APPEAL from the Circuit Court for the Southern District of Ohio, in which court John Edmondson and Littleton Waddell in right of his wife Elizabeth, sister of the said John, filed a bill against Adam Bloomshire and others, to compel a conveyance of certain lands in Ohio, alleged to be in the possession of the defendants. The court below dismissed the bill, and the complainants appealed. Both in the court below and here several interesting and difficult questions were raised; and fully and ably argued by Messrs. H. Stanberry and J. B. Baldwin, for the complainants, and Messrs. William Lawrence and J. W. Robinson, contra:*fn1 But the case as passed on by the court avoided a decision on these, and placed the judgment on the meaning of a peculiar and badly expressed will, and certain facts which explained it. The case, therefore, presenting nothing of interest, the arguments of counsel upon the construction of the will and evidence are suppressed.
The opinion of the court was delivered by: Mr. Justice Clifford stated the case and delivered the opinion of the court.
Volunteer forces for the public service in the war of the Revolution were, in many instances, furnished by the States, and all such, as well as the regular forces, were paid for their services to a large extent in continental money, which so depreciated in a short time as to become almost valueless.
Troops for that service were raised by the State of Virginia, known as the Virginia line on continental establishment, and they also were paid for their services in that currency; and in order to afford relief for the loss which the troops sustained in that way, the legislature of the State, at the November session 1781, passed an act directing the auditor of public accounts to settle and adjust the pay and accounts of the officers and soldiers of that line, so as to make their claims for pay and subsistence equal to specie, such adjustment to cover the period from the first day of January, 1777, to the last day of December, 1781; and the directions to the auditor were that he should issue printed certificates to the respective applicants for the balance found due to them in such adjustment, payable on or before the first day of January, 1785, with interest at the rate of six per centum per annum.*fn2
Directions were also given to the auditor in the same act that he should in like manner settle and adjust the accounts of all officers and soldiers of the said line who have fallen or died in the service during that period, and the provision was that their representatives should be entitled to such certificates, and all other benefits and advantages therein granted to the officers and soldiers in the line at the date of the act.*fn3
None of these matters are the subject of controversy, and it is also alleged and admitted that William Rickman, of Charles City, Virginia, was a deputy director general in the Virginia line on continental establishment; that he served three years or more as such director, and that he thereby became entitled also to Virginia military bounty-lands.
On the seventh of August, 1778, William Rickman made and published his last will and testament, by which he gave and bequeathed to his wife, Elizabeth Rickman, all his estate, both real and personal, in fee simple, and appointed his wife, together with Benjamin Harrison, her father, and her brother, Benjamin Harrison, Jr., the executors of his will so made and published. Three years afterwards the testator died, leaving the said last will and testament unrevoked and in full force, and the same was subsequently duly proved and admitted to record.
Application in behalf of Elizabeth Rickman, as the widow and executrix of her deceased husband, was afterwards made to the auditor of public accounts to settle and adjust the pay and subsistence accounts of the testator as an officer in the Virginia line on continental establishment, and on the twenty-eighth of February, 1784, the requested adjustment was made. By that adjustment the auditor of public accounts found that there was a balance due to the deceased, or to his legal representatives, of one thousand seven hundred and twenty-two pounds nineteen shillings and two pence, and the record shows that the evidence of the indebtedness of the State to the deceased for that amount was delivered to B. Harrison on the same day the adjustment was made.
Prior to that adjustment, to wit, on the twenty-ninth of November, 1783, the House of Delegates of Virginia passed two resolutions which it becomes important to notice.
1. That the petition of Elizabeth Rickman praying that the auditor of public accounts should settle and adjust the pay and accounts of her late husband was reasonable, showing satisfactorily that the adjustment was largely influenced by the legislature.
2. That Elizabeth Rickman, widow of William Rickman, be allowed such a portion of land as the rank and service of the deceased merit.
Pursuant to the second resolution the governor of the State, Benjamin Harrison, on the twelfth of January, 1784, executed a certificate that Elizabeth Rickman, widow and executrix of William Rickman, director general, is entitled to the proportion of land allowed a colonel in the continental line who has served three years, and on the following day a warrant for six thousand six hundred and sixty-six and two-thirds acres was issued to her, signed by the register of the State land office.
Five years later she intermarried with John Edmondson, and they afterwards, during the succeeding year, united in executing a deed of trust or post-nuptial agreement to her brother, Carter B. Harrison, of all her estate, real and personal, or to which she was entitled under the will of her former husband, for her separate use and advantage, her heirs, executors, and administrators, the husband stipulating therein that she might dispose of the same by her last will and testament as she should see fit to do.
On the third of May, 1790, Elizabeth Edmondson made her last will and testament, which was olographic, and on the first day of January, 1791, she died, leaving her will in full force, and on the twentieth of the same month the will was proved and admitted to record in the county where she resided at her decease.
Absolute title to the lands embraced in the warrant signed by the land register is claimed by the complainants, upon the ground that the same were devised in fee simple by Elizabeth Edmondson to her husband, John Edmondson, by her last will and testament, but the respondents deny that her will when properly construed contains any such devise, and insist that the will, if it made any disposition of those lands, only devised to the husband a life estate in the same, and that the fee simple title to the same, ...