Argument for Plaintiff in Error.

construed to affect the general superintending power exercised by the Court of Chancery with respect to trusts." As will appear when we come to comment upon the will of Joseph Thaw, the estate with which the orphans' court attempted to deal in this case, was a trust estate during the life of Mr. Thaw, and therefore came within the inhibition above quoted.

II. As to the effect of the act of Congress approved March 3, 1843, entitled "An act to provide in certain cases for the sale of real estate of infants within the District of Columbia." 5 Stat. 621, c. 87; incorporated in Rev. Stat. D. C. § 957. This act was passed more than a year before the proceedings were instituted by Mrs. Thaw which resulted in the alleged sale, and about four years before the sale is supposed to have taken place, no date of sale anywhere appearing. It was in full force at that time, and we confidently claim that it superseded any authority that can possibly be held to have been granted by the act of 1798 to the orphans' court to decree the sale of the real estate in question, and furnished the course of proceeding necessary to be pursued to accomplish that purpose.

There is no exigency supposed to be provided for by the former act that is not included in the later one, which is broader in its scope, more definite in its provisions and ample in every way to accomplish, by a better and safer method, everything that can possibly be contemplated by the former. On well-settled principles of statutory construction, the former law, so far as it related to the subject-matter covered by the latter, was superseded and repealed by it. United States v. Tynen, 11 Wall. 88; Claflin v. United States, 97 U. S. 46.

A similar act was passed in Maryland in 1816, and amended by act of 1818 providing for the sale of a part or the whole of an infant's real estate through the guarded proceedings of a Court of Chancery whenever it shall appear to the court, after hearing and examination, etc., "that it will be for the interest and advantage of the infant" to sell the same, and proceedings for the sale of infant's realty in that State have ever since been required by its courts to conform to the provisions of that law, though, like the act of 1843, it contains no repealing clause, and its title is to authorize the sale in "cases

Argument for Plaintiff in Error.

therein mentioned," as that of the act of 1843 is to authorize it in "certain cases." Hunter v. Hatten, 4 Gill, 115; S. C. 45 Am. Dec. 117; Williams's Case, 3 Bland's Ch. 186, 203, 204.

In closing this point we will add that the practice in this District has now come into conformity with what we claim to be the only practice for the sale of an infant's real estate which has any legal warrant, as is shown by the list of cases filed by us and made part of the record and by a comparison of the numbers and dates of those cases with those of the list filed by the defendant; and we do not think that a practising attorney would now ask, or the court grant, an order of sale upon proceedings similar to those pursued in this case; yet what is the law now, in that respect, was the law in 1844 and 1848, when the proceedings relied upon by the defendant were instituted and prosecuted.

III. Whatever construction may be placed upon the acts of 1798 and 1843, we contend that the record totally fails to show jurisdictional facts sufficient to empower the orphans' court to divest the plaintiff in error, then an infant, of his interest in the property in question.

The proceedings in the orphans' court and in the Circuit Court of the District consist only of brief docket entries and of the certified copy of a petition in the former court by Mrs. Thaw, not even describing herself as guardian, with a decree thereon, exhibited in the Circuit Court, and there, without any other pleadings or parties, summarily approved. The record of these doings is meagre, informal and deficient. We are well aware that, in courts whose jurisdiction is not questioned, such deficiencies are overlooked and often supplied by intendment. and presumption. The authorities quoted to show what great informalities in such cases are disregarded, we do not answer, because we do not dispute them.

But we claim that the orphans' court, at the time of these proceedings, was an "inferior court," in that sense which required everything necessary to give jurisdiction to be shown in its record.

pro

It is expressly made so by the act establishing it, which vides that "the said orphans' court shall not, under pretext of

Argument for Plaintiff in Error.

incidental power, or constructive authority, exercise any jurisdiction whatever not expressly given by this or some other law."

Among the numerous decisions showing with what strictness this principle has been enforced, we cite the following: Scott v. Burch, 6 H. & J. 67; Townshend v. Brooke, 9 Gill, 90; Conner v. Ogle, 4 Maryland Ch. 425; Lowe v. Lowe, 6 Maryland, 347; Yeaton v. Lynn, 5 Pet. 224, 230.

Referring back to the provisions of the act of 1798, as given under point I of this brief, we see with what specific safeguards the real estate of an infant is surrounded by sections 6, 7, 8 and 9. Then when we come to section 10, under which the alleged sale in this case is claimed to have been made, we find these safeguards still further maintained. Down to the proviso, for which such potency is claimed, this section is one single provision of the law, the several parts of which are separated only by commas and semicolons-in fact, it is one single sentence of which all the clauses are interdependent. It would seem necessary, therefore, that the court should have the account required of the guardian, if not the report of the appraisers as per section 6, in order to know the condition of the estate and to determine the annual sum to be expended for the orphan. The language of the statute makes this a condition precedent, and surely it is only a reasonable condition for the sale of an orphan's realty.

