Aylett v. Aylett

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Aylett v. Aylett, Wythe 219 (1793),[1] discussed whether a leasehold could be inherited; Wythe took the opportunity to write an extensive discourse on why poorly-decided cases should not be considered binding precedent, using references to literature, to contemporary legal authorities, and to ancient Greek and Roman works.


William Aylett's will gave his son Phillip Aylett, "all my lands" in King William County, which was 1400 acres that had been leased to William's grandfather for a term of 999 years. William also gave Phillip land in other counties that he owned in fee. William had inherited the land from his father, John Aylett, who inherited the land from John's father, also named William. William the elder never referred to the King William County land as a leasehold, instead referring to his "freehold" and "land bought".

The defendants were the executors and other heirs of William the younger's estate. The defendants said that William the younger did not have the power to give the land in King William County to Phillip; because it was a leasehold, William the younger only had the right to use during his lifetime. The defendants argued that the King William County property belonged in the residuary estate that was to be equally divided by William the younger's widow and children. To support their argument, the defendants cited the English case Rose v. Bartlett,[2] which held that if a person who had lands for years (i.e., leaseholds) and lands in fee (i.e., lands they owned) awarded "all my land" to an heir, only the land in fee passed on to the heir. If a person only had leasehold land and awarded "all my land" to an heir, the Rose court continued, then the leasehold would pass on to the heir.

Aylett v. Aylett was reported as a supplemental pamphlet in 1796,[3] printed by Thomas Nicolson of Richmond, Virginia, who had published Wythe's Reports in 1795, and at least seven other pamphlets for Wythe in 1796 and after.[4]

The Court's Decision

The High Court of Chancery held that the leasehold lands should also pass on to Phillip. Wythe stated that anyone unfamiliar with the relevant caselaw would assumet that Phillip should have received all the lands William gave to him in the will, regardless of whether the land was leasehold or in fee.

Wythe proceeds to discuss principles of interpreting a legal document, citing Rutherforth's Institutes of Natural Law[5] and Plowden's Commentaries and Reports[6] for the ideas that:

  • A transition of property ownership through a will is completed as soon as the inheritor has acceped the property;
  • The transition does not directly affect the property being transferred (e.g., the property does not physically move);
  • The transition therefore has a more metaphysical effect on the property (i.e., who can exercise dominion over it); and
  • Therefore the best way of knowing exactly what effect the person giving the property intended is to read the person's words.

Wythe states that if a judge had perfect knowledge of all sciences, such as Quintilian's depiction of the ideal orator in his Institutes of Oratory;[7] the man Juvenal describes in his Satires as "versed in all lore, with all acquirements graced";[8] or the "admirable Chrichton", capable of answering any question in any field of knowledge using prose or verse in any of twelve languages; then that judge's decision should be considered decisive authority. Because such judges are "less frequent than comets", Wythe states that questions presented to judges that are not legal in nature should not be binding authority on future cases with similar facts if later judges determine those earlier decisions to be erroneous. Wythe continues, stating that when a court uses a specialized, non-legal definition of a word that is different from the everyday meaning of that word, the use of the specialized definition should not be binding precedent on future courts.

Wythe proceeds to hammer away at the point that judges must be willing to forsake precedent when newer, more accurate rules and tests are available: Should not Archimedes have used his infallible hydrostatic experiment to resolve the dispute between King Hiero of Syracuse and the mechanic accused of substituting base metals for gold in a crown? Should not a judge use the more accurate tables created by Abraham de Moivre, Edmond Halley, or Richard Price, instead of older rules, when determining how much money out of a sold inheritance a life tenant should receive? Should not a judge rely on the opinions of William Hunter when determining a posthumous child's legitimacy?

Wythe then ruminates on how courts might determine a child's legitimacy in his time. If it is possible that a child came from either of two men, Wythe asks, would a judge allow the child to choose his father in the present age? Wythe points to a couple of examples of how such a situation could arise, relating Petronius's story of a woman who substituted her late husband's corpse for another so that her current husband would not get in trouble for failing to watch the other corpse, as well as a story from Valerius Maximus of a Sicilian commoner remarking on his resemblance to a proconsul. Wythe then cites Coke on Littleton[9] as possible authority for letting the child choose, but seems to think it an unlikely outcome.

Wythe expounds further on the developing law of determining who is a proper heir, referring to the Duke of Suffolk's case, contained in the Reports of Sir Edward Coke[10] and mentioned in Brooke's Graunde Abridgement,[11] Swinburne's Treatise of Testaments and Last Wills,[12] as well as The Life and Opinions of Tristam Shandy, Gentleman.[13] In the case, the Duke of Suffolk died and left property to his son, who died without leaving a wife or children. The law said that the next of kin should administer the son's estate, and the son's mother became the administrator. The son's half-sister objected, saying that the mother was not kin, and the court agreed, saying that mothers cannot be kin to their children. Wythe notes that this case, in which judges presumed to rule on the science of philology, was now considered invalid as precedent because it was wrong.

