Price, Eli K.

English

Penn Law: Legal Scholarship Repository

PROPRIETARY TITLE OF THE PENNS. 487Court Northern District of New York, decided that the makingof a general assignment, without preference, by an insolventdebtor, was an act of bankruptcy; that an express denial underoath of intent to defeat or delay the operations of the BankruptAct by making such assignment, was of no avail as against theconclusive legal presumption of such intent arising out of theadmission of the execution of such assignment: 3 Bankrupt Reg.98.Prof. Greenleaf thus lays down the general principle applicableto all cases. "The law presumes every act, in itself unlawful,to have been criminally intended, until the contrary appears :"1 Greenleaf on Ev. § 34; and this same presumption arises incivil cases: Ibid.In the case in question, the person who issues an instrumentunstamped, in violatioA of the revenue laws, does an unlawfulact of which the natural and necessary consequences are that theprovisions of the stamp act are evaded and government defrauded:and why should not this same general principle apply? Grantedthat the intent must be alleged and proved, yet proof of the un-lawful act it would seem should make a primd facie case on thequestion of intent. And such appears to be the view sanctionedby some of the decisions: See Beebe v. Hutton, 47 Barb. 187.H. HI. BOND.THE PROPRIETARY TITLE OF THE PENNS.As the last of the male descendants of William Penn hasrecently deceased, it becomes interesting to review the course oftransmission of the title to the soil of Pennsylvania, vested inWilliam Penn in fee, by charter of Charles II., dated the 4th ofMarch 1681.William by his will, after devising ten thousand acres in theprovince for the three children of his deceased son William, andten thousand acres for his daughter Aubrey, devised all his lands,tenements, and hereditaments, rents, &c., in Pennsylvania andterritories thereunto belonging, or elsewhere in America, untoHannah his wife and others, and their heirs, in trust, to sell anddispose of so much thereof as might be necessary to pay hisPROPRIETARY TITLE OF THE PENNS.debts; and all the rest of his lands and hereditaments whatso-ever, situate, lying and being in America, to convey to hischildren by his present wife, in such proportions and estate asshe should think fit. This will he confirmed 27th of 3d month1712; and it was proved 3d November 1718. See Will Book,Philadelphia, No. I., p. 238.William Penn left children by his wife Hannah, four sons,John, Thomas, Richard, and Dennis, and a daughter Margaret.Hannah Penn, after the death of Dennis in his mincrity, by deedof January 7th 1725 appointed and directed conveyance of one-half the province of Pennsylvania and of the three lower countiesunto John Penn, her eldest son, and the other half equally toher sons Thomas Penn and Richard Penn, in fee.June 24th 1735, Samuel Preston and James Logan, the sur-viving trustees, released said estates to John, Thomas, and RichardPenn.On the 8th May 1732, the said three proprietaries, then ownersin fee, executed articles covenanting with each other, bindingthemselves respectively to devise their shares to the eldest son intail male, remainder to other sons in like manner; and if anyshould die without issue male, his share should go to the survi-vors or survivor and heirs as he should appoint; and if noappointment should be made, then it is to go equally to the sur-vivors and their heirs male; chargeable in either case with provi-sions for widows and daughters. And if either of said partiesshould die without any issue he is to appoint his share or estateto the other of said parties or either of them as he should thinkfit, with power to charge certain sums thereon. And if eithershould die without any appointment, then his share is to go to thesurvivors or survivor and heirs, subject to charges in favor of anywidow, and of half sister Letitia Aubrey, widow, and the childrenof whole sister Margaret Freame. With power of revocation byall, or by the survivors of one dying without issue male, butwithout prejudice to appointments made by deceased.On the 24th October 1746, the said John Penn made his will,which was proved September 1st 1747. He died unmarried andwithout issue in 1746. See Will Book II. p. 295. He devisedhis moiety of Pennsylvania and of the three lower counties (nowstate of Delaware) unto his brother Thomas Penn for life, andafter his death to the first son of Thomas in tail male, and inPROPRIETARY TITLE OF THE PENNS. 