Abraham Eby

Male 1786 - 1868  (82 years)


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  • Name Abraham Eby 
    Born 28 Jan 1786  Lancaster County, Pennsylvania Find all individuals with events at this location 
    Gender Male 
    Died 29 Jun 1868  Stanwood, Stark County, Ohio Find all individuals with events at this location 
    Buried Stanwood Cemetery Stanwood, Stark County, Ohio Find all individuals with events at this location 
    Person ID I271987796759  Eby/Aebi and Bernethy Family
    Last Modified 30 Jan 2014 

    Father Jacob Eby,   b. Dec 1756, Warwick, Lancaster County, Pennsylvania Find all individuals with events at this location,   d. 24 Apr 1842, Warwick, Lancaster County, Pennsylvania Find all individuals with events at this location  (Age ~ 85 years) 
    Mother Elisabeth Habecker,   b. 1748, Lancaster County, Pennsylvania Find all individuals with events at this location,   d. 8 Mar 1814, Warwick, Lancaster County, Pennsylvania Find all individuals with events at this location  (Age 66 years) 
    Family ID F246729426970  Group Sheet

    Family Maria Catarina or Catherine Unknown,   b. 12 Oct 1787,   d. 08 Jul 1855, Stanwood, Stark County, Ohio Find all individuals with events at this location  (Age 67 years) 
    Children 
     1. Catherine Eby,   b. 25 May 1812,   d. 08 Jan 1892  (Age 79 years)
    +2. Jacob Eby,   b. 6 Feb 1809, Lancaster County, Pennsylvania Find all individuals with events at this location,   d. 29 Oct 1841, Lancaster County, Pennsylvania Find all individuals with events at this location  (Age 32 years)
    +3. David D Eby,   b. 1823, Lancaster County, Pennsylvania Find all individuals with events at this location,   d. 30 Dec 1883, Sugar Creek, Wayne County, Ohio Find all individuals with events at this location  (Age 60 years)
     4. Mary Eby,   b. Dec 1826, Pennsylvania Find all individuals with events at this location
    Last Modified 30 Jan 2014 
    Family ID F246719069078  Group Sheet

  • Event Map
    Link to Google MapsBorn - 28 Jan 1786 - Lancaster County, Pennsylvania Link to Google Earth
    Link to Google MapsDied - 29 Jun 1868 - Stanwood, Stark County, Ohio Link to Google Earth
    Link to Google MapsBuried - - Stanwood Cemetery Stanwood, Stark County, Ohio Link to Google Earth
     = Link to Google Maps 
     = Link to Google Earth 
    Pin Legend  : Address       : Location       : City/Town       : County/Shire       : State/Province       : Country       : Not Set

  • Notes 
    • Dieter Eby Newman page 240
    • 1860 Census Sugar Creek, Wayne, Ohio as Abram ELY head of the home with his daughter Mary living with him.



    • From: Pennsylvania State Reports Containing Cases Decided by the Supreme Court; Volume 5 By Pennsylvania. Supreme Court. Starting page 435

      Eby V. Eby's Assignee.

      The presumption of payment, which the law allows at the expiration of twenty yean after a debt becomes due, is an act of tenderness towards the debtor, which is sustained by the absence of evidence, and like other presumptions, it must yield and give way before any circumstances and facts on which the mind can rest satisfied, and by which it is rebutted or repelled.

      Such legal presumption has not the power or effect of a positive statutory enactment of limitation, which extinguishes the original demand and requires a new promise to pay, or its equivalent. The mind must be free to admit the presumption, but if the exhibition of facts or circumstances interdict and forbid the conclusion, its protection is removed.

      Where more than twenty years had elapsed after a bond became due and payable, a settlement took place between the obligee and obligor of their respective accounts, including the said bond, and the obligor ihen acknowledged the bond to be still due and unpaid, t( teat held, that this rebutted the presumption of payment arising from lapse of time.

