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[Bank of Hamilton vs. Dudley's lessee.]

to the change of possession, which, so far as they are constitutional, must be respected in all Courts; still, the legislature cannot change radically the mode of proceeding prescribed for the Courts of the United States, or direct those Courts in a trial at common law, to appoint commissioners for the decision of questions which a Court of common law must submit to a jury. [526]

The inability of the Courts of the United States to proceed in suits at common law, in the mode prescribed by the occupant law of Ohio, does not deprive the occupant of the benefit intended him. The modes of proceeding which belong to Courts of Chancery, are adapted to the execution of the law; and to the equity side of the Court he may apply for relief. Sitting in Chancery it can appoint commissioners to estimate improvements, as well as rents and profits, and can enjoin the execution of the judgment at law, until its decree shall be complied with. If any part of the act be unconstitutional, the provisions of that part may be disregarded; while full effect will be given to such as are not repugnant to the Constitution of the state, or the ordinance of 1787. The question whether any of its provisions be of this description, will properly arise in the suit brought to carry them into effect. [526]

THIS is a writ of error to a judgment rendered in the Court of the United States for the seventh circuit and district of Ohio; in an ejectment brought in that Court by the defendants in error, against the present plaintiffs for part of lot No. 103, in the city of Cincin

nati.

The plaintiff is heir at law of Israel Ludlow, who died seised of the premises in the declaration mentioned. The defendant claimed under a sale and deed made by the administrator of the said Israel Ludlow, in pursuance of certain orders of the Court of Common Pleas for the county of Hamilton.

*The case depends on the validity of this deed.

In August, 1788, the territorial government of Ohio en[*494 acted, "a law establishing a Court of probate." The first section. enacts that "there shall be appointed one judge of probate in each county, whose duty it shall be to take the probate of last wills and testaments, and to grant letters testamentary and letters of administration, and to do and perform every matter and thing that doth or by law may appertain to the probate office, excepting the rendering definitive sentence and final decrees.

In 1795 an Orphans Court was established, and it was enacted that where persons die intestate and leave lawful issue, "but not a sufficient personal estate to pay their just debts and maintain their children, it shall be lawful for the administrator or administrators of such deceased person to sell and convey such part or parts of the said lands or tenements for defraying their just debts, maintenance of their children, &c., as the Orphans Court of the county where such estate lies, shall think fit to allow, order, and direct from time to time."

In the year 1802, Ohio became an independent state. The Constitution, in the article which respects the judicial department, deelares that "the Court of Common Pleas in each county shall have jurisdiction of all probate and testamentary matters, granting administration, the appointment of guardians, and such other cases as shall be prescribed by law." In April, 1803, the judicial Courts. were organized; and the Court of Common Pleas, after a general grant of original jurisdiction, was empowered to examine and take

[Bank of Hamilton vs. Dudley's lessee.]

the proof of wills, to grant administration on intestate estates, and to hear and determine all causes, suits, and controversies of a probate and testamentary nature.

In June, 1805, the territorial ordinance of 1795 was repealed.

At the trial of the ejectment in the Circuit Court, after the plaintiff had closed his evidence, the defendants offered in evidence a deed from the administrators of Israel Ludlow, deceased, to Andrew Dunseth, for the premises in the declaration mentioned. "They also offered in evidence duly certified entries and copies of *495] orders from the records of the Court of Common Pleas within and for the county of Hamilton, state of Ohio, of which the following are true copies, viz. 2d of February, 1804: Letters of administration granted unto Charlotte C. Ludlow, John Ludlow, James Findlay and James Pierson, on the estate of Israel Ludlow, deceased; and their bond with William Ludlow and James Smith as securities for their faithful administration." " At May term in the year 1804, date 8th of May, 1804, the following order was made, viz. "The administrators of the estate of Israel Ludlow deceased exhibit an account current and pray the Court to issue an order for the sale of real property to defray the debts due from the estate, &c.; John Ludlow and James Findlay sworn in Court. The Court order so much of the real property to be sold as will meet the said demand, except the farm and improved land near Cincinnati, together with the house and lots in Cincinnati." At the August term of the said Court, in the year 1805, a supplemental order was made of which the following was a copy, viz. "The administrators of I. Ludlow deceased, on application to the Court to extend the order for the sale of property to discharge the debts arising from the estate: whereupon the Court allow the administrators to sell the house and lots in the town of Cincinnati, and any other property, except the mansion house and farm in the country, so that the sale do not amount to more than ten thousand dollars. This entry considered as of May term, 1805."