489default of issue, to the second, third, fourth, fifth, and other sonsaccording to priority of age in tail male; and in default of suchissue, then to his brother Richard Penn for life, remainder toRichard's son John for life,-and to the first son of the latter intail male; and in default to other sons of his said nephew JohnPenn, according to priority of age in tail male; and then in likemanner to his nephew Richard son of his brother Richard, andhis sons; and in default of such issue, then unto the other sonsof his brother Richard according to seniority of age in tail male.In default of such issue male, then unto his brother Thomas Pennin tail general; and in default, &c., unto his said nephew JohnPenn in tail general; and in default, &c., unto his said nephewRichard Penn in tail general; and so as to his brother Richard'sother sons successively. With remainder to Richard's daughterHannah for life, and to, her sons successively in tail male; andthen to her in tail general; and in default of such issue then tohis brother Richard in tail general; and in default of such issueunto his sister Margaret Freame for life, and then to her sons intail male, &e., &c.The said will of John Penn, son of the first proprietary,empowered the tenant in possession of his moiety of the provinceand lower counties to convey and grant lands, of any estate howlarge soever, reserving by each grant of any lands as much quit-rent in proportion and the like services as had lately been gene-rally reserved on other lands granted out by himself and brothers,&c., the purchase-moneys and fines to go to the possessor; thequit-rents to descend and go according to the limitations of thewill.By articles of agreement between the surviving sons of thefirst proprietary, made January 31st 1750, Thomas dnd RichardPenn confirmed the articles of 1732, and they made the like powerof sale in fee as in John Penn's will, applicable to their respec-tive fourth parts of the province of Pennsylvania, &c. And byfurther articles between them it was agreed that if either shouldleave no issue male, but issue female, the latter should take theirfather's share before all or any of the issue female of the other.Richard Penn, son of the first proprietary, made his will,dated 21st March 1750, with several codicils, and died in 1771,leaving sons John Penn (called the elder) and Richard Penn, anddaughter Hannah; and devised his share of Pennsylvania to hisPROPRIETARY TITLE OF THE PENNS.son John Penn for life; remainder to John's sons successively intail male; with further remainder to his son Richard Penn forlife, and remainder to Richard's sons successively in tail male,&c., with further remainder to his son William Penn in tail male,and to William's sons successively in tail male, &c., with- remainder to testator's brother Thomas for life, remainder to hissons in tail male; with further remainders to testator's sons John,Richard, and William, and other sons for estates tail general,&c., &c. With the like power as in his brother John's will, for theperson in possession to grant and convey in fee. William; thethird son, died in the lifetime of his father without issue.Said Richard Penn, the testator, left two sons, John Penn,called the elder, Governor of Pennsylvania before the Revolution,who died in 1795, without issue; and Richard Penn, who diedin 1811, leaving sons William and Richard, both of whom diedwithout issue; William in 1845 or 6; Richard in 1863; wherebythe male heirs of Richard Penn became extinct.Thomas Penn, second son of the first proprietary, on the 15thAugust 1751 executed a deed of release as a marriage settle-ment with Julianna, daughter of the Earl of Pomfret, untoDavid Barclay and Thomas Hyam, conveying his fourth ofPennsylvania and the lower counties, whereby an annual chargewas to be raised for her for life; reciting the preceding articles,to the use of said Thomas Penn for life; remainder to the use ofhis first and other sons severally and successively, according topriority of birth in tail male, &c., &c., and in default -f such tohis brother Richard Penn for life; remainder to his son John forlife, and then to his sons in tail male successively; remainder toRichard's son Richard for life, and then to his sons in tail malesuccessively; remainder to Richard's son William, and sons inlike manner; remainders to the heirs of the body of said ThomasPenn (the grantor). With a power of sale in said Thomas Pennand others in possession for the time being, to sell and convey infee, as in his brother John's will.Thomas Penn died in 1775, leaving sons John and Granville.This John Penn (called the younger) erected and lived in themansion, called "Solitude," in the present Fairmount park inPhiladelphia, and died in 1834, without issue. Granville diedin 1844, leaving issue Granville John Penn, who became- tenantin tail male of three-fourths of the Pennsylvania titles underPROPRIETARY TITLE OF THE PENNS.the above limitations; and after his death in 1867, his youngerbrother Thomas Gordon Penn took the same shares as tenantin tail male; and he died without issue in 1869. Thus the