The proviso which immediately follows and qualifies the provisions of the act of 1798 commented on above has been construed to authorize the extraordinary proceedings shown in this case, that is to say, a simple petition by Mrs. Thaw, the guardian, though not stating that she is or acts as such, in the orphans' court, and a decree thereon; and a certified copy of this petition and decree exhibited in the Circuit Court and there approved summarily, ex parte, eventuating in the docket entry in the chancery rules No. 4, case No. 344, of date October 4, 1844. This is the whole case.

We deny the validity of this interpretation of the law of 1798. The jurisdictional facts must appear on the face of the proceedings; the judgment of a court without jurisdiction is void, and its proceedings must be in accordance with the funda

Argument for Plaintiff in Error.

mental and well-established principles of practice. Especially is this so of courts of limited jurisdiction, as we have shown above. Bloom v. Burdick, 1 Hill, 130; S. C. 37 Am. Dec. 299; Thatcher v. Powell, 6 Wheat. 119; Elliott v. Peirsol, 1 Pet. 328; Bank of the United States v. Ritchie, 8 Pet. 128; Shriver's Lessee v. Lynn, 2 How. 43; Hickey's Lessee v. Stewart, 3 How. 750; Williamson v. Berry, 8 How. 495; Windsor v. Mc Veigh, 93 U. S. 274.

IV. As to the interests of the infants in the property at the time of the alleged sale.

By the will of Joseph Thaw the widow was invested with a life estate "in trust for the equal benefit and maintenance of herself and of her daughter Columbia and of her son Columbus." In the same clause it was provided that if either or both the children should die before the mother, she should hold the property, during her natural life, in trust, for the equal benefit of herself and the surviving child, and in case of the death of both children then "for her own sole use and benefit." This part of the will is explicit in creating a life estate only, and in raising a trust of that estate for the benefit of all three as long as the mother should live.

Now, at the time of Mrs. Thaw's application to the orphans' court in 1844, this trust estate for her life was in existence, separate and distinct from the remainder in fee. If the property was sold under the decree of that court this trust was included and disposed of by Mrs. Thaw's deed. But if any thing in this case be certain and undeniable, it is that the orphans' court was wholly without any jurisdiction over trust estates. Maryland act of 1798, c. 101, sub-ch. 12, sec. 16. We think this point decisive of the whole case.

That clause of the will which gives to the two children, and to their heirs and assigns, all the estate real and personal, that shall remain after the death of the mother, would undoubtedly have given the children a vested remainder in fee, if that had been all. But this clause is followed by another, which says, "if both of my said children shall die before their mother, then, on the demise of the last survivor of them, I give and bequeath to my beloved wife,

Opinion of the Court.

Eliza, to her heirs and assigns forever, for her own proper benefit, all my estate of every description." Be it observed, that this last clause does not devise the property to the mother in the event of the children dying without issue, but simply on the condition of their dying before her. If both had married and had children and then died before the mother, we presume the last clause of the will would have prevailed, and the mother would have taken the estate. Did she not have an interest in remainder by virtue of this last clause giving the estate to her and her heirs, an event quite possible to happen? If the estate in remainder might take effect in her, it could not have been vested at the same time in the children. Powell on Devises, Vol. I, 206, and Vol. II, cxiii.

As contingent remainders are not subject to sale or conveyance, it matters not that here both parties to this double contingency are claimed to have united in the deed.

Mr. George F. Appleby for defendant in error.

MR. JUSTICE GRAY, after stating the case as above, delivered the opinion of the court.

In the consideration and decision of this case, we have been greatly aided by the able and exhaustive opinions delivered in the court below.

The principal question is whether the orphans' court, with the approval of the Circuit Court of the United States of the District of Columbia sitting in chancery, had jurisdiction to order the sale of real estate of infants for their maintenance and education.

It may be assumed that in Maryland before 1798 the orphans' court had no authority to order a sale of a ward's real estate for any purpose; although the Court of Chancery was empowered by statute to direct a sale of an infant's land for the purpose of making partition, and perhaps had inherent authority to order a sale of an infant's real estate for his support and education. Maryland Stats. 1715, c. 39, §§ 9, 33, and 1758, c. 4, Bacon's Laws of Maryland; February, 1777, c.