It was in evidence that the sale was made agreeably to the provisions of the law adopted from the Pennsylvania code by the governor and judges of the north-western territory on the 16th of June, 1795, entitled "a law for the settlement of intestate, estates;" that the deed was duly executed, acknowledged, and proved.

The plaintiff by his counsel moved to overrule the testimony of fered by the defendants' counsel, because the law aforesaid, entitled "a law for the settlement of intestate estates," was repealed before the order was made authorizing said sale, and that at the time of making of the said order there was no law of the state of Ohio authorizing the Court of Common Pleas to order the sale of *496] real estate for the payment of debts, &c., of intestates. The Court sustained the motion and overruled the defendants' evidence. The defendants excepted to this opinion.

The jury found a verdict for the plaintiff; after which the counsel for the defendants moved the Court for the appointment of commissioners, under the occupying claimant law of Ohio, to value im

[Bank of Hamilton vs. Dudley's lessee.]

provements. This motion was overruled, and judgment was rendered for the plaintiffs.

The case was argued for the plaintiff in error by Mr. Benham and Mr. Baldwin; and by Mr. Garrard for the defendant.

For the plaintiff it was said, that the defendant in error claims by descent as heir at law of Israel Ludlow, deceased, who died seised of the premises in question; and the plaintiff claims by purchase from his administrator.

The case is one of deep interest to the present litigants, as well as to all those who hold real estate in Ohio under deeds from adminis

trators, and this class is numerous. Its decision depends upon old statutes which it is proposed to collate, in such a manner as to aid the judgment of the Court in expounding them in reference to this

case.

These statutes will be found between the periods of 1788 and 1805, and to relate, 1. To the establishment of probate and testamentary Courts under the territorial government. 2. Their powers and jurisdiction. 3. The abolition of these Courts upon passing from a territorial into a state government. And, 4. The organization of new Courts of similar jurisdiction, and the modification and repeal of laws relating to testamentary matters.

The facts of the case in reference to which the Court must expound these laws are as follows: Ludlow died the 21st of January, 1804. On the 2d of February of that year, administration was granted upon his estate to John Ludlow and others, who gave bond with sureties, as the law required, for the faithful execution of their trust. On the 10th of May, 1804, the following proceedings were had in the Court of Common Pleas of Hamilton county, viz. "The administrators of I. Ludlow deceased exhibit an account current, and pray the Court to issue an order for the sale of real pro[*497 perty to defray the debts due from the estate, &c. John Ludlow and James Findlay sworn in Court. The Court order so much of the real property to be sold as will meet the said demands, except the farm and improved lands near Cincinnati, together with the house and lots in Cincinnati." On the 15th of August, 1805, the Court made another order as follows: "The administrators of I. Ludlow deceased, on application to the Court to extend the order for sale of property to discharge the debts owing from the estate: whereupon the Court allow the administrators to sell the house and lots in the town of Cincinnati, and any other property except the mansion house and farm in the country, so that the sales do not amount to more than ten thousand dollars; this entry considered as of May term, 1805." The administrators, under the above orders or decrees, sold the lot in dispute and made a deed therefor to Andrew Dunseth, under whom the plaintiff in error claims, which orders and deeds were offered in evidence in the Circuit Court and overruled. VOL. II.-2 I

373

[Bank of Hamilton rs. Dudley's lesseèe.

Whether this evidence were admissible or not, will depend upon the solution of the following propositions:

1. Had the Court of Common Pleas jurisdiction of the subject 2. Was it competent for that Court, upon the application of administrators, to condemn the real estate of intestates to be sold for the payment of their debts, &c. 3. Did the sale and deed of the administrators of the lot in question, pass the legal title to their vendee?

