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Opinion of the Court.
Great changes in the bed of the river were to be expected from the immense volume and flow from its vast water-sheds. These water-sheds, according to the official report of the Tenth Census of the United States, cited by counsel, comprise over two hundred thousand square miles, and more than half of the water from them comes from east of Green River Island, and nearly all the great water-courses find their way to the Ohio River. That vast changes should be made in the channel of that river from the volume of water thus received, and its impetuous flow at certain seasons wearing away its banks deepening some portions of the stream and filling up others, was not surprising; and that where large vessels at one time could easily float should have become dry ground many years afterwards was but the natural effect of the tremendous forces thus brought into operation.
We have not deemed it important to take up the testimony of each of the numerous witnesses produced in the case by the States of Indiana and Kentucky. It would serve no useful purpose to attempt an analysis of the testimony of each, and to show how little and how much weight should be attributed to it. All the testimony is to be taken with many allowances from imperfect recollection, from the confusion by many witnesses of what they saw with what they heard, or of what they knew of their own knowledge with what they learned from the narrative of others. The clear and admitted facts we have mentioned, corroborated as they are by nearly everything of record presented, leave on our minds a much more satisfactory conclusion than anything derived from the oral testimony before us. The long acquiescence of Indiana in the claim of Kentucky, the rights of property of private parties which have grown up under grants from that State, the general understanding of the people of both States in the neighborhood, forbid at this day, after a lapse of nearly a hundred years since the admission of Kentucky into the Union, any disturbance of that State in her possession of the island and jurisdiction over it.
Our conclusion is, that the waters of the Ohio River, when Kentucky became a State, flowed in a channel north of the
tract known as Green River Island, and that the jurisdiction of Kentucky at that time extended, and ever since has extended, to what was then low-water mark on the north side of that channel, and the boundary between Kentucky and Indiana must run on that line, as nearly as it can now be ascertained, after the channel has been filled. Judgment in favor of the claim of Kentucky will be entered
in conformity with this opinion, and commissioners will be appointed to ascertain and run the boundary line as herein designated, and to report to this court, upon
which appointment counsel of the parties will be heard on notice. And it is so ordered.
THAW v. RITCHIE.
ERROR TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.
No. 264. Argued April 15, 16, 1890. – Decided May 23, 1890.
Under the statute of Maryland of 1798, c. 101, sub-ch. 12, § 10, the orphans'
court of the District of Columbia had authority to order a sale by a guardian of real estate of his infant wards for their maintenance and education, provided that before the sale its order was approved by the
Circuit Court of the United States sitting in chancery. The statute of Maryland of 1798, c. 101, sub-ch. 12, § 10, is not repealed by
the act of Congress of March 3, 1843, c. 87. The authority of the orphans' court of the District of Columbia under the
statute of Maryland of 1798, c. 101, sub-ch. 12, § 10, to order a sale of an infant's real estate for his maintenance and education is not restricted to
legal estates, or to estates in possession. A testator devised all his real and personal estate to his widow for life, in
trust for the equal benefit of herself and their two children or the survivors of them; and devised all the property, remaining at the death of the widow, to the children or the survivor of them in fee; and if both children should die before the widow, devised all the property to her in fee. Held, that the widow took the legal estate in the real property for her life; that she and the children took the equitable estate therein for her life in equal shares; and that the children took vested remainders in fee,
subject to be divested by their dying before the widow. The minute book of a court of chancery is competent and conclusive evi
dence of its doings, in the absence of an extended record. Real estate devised to the testator's widow for life for the equal benefit of
Statement of the Case.
herself and their two infant children, and devised over in fee to the children after the death of the widow, and to her if she survived them, was ordered by the orphans' court of the District of Columbia, with the approval of the Circuit Court of the United States sitting in chancery, to be sold, upon the petition of the widow and guardian, alleging that the testator's property was insufficient to support her and the children, and praying for a sale of the real estate for the purpose of relieving her immediate wants and for the support and education of the children. Held, that the order of sale, so far as it concerned the infants' interests in the real estate, was valid under the statute of Maryland of 1798, c. 101, sub
ch. 12, § 10. An order of the orphans' court of the District of Columbia, approved by
the Circuit Court of the United States sitting in chancery, under the statute of Maryland of 1798, c. 101, sub-ch. 12, § 10, for the sale by a guardian of real estate of his infant wards for their maintenance and education, cannot be collaterally impeached for want of notice to the infants, or of a record of the evidence on which either court proceeded, or of an accounting by the guardian for the proceeds of the sale.
This was an action of ejectment, brought December 12, 1882, by Columbus Thaw against Maria Ritchie to recover possession of an undivided half of lots 1 and 4 in square 160 in the city of Washington.