      Where the particulars of such settlement and acknowledgment was committed to writing by the direction of both parties by a witness who was present at the time, and the paper is proved by the witness to have been thus made, it is evidence to show that, at the time of such settlement and acknowledgment, the parties agreed that said bond was in full force; and such witness will be permitted to testify as to the admission*

      of the obligor and the demand of the obligee, by inference drawn from what he had thus put down on such paper, or writing. Such settlement or writing, where the bond was retained by the obligee, and there waa no agreement or understanding that it should be considered as extinguished thereby, and no new note, bond, or security of any kind was taken, would be but a mere memorandum made of the several amounts due by the obligor, and the bond would not be merged therein.

      The declarations of an obligee in a bond, after he had transferred or assigned his interest therein for a valuable consideration, are not evidence against his assignee in an action brought by him to recover the amount of said bond from the obligor.

      In error from the District Court for the city and county of Lancaster.

      Nov. 30. This was an action of debt brought by Daniel Eby, as assignee of Jacob Eby, senior, the defendant in error, against Jacob Eby, junior, the plaintiff in error, on a bond given by the said Jacob Eby, junior, to his father, Jacob Eby, senior, and by him assigned, under the act of Assembly, to Daniel Eby, for value received. The bond was dated the 1st day of April, 1816, and was conditioned for the payment of 150, with lawful interest, on the 1st day of April, 1817.

      All the facts necessary to elucidate the points decided here, are particularly stated in the opinion of this court, delivered by his honour Judge Coulter. The jury found a verdict for the plaintiff, whereupon the defendant sued out this writ.

      Fordney and Frazer, for plaintiff in error, cited Diemer v. Sechrist, 1 Penna. Rep. 420; Foulk v. Brown, 2 Watts, 214, 215; Backestoss v. Commonwealth, 8 Watts, 286.

      Stevens, contra, cited McDowell v. McCullough, 17 Serg. & Rawle, 51, 53; Foulk v. Brown, 2 Watts, 209 ; Bailey v. Jackson, 16 Johns. R. 214.

      Dec. 7. Coulter, J.?Jacob Eby, junior, executed and delivered his bond to Jacob Eby, senior, his father, for 300, dated the 1st of April, 1816, conditioned for the payment of <150 on the 1st of April, 1817. Jacob Eby, the obligee, transferred and assigned it to Daniel Eby, for value received, according to the provisions of the act of Assembly in such case made and provided. Daniel Eby brought an action of debt in the District Court of Lancaster county, to February Term, 1845, against Jacob Eby, junior. To this action the defendant pleaded the statute of limitations, payment with leave, &c. The plea of the statute of limitations was no doubt intended to apply exclusively to the second count in the declaration, which covered other claims than the bond now in question, and which was withdrawn on the trial, and no evidence offered to support it. The first count of the declaration was on the bond for 300. The plaintiff called Christian Rauch, who proved that the assignment was executed in his presence, and that of Eberman, who both subscribed as witnesses, on the 18th September, 1837, the date of the assignment. The bond and assignment were then read to the jury. The plaintiff, for the purpose of removing and rebutting the presumption of payment arising from the lapse of twenty years, gave in evidence by Christian Rauch, that he was present at Daniel Eby's house, in 1837; thinks it was in hay-making or harvest, in June or July. Jacob Eby, junior, and Jacob Eby, senior, were present, and Daniel Eby was in and out of the room occasionally. Rauch then testified as follows: " This bond (meaning the one declared upon) was produced, and a demand made by Jacob Eby, senior, of young Jacob, and it was admitted that nothing was paid. What was said I do not know, but I put it down on paper that it was admitted. The paper was a memorandum I made at the time, in presence of the parties and by their directions. There was a settlement between the parties, Jacob Eby, senior, and Jacob Eby, junior. It was not in writing nor signed. This bond was in the settlement, and a note for $140. I repeat what I said before. I "don't remember the words, but I am sure the debt was admitted as due. This was before the assignment to Daniel, but not long before, and not on the same day. The settlement embraced all that was between them at that time. It was agreed to by both. There was no time fixed for the payment of the bond. It -yas included in the settlement. I do not remember that the old man made a formal demand, except that it is on this paper. I don't recollect that Jacob, the younger, admitted the bond to be due. It is only because I see the words there that I say he admitted it, for 1 would not have put it down if he had not."

