LEWIS against PRATT, 2 Whart. 81

The opinion of the court was delivered by Kennedy, J. It is admitted that Azariah Lewis died seised of the land in question; but whether he died intestate as to it or not, is a matter of fact about which the parties are at issue: and certainly it is a question which ought to have been settled and known how it was, by the Orphans’ Court, before it proceeded to decree a partition of the land. For if A.

Lewis died after having disposed of the land by a will, duly executed by him, he could not therefore be said to have died intestate as to it, whatever he might have done as to other lands of which he was seised at the time of his death. And unless he did die intestate as to it, the Orphans’ Court had no jurisdiction over it, so as to entertain a petition for partition thereof among the heirs of A. Lewis; and to proceed therein as directed by the act of 1794, to make a decree to that effect.

Robert Lewis,- the appellant here, appeared in the Orphans’ Court below, after the petition praying the partition was presented; and made known to the Court by his affidavit, which was filed with the clerk of the Court, that he claimed the whole of the land exclusively, under a devise made of ihe same to him by Azariah Lewis; that he was in the actual possession thereof, and held and claimed it exclusively under the devise; and therefore objected to the Court’s proceeding to make a partition or valuation thereof, as in cases of .intestacy.

This objection, if true, was certainly an insuperable one to the Court’s making or causing to be made, a partition of the land. We therefore think, that the Orphans’ Court ought, before it proceeded any further in the matter, to have had the truth or falsity of the objection ascertained, by means of a jury, under the advice and direction of a proper tribunal.

This should have been done, by making an order for the trial of a feigned issue, in the Common Pleas of the county, to determine the validity of the will; or for the bringing of an ejectment by the petitioner, and those claiming as heirs of the deceased, against the appellant claiming as devisee, (seeing they were out of the possession of the land, and he was in exclusive possession thereof;) in order to test the validity of the writing set up by him as a will, and at the same time, if he failed to do so, to enable them to recover and obtain possession of the land in common with, him.

And indeed as the appellant has the sole and exclusive possession of the l,and, and denies that those claiming to have partition made of it, have any title or claim thereto whatever, this latter order would, as it appears to me, have been the most appropriate ; because it would, in case the appellant failed to establish his right as devisee, have put the petitioner, and those joined with him in claiming title to the land by descent, in the possession of it with the appellant; so that they would then be all holding it together, and the disseisin'of them by the appellant be removed, which has also been made an objection here; and it has been argued that as long as they do not all hold together, no partition can be made, or decreed by the Orphans’ Court.

But in answer to all this, it is contended that the verdict and judgment on the feigned issue, directed by the Register’s Court, when a caveat was entered against a probate of the writing as a will, under which the appellant claims, settled the question of Azariah Lewis’ dying intestate, in favour of his heirs at láw: and it would seem that the Orphans’ Court so considered it; and therefore proceeded to make a final decree, according to the prayer of the petitioner, disregarding the objection of the appellants.

That the decision on the feigned issue did determine finally and conclusively, the intestacy- of Azariah Lewis, as to his personal estate, must be admitted; but certainly not as to his real. The writing cannot properly be considered as having been offered for probate before the. register, -with a view to settle the title or rights under it, as to the real estate of the deceased; nor yet for the purpose of having any action in relation thereto. It was done merely for the purpose of settling and determining the rights of those concerned in the personal estate.

It would seem to be hard, therefore, to make such a decision binding and conclusive, upon those asserting rights under the writing as a will, without any previous notice that the decision should be so considered thereafter, in any subsequent proceeding to be had or instituted in regard to the real estate.

As well might it be so held in case of a subsequent ejectment brought by the heirs disinherited by the writing, as in a subsequent proceeding, like the present, for having partition of the land devised: but in the case -of an ejectment being so brought against the appellant it is admitted, and indeed too well settled to be controverted, that the decision had on the issue devisavit vel non, which was against the writing’s being the will of A. Lewis, would not have been conclusive upon the appellant.

