Opinion of the Court.

trust upon which Gilman held the property was a trust which equity would have refused to enforce. It was created for the purpose of placing the property beyond the reach of an anticipated creditor, and at the same time enjoying its benefits. But though tainted with this vice, it was nevertheless a trust which Gilman as an honest man desired to fulfill, and, in order to fulfill it, he executed the deed to the executors. No money was paid by them; the costs of the execution of the deed were paid from the funds of the estate, and the only consideration therefor was the obligation, imperfect in its character it is true, and not enforceable, but nevertheless a moral obligation, to carry out in good faith the trust reposed in him by his deceased friend. The real consideration of the deed then, and the only ground upon which the executors became invested with the title, was that Pitney was considered both by the trustee and the executors as having died seised of an equitable estate of inheritance. Brown claimed, says Gilman, in his testimony already quoted, that "the conveyance should be made in such manner as to place the property to the benefit of the estate, where it belonged," and afterward, when he called with a deed, said "he had drawn up a deed conveying the property to the executors for the estate."

They thus obtained the title by claiming to represent the estate, and by asserting that the property in equity belonged to Pitney, and should be conveyed to them as his executors. And when the deed was made upon the sole consideration that Pitney died seised of the equity, when the executors obtained the deed by asserting such equity, and upon the ground that they were his executors, how can they now be permitted to say that he had neither a legal nor equitable estate under which the widow or heirs can claim? For if the argument urged is good as against the widow, we see not why it would not be equally good as against the heirs, if there were no will, or if the will were set aside. It is claimed, in the argument, that the executors are bound to account only to the beneficiaries under the will. Yet if the will were set aside for any reason by a decree in chancery, they surely would not contend that they

Opinion of the Court.

could not be made to account for this property to the heirs. The truth is, they hold the property in trust, not merely for the objects of Pitney's bounty in his will, but for all persons who would have had a claim to the property if Gilman had conveyed to Pitney before his death. That these executors are estopped from denying his scisin as against the widow, heirs or devisees, is a proposition admitting of no doubt, and hardly susceptible of controversy.

And while the exccutors are thus estopped from setting up title in their own right, it is equally clear that they cannot, in behalf of the beneficiaries under the will, deny the seisin of the testator. The claim of the beneficiaries rests solely upon the theory that this property belonged to the testator. The testator disposed of it, and the beneficiaries claim its proceeds, upon the hypothesis that he died seised of it; and, while they insist upon his seisin for the purpose of claiming the benefits of the provisions in his will, they cannot in the same breath deny his seisin, for the purpose of disputing the rights of his widow under the statute. What they could not do for themselves, the executors cannot be permitted to do for them.

We observe that Gilman's testimony was objected to when taken. The objection has not been pressed in the argument, and has no foundation. While parol evidence is inadmissible for the purpose of contradicting a deed or impairing its legal effect, it is always admissible for the purpose of showing the circumstances under which a deed was made, and from whom the consideration moved, with the view of establishing a resulting trust.

We hold that the petitioner is entitled to claim one-half in fee of lot 83, and also of the other real estate, but she must elect whether she will take this and forego the annuity, or whether she will take the annuity and her dower proper, that is, onethird for life, and abandon all claim to the one-half in fee. The furniture was not the subject of any part of the decree, or of the assignment of error, or of the argument, and we therefore give no specific directions in regard to it. The decree is

Syllabus.

reversed and the cause remanded for further proceedings in conformity with this opinion.

Decree reversed.

NOTE BY THE REPORTER.-The clause in this will bequeathing the residuary fund to the children of Mahlon Pitney and to William H. Brown, is construed in the case of Pitney et al. v. Brown, decided at the April Term, 1867, where it is held that those residuary legatees take per capita and not per stirpes.

ONIAS C. SKINNER

v.

JOHN B. H. FULTON..

1. ACKNOWLEDGMENT OF DEEDS in other States-certificate of conformity. Where a deed for land in this State is acknowledged in another State, the certificate of conformity must be under the seal of the court. It is not sufficient that a scroll is used, instead of a seal, the clerk making the certificate, stating that the scroll is used instead of the seal of the court, which had been lost.

2. PROOF OF THE EXECUTION OF DEEDS under the twentieth section of the conveyance act. In the certificate of a clerk of the proof of the execution of a deed, under the twentieth section of the conveyance act, the clerk referred to a person as a subscribing witness to the deed, when it appeared he was not a subscribing witness, but was one of the witnesses by whom the handwriting of the grantors and the subscribing witnesses was proved. This was regarded as a mere clerical error, which would not vitiate the certificate, it being otherwise sufficient.

