Opinion of the Court. 8, 1 Kilty's Laws; 1785, c. 72, § 12, and c. 80, § 9, and 1798, c. 101, 2 Kilty's Laws; 4 Mackey, 361, 368; 5 Mackey, 202-206. The earliest statute of Maryland, which authorized a sale by a guardian of the principal of the personal property of his ward, was the statute of 1785, c. 80, § 9, by which, after providing that a guardian should not profit by any increase or lose by any decrease "of the estate of the minor under the care of such guardian," and should annually settle an account "of such estate" with the orphans' court, in which "the increase and profits of the estate" should be accounted for, or the loss or decrease thereof allowed, and he should be allowed by the court a commission "upon the whole annual produce of such estate" for managing "such estate," it was further enacted as follows: "And in case the produce of the estate is not sufficient to maintain and educate the minor in a proper manner, and it shall appear to the orphans' court aforesaid that it will be for the benefit and advantage of the orphan to apply some part of the principal of the personal estate to which he shall be entitled towards his education, it shall and may be lawful for the said court to allow the guardian to apply a part of the principal of such personal estate, not exceeding one tenth part thereof annually, to the purpose afore said." The Maryland statute of 1798, c. 101, which is understood to have been drawn up by Chancellor Hanson at the request of the legislature of Maryland, is entitled "An act for amending, and reducing into system, the laws and regulations concerning last wills and testaments, the duties of executors, administrators and guardians, and the rights of orphans and other representatives of deceased persons," and is divided into several sub-chapters, the twelfth of which relates to guardians and wards, and contains the following provisions : By § 1, whenever a male under the age of twenty-one years, or a female under the age of sixteen, entitled to land by descent or devise, or to personal property of a deceased person by way of distributive share, or of legacy or bequest, shall not have a natural guardian, or a guardian appointed by last Opinion of the Court. will, "the orphans' court of the county where the land lies, or in which administration of the personal estate is granted, shall have power to appoint a guardian to such infant.” By $ 5, on the guardian's executing his bond, the orphans' court shall have power to order "the land, distributive share or other property" of the ward to be delivered to the guardian. By S6, "every guardian appointed by the court, having the care of a real estate," shall, within three months, procure an appointment by the orphans' court of appraisers "to examine the estate and estimate the annual value thereof." By § 7, "no guardian shall commit waste on the land; but the court may, on his application, allow him to cut down and sell wood, and account for the same, in case it shall deem the same advantageous or necessary for the ward's education and maintenance." By § 8, "each guardian, having a real estate under his care, shall either cultivate the same," "or he shall lease the same from year to year, or for any term not exceeding three years, and within the non-age of the ward; or he may, with the court's approbation, undertake the estate on his own account, and be answerable for the annual value." By S9, "every guardian shall account for all profit and increase of the estate, or annual value as aforesaid, and shall not be answerable for any loss or decrease sustained without his fault, to be allowed by the orphans' court." Section 10 (upon the construction and effect of which this case turns) is as follows: "And once in each year, or oftener if required, a guardian shall settle an account of his trust with the orphans' court; and the said court shall ascertain, at discretion, the amount of the sum to be annually expended in the maintenance and education of the orphan, regard being had to the future situation, prospects and destination of the ward; and the said court, if it shall deem it advantageous to the ward, may allow the guardian to exceed the income of the estate, and to make use of his principal, and to sell part of the same, under its order: provided, nevertheless, that no part of the real estate shall, on account of such maintenance or education, Opinion of the Court. be diminished without the approbation of the Court of Chancery, or General Court, as well as of the orphans' court." By § 11, "on the first account to be rendered by a guardian, he shall state the property by him received from an executor or administrator, or otherwise belonging to his ward, and every increase, and the profits thence arising, if any." By § 12, in case the personal property of a ward shall consist of specific articles," "the court, if it shall deem it advantageous for the ward, may at any time pass an order for the sale thereof for ready money, or on credit, the purchaser, with security, giving bond to the said ward, bearing interest." By 13, "every account of a guardian shall state his expenditures in maintaining and educating the ward, not exceeding the income of the estate, unless allowed by the court." By 15, on the ward's arrival at age, the guardian shall exhibit a final account to the orphans' court, and shall deliver up, agreeably to the court's order, to the ward, "all the property of such ward in his hands." By 16, "nothing in this act contained shall be construed to affect the general superintending power exercised by the Court of Chancery with respect to trust." By 20 of sub-chapter 15, it is declared that "the said orphans' court shall not, under pretext of incidental power or constructive authority, exercise any jurisdiction whatever not expressly given by this act, or some other law." · The statute of Maryland of 1798, by the terms of its final section, took effect on June 1, 1799, and was to continue in force until the end of the year 1801; and it was continued in force in the District of Columbia, and equity jurisdiction was vested in the Circuit Court of the United States of the District, by the act of Congress of February 27, 1801, c. 15, S$ 1, 5. 