appealed to this court.
Judgment Reversed.
Attorney-General, for the appellants. The special verdict was too imperfect to found a judgment upon.
Wickham, contra. There is enough in the verdict for the court to infer that the female lessor of the plaintiff was entitled, as co-heir of the deceased posthumous child, to one half of its share of the land. It was not necessary for the jury to use negative as well as affirmative words, and (after finding that Betsy Selby and the posthumous infant were legitimate children of the testator) to say there were no other children. A person's being heir is an inference of law, which the court may draw from the facts found; not a distinct fact, necessary to be found by the jury. In many cases, verdicts equally defective with this have been sustained.
Birch v. Alexandria, 1 Wash. (VA) 34, 21 Vin. 402, pl. 4, and 404, pl. 11.
Attorney-General. Mr. Wickham is carrying the doctrine of presumption, as to special verdicts, farther than I suppose it allowable. No material fact, not expressly found, can be intended by the court. In the case of the alias capias, in Viner, the defect in the finding was very slight. In Birch v. Alexander, the court only took the evident meaning of the jury; no intendment was necessary at all. Who is heir is an inference of law; but facts sufficient to warrant the inference must be found. The court, in this case, cannot infer that there were no other children.
OPINION
Wednesday, May 15th. The following was entered as the opinion of the court:
" A majority of the court is of opinion that the special verdict in this cause is too imperfect to render judgment upon, for the whole land in the declaration mentioned, in this, that it is not shown, by the facts found therein, that the female lessor of the appellee was the exclusive heir of the posthumous child of Selby Simpson."
Judgment therefore reversed, and venire facias de novo awarded.