By the same token, Wythe says, an erroneous interpretation of one man's will should not bind as precedent in interpreting future wills that are similar. Wythe goes on to say that unless terms of art are used, judges should not rely on precedent to interpret a person's testament. It would make no more sense than to paint a picture of William Aylett based on a description of Richard Batyne because the artist heard that the two looked similar.

Wythe pondered how much of the body of Anglo-American law was usable. He mentions the then-recent case of Parsons v. Parsons, in which a plaintiff's attorney was frustrated with the court's failure to follow the precedent he cited. In response, the plaintiff's attorney said he would go home and burn all his law books in an offering to Astrea, the Greek personification of justice. Wythe said that because most of the cases in the books are useful, that attorney would have been better off following Prometheus's example: offer the bad cases to the altar and keep the good. Wythe opines that more cases might be saved from the current body of English and Virginian caselaw than the percentage of books the barber and the curate saved from Don Quixote's library, and that a suitable body of civil law might be formed from those cases. Wythe proceeds to state that American judges should break from English precedent when that precedent seems wrong. If an attorney offered American precedent in an English case, Wythe said, it would be treated, to use Cicero's words, like a "pig teaching Minerva."[14] Therefore, Wythe argues, American judges have no obligation to accord English precedent special respect.

Using these principles, Wythe concluded that Phillip was entitled to all of the land, leasehold and fee simple alike, and that Rose v. Bartlett was invalid precedent. Wythe illustrated his feelings towards Rose v. Bartlett using an anecdote in which someone compared the cases in Croke's reports to Swiss soldiers, who will fight for either of opposite parties. Wythe also referred to John Locke's essay on understanding Saint Paul's epistles for the idea that the only way to truly interpret someone's words is to look for only the matter discussed, not what the would-be interpreter wants to see. The High Court of Chancery held that the leasehold should pass to Phillip.

Wythe's miniature treatise on precedent seemingly went for naught, as the Virginia Supreme Court of Appeals reversed the High Court of Chancery's decision, citing uniformly decided precedent.[15]

Wythe's Discussion

Wythe had little in the way comment to make about the Supreme Court of Appeals's decision, except to say that if the English caselaw was uniform, then it made a good argument for breaking from that precedent in Virginia. In addition, Wythe queried whether there really was more than one other case besides Rose v. Bartlett that covered the Ayletts' situation.

Works Cited or Referenced by Wythe

Thomas Rutherforth's Institutes of Natural Law; being the substance of a course of Lectures on Grotius de Jure Belli et Pacis,…

Quotation in Wythe's opinion:

"Translation of dominion, right, property, by testament, is perfect, at furthest, so soon as the devisee or legatary consenteth to accept the subject devised or bequeathed..." [16]

Laurence Stern's The Life and Opinions of Tristram Shandy

Quotation in Wythe's opinion:

"In the reign of Edward the sixth, Charles Duke of Suffolk having issue a son by one venter, and a daughter by another venter, made his last will, wherein he devised goods to his son, and died. After whose death the son died also but without will, without wife, and without child - his mother and his sister by the father side (for she was born to the former venter) then living - the mother took the administration of her sons goods, according to the statute of the 21st of Henry the eight, whereby it is enacted, that in case any person die intestate, the administration of his goods shall be committed to the next of kin. The administration shall be thus (surreptitiously) granted to the mother, the sister by the fathers side commenced a suit before the the ecclesiastical judge, alleging 1. that she herself was next of kin and 2. that the mother was not of kin at all to the party deceased, and therefore prayed the court, that the administration granted to the mother might be revoked, and be committed unto her as a next of kin to the deceased by force of the said statute. [17]

Virgil's Aeneid

Quotation in Wythe's opinion:

Illisam vadis atque aggere cinctam arenae. Translation: Wythe modifies Virgil’s original (inliditque vadis atque aggere cingit harenae.) [The ship] having been beached upon the shallows, surrounded by walls of sand.[18]

Cicero's Letters to his Friends

Quotation in Wythe's opinion:

[T]he resolution of an American court, quoted in Westminster hall, if any counsil there should venture to expose himself to ridicule, perhaps to rebuke, by the quotation, would, no doubt, be treated, if not with fastidious neglect, like a sus Minervam. Translation: [like] a pig [teaching] Minerva. Wythe argued that American judges should not feel compelled to rely on English precedent, since English judges did not follow American authorities. He thought that American precedent informing the English courts would be as absurd as “a pig teaching Minerva (the goddess of wisdom).”[19]