issuemale of Thomas Penn, son of the first proprietary, becauseextinct.Thomas Penn left two daughters: Juliana Baker, who leftonly a daughter, the Countess of Ranfurly, and Sophia Marga-.retta, who married William Stuart, Archbishop of Armagh.She died a widow in 1847, leaving four children, William, Henry,Mary Juliana, and Louisa. William Stuart is the tenant in tailgeneral of the estates limited by the deeds and wills of the threesons of William and Hannah Penn.The preceding limitations are now material only as to landswithin the proprietary manors, and the rents thence issuing.The Act of 27th November 1779, 1 Sm. Laws 479, which vestedin the Commonwealth of Pennsylvania the lands of the proprie-taries, for a compensation made, excepted the private estates,and the proprietary tenths or manors, with the quit or otherrents reserved within the manors. One of these manors,Springettsbury, was immediately north of Vine street, Philadel-phia, and several others existed in different parts of the state.It is a question undecided here how long the power of sale infee, with which the tenants in tail male were clothed, continuedin force; but as it is not in restraint of alienation, but favors it,the power probably continued in all the tenants in tail male." It is settled, that an unlimited power of sale, to be exercisedduring successive estates tail, is not invalid for remoteness, forsuch a power may be destroyed with the estate tail :" Hill onTrustees 475; 4 Sim. 135, 138 n.; 3 M. & R. 249; 10 Sim.225; 15 Sim. 853.In 1799 the act was passed to bar entailments by deed express-ing that purpose, acknowledged and recorded in court, and alsorecorded in the office for recording deeds within six months.But deeds were made by the Penns after that date, withoutobservance of the forms of the act, though generally it wasotherwise; and without the reservation of any quit-rent, whichthe power of sale required.General Thomas Cadwalader received the power of attorneyof John Penn, of Stoke Pogis, in 1815; and of William Penn,son of Richard Penn, in 1817, then tenants in tail male, tomake sales of their lands in Pennsylvania; and in 1831,PROPRIETARY TITLE OF THE PENNS.February 17th, he as their attorney made a deed of confirmationto Thomas W. Norris, Esq., for debarring every estate tail.forgrounds, before conveyed by numerous conveyances, within themanor of Springettsbury, in trust for all the purchasers: DeedBook A. McC. 6, p. 628. The question as to this would bewhether the attorney would be authorized to make this confirma-* ou as to lands he had not himself conveyed; though, perhaps,the court would presume after the lapse of time, that he hadacted under instructions to that effect. He no doubt representedthe honorable and just feelings of his constituents to makesecure all the titles they had conveyed.The final and complete act to confirm all titles made by theagents of the Penn family, was that of the present representa-tive, and tenant in tail, of all the shares, under the advice of hiscounsel in Philadelphia. By deed of 11th November 1870,from William Stuart, Esq., and wife, to William Levi Bull,Esq., reciting himself as heir at common law in tail of JohnPenn the elder and John Penn the younger, Thomas Penn andRichard Penn or some of them by sundry deeds, wills or descents ;and reciting former grants made by them of lands, tenements,&c., in the Commonwealth, by deeds insufficient to debar entail-ments, which grants the said William Stuart is desirous of con-firming, he proceeds, for one dollar, to grant, for the purpose ofdebarring the entailment, "1 all and singular the lands, tenements,and hereditaments in the said Commonwealth, which the saidJohn Penn the elder, John Penn the younger, the said ThomasPenn, the said Richard Penn, or any subsequent tenant in tailthereof, severally and respectively, either by themselves or theirattorneys in fact have granted and conveyed to divers persons,for a full and valuable consideration, intending to grant and con-vey such premises to the purchasers in fee simple," to hold thesame " to the use of every such purchaser or purchasers andtheir heirs and assigns, so as to enure to the benefit of all persons-11holding or claiming any estate, title, or encumbrance in or uponaliy such lands, tenements, and hereditaments, derived or createdby or under any bond fide purchaser for a good and sufficientconsideration from the said tenants in tail respectively, for thetime being as aforesaid, with the intent that all such grants andconveyances by them or any of them so heretofore made, behereby absolutely ratified, confirmed, and established." Acknow-

The Proprietary Title of the Penns

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The Proprietary Title of the Penns

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