At the trial, on the general issue, before Chief Justice Cartter, the plaintiff introduced evidence that his father, Joseph Thaw, died in 1840, seized and possessed of these lots under a title derived from the United States, and leaving a will, dated February 26, 1810, and duly admitted to probate in the same year, which (omitting the formal commencement and conclusion) was as follows:
Imprimis. I hereby appoint and constitute my beloved wife, Eliza Van Tyler Thaw, to be the guardian of my two youngest children, to wit, my daughter, Columbia Thaw, and my son, Columbus Thaw, and to act in trust for them in all things as fully as I would do if living.
“Item. I give and bequeath to my said beloved wife Eliza all my property of every description, real and personal, to hold and enjoy during her natural life, in trust for the equal benefit and maintenance of herself and of my daughter Columbia and of my son Columbus, the two children above named; and if either of them shall die before arriving at the age of majority, then she is to hold the whole property as above for
Statement of the Case.
the equal benefit of herself and the survivor of the two abovenamed children; or if both of the said children shall die before their mother, my said wife, then she, my said wife Eliza, shall hold the said property during her natural life for her sole own use and benefit; and in no case shall she, my beloved wife Eliza, be deprived of the use of any part thereof during her natural life for the maintenance of herself and of the two children aforesaid, while they, or of either, while either of them shall live, or of herself, while she shall survive them both.
"Item. I give and bequeath to my two children above named, Columbia and Columbus, in equal parts, to their heirs and assigns forever, all my estate, real and personal, that shall remain at and after the death of their mother, my said wife Eliza; or if either of them shall not survive their mother, then I will that the surviving one shall have the whole.
“Item. If both of my said children shall die before their mother, then, on the demise of the last survivor of them, I give and bequeath to my beloved wife Eliza, to her heirs and assigns forever, for her own proper benefit, all my estate of every description.
“I do moreover hereby constitute and appoint my beloved wife, Eliza Van Tyler Thaw, above named, the sole executrix of this my last will and testament, and authorize her to administer and execute the same without giving security in any way whatever.”
The plaintiff also introduced evidence tending to show that his mother, Eliza V. Thaw, died in February, 1866; and, for the purpose of showing a severance of the joint tenancy claimed to have existed between himself and his sister Columbia Thaw in these lots, put in evidence a deed, dated May 16, 1848, from his sister and one Henry Walker of their interest in these lots to Agricol Favier; a deed, dated October 22, 1874, from a trustee appointed in a suit in equity for the partition of Favier's real estate after his death, purporting to convey the whole of these lots to one Ingersoll ; a deed of the lots, dated May 24, 1878, from Ingersoll to Mary J. France; and the will of Mrs. France, admitted to probate in January, 1881, devising all her real estate to the defendant.
Statement of the Case.
It was admitted that the real estate sought to be recovered was worth more than $12,000; and that the defendant was in possession thereof, claiming title adversely to the plaintiff.
The defendant claimed title under a deed of the two lots to Favier from Eliza V. Thaw, dated March 17, 1848, purporting to be executed pursuant to an order of sale made upon her petition by the orphans' court for the county of Washington in the District of Columbia, and approved by the Circuit Court of the United States of the District of Columbia, sitting as a court of chancery. In support of this defence, the defendant offered in evidence, and the court admitted, against the objection and exception of the plaintiff, the following matters :
(1) From the office of the Supreme Court of the District of Columbia, a book, entitled “Chancery Rules No. 4,” of its predecessor, the Circuit Court of the United States of the District of Columbia, containing this entry :
“No. 34. Eliza V. Thaw, guardian to Columbus and Columbia Thaw, infant children of Jos. Thaw, dec'd. Petition, exhibit, decree of orphans' court. 1844, Oct. 12. — Decree affirming decree of orphans' court."
(2) From the same office, the only paper on file there in said case No. 314, certified by E. N. Roach, register of wills, under date of April 29, 1814, to be “a true copy from an original filed and recorded in the office of the register of wills for Washington County aforesaid ;” and consisting of a petition addressed to the judge of the orphans' court for that county, dated March 29, 1814, signed by Eliza V. Thaw, and having annexed to it a certificate of a justice of the peace to her oath that“the facts contained in the within petition are true to the best of her knowledge and belief;” together with the order of the orphans' court thereon ; which petition and order were as follows:
“ To the Hon. N. P. Causin, judge of the orphans' court of Washington County :
“The petition of the subscriber respectfully represents that she has paid all the debts due by her deceased husband, Joseph Thaw, and that the property left by the deceased is insufficient to support her and the children provided for in the