2 Stat. 105, 106. On consideration of § 10 of sub-chapter 12 of the statute of 1798, in connection with the other sections of that sub-chapter, and in the light of the previous law of Maryland upon the subject, we concur in the final conclusion of the court below, that the orphans' court, with the approval of the Circuit. Court of the United States of the District of Columbia sitting Opinion of the Court. in chancery, had power to order a sale of the real estate of infant wards for their maintenance and education. By the terms of that section, the orphans' court, upon settling the guardian's account annually or oftener, "shall ascertain, at discretion, the amount of the sum to be annually expended in the maintenance and education of the orphan, regard being had to the future situation, prospects and destination of the ward; and the said court, if it shall deem it advantageous to the ward, may allow the guardian to exceed the income of the estate and to make use of his principal, and to sell part of the same, under its order: provided, nevertheless, that no part of the real estate shall, on account of such maintenance or education, be diminished without the approbation of the Court of Chancery, or General Court, as well as of the orphans' court." The orphans' court is thus empowered to allow the guardian, for the suitable maintenance and education of the ward, to exceed "the income of the estate," and to use and sell part of the principal thereof. The words "the estate," in their natural and legal meaning, include the whole property of the ward in the guardian's hands; and the words "the property," "the estate" and "the income of the estate" are habitually and repeatedly used in that sense, both in other sections (§§ 6, 8, 9, 11, 13, 15) of the same sub-chapter, and in the earlier statute of 1785, c. 80, § 9, as appears in the passages already quoted from each of those statutes. Wherever an authority to sell is intended to be limited to personal property, it is so expressed, as in § 9 of the statutes of 1785, and in § 12 of the statute of 1798. Compared with the express restriction of the authority to sell any part of the principal to "personal estate" in the act of 1785, the omission of any such restriction in the act of 1798 strongly tends to show that it was purposely omitted in the latter act. This conclusion is confirmed by the proviso "that no part of the real estate shall, on account of such maintenance or education, be diminished without the approbation of the Court of Chancery, or General Court, as well as of the orphans' court." As observed by Mr. Justice Story, speaking for this Opinion of the Court. court, "the office of a proviso, generally, is either to except something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of it, as extending to cases not intended by the legis lature to be brought within its purview." Minis v. United States, 15 Pet. 423, 445. The insertion of this proviso, therefore, manifests the understanding and intention of the legis lature that real estate was and should be included in the preceding general authority to order a sale of part "of the estate," except so far as qualified by the proviso. Indeed, if that authority did not include real estate, the proviso would be superfluous. The necessary construction of the whole section, including the proviso, appears to us to be that express authority is thereby granted to the orphans' court to order a sale of any part of the ward's estate, real or personal, for his maintenance and education; but that, before any sale of real estate can be made for this purpose, the order of the orphans' court shall be approved by the Court of Chancery or the General Court. Whether the property to be sold for this purpose is personal or real, the application is to be made to the orphans' court, and the order granted by that court in the first instance. In the case of personal property, no action of any other court is required. In the case of real estate, the order of sale, after being passed by the orphans' court, must be presented to and approved by the Court of Chancery or the General Court; but no separate suit need be instituted in either of those courts. This construction has prevailed in the courts of the State of Maryland, as well as in those of the District of Columbia. In Goltier's Case, which is reported in 3 Bland, 200, note, and an authenticated copy of the proceedings in which has been filed in this case and sent up with the record, a petition presented in December, 1810, to the orphans' court of Cecil County in the State of Maryland, by a father and guardian, alleged that his infant children and wards had become entitled, in right of their mother, to one-ninth part of a grist mill and about one hundred and forty acres of land in that county, the |