      The counsel for the defendant excepted to that part of the wit ness's testimony in which he speaks of the admission of Jacob Eby. junior, and the demand of Jacob Eby, senior, from inference from what he put down on the paper. The court overruled the objection, and sealed a bill of exceptions, which is assigned as the first error.

      The legal presumption of payment which the law allows at the expiration of twenty years after the debt becomes due, is an act of tenderness towards the debtor, which is sustained by the absence of evidence, and like other presumptions must yield and give way before any circumstances and facts on which the mind can rest with satisfaction, by which it is rebutted or repelled. It has not the power or effect of a positive statutory enactment of limitation or oblivion, which extinguishes the original demand and requires a new promise to pay, or its equivalent. The mind must be free to admit the presumption, and if the exhibition of facts or circumstances interdict and forbid the conclusions, its protection is removed; McDowell v. McCullough, 17 Serg. & Rawle, 53; Foulk v. Brown, 2 Watts, 214 ; Levers v. Van Buskirk, 7 Watts & Serg. 70. The witness, it is true, did not recollect the precise words used by either party after the lapse of seven or eight years. But there was the writing indited by him under the authority and by the express direction of the parties. That writing would not melt into air, or fade like the memory of man, and the caution and circumspection of the witness was evidence of the value of his testimony, because that paper was made to be an abiding memorial of the settlement. It cannot be assimilated, although that was attempted in the argument, to memoranda made by witnesses to assist their recollection, for this was the act of the parties themselves, by their authorized agent, and when the witness spoke of the transaction he was very justly allowed by the court to speak of the paper as furnishing evidence of their acts and declarations. It was the highest and best evidence which could be given of the settlement. After the court sealed the first bill of exceptions, the witness, Rauch, continued as follows: " I recollect that the parties ordered me to put down the sums and entries on the paper; that I put them down as they directed. I remember that they agreed to the settlement as it is stated on this paper. The paper was then offered and admitted in evidence, to which the counsel for the defendant excepted; and the court sealed a bill of exceptions.

      I am at a loss to perceive any valid objection to its reception. It was made by the express authority and direction of the parties, no doubt to the very end that mistake or misapprehension should not rest on the transaction at any time thereafter. The bond itself was produced by the plaintiff on the trial; and the writing was offered to show that at the date of the settlement, the parties agreed that it was in full force. Courts are bound to admit in evidence any act of the parties which conduces to shed light on the issue, unless the nature of the transaction admits of higher and better evidence of the fact, and which is withheld. But what better evidence of the admissions of the parties and their settlement could be furnished than this writing, accompanied by the testimony of Rauch ? We must give a reasonable construction to the conduct of the

      parties, and doing so, we arc constrained to the conclusion, that the paper was caused to be made by them for the purpose of being evidence in the event of any dispute about the subject matter.