By the law of the territory, adopted by the governor and judges in 1788, and confirmed in 1799, Ohio Laws, 378-9, a qualified jurisdiction over probate and testamentary matters was confided to a judge of probate in each county. This judge had power to grant letters testamentary and of administration, receive guardians chosen by and appoint guardians for minors, idiots, and insane persons: but he had no power to compel executors, administrators, or guardians to execute faithfully their duties. And for this purpose, in 1795, an Orphans Court was instituted, with supervisory jurisdiction, to call trustees to account, and to review the judicial proceedings of the judges of probate. Maxwell's Code, 81. At the time the Orphans *498] Court was established, in June, 1795, a law was adopted

from the Pennsylvania code "for the settlement of intestates' estates," Maxwell's Code, 90. This statute prescribes the form of administrators' bonds, directs the distribution of the personal estate under the superintendence of the Orphans Court; and provides (section seventh), upon a deficit of personalty to pay the debts of intestates and maintain and educate the children, &c. for the sale of the lands and tenements for these purposes by the administrator; in such manner as the Orphans Court "shall allow, order and direct, from time to time."

In May, 1798, another act was adopted, which contained a general provision for the sale and distribution of insolvents' estates, which was repealed by an act passed January, 1802, on the same subject. Ohio Land Laws, 383. Coeval with the last mentioned act, a law was passed for the appointment of guardians to lunatics, &c., which provides for the sale of their real estates, in the same manner that administrators are authorized to sell the real estates of their intestates. Terr. Law. 120. Thus stood the laws relative to Courts probate and testamentary, and the apportionment of jurisdiction among them, and relative to the sale and distribution of the estates of intestates, minors, idiots, &c. up to the adoption of the state constitution in 1802. In this political transit from a territorial to a state government, the Courts above mentioned were abolished, and new Courts instituted with plenary probate and testamentary jurisdiction.

But the abolition of the testamentary Courts of the territory did not abrogate the laws above cited, relative to the sale of intestates' estates for the payment of debts, &c.; the act adopted from the Pennsylvania code in 1795 remained in full force. What Court under the state government was charged with its execution, will now be considered.

[Bank of Hamilton vs. Dudley's lessee.]

By the constitution of Ohio, the judicial power of the state is vested in a Supreme Court, Courts of Common Pleas, and justices of the peace. The Common Pleas is invested with jurisdiction of all probate and testamentary matters, granting of administration, &c. (article third, section second,) and such other cases as shall be prescribed by law. It also provides that all *actions, suits, prosecutions, rights, claims, and contracts, shall continue as though no change had been made in the organic law. Schedule, section first.

[*499

It is maintained to be clear, that by the words "all probate and testamentary matters," was meant all the duties of executors and administrators, and all matters arising out of the settlement of the estates of decedents. The Common Pleas was the only Court, under the new form of government, that possesed original jurisdiction over the estates of intestates; and it could not have been the intention to leave the law of 1795 in force without a Court to execute it. Again, it will be seen that the Constitution provides (article third, section 5) that the Common Pleas shall have jurisdiction "in such other cases as shall be prescribed by law." Now, by the statute of April 15th, 1803, unlimited jurisdiction is given to the Common Pleas in all civil cases in law and equity, and all causes, suits and controversies of a probate or testamentary nature." Ohio Laws, 40. And the twenty-sixth section of this act requires the Supreme Court and Common Pleas to take cognizance of all judgments, matters, and causes whatsoever, pending in the territorial Courts. For the sense in which the words "Courts of probate" were used, see the law abolishing territorial Courts, 3 Ohio Laws, 188. The legislature has throughout used the words "probate and testamentary" in a popular, and not in a restrained and technical sense.

2. If the Common Pleas had jurisdiction of the subject either as a Court of general chancery powers, or a Court of probate, did the orders granted, confer the right upon the administrators to sell this lot? The order of May term, 1804, extends to all the real estate "except the farm and improved lands and house and lots in Cincinnati." It is asked if this exception includes the unimproved lots; the lot in dispute was unimproved and unproductive. But if this order did not extend to the lots, the order of 1805 did; whether it be considered as the order of May or August term. If it be a valid order of May term, it ends the controversy; and whether it can be so regarded or not, must depend upon the power of the Court to grant it. We affirm the order was made at *May term, and,

by the mere misprision of the clerk, not recorded; to correct [*500 which it was entered, nunc pro tunc, at August term. The exercise of this power rests in the sound discretion of the Court, and is indispensable to prevent a failure of justice. Amendments are always allowed where the omission happens by the oversight or neglect of any of the ministers of justice, as an attorney, or clerk. Johns. Rep. 443, 144. 519. 1 Bin. 368. 486.

3

The power to correct clerical misprisions is incidental to every

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