Statement of the Case. will of the deceased; and a portion of the estate belonging to the deceased consists of two vacant and unimproved lots of ground situate, lying and being in the city of Washington, in the District of Columbia, to wit, lots numbers one and four in square number one hundred and sixty. Your petitioner respectfully prays that the court will deem it expedient and cause the said lots to be sold for the purpose of relieving the immediate wants of the petitioner and for the support and education of the children named in the will of the said Joseph Thaw, deceased, and that an order may be granted for the sale thereof at an early a day as practicable; and, as in duty bound, will ever pray, etc. "29th March, 1844. ELIZA V. THAW." Orphans' Court of Washington, D.C. "In the Case of the Petition of Eliza V. Thaw, Executrix and Guardian to Columbia and Columbus Thaw, Minor Children of Joseph Thaw, deceased. "This case coming on to be heard in the orphans' court on the petition, exhibits, accompanying proofs and representation of said Eliza V. Thaw in her capacity as guardian and executrix aforesaid, the same were by the court read and duly considered; and thereupon it is by the said court, this 29th day of March, 1844, ordered, adjudged and decreed, provided that the Circuit Court of the District of Columbia for the county of Washington, sitting as a court of chancery, shall by its proper order in the premises approve thereof, that the said guardian, for the petitioner's minor children of said Joseph Thaw and herself, be and she is hereby authorized and empowered to sell the said real estate mentioned in said petition, at public or private sale, after such notice by advertisement as she shall deem reasonable and sufficient, on the following terms, viz., either for cash or on credit, at the option of the said guardian; and on the full payment of the purchase-money and interest, and on the ratification of the sale by this court, to execute to the purchaser, his heirs or assigns, at his or their cost and request, a valid and sufficient deed of conveyance in fee simple of the said premises, with all the right and estate therein of the said Statement of the Case. Columbia and Columbus Thaw, minor children aforesaid; provided that the said guardian, before proceeding to act hereunder, shall file with the register of wills her bond, with security, to be approved by the judge of this court, in the penalty of seven hundred and fifty dollars, with the usual condition for the due and faithful performance of the trust reposed in her as guardian of said children, and immediately after making said sale to report the same under oath to this court. "NATH'L POPE CAUSIN." (3) Certified copies of two bonds, each executed by Eliza. V. Thaw as principal, and Henry Walker and John Walker, as sureties, to the United States. One of these bonds, dated March 22, 1844, was in the penal sum of $725, and upon the condition that if "the abovebounden Eliza Van Tyler Thaw, as guardian to Columbia and Columbus Thaw, orphans of Joseph Thaw, of Washington County, deceased, shall faithfully account with the orphans' court of Washington County, as directed by law, for the management of the property and estate of the orphans under her care, and shall also deliver up the said property agreeably to the order of the said court, or the directions of law, and shall in all respects perform the duty of guardian to the said Columbia and Columbus Thaw, according to law, then the above obligation will cease; it shall otherwise remain in full force and virtue in law." The other bond, dated May 17, 1845, was in the penal sum of $750, and upon this condition: "Whereas Eliza V. Thaw, by a decree of the orphans' court of Washington County aforesaid, and confirmed by an order of the Circuit Court of the District of Columbia for the county of Washington, aforesaid, has been appointed trustee to sell the real estate of the late Joseph Thaw, mentioned in said order, for the support and maintenance of Columbia and Columbus Thaw, minors, as will more fully appear by the said decree, reference being thereto had Now the condition of the above obligation is such that if the above bounden Eliza V. Thaw do and shall Statement of the Case. well and faithfully perform the trust reposed in her as trustee aforesaid by the said decree, or that may be reposed in her by any further decree or order in the premises, then the above obligation to be void; otherwise in full force and virtue in law." (4) A book of records from the office of the register of wills for the District of Columbia, entitled "Guardians' Docket No. 2," containing numerous entries relating to proceedings of guardians in the orphans' court from 1818 to 1860, but no proceedings of the court relating to the sale of real estate, and the only entry in which relating to Eliza V. Thaw's guardianship was as follows: "Eliza V. Thaw, guardian to Columbia Thaw and Columbus Thaw, orphans of Jos. Thaw. Bond, March 22, 1844, $725; H'y Walker, Jno. Walker, sureties. Trustee bond, 17 May, 1845, $750; H'y Walker, E. Walker, sureties." (5) Another book of records from that office, entitled "Liber E. N. R. No. 2. Proceedings 1846 to 1861," the entries in which appeared to be consecutive, and which was the only record in that office of proceedings between those dates