Lessee of Jenks against Backhouse, 1 Binn. 91

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.