Juvenal's Satires

Quotation in Wythe's opinion:

Grammaticus, rhetor, geometres, pictor, aliptes, / Augur, schoenobates, medicus, magus, omnia novit. Translation: Grammarian, orator, geometer, painter, wrestling trainer, diviner, tight-rope walker, doctor, magician, [the hungry little Greek] knows everything. Wythe argues that unless judges suppose themselves to be experts in all fields, like the Greek man whom Juvenal contemptuously describes, their precedent should not be decisive authority.[20]

Quintilian's Institutes of Oratory

Quotation in Wythe's opinion:

Quintilian, who would have a youth, intended to be an accomplished orator, to be instructed in the arts (and what he supposeth necessary to the orator must be no less necessary for qualifying a judge to decide rightly questions of every kind which may be discussed before him) so ut efficiatur orbis ille doctrinae, quam graeci encyclopediam vocant, expected some might ask, quid ad agendam causam, dicendamve sententiam, pertinent scire quemadmodum in data linea constitui triangula aequis lateribus possint? aut quo melius vel defendet reum vel reget consilia, qui citharae sonos nominibus et spatiis distinxerit? to which he answers thus: non eum a nobis institui oratorem, qui SIT, aut FUERIT, sed imaginem quandum concepisse nos animo perfecti illius, ex nulla parte cessantis. Translation:...so that he is accomplished in that sphere of learning, which the Greeks call “encyclopediam” [i.e. general knowledge], expected some might ask, How does knowing the ways in which a given line is able to be drawn in a triangle with equal sides pertain to arguing a cause or delivering an opinion? Or in what way does he who distinguishes the sounds of the lyre by name and interval better defend a party in a lawsuit or manage policy? to which he answers thus: I do not imagine an orator who is or was, but have conceived a certain image in my mind of a perfect one, lacking in no part.[21]

Valerius Maximus's Nine Books of Memorable Deeds and Sayings

Quotation in Wythe's opinion:

...the sicilian, revenging the insult on his mothers chastity, audacius quam virgis et securibus subjecto conveniebat, as Valerius Maximus observes, petulantly resorted, 'but my father went frequently to Rome.' Translation: [a]udacious for someone under power of beams and axes...[22]

See also


  1. George Wythe, Decisions of Cases in Virginia by the High Court of Chancery with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions, 2nd ed., ed. B.B. Minor (Richmond: J.W. Randolph, 1852): 219.
  2. 79 Eng. Rep. 856, 7 Car. 1. Roll 497.
  3. George Wythe, Report of the Case between Aylett and Aylett, Determined by the High Court of Chancery, in Which the Decree Was Reversed by the Court of Appeals, (Richmond, VA: Thomas Nicolson, 1796).
  4. Charles Evans, American Bibliography, vol. 11 (1942), 122.
  5. Thomas Rutherforth, Institutes of Natural Law: Being the Substance of a Course of Lectures on Grotius De Jure Belli et Pacis (Cambridge, England: J. Bentham, 8th ed. 1754-1756).
  6. Edmund Plowden, The commentaries, or Reports of Edmund Plowden, trans. Edward Brooke(?) (London: His Majesty's Law Printers, 1761).
  7. Quintilian, 1 Institutes of Oratory Ch. 10, verses 3-4.
  8. Thirteen Satires of Juvenal, III v. 75-77.
  9. Sir Edward Coke, The First Part of the Institutes of the Laws of England (London: M. Flesher, for W. Lee, and D. Pakeman, 1644).
  10. Sir Edward Coke, The Reports of Sir Edward Coke ([London] In the Savoy: Printed by E. and R. Nutt, and R. Gosling, for R. Gosling, 1738).
  11. Sir Robert Brooke, La Graunde Abridgement (London: R. Tottyl, 1576).
  12. Henry Swinburne, A Treatise of Testaments and Last Wills (London: In the Savoy: Printed by Henry Lintot (assignee of Edw. Sayer, esq.) and sold by S. Birt, 1743).
  13. Laurence Sterne, Works of Laurence Sterne (London: Printed for W. Strahan, J. Rivington and Sons, J. Dodsley, G. Kearsley, T. Lowndes, G. Robinson [etc.], 1780).
  14. Cic. fam. IX. 18. Acad, 1.4.
  15. Aylett v. Aylett, 1 Va. (1 Wash.) 300 (1794).
  16. Wythe 225.
  17. Wythe 230.
  18. Wythe 227.
  19. Ibid 232.
  20. Ibid 227.
  21. Ibid 228.
  22. Ibid 229.