Hamilton v. Overseers of the Poor , 12 Pa. 147 ( 1849 )

The opinion of this Court was delivered by

Rogers, J.

The devise of the real estate, for which the ejectment was brought, was a devise of the legal title in presentí to the male heirs of his son Robert, and the reservation of a living for himself and his wife is in the nature of a charge payable out of the land. It bears no resemblance to a vivum vadium, a living pledge, to which it has been likened, for, as is. said in Blackstone’s Commentaries, vol. 2, p. 257, a vivum vadium is where a man borrows a sum, suppose ¿6200, of another, and grants him an estate of ¿620, to hold until the rents and profits shall repay the sum so borrowed. Nor is it an estate on condition, for it contains none of the words necessary to create a condition, for which an ejectment will lie: as in Bear v. Whistler, 7 Watts, 144. Nor is there any estate in the land reserved: as in Wusthoff v. Dracourt, 3 Watts, 240, where it was held ejectment would lie on a devise reserving two rooms in a house. By the will, the whole estate is devised, reserving a maintenance to himself and his wife, payable out of the land. In such a case the remedy is in the Orphans’ Court, as is ruled in Downer v. Downer, 9 Watts, 63; Same v. Same, 9 Barr, 303; Mohler’s Appeal, 8 Barr, 26. This is a far better remedy than an action of ejectment, for in that Court the most complete and ample justice may be done the parties. But we are further of the opinion that the action will not lie, inasmuch as it was not brought until after the death of Sarah, the pauper. She having but a life estate in the premises, it terminates of course by her death. If Sarah could not maintain the suit, neither can the Overseers of the Poor, who stand in her place.

Judgment reversed.