The Hartford herald. [volume] (Hartford, Ky.) 1875-1926, 1875-12-01

no devise at all; and his parcel OF real
estate being in the eye of the law
simply a part of an undevised residue,
was, of course, liable to be sold for the
payment of the legacies contained in his
fathers will. 1t was assets which the
executor was bound to apply to that
purpose. The exact point had been
determined in the then recent case of
Ellis VS.. Page, Cush. 161; and Mr..
Ingalls, was finally compelled to see the
estate, the undisputed possession of
which he had enjoyed for so many years,
sold at auction by the executor of his
fathers will for s135,O0O not quite
enough to pay the legacies to his
cousins, which legacies, with interest
from the expiration of one year after
the testators death, amounted at the
time of the sale in 1862 to s143, 900.
The Messrs. Jones themselves pur-
chased the estate at the sale, deeming
the purchase a good investment of the
amount of their legacies, and Mr.. In
gals instituted a system of economy in
his domestic expenses, and pondered
much on the uncertainty of the law
and the mutability of human affairs
By one of those curious condolences
which so often occur, Messrs. William
and Arthur Jones had scarcely begun
to enjoy the increasedsupply of pocket
money afforded them by the rents of
their newly acquired property, when
each received one morning, summons
to appear before the justices of the SUI
perior Court, ''to answer unto Johu
Rogers writ of entry" the premises
described in the writ being their newly
acquired estate.
The Messrs. Jones were at first rather
startled by this unexpected proceeding;
but as they had, when they received
their deed from Mr.. ingalls, executor,
taken the precaution to have the title
to their estate examined by a convey
ANGER, who had reported that he had
carried his examination as far back as
the beginning of the century and had
found the title perfectly clear and cor
rect, they took courage, and waited for
further developments. Itwas not long,
however, before the facts upon which
the writ of entry had been founded
were made known. 1t appeared that
for some time prior to 1850 the estate
had belonged to one John Buttolph,
who died in that year, leaving a will in
which he devised the estate "to my
brother Thomas, and, if he shall die
without issue, then / give the same to
my brother William" Thomas But
tolph had held the estate until 1775,
when he died leavingan only daughter,
Mary, at that time the wife of Timothy
Rogers. Mrs Rogers held the estate
until 1890, when she died, leaving two
sons and daughter. This estate she
devised to her daughter, who subse,
quently, in 1900, conveyed it to Mr..
Thomas Ingalls, before mentioned.
Peter Rogers, the Oldest son of Mrs.
Rogers was non compos, but lived
until the year 1854, when he died at
the age of rs. He left no children,
having never married. John Rogers,
the demandant in the writ of entry,
was the oldest son of John Rogers. the
second son of Mrs. Mary Rogers, and
the basis of the title set up by him was
substantially as follows: He claimed
that under the decision in Hayward VS..
Howe, II Gray, As, the will of John But
tolph had given to Thomas Buttolph
an estate tail, the law constructing the
intention of the testator to have been
that the estate should belong to Thos.
Buttolph, and to his issue as long as
such issue should exist. but that upon
the failure of such issue, whenever such
failure might occur, whether at the
death of Thomas or at any subsequent
time, the estate should go to William
Buttolph. 1t had also been decided
in Corbin VS.. Healy, 20 Pick, 514,
Sic, that an estate tail does not descend
in Massachusetts,, like other real es-
tate, to all the children of the deceased
owner, in equal shares; but, according
to the old English rule, exclusive to
the oldest son, if any, and to the
daughters only in default of any son;
and it had been further decided in
Hall VS.. Priest, 6 Gray, Is, "a that
an estate tail cannot be devised or in
any way affected by the will of ten
ant in tail. Mr.. John Rogers claimed
that the estate tail given by the will of
John Buttolph to Thomas Buttolph
had descended at the death of Thomas