3. The sections referred to, provide the mode of certifying the proof of the execution of a deed, in a case where the grantor and the subscribing witnesses are dead or "cannot be had." In this case a deed was executed in Jefferson county, Virginia, and the proof of its execution taken in Boone county, Kentucky, and the certificate of the proof of its execution shows that the witnesses by whom the signatures of the grantor, and the subscribing witnesses were proven, stated that one of the latter went to Kanawha, in Virginia, about forty years before the time they were testifying, and had not since been heard from. This was sufficient to show that such absent subscribing witness “could not be had."

4. It seems that where a deed for land in this State was executed in another State, the proof of its execution may be taken and certified under the twen

Statement of the case.

tieth section mentioned, in a State foreign to that in which the deed was executed and to the State where the land lies.

5. PROOF OF HEIRSHIP-what is sufficient proof that certain persons are the only heirs of another. Proof that certain persons are the only children who survived their father does not establish the fact that they are his only heirs. It may be that the ancestor had other children who died before he did, leaving issue who survived their grandfather. It should be shown whether he left such grandchildren, and leave the law to decide who are the heirs.

6. IDENTITY OF NAMES. In proving that one of the grantors in a deed was the daughter and heir at law of the former owner of the land, it was proven that she was married to Peyton Brown. The deed was signed by John P.. Brown and his wife; and, in the deed, John P. Brown was described as the husband of Mary Elizabeth Fulton, the latter being the family name of the one from whom it was claimed she inherited. It was considered reasonable to infer that John P. and Peyton Brown were one and the same person.

7. TAX DEED-when it must be sustained by proof of regularity of the tax sale. The act of 1835, in regard to road tax, does not declare that a tax deed, made in pursuance thereof, shall be prima facie evidence of the regularity of the sale, or that the requisite steps had been taken to authorize it.

8. So, where a tax deed, executed under that law, is relied upon as evidence of title, there must be preliminary proof of all the statutory prerequisites to a valid sale, or the deed will not be admissible in evidence.

APPEAL from the Circuit Court of Hancock county.

This was an action of ejectment commenced in the court, below by John B. H. Fulton against Onias C. Skinner, to recover the north-east quarter of section twenty-six, in township, four, north of range seven west, situate in Hancock county.

The plaintiff gave in evidence the patent for the land from the United States to John Stephens, bearing date May 28, 1818. He then offered in evidence a deed from John Stephens to Robert Fulton, dated December 1, 1818. The defendant insisted that the grantee's name in this deed was written "Fultoz," and not "Fulton," and the original deed was produced in this court for inspection. Objection was also taken to the authentication of the deed. It purports to have been "signed, sealed and delivered in presence of Robt. Y. Jack, James Fulton, Jno. Carlile," as subscribing witnesses. Attached to the deed were the following certificates:

า

Statement of the case.

"STATE OF VIRGINIA, To wit: "JEFFERSON COUNTY,

"I, Robert Gates Hite, clerk of the said County Court of Jefferson, do hereby certify that at a court held for the said county, the 26th day of April, 1819, the foregoing deed was acknowledged by John Stephens, party thereto, and ordered to be certified to the territory of Illinois.

"In testimony whereof, I have hereunto set my hand and affixed the public seal of my office this 28th day of Sep[L. S.] tember, 1819, and in the forty-fourth year of the Commonwealth of Virginia.

"ROBERT G. HITE, Clerk."

"VIRGINIA, JEFFERSON COUNTY, To wit:

"I, Richard Bagler, presiding magistrate of the said county of Jefferson, do hereby certify that Robert Gates Hite hath been duly elected and qualified clerk of the court of the said county of Jefferson, and that the foregoing attestation is in due form.

[L. 8.]

"Given under my hand and seal this 28th day of September, 1819."

"STATE OF VIRGINIA, Sct. "COUNTY OF JEFFERSON, J

"I, Thomas A. Moore, clerk of the County Court of said. county, hereby certify that it appears from the records of said court that Robert G. Hite, who appears to have given the above certificate under the seal of the said court, was at the date thereof, viz. the 28th day of September, A.D. 1819, clerk of the said court, and that all his official acts as such are entitled to full faith and credit.

"Given under my hand and the seal of the said court, [L. S.] this 21st day of July, A.D. 1853.

"T. A. MOORE, Clerk."

"I, Braxton Davenport, presiding justice of the County Court of Jefferson county, in Virginia, hereby certify that Thomas A. Moore, who has given the above certificate under the seal