Page:United States Reports, Volume 2.djvu/264

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258 Cases ruled and adjudged in the 1796. of the fame county, fpinller, were fummoned to anfwer Samue! VVV W ulfvr, as tenant of the cuttefy of the real ellate of his late wife, E/izabel/1, deceafed, of aplea, Src. Whereas the faid Samued · Amr Dilwartb the elder, and Arm Dilworlb, the younger, held together and undivided one melfuage, Zee. which the faid Amt Dihvartlr, the elder, and the faid Arm Diltt·arll·, the young- er, deny to malre partition thereof between them,the faid Samuel, the faid Arm Dilwmb, the elder, and Ann Dilrvartlv, the younger, according to the cullom of the Commonwealth of Irairmileunia, and the form of the llatute in fuch cales made and provided ; and do not permit the fame robe done, unjullly and againll: the faid cultom and the form of the llatute in fuch eafesmade and provided. And whereupon the faid Samoa', by gah: Craig lV:lh, his attorney faith, That whereas they the id Samuel, Arm the elder, and zum the younger, held together and undivided the tenements aforcfaid, with the appurtenances in three equal parts, to be divided for and during the term of his natural life, and the reverlion thereof to Nancy lVa.'l·cr, the daughter of the faid Samuel, by his faid wife Elizabnb ; and it belongeth to the faid Arm the elder, to have one other third part of the faid tenements, with the appurtenances, for and dur- mg the term of her natural life, and after her death the remain- der and reverlion cf the faid lall; mentioned third part, one moi- ety thereof unto the faid Muay, in feveralty forever ; and the other moiety of the faid lalt mentioned third part, after thc death of the laid Arm the elder, unto the faid Arm the younger, in feveralty forever. And it belongeth to the faid Am: the younger, to have the other third part and relidue of the tene- ments aforefaid, with the appurtenances in feveralty forever : So that the faid Samuel of his third part happening to him during his life with the appurtenances ; and the laid Ann Dilwrrtb the elder, for and during the term of her natural life, her third part of the tenements with the appurtenances happening to her ; and the faid Arm I)il·u·crlb the younger, her one third part of the tenements with the appurtenances, and the reverlion of the moiety of the third part happening to the faid Ann Dilwwrb the elder, after the death of the faid Ann the elder, to the faid Arm Dil- ·u.·ortl: the younger in feveralty forever, they may feverally inn- prove themfelves; But the laid Arm the elder, and Ann the younger, deny to make partition thereof between them, accord- mg to the faid cullom and the (tatutc in fuch cali: made and pro- vided, and do not permit the tame to be done, unjuflly, and a- gainll: the faid culiom and the form of the {latute aforehtid. Wherefore the faid Samurlfays he is prejudiced, and hath fuf- tained damages to the value of {10::0, &c." The counlel for the defendants, Lrwir, demurred to the de- claration, upon this ground, that a tenant by the curtefy cannot inaiatain