      After the plaintiff had closed, the defendant called Miles Carpenter as a witness, who said that he was present at the house of Daniel Eby, in February, 1838, with Jacob Eby, the elder, and younger. The counsel for the defendant asked the witness this question: " What did the old man say in relation to the debt claimed on this bond on that occasion, in the presence of Daniel Eby, as to his intention not to claim either principal or interest on that bond of Jacob Eby's, jun.?" To which question, the counsel for the plaintiff excepted, and the court sustained the objection, and sealed a bill of exceptions, which is assigned for error. At the period to which the question referred, Jacob Eby, the elder, had transferred and assigned his interest in the bond to Daniel Eby, for a valuable consideration. The principles of good faith forbid the assignor from destroying, by his declarations, an instrument for which he had received value, after his interest in it had ceased. It has been repeatedly ruled, that the declarations of a vendor made after he has parted with his interest, cannot be received in evidence to impeach the title derived from him; and in Camp v. Walker, 5 Watts, 482, it was ruled, that declarations of the payee after he had transferred his interest in the bill, were not admissible in evidence. In Morton v. Morton, 13 Serg. & Rawle, 107, it was decided, that a receipt given by the assignee after lie had transferred a single bill, could not be received in evidence. Whatever the answer of the witness might have been, whether favourable or unfavourable to the defendant, the court were justified by principle and authority in overruling the question. When the testimony was closed, the counsel for the defendant requested the court to charge the jury, 1st, That twenty years having elapsed from the time of the bond becoming due until the bringing of the suit, the bond is paid by the presumption of law. 2d. If the jury believe the bond was held as an advancement by old Jacob Eby, then no recovery can be had upon the bond. 3d. The settlement spoken of by Jacob Eby, jun., Jacob Eby, and Esquire Rauch, if the jury believe the same, in which the bond was included with other demands, merges the bond in said settlement; and a recovery, if any, can only be had on said settlement, and not on the bond, and that, therefore, the plaintiff is not entitled to recover. The counsel for the plaintiff in error assigns the answers of the court below to these several points for error. In answer to 440

      the first point the court instructed the jury, that if they were satisfied that Jacob Eby, jun., did, in 1837 or afterwards, acknowledge that he owed the bond, and that it was a subsisting debt, the defence on that ground failed. There could be no doubt, whatever, that an acknowledgment of the debt before the efflux of twenty years, excluded the legal presumption of payment. The question raised and argued was, as to the competency of an acknowledgment after the expiration of twenty years from the time the bond became due. The court did not err in their instruction to the jury. The burden of proof lies on the plaintiff; and if he satisfies the jury by proper evidence, that the defendant, after the expiration of twenty years, admitted the existence of the debt, it would be converting legal presumption into credulity, to instruct a jury that they were authorized to presume payment against positive evidence. The legal presumption of payment would be changed into a legal and peremptory bar, contrary to all authority. The cases already cited, of McDowell v. McCullough and Foulk v. Brown, sufficiently indicate the law on this point.

      If the court committed any error in their answers to the second point, it was an error in favour of the defendant below, of which he has no right to complain. I cannot discover in the whole case even a glimmering of evidence, that the bond was held by the elder Eby against the younger, as evidence of an advancement merely. But the court answered the defendant's point affirmatively, and submitted the matter to the jury, with an injunction, to be sure, that the evidence ought to be clear, and that facts alleged but not proved were not evidence. In relation to the third point submitted to the court, there was no error in their answer. The bond was retained by the obligee?there was no agreement or understanding that it should be considered as extinguished by the settlement?no new note, bond, or security of any kind was taken. The writing or settlement was a mere memorandum made of the several amounts due by the defendant below. The bond could not be, and was not merged in law in that memorandum of settlement as it has been called; Weakly v. Bell, 9 Watts, 280; Jones v. Johnson, 3 Watts & Serg. 276.

      In the judgment of this court the errors assigned are not sustained. Judgment affirmed.

