# Harrison v. Nixon

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## Dissenting Opinion

    Baldwin
United States Supreme Court
34 U.S. 483
Harrison v. Nixon
APPEAL from the circuit court of the United States for the eastern district of Pennsylvania.
Matthias Aspden, on the 6th day of December 1791, made his will, with the codicils annexed thereto, as follows:'These are to certify, that I do hereby annul and revoke all my former wills, giving and bequeathing my estate, real and personal, to my heir-at-law, first paying all my just debts and funeral expenses, and the following legacies, first, to each of the children of my half brother, Benjamin Hartley deceased, that may be alive at my death, the sum of 100 pounds to each Pennsylvania currency; and to my half sister Bersheba Zane, wife of Elnathan Zane, the sum of 400 pounds Pennsylvania currency, both the above living or did live at or near Haddonfield; and to my half brother Roger Hartley, living at at present in Lancaster county, the sum of 300 pounds of the like currency. Witness my hand, this 6th day of December 1791, Philadelphie.
'MATTHIAS ASPDEN.
'Lest any question should arise about the legitimacy of my birth. It is my will, that my estate real and personal, should go to the party who would be my lawful heir, in case there might arise any doubts on that head. It is firmly believed by, from the best information, that my birth was after marriage.
'Philedelphie, December 6th 1791.
'I do further give 100 pounds Pennsylvania currency, to each of the children of my beceased half sister Ann Henchman, that may be living at my death.
'December 6th 1791.
'Note, my property on England is as follows: 12,500 pounds in the four per cent stock; 3000 pounds in the five per cent stock; 1800 pounds in the three per cent stock.'
Indorsement. 'The last of will of Matthias Aspden. I do hereby appoint my friends Mr George Roberts and Mr Abraham Lidden, with the president of the old bank at the time being, to by my executors to this my last will.
'MATTHIAS ASPDEN.'
At April sessions 1821, of the circuit court of the eastern district of Pennsylvania, the following bill was filed:
'Samuel Packer, a citizen of the state of New Jersey v. Henry Nixon, esquire, a citizen of the state of Pennsylvania, executor of the last will and testament of Matthias Aspden, esquire, late a citizen of the same state. In equity.
'To the honourable the judges of the circuit court of the United States of the third circuit, in and for the eastern district of Pennsylvania.
'Humbly complaining, showeth unto your honours, your orator, Samuel Packer, a citizen of the state of New Jersey, that on the 6th day of December, in the year of our Lord 1791, one Matthias Aspden, esquire, a citizen of the state of Pennsylvania, made and executed his last will and testament, bearing date the same day and year, wherein and whereby he gave and bequeathed all his estate, real and personal, to his heir at law; and of the said will appointed his friends, George Roberts, Abraham Lidden, and the president of the old bank at the time being, executors, as by the said will, a true copy whereof is to this bill annexed, and which your orator prays may be taken as part thereof, will more fully appear; after which, to wit, on the ___ day of August, in the year of our Lord 1824, the said Matthias Aspden departed this life, not having altered, cancelled or revoked his said will, and the said George Roberts and Abraham Lidden being then deceased, and Henry Nixon, esquire, a citizen of the state of Pennsylvania, being then president of the Bank of North America, which bank the testator meant and intended by the description of the old bank, the said Henry Nixon caused the said will to be duly proved according to the laws of Pennsylvania, and having received letters testamentary thereon, took upon himself the burthen of the execution thereof, and hath possessed himself of all the goods, chattels and other personal estate of the said testator, to a very large amount. And your orator expressly charges, that he is the true and only heir at law of the said Matthias Aspden, and that no other person than himself is entitled to claim or receive the benefit of the said devise and bequest. And he hath repeatedly applied to the said Henry Nixon, to have an account of all and singular the personal estate of the said Matthias Aspden, and where and how the same is situated, and what is the true and exact amount thereof, and to have the amount thereof paid to him, deducting therefrom the just and reasonable charges of the said executor. But now, so it is, may it please your honours, that the said Henry Nixon, combining and confederating with others, to your orator unknown, whose names, when discovered, he prays leave to insert with apt words to charge them as parties, denies that your orator is the heir at law of said Matthias Aspden, or that he is in any way entitled to the benefit of any of the testamentary dispositions of the said Matthias Aspden, and refuses to render him any account of the assets, and to pay him any part thereof.
In tender consideration whereof, and forasmuch as your orator cannot have plain, adequate, and complete remedy at law, to the end thereof, that the said Henry Nixon, and his confederates, when discovered, on their oaths or affirmations, full, direct, and true answers may make to all and singular the matters and things herein before set forth, as if they had been particularly interrogated thereon; and that the said Henry Nixon, may render and set forth a just and true account of all and singular the personal estate of the said Matthias Aspden, and where and how the same is situate, and whether there are any and what debts due, or claimed to be due therefrom, and may be decreed to pay to your orator the balance of the said moneys in his hands belonging to the said estate, to which your orator is justly entitled, and your orator may have such further relief in the premises, as is consistent with equity and good conscience, and to this honourable court shall seem meet.'