And it may be added also, that it would have placed him in no worse situation than he would have stood in, if it had never been presented for probate, and there had been no such decision upon it. For in either case, before he could prevail, he would have to adduce evidence, and to prove, at least, by two witnesses, to the conviction of the jury, that it was the last will of A. Lewis.

It is also certain, that one decision against him in an ejectment brought for the land, without any previous order of the Orphans’ Court, directing it to be instituted for the purpose'of testing the validity of the writing as a will, and as preparatory to having a partition made of the land, by the decree of the Orphans’ Court, would not be conclusive upon him: for he would have a right to bring an ejectment against the recoverers in the first suit, and to try the question of will or no will again.

Then why should the trial and judgment upon the issue devisavit vel non, which had no relation to the land, but was had for the purpose of settling the question of testacy or intestacy, as to the personal estate of the deceased merely, be held by the Orphans’ Court, to be conclusive upon the appellant in a proceeding commenced against him therein, to have partition made of the land, as in case of intestacy ?

It would be unjust, if it were for no other reason than this, that it would not be reciprocal in its effect, and equally binding and conclusive in all cases on both parties; for in case of the will’s being established upon the trial of such feigned issue, in favour of the devisee, he could make no application to the Orphans’ Court, for any decree or order that would confirm his title under the devise to the land,'upon the faith and credit of such decision, and preclude all future claim of the heirs at law to it; so that they, notwithstanding the decision was against them upon the feigned issue, could after-wards at any time, before twenty-one years adverse possession should become a bar to their claim to the land, proceed against the devisee by ejectment, and recover the land or their proportion of it, as the heirs of the deceased, unless .he satisfied a second jury, by the production of a superior weight of evidence, of the validity of the will.

But if the decision as here, were to be against him, then to permit the heirs at law, as such, claiming the land, to apply immediately thereafter, to the Orphans’ Court, and upon the faith of the decision to obtain a decree making partition thereof, without affording a further opportunity to the devisee, by means of a jury, to establish his right under the will to the land, would be giving to those claiming as heirs, a very unequal advantage over the party claiming as devisee.

We therefore think it right, as well as reasonable and just, that the decision had upon a feigned issue, by the order of the Register’s Court, for the purpose of proving or setting aside the writing exhibited as a will, in order to settle and adjust the rights of those claiming the personal estate of the deceased, should not be regarded, or considered by the Orphans’ Court afterwards, upon an application for a partition of the real estate, if objected to, as settling the question of testacy or intestacy, as to it.

But in order to determine this question, so that the Orphans’ Court may either proceed to make the partition, or to dismiss the petition presented for that purpose, as soon as the question shall be decided the one way or the other, it is necessary that the Orphans’ Court should direct an-issue to be formed, or a suit to be brought in the Common Pleas, and there to be tried by a jury, under the advice and direction of that Court, so as to have it finally settled, whether the deceased died intestate as to the land in question, or not.

This will not only afford to each pai’ty, an equal chance of having justice done, but, being previously apprised of the conclusive effects that the decision upon such-issue is to have, (if a partition made by the decree of the Orphans’ Court, is ‘ to be and remain firm and stable forever',’ according to the words of the intestate law,) each will be induced, therefore, to bring forward qll the testimony within his power, that will be favourable to him, so that on the trial, he may put forth his whole strength, in order to obtain the victory.

The inquisition and decree of the Orphans’ Court thereon, are reversed and annulled; and the cause with the record thereof, remanded to the Orphans’ Court, with direction to make an order, that the petitioner and those uniting with him to have partition made of the land, shall first commence and prosecute an action of ejectment therefor, against the appellant, for the purpose of establishing their right by descent to the land, as the heirs of A.

Lewis; and again, if they have such right, to recover the possession thereof: And during the interim, until the action of ejectment shall be prosecuted to final judgment, all further proceeding in this case, to be stayed. Decree accordingly.