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HIS was an appeal from the Orphan's Court of the county of Philadelphia. It was argued in Janurary term by Levy and Tilghman for the Appellant; and Sergeant and Ingerʃol for the Appellee. And now the CHIEF JUSTICE ftated the cafe, and delivered the opinion of the Court, in the following manner.

M‘KEAN, Chieƒ Juʃtice. Elizabeth Willis being feized of a meffage and lot of land in the city of Philadelphia, with the appurtenance, died inteftate, leaving iffue a daughter name Elizabeth, who had intermarried with Samuel Walton, the Appellant, and by him had iffue two fons, Joʃeph and Booz; and four grand-children, to writ, Thomas the Refpondent, Solomon, Muʃgrove and Rebecca, being the children of her fon Solomon Willis deceafed, who had died, before her, inteftate. The daughter, Elizabeth Walton, died after her mother, and her hufband, the Appellant, and their two children, before named, furvived her. Thomas Willis, the Refpondent, applied by petition to the Orphan's Court of the county of Philadelphia, held on the 1ft of April, 1782, for a partition of the premiffes ; or, if they could not be divided without prejudice to, or fpoiling the whole eftate, that a valuation thereof might be made, agreeably to the directions of the Acts of Affembly in fuch cafe made and provided. An inqueft was accordingly had, and a return made, that the premiffes could not be divided without prejudice to, , or fpoiling the whole, and valuing the fame at 358. This return was confirmed by the Court on the 10th of June, 1782, and the premiffes were adjudged to, and accepted by Thomas Willis, the Refpondent, at the above valuation; and for fecuring the payment of that fum, in due proportion to the other Grand-children, he offered in the Court two fureties, who were approved of, and directed to ​

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give bonds in the office of the Clerk of the Court, unto the other grand-children, for their refpective fhares ; but no ʃuch bonds or ʃecurity have yet been given.

On thefe proceedings an appeal is brought before this Court; and, upon the argument, the counfel have done great juftice to thefe refpective clients. It was our wifh, however, that the opinions and practice of the feveral Orphan's Courts of Pennʃylvana, had been afcertained in cafes of this defcription ; and that we might be informed, whether any cafe, upon fimilar principles, had been ever determined in the Supreme Court; for we fhould be exceedingly cautious in pronouncing a judgment that might fhake eftates held in this way. As we have not yet obtained full fatisfaction on this head, we would ftill wift to defer giving our opinion; but that we think it proper, from the length of time the caufe has been under advifement, to proceed upon the lights we have received

On the part of the Appellant, fix exceptions have been taken to the proceedings in the Orphan's Court.

1. That it is no where mentioned, who are the Reprefentatives of Elizabeth Willis, the interftate ; nor into how many parts the eftate fhould be divided ; but the whole is left to the Sheriff.

2.That the Court have adjudged the eftate to a Grandʃon ; whereas they had no authority to go beyond the firft degree in the defcending line.

3. That even if the Acts of Affembly did impower the Court to go farther, to wit, to the grand-children, yet that the adjudication ought to have been to all the children of the eldeft fon, and not to his eldeft fon exclufively.

4. That no provifion is made for the Appellant, Samuel Walton, who is tenant by the curtefy of his wife's fhare, to wit, of a third part, in three parts to be divided.

5. That the judgment is uncertain with refpect to the valuation money ; in-as-much the amount of each fhare is not particularized, not the time of payment limited.

6. That the partition ought to have been made by one inqueft, if practicable ; but, if not practicable, and fo returned, the valuation ought to have been made by another inqueft ; and that, on the whole no eftate can be vefted in Thomas Willis by his acceptance at the valuation, as no fecurity has yet been given for the money.

The weight of thefe exceptions depends upon the due conftruction of the Act of Affembly, entitled, “ An Act for the better fettling of the inteftates eftates,” the fupplement to that Act, and the practice under both of them.