To this bill the executor filed an answer as follows:
'The answer of Henry Nixon, the defendant, to the bill of complaint of Samuel Packer, complainant.
'This defendant says, that he believes, and admits, that Matthias Aspden, the testator in the said bill named, at Philadelphia, duly made and executed his last will and testament in writing, and three codicils thereto; all bearing date the 6th day of December 1791; and that such will and codicils are in the words and figures, or to the purport and effect in the paper annexed to the said bill set forth; but for greater certainty as to the date and contents of said will and codicils, this defendant craves leave to refer thereto. And this defendant says, that the said testator deposited his said will and codicils, for safe custody, in the cashier's vault of the Bank of North America, at Philadelphia, known as the old bank, where the same were found after his decease. And the defendant believes it to be true, that the said testator departed this life, on or about the 9th day of August 1824, in the city of London, without having revoked or altered his said will and codicils. And the defendant further answering, says, that George Roberts and Abraham Lidden, in the said will respectively named, both died in the lifetime of the said testator; that the defendant, at the time of the death of said testator, was the president of the Bank of North America, at Philadelphia, known as the old bank. And the defendant admits it to be true, that soon after the death of the said testator, to wit, on the 19th day of November 1824, this defendant duly proved the said will and codicils, in the office of the register for the probate of wills and granting letters of administration for the city and county of Philadelphia, and received letters testamentary thereon. And that the defendant also duly proved the said will and codicils in the prerogative court of Canterbury, in England, and obtained probate thereto from that court. And this defendant admits it to be true, that as executor as aforesaid, he has possessed himself of all the personal estate and effects of the said testator in the United States, or of so much thereof, as has come to his knowledge; a true account of which is in the schedule hereto annexed. And this defendant has paid the charges of proving the said will, at Philadelphia, and other charges incident thereto, and six of the legacies, the others having not yet been claimed, bequeathed by the said will, a true account of which payments is in the schedule hereto annexed, and that as executor, other charges must be incurred in managing and settling the estate; the amount of which cannot now be ascertained; and that this defendant, as executor, will be entitled to a commission for his services. And this defendant further answering, says, that he believes it to be true, that the said testator was, at the time of his death, (among other descriptions of property) possessed of property in the English funds, that is to say, 4000 pounds bank stock; 10,000 pounds, three per cent consolidated bank annuities; 12,500 pounds reduced three and a half per cent bank annuities; and 3,500 pounds, new four per cent bank annuities; and that the said testator, also, was possessed of East India stock, and also of South Sea stock to a considerable amount, that is to say, 3000 pounds East India stock, and 5000 pounds South Sea stock. And this defendant believes that the said testator died possessed of other personal property to a consideble amount; and particularly of the sum of 790 pounds 3 shillings and 5 pence, in the hands of his bankers, Messrs Hoare, of London; but that no part of the property of the said testator, except that in the United States of America, as before stated, has come to the hands or possession of this defendant. That the whole of the property of the said testator, in England, is claimed by John Aspden, of London, as entitled thereto, under the devise of the said testator, as his heir at law; and that the said John Aspden has filed a bill in the court of chancery, in England, against this defendant, as executor of the said testator-and has, by the injunction of the said court, restrained and prevented this defendant and his agents from obtaining possession of any part of the property in England, of which the said testator died possessed, further than that his attorneys, S. Williams and J. Sterling, received the sum of 300 pounds, being one half year's dividend on 3000 pounds, East India stock belonging to the testator. That the expenses of proving the will of the said testator, in England, amounted to 715 pounds 17 shillings and 10 pence, to pay which in part the said sum of 300 pounds was applied by Messrs Williams and Sterling, and the residue, 415 pounds 17 shillings and 10 pence, was paid out of the sum in the hands of Messrs Hoare, the testator's bankers. The said suit in chancery, by the said John Aspden, is yet pending and undetermined. This defendant has annexed to this, his answer, a copy of the bill filed by said John Aspden. And this defendant, further answering, says, he does not know, and is unable to answer, from his belief or otherwise, whether the said testator left the complainant his heir at law, or whom he left his heir at law. But this defendant, further answering, says, that the said John Aspden, of London, claims to be heir at law; and as such, entitled to the residue of the said testator's property; and that there are many persons residing in the United States of America, who claim to be next of kin to the said testator, and as such, to be entitled to distributive shares of the estate. That this defendant is not able, from his own knowledge, to name all the persons who so claim to be next of kin, but that he has annexed to this his answer, a schedule, which he prays may be taken as part of his answer, containing the names of some of the persons so claiming to be next of kin, and the manner in which they, or some of them, have alleged to this defendant, they are connected with the said testator. This defendant, further