Lapas attēli

Opinion of the Court.

other owners of which, after consulting with the petitioner, had concluded that a sale of the said mill and lands would be highly advantageous to all the persons interested," and had contracted to sell them to one Alexander Scott for the sum of $6124.25, provided the petitioner should be able to convey his children's part; and that the petitioner believed that such a sale would “much promote the interest and welfare of his said children, and enable him to educate and support them more to their advantage than if no such sale were to be made ;” and therefore prayed the orphans' court to “order that he may be able to make the necessary conveyance. On December 12, 1810, the orphans' court, “on due consideration of the allegations contained in the within petition,” was “of opinion that the sale prayed for was to the advantage of” the wards, “and should be confirmed, and that the petitioner be authorized to make conveyance of that part of his wards’ real estate.” In the Court of Chancery, six days afterwards, Chancellor Kilty signed a decree, which in the authenticated copy, quoted in 4 Mackey, 370, is stated as follows: “Under power vested in this court by the act of 1798, c. 101, sub-ch. 12, § 7, the above order of the orphans' court is approved.” This decree, as printed in 3 Bland, 200, note, differs only in substituting $ 10 for $ 7. That it was not made under the act of 1785, c. 72, § 12, is quite clear, because no partition was sought, as well as because the petition was addressed to the orphans' court, and not to the Court of Chancery, in the first instance. Tilly v. Tilly, 2 Bland, 436, 438 and note. Both versions of the decree agree in stating that it was made under the power vested in the Court of Chancery by the act of 1798, c. 101, sub-chapter 12; and $ 7 of that sub-chapter concerns only the cutting and sale of standing wood by authority of the orphans' court, without requiring the approval of any other court. The inference is irresistible, that the insertion of $ 7 in the record of the decree was a clerical error, and that the decree was really made, as Chancellor Bland understood it to have been, under $ 10, for the better support and education of the wards.

The Court of Appeals of Maryland, in 1828, decided that

Opinion of the Court.

the value of buildings constructed on the land of a ward by direction of his guardian, and under order of the orphans' court, at an expense exceeding the income of his estate, real and personal, could not be recovered from the ward, because section 10 of the act of 1798 did not cmpower the orphans' court to order any part of the principal of the ward's estate to be applied to any other purpose than his support and maintenance. But the court added: “Should an application of the personal estate not suffice to maintain and educate suitably to the future destination of the ward, then such maintenance and education may also induce an application of a part of the real estate, with the approbation of the Court of Chancery or General Court, as well as the orphans' court.” Brodess y. Thompson, 2 Ilarris & Gill, 120, 126, 127.

Chancellor Bland, in a case decided in the same year, cited those two cases and expressed a similar opinion. Williams's Case, 3 Bland, 186, 199, 200, 207. In 1841 the Court of Appeals said: “According to our laws a guardian cannot encroach on the capital of his ward's estate without the order of the orphans' court, nor can the real estate be diminished but by the approbation of the Court of Chancery.” Hatton v. Ieems, 12 Gill & Johns. 83, 108. And it is admitted on all hands, that the Circuit Court of the United States of the District of Columbia, and its successor, the Supreme Court of the District of Columbia, have always interpreted the section in question according to what we now hold to be its true construction and effect. 5 Mackey, 213; 4 Mackey, 383, 386.

It is argued for the plaintiff, that so much of the Maryland act of 1798 as concerned the sale of the real estate of infants has been repealed by the act of Congress of March 3, 1843, c. 87, entitled “ An act to provide in certain cases for the sale of the real estate of infants within the District of Columbia," by which it is enacted that when “the guardian of any infant shall think that the interest of his or her ward will be promoted by the sale of his or her real estate, or any part