1. With refpect to the firʃt exception ; we think it would be well for the party praying for a partition of an inteftate's real eftate, to be particular in the names of the perfons entitled to fhares, and of the purparty of each; and in this refpect to purfue the forms of a declaration in partition, and of the return of a writ de partitione ʃacienda. But to reverfe an inqueft for this omiffion, would certainly affect ​

many eftates, as thefe proceedings in the Orphan's Courts, are frequently drawn by perfons not much fkilled in ftrict forms ; and, in the prefent cafe, as the return of the Sheriff has been, that the eftate could not be divided without prejudice to or fpoiling the whole, no wrong or damage feems to have been to any one. For thefe reafons we muft over-rule this objection.

2. The ʃecond exception introduces a queftion, whether a Grand-ʃon, that is, the eldeft fon of the eldeft son of an inteftate, is entitled to an eftate, which cannot be divided, at the valuation, in the fame manner as his Father? and this muft be decided by the words, purview , and intent of the Legiflature, in the two Acts of Affembly which have been already cited. The main intent of thefe acts, appears to have been, that real eftates fhould be divided among the children, or reprefentatives in the defcending line, of an inteftate ; and not defcend to the heir at the common law. But a ʃecondary, and the next intent, feems to have been, to prevent eftates from being fplit and frittered into many parts, to their manifeft prejudice ; and, accordingly, it is provided, that where that would happen, the eldeft fon or heir at law, fhould have his election of taking the land at a valuation, to be made in the manner prefcribed in the Acts.

The reaʃon of a law will have great influence in determining its extent; and on the prefent occafion, the reafon alluded to, is much ftronger in the cafe of a Grandʃon than of a ʃon; for, in this cafe, the diftributive fhares will probably be moft numerous, and confequently, moft injurious of the land by a divifon or partition. The words “ heir at law,” in both Acts, are, in ftrict grammatical conftruction, an expreffion, or fubftitute for eldeʃt ʃon; but the reafon of the law, and the ufage ever fince the paffing thofe Acts of Affembly (as we have been informed) with warrant a more extenfive and beneficial interpretation of them. We think, therefore, that this objection likewife fails, as well as

3. The third objection, which we over rule ; Thomas being alone the heir at common law.

4. But the ƒourth exception appears to the Court to be ƒatal. There ought to have been a provifion made for Samuel Walton, who had an eftate for life by the curtefy , and yet he is not even named in the ʃentence or decree of the Court below. When a writ de partitione ƒacienda is iffued, the Sheriff is obliged to ʃummon all the parties to attended; and, if they do attend, he muft make the partition in their preʃence. The fame thing is not, indeed, expreʃsly required in the partition, or valuation, to be made under the Acts of Affembly ; yet natural juftice, and the conftant rules of all Courts require, that every perfon, who is interefted in the proceedings, fhould be ʃummoned and heard. 3 Mod. 378. It may not, perhaps, be the practice, nor is it neceffary in this cafe, that it fhould be ʃet out in the return by the Inqueft, though we would wifh that to be done ; but is effential to juftice that all parties fhould in ƒact have notice. On the proceedings before the Orphan's Court, the Appellant has not been made even a party in the decree ; and the prefumption of courfe is, that he was ​

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neither ʃummoned nor preʃent. If he had been prefent, he might poffibly have urged fuch arguments, as would have induced the inqueft to have put a higher eftimate, or value, upon the premiffes, and an opportunity ought to have been given to him for that purpofe.

5. As to the ƒiƒth exception ; there does not appear to be fufficient certainty in the fentence of the Court ; inafmuch as the purparts of the valuation money are not fpecified, not the time of payment fixed. But this Court might reduced both thefe points to certainty, were there no other exceptions ; and, in the cafe, the whole cofts of the appeal would fall upon the Refpondent.

6. On the ƒixth exception, we muft obferve, that the practice in the Orphans Courts has been to direct the fame inqueft, which is appointed to make a partition of real eftate, if that cannot be done without prejudicing the whole, then to make the valuation. This Court, therefore, will not now undertake to alter this ling eftablifhed practice, though it is liable to fome exceptions. But we are of opinion, that the fee in the premifes cannot yet be vefted in Thomas Willis, as he neither paid, nor fecured the payment of the valuation money to thofe who are entitled to receive it.

Upon the whole, let the fentence and decree of the Orphans Court be reverfed.