answering, says, that three suits have been instituted against him, as executor of the said testator, in the district court of the city and county of Philadelphia, by persons claiming to be next of kin to the said testator, to wit, one to December term 1826, by Stacy Kirkbridge and Sarah, his wife, late Sarah Hammett; another to the same term, by James Packer; and the third to September term 1827, by Job Packer; which suits are still pending and undetermined. And this defendant, further answering, says, that he can neither admit nor deny that the said testator was a citizen of Pennsylvania, as alleged in the said bill. That from information, he believes that the said Matthias Aspden, the testator, was born in or about the year 1756, at Philadelphia, then being the place of residence of his parents; that he continued to reside there, and afterwards was engaged in business at Philadelphia as a merchant, with some success, before he was twenty-one years of age. Upon the breaking out of the war between Great Britain and America, in the year 1776, or some time in that year, being still a minor, he went to England, with what view, this defendant, from his own knowledge, is not able to say; but he believes that he went with an impression that the power of Great Britain must soon prevail in putting down the resistance made in America. That the said testator subsequently came several times to the United States of America, and invested large sums there in the public or government stock, or in other securities; that he made his will and the codicils thereto, at Philadelphia, the place of his birth, and deposited them in the bank there; but whether after so returning to the United States of America, the testator went back to England as his home, or only for the purpose of superintending his property; and whether the testator did, in fact, change his domicil, this defendant (save and except as appears by the facts) doth not know, and is unable to answer. But this defendant believes that the said testator, when in England, considered himself as an alien, and as such, claimed to have returned the tax taken from his dividends while he was absent from England, according to the provisions of the law exempting aliens from the tax if not resident in England. That he died in King street, Holborn, London. And this defendant says, that he submits to the judgment of the court, whether, upon the true construction of the said will of the said testator, the next of kin of the said testator are entitled, under the same, to take the residue of the personal estate and effects of the said testator, or whether the complainant, if he be the heir at law, and if not, whether any other person as heir at law of the said testator, is entitled to take the same under the said will as such heir at law. And this defendant submits to act as this honourable court shall direct, being indemnified and paid his costs, charges and expenses therein. And this defendant denies all combination and confederacy with which he is charged in and by the said bill, without this, that, &c.
'HENRY NIXON.'
Petitions were filed in the circuit court by persons who claimed to have distribution among them of the estate of the testator, as the party contemplated by the will; each petition setting forth the relationship between the persons presenting the same, and the testator, and praying to be admitted as parties to the suit, for the purpose of claiming the fund admitted by the executor to be in his hands; and that the court would direct inquiries to be made as to their respective claims. George Harrison and the other appellants were among those who filed petitions.
Upon the reading and filing of the petitions of George Harrison, the court made an order, according to the prayer of the same. Job Packer and John Zane were, by order of the court, on their application, made defendants; and Isaac Zane was entered as one of the complainants in the case. The record contained no order or action of the court on the other petitions, except an entry in reference to each petition, 'read and filed,' or 'filed.'
The circuit court ordered that it be referred to a master to examine and state the next of kin of the testator, Matthias Aspden; and commissions were ordered to take the depositions of distant witnesses.
After the coming in of the master's report, in which was contained a list of the heirs and kindred of the whole and half blood of Matthias Aspden the testator; and in which he reports that John Aspden was 'heir at common law,' the circuit court made the following decree.
'And now, this 26th day of December A. D. 1833, this cause coming on to be heard on the bill, answer, petitions, exhibits, proofs and master's reports, and the several parties having been fully heard by their counsel and the court having taken time to consider of the same till this day, do order, adjudge and decree, that the defendant Henry Nixon, surviving executor of Matthias Aspden deceased, do account for, pay over, transfer and deliver, to John Aspden, of Lancashire, in England, one of the said parties, the heir at law of the said Matthias Aspden, the entire balance of the personal estate of the said Matthias Aspden, which has come to his hands to be administered, after paying the debts and legacies of the said Matthias Aspden, and the costs of this suit (which are hereby ordered to be paid out of the said fund). And the court do further order, adjudge and decree, that the bill and petitions, so far as they relate to the other complainants and petitions, who are claimants before the court, and all other claimants before the court, however appearing, be dismissed without costs.
'As to all parties who are claimants before the court by bill, petition, or otherwise, their complaint, petition, and proceedings are dismissed without costs.'(a)
(a) In the Appendix, No. 2, will be found the opinion of the circuit court of the eastern district of Pennsylvania in this case, delivered by Mr Justice Baldwin.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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