    • From: Pennsylvania State Reports Containing Cases Decided by the Supreme Court; Volume 5 By Pennsylvania. Supreme Court Starting page 463

      EBY V. EBY.
      A testator devised to his daughter B., inter alia, as follows: " I give and devise to her certain hundred acres, with the allowance, situate, &c., to have and to hold the tame to her, her heirs and assigns for ever, hut if the should die icilhout lawful issue, then said lands shall he divided among my other heirs, share alike. The said land she shall have for the sam of 450, money aforesaid; and after her proportionable share is deducted from said sum, of the residue she shall pay to my other heirs yearly the sum of JE15, to begin with the first payment after a year after my death is expired," &c. He then empowered his executors to grant her " lawful deals for the said premises," at any time when she shall have paid the aforesaid sum, or shall have given security for the same;" but ordered that - she shall have no liberty to sell said premises before fifteen years after his death." He then directed " that the said j450 shall be divided, share alike, among his three daughters, E., A., and M, every year 15, as aforesaid;" and that " the residue of his estate, not here disposed of, shall be divided among all his heirs, share alike, on his daughter M.. and also A.," in a certain event. Held, that E. took an estate in fee, with remainder over, by way of executory devise; but as she died, leaving children, and therefore the event upon which her estate was to be defeated did not happen, it became a fee-simple absolute, which descended upon her children.
      IN error from the Court of Common Pleas of Lancaster county.
      Nov. 30. This was an action brought by Jacob Eby, the defendant in error, against Daniel Eby, the plaintiff in error, who was defendant below, to recover the sum of $1470 90, upon a covenant between the parties, and another brother named Abraham, in which they described themselves as " children and heirs of Jacob and Elizabeth Eby." This covenant was dated the 17th of June, 1837, and bound the parties to stand to an appraisement to be made by men therein named, of the lands late of the said Jacob and Eliza beth Eby, divided in the same manner as the same were then occ-w pied by the parties respectively;" and that each would pay his respective part thereof. It appeared that the parties to the covenant were in possession under a division made in 1826, and that Daniel, the defendant below, had built a mill on the premises. The appraisement was made, and the objection of the defendant to the payment of the sum required from him to equalize the partition, rested upon the ground that the mother, Elizabeth Eby, formerly Elizabeth Habecker, and one of the children and devisees of Jacob Habecker, deceased, instead of being seised in fee-simple, held only an estate-tail in the land devised to her in the will of her said father; and that the whole estate in the said land so devised to her, descended, upon her death, to her eldest son, Abraham, as heir in tail, to the exclusion of her other children. It also appeared, that on a doubt suggested as to the nature of the estate, Abraham, the claimant as tenant in tail, after having consented to and carried into effect the legal proceedings for the purpose of barring the entail, at the equal expense and for the equal benefit of all the parties, refused to convey the purpart of the land which had been in the possession of Daniel, under the amicable partition made in 1826, of the original tract devised, and consequently Daniel took no interest in the premises. The clauses in the will of Jacob Habecker, which gave rise to this controversy, are so fully stated in the opinion of this court, that it is unnecessary to insert them here.
      The court below (LEWIS, P. J.) charged the jury, that the defendant took a fee-simple under the will, and if he did not, that the plaintiff, under the evidence, was entitled to recover. To this charge the defendant excepted, and, upon the jury returning a verdict for the amount claimed by the plaintiff, sued out this writ. The only question here was, whether the estate given to Elizabeth, in the one hundred acres of land, in and by the will of her father, Jacob Habecker, was a fee-simple, or an estate-tail.
      Stevens, for plaintiff in error, cited 2 Powell on Devises, 518, 526, 22 Law Lib.; 2 Yeates, 400 ; 9 Watts, 447 ; 12 Wend. 83 : 7 Watts & Serg. 63 ; 9 Mass. 161.
      Fordney and Frazcr, contra, cited 1 Pow. on Dev. 28, h. 1; 2 Binn. 464; 9 Serg. & Rawle, 445; 9 Watts, 450; 6 Watts, 171; 7 Watts & Serg. 98.