relating to sales of real estate, and was made by binding up loose scraps of paper in the handwriting of E. N. Roach, register of wills during those years, previously kept in portfolios; and contained the only record to be found in the office relating to the real estate of Joseph Thaw, namely, among the proceedings of the orphans' court on Friday, January 21, 1848, the following: "Sale of real estate of Jos. Thaw, dec'd, filed. Order of approval filed," or "for," the last word being indistinct and uncertain. (6) Testimony of the assistant clerk of the Supreme Court of the District of Columbia, and of persons who had served or had made searches in the registry of wills, that there was great confusion in the records, both of the Circuit Court of the United States of the District of Columbia, and of the orphans' court, before the organization of the Supreme Court of the District of Columbia in 1863 under the act of March 3, 1863, c. 91. 12 Stat. 762. (7) Docket entries in a great number of other cases on the Statement of the Case. chancery side of the Circuit Court of the United States of the District of Columbia before and after October 12, 1844, and between 1823 and 1863, and on the equity side of the Supreme Court of the District of Columbia between 1863 and July 8, 1865, showing that the practice and forms of proceeding in such cases during those periods were similar to the practice in said case No. 344; and also many later cases in the orphans' court before 1881, in which the practice and forms of proceeding were similar. (8) The deed executed by Eliza V. Thaw to Agricol Favier, dated and acknowledged March 17, 1848, and recorded March 7, 1867, containing this recital: "Whereas a decree was passed on the twenty-ninth day of March in the year one thousand eight hundred and forty-four, by the orphans' court for the county of Washington in the District of Columbia, upon the petition of Eliza V. Thaw, guardian of her infant children, Columbus and Columbia Thaw; and whereas the said Eliza V. Thaw was thereby appointed a trustee to sell lots numbered one and four in square one hundred and sixty in the city of Washington; which decree was on the twelfth day of October in the year one thousand eight hundred and forty-four confirmed by the Circuit Court for the county of Washington, sitting as a court of chancery; and the said Eliza Thaw having, in conformity with said decree, filed a bond with sureties, which was approved by the said orphans' court; and having, in like conformity with said decree, sold said lots above mentioned, and reported the same to said court, which report was by said court, on the twenty-first day of January in the year one thousand eight hundred and forty-eight, duly approved, ratified and confirmed; and whereas the said Agricol Favier was the purchaser of said lots from her, the said Eliza V. Thaw, the trustee as aforesaid, under the power vested in her by the said decree." By the terms of this deed, "the said Eliza V. Thaw, for and in consideration of the sum of lawful money of the United States, to her in hand paid by the said Agricol Favier at or before the sealing and delivery of these presents, the re Statement of the Case. ceipt whereof is hereby acknowledged," conveyed to Agricol Favier, in fee, these two lots, "and all the estate, right, title, interest, claim and demand whatsoever, legal and equitable, of her, the said Eliza V. Thaw, as guardian and trustee as aforesaid, and as well as in her own right as of the said infant children, Columbus and Columbia Thaw, to the same." (9) A deed of partition of other lands between the plaintiff and his sister Columbia, dated March 1, 1871, which recited that "their said mother, after disposing of the real estate acquired by said will, and investing the proceeds thereof in other real estate," died intestate. The plaintiff requested the court to instruct the jury as follows: "1st. Under Joseph Thaw's will, during the life of Mrs. Thaw, his widow, she held the legal title to the real estate devised thereby for her life, in trust for herself and the two children, Columbia and Columbus, according to the terms prescribed in the will. The interest which Columbus Thaw took in the real estate under his father's will during the life of his mother was a remainder in fee after the termination of her life, and was not an estate in possession until after the death of his mother. The orphans' court had no power during Mrs. Thaw's life to decree the sale of the estate in remainder of Columbus Thaw. Her deed, therefore, purporting to convey said estate is void, "2d. The Maryland act of 1798, chapter 101, sub-chapter 12, § 10, did not apply to remainders; and such estates of infants were not subject to sale on petition of the guardian to the orphans' court, with the approval of the Court of Chancery, as provided in said act. "3d. The alleged entry in the records of the orphans' court, purporting to be of the date of January 21, 1848, in these words: 'Sale of real estate of Jos. Shaw, dec'd filed. Order of approval for,' is indefinite, uncertain and insufficient. to authorize Mrs. Thaw's deed; inasmuch as it does not state what sale, or what real estate was sold, nor by whom, to whom or for what consideration the sale was made; and inasmuch as no report of sale is shown, and no guardian's account, and no |