      Dec. 7. BELL, J.?As it appears by this record, the only defence set up and finally insisted on by the defendant below, the plaintiff in error, against the right of the plaintiff below to recover in this action, was based upon a supposed failure of the consideration which induced the covenant of the 17th of June, 1837, and the valuation and appraisement consequent upon it. This supposed failure of consideration proceeds altogether upon the position assumed by the plaintiff in error, that, under the last will of his grandfather, Jacob Habecker, his mother, Elizabeth, afterwards Elizabeth Eby, took but an estate-tail in the land devised to her, which, upon her death, descended upon and vested in her eldest son, Abraham, as heir in tail, to the exclusion of her other children, and consequently, as Abraham, after docking the entail, refused to convey the purpart of the land which had heretofore been in the possession of Daniel, in pursuance of an amicable partition of the original tract devised, the latter took no interest in the premises. If this position be incorrect, it must be conceded the plaintiff below is entitled to recover in this action the sum claimed by him to equalize the value of the purparts assigned to him as one of the three sons of Elizabeth Eby, during the lifetime of his father, as that sum is ascertained in pursuance of the covenant upon which the action is founded.
      The question then that presents itself for solution is, what estate did Elizabeth Eby take in the land devised to her by the last will of her father ?
      Upon the authority of Eichelberger v. Barnitz, 9 Watts, 447, and Langley v. Heald, 7 Watts & Serg. 96, cases which must be accepted as settling the law, in this particular, in Pennsylvania, and which, therefore, save us the necessity of any review of the numerous earlier decisions, the question I have stated resolves itself into another, namely, did the testator, when limiting the estate over, contemplate an indefinite failure of the issue of the first taker? or did he mean that the contingency upon which the devise over is made to depend, was to happen, if at all, within a fixed and definite period ? If the former was the intention, the daughter Elizabeth took an estatetail, and the defence set up here is available; but if the latter intent can reasonably be collected from the whole of the will, and the time fixed be not too remote, she took an estate in fee-simple, liable, on the one hand, to be defeated upon the contingency of her dying without issue within the prescribed period, in which case the limitation over would take effect by way of executory devise, and on the other, capable of being perfected and rendered absolute by her leaving issue within the time of the contingency. The clauses which give rise to the controversy are the following: ' That this will was made, j-nops concilii, is apparent upon its face, and a very brief examination of the clauses just quoted is sufficient to satisfy the inquirer that the testator used the sentence, "if she should die without lawful issue," according to its popular signification, and without reference to the somewhat artificial and technical meaning assigned to it by judicial determinations. This being ascertained with sufficient certainty, will bring the case within that class which present exceptions to the rule that a devise to one in fee, followed by the above or similar words of qualification, and a devise over, reduces, by implication, the interest given to an estate-tail in the first taker.
      In scanning the clauses in question, the first truth that presents itself is that the word " heirs" in the clause devising the estate over, on failure of Elizabeth's issue, is used as synonymous with the word children, and as being inclusive only of the testator's children. Then, in the sentence next succeeding, the sum to be paid by Elizabeth is to be distributed by yearly instalments of 15, among "my other heirs;" and these heirs are subsequently pointed out to be the testator's three daughters, Elizabeth, Anna, and Maria. So, the 800 to be raised out of the land devised to Jacob, k to be " divided among my heirs, as hereafter shall be said," and these "heirs" are afterwards said to be, "my son Jacob, and my daughters Anna and Maria." So, too, the residue of the testator's ?state is to be disposed of by dividing it among all his " heirs, share alike," excepting "only his daughter Mag dalena, and also Anna," in a certain event, thus indicating unerringly, that whenever the testator speaks of his own immediate heirs, he means, as do most illiterate men by the use of the same word in a will, his children, and not the more remote descendants, or other relatives, who might technically be embraced by the term. If this be the true reading, as I think unquestionably it is, of the clause devising over the land before devised to Elizabeth, it may afford us at least some clue to guide us to the conclusion that the testator, in his own mind, referred the possible failure of issue to a time to be comprehended within certain lives, then in existence, and not to some indefinitely future period. I give to my daughter Elizabeth, and to her heirs and assigns for ever, but if she should die without issue, then the lands devised to her shall be divided among my other children, share alike, would seem strongly, if not irresistibly, to point to a definite failure of issue, namely, in the lifetime of the other children. Indeed, in the case of Eichelberger v. Barnitz, reported in 17 Serg. & Rawle, 293, where the same question was presented, the use of the word " children," in the same connection, was held to carry a controlling influence in determining the intent. There the clause giving rise to the question was, "And it is further my will, that if my grandson Abraham should die without issue, the part as willed to him is to fall to my heirs back to be divided amongst my children, as in my will mentioned, share and share alike." Here, says C. J. Gibson, who delivered the opinion of the court, the contingency was to happen in the lifetime of the children, which is not too remote, even in the case of real estate. And in a preceding portion of the opinion he speaks of the devise over amongst the children as " a circumstance which proves incontestably that such a contingency was meant as would necessarily happen within a life or lives in being." This, I think, would be decisive of the present case, were it not for a subsequent judgment of this court in a case already cited, and also called Eichelberger v. Barnitz, though between different parties, and springing from a different will; 9 Watts, 447. There the word " children" is used in the same connection, and for the same purpose, as in the first case, and yet it was determined the first taker had but an estate-tail, on the ground that there was nothing in the will to show the testator conVOL. V.?59
      templated other than an indefinite failure of issue. Mr. Justice Sergeant, who delivered the opinion, takes no notice of the use of the word "children," as heing of any effect in determining the construction, nor does he refer at all to the former case of the same name, though it appears to have been cited by the counsel for the plaintiff in error.
      With the authority of adjudged cases thus balanced, we should be left in much uncertainty, did the will we are considering stop here. But fortunately there are other portions of the particular devise, so clearly manifesting, in my opinion, an intention to confine the happening of the contingency within a definite and ascertained period, that the mind feels no hesitancy in adopting it as the clear meaning of the testator, particularly when these portions are read in connection with the clause I have already considered.
      The parts to which I refer are those which direct the daughter, Elizabeth, to pay a certain sum by way of payment for the land devised to her, and the following "Item: I hereby empower my executors to grant her (Elizabeth) lawful deeds for said premises at any time when she shall have paid aforesaid sum, or shall have given sufficient security for the same, but she shall have no liberty to sell said premises before fifteen years after my death are expired." Now I think it is impossible to believe this testator intended that, after his daughter had paid, or secured to be paid, the full sum fixed by him as the price of the devise, his executors, in pursuance of his direction, should make to her a deed for any estate less than a fee-simple, or that at the end of fifteen years, and after payment of the money, she should be at liberty to sell but a feetail, which, unbarred by deed, or common recovery, would be but equivalent to the sale of an interest during her life, and it is not to be supposed, if the testator intended' to give his daughter only the lesser estate, he anticipated the destruction of that estate by the action of the devisee, or a purchaser under her. What would an unlearned man mean by the words "lawful deeds for said premises?" Surely nothing less than a conveyance in fee-simple. In our rural districts, and among laymen, the term "lawful deeds" carries no other idea than an unrestricted conveyance in fee, clear of encumbrances. What would such a man mean by the creation of an express power to sell, or the removal of a previous restraint imposed on alienation, after the payment of a sum in gross by the devisee, other than a right to alien the whole interest in the land ? Surely nothing less. Whether, therefore, in this case, we refer the possibility of the failure of issue of the first taker, upon which event the estate was to go over, as a contingency to happen in the lifetime of the other children, to the thirty years given for the payment of the 450, or to the period of fifteen years, within which it might be paid, and to one or other of these periods it must be referred, a case is presented of a limitation over upon a definite failure of issue, after a devise in fee, and the contingency being within the time allowed to support an executory devise, it follows that Elizabeth Eby took, under this will, an estate in fee, with a remainder over by way of executory devise ; but as she died leaving children, and, therefore, the event did not happen upon which her estate was to be defeated, it became a fee-simple absolute, which descended upon her children. It follows that the defendant below, the plaintiff here, had such an interest in the land" which he took by virtue of the amicable partition already noticed, as will furnish a consideration sufficient to support the covenant upon which the action is founded.
      This view disposes of the whole case in favour of the plaintiff below, and renders unnecessary a review of the position secondly assumed by the judge below, or any notice of the bill of exception to evidence, which, indeed, 'was not pressed on the argument.
      Judgment affirmed.


    • 01/29/2014
      From Denise LAHR:

      This is a tale of three neighboring families in Old Warwick Township: the Erismans, Habeckers and Ebys.

      Melchior Erisman?s wife, Edith, followed through on a survey her deceased husband had obtained in 1728 for 204 acres and bought the rights to an adjacent warranted and surveyed parcel of 334 acres. On Feb. 20, 1740 she obtained patents for both parcels, making her a landed woman with 538 acres that included Pine Hill and lands on both sides of the Hammer Creek.

      Meanwhile, George Eby, son of Theodorus, obtained his warrant for 150 acres southeast of the Erisman parcels along the same creek in 1733. In 1760 it was patented to Christian Eby, his eldest son.

      Edith Erisman died. Daughter Magdalena had married Christian Eby, son of George. Her sisters, Anna, Barbara, and Elizabeth had married Jacob and Joseph, and John Habecker, respectively.

      Anna (Erisman) and Jacob Habecker got 207 acres, consisting of most of the Pine Hill section of the warrant

      Barbara (Erisman) and Joseph Habecker resided in Manor Township.

      Flash forward to 1789 when Jacob Habecker died. He left a very controlling will (F-1-105) dated 1784: His only son, Jacob Habecker Jr. was given 170 acres. Daughter Elizabeth was to get the other 100 acres together with ?a locked chest with all its contents and no one else is allowed to search the same. She also got the remaining 100 acres and a good ?bed.? By the time of probate, Elizabeth was married to Jacob ?Old Jock? Eby. The children had the land resurveyed and found an additional 80 acres!

      Meanwhile, in 1890, Christian Eby, sold the Eby 150 acres to Jacob Shaeffer, and that land passed out of the family. Son? Old Jock? didn?t need it because he had land from his wife.

      Old Jock and Elizabeth had three sons: Abraham, Daniel and Jacob (Grobschmeid). The boys appointed a group of trusted neighbors to divide up the land ?according to the places where they now live.?

      Here?s where Hannes Eby saved the day. Abraham?s only son, Jacob (what else), died young in 1841. He left a widow, Susanna (Grube), and a daughter, Fianna, 11 months old when he died.

      After that, Abraham gave his share to brother Jacob (Grobschmeid) and moved west to Sugar Creek, Ohio. His wife was called Catherine in the deed, which threw me a bit, because her gravestone says Maria C. It turns out that she was literate and signed her name in Old German ?Catarina Maria.? Thank goodness I learned to read that stuff.

      Daniel, I believe, went to Allen County, Indiana. Fortunately, I am going to Indiana in March and can research there.

      Anyway, by 1845, all but Jacob had skedaddled west. Jacob remained behind and died in 1858. The property went to his son, John. [I believe there was another son, David, who went west to Sugar Creek and Uncle Abraham.] John left a son, Jacob who died in 1935.

      That?s the broad strokes. It needs a lot more work.....

      .....I will be putting it into a much more formal format with sources. Maybe even a paper for the Lancaster Mennonite Historical Society. Meanwhile you have the gist of it.

      When working on Hannes Eby, I was dreadfully afraid of making mistakes. And I'm sure I did make some, but I always tried to say only what I was pretty darn sure of......

      ....In my work on this, I have also been forced to look at Jacob Eby's family, and I will be trying to sort out more of what happened to George Eby's other descendants.

      I can't wait to get to Indiana and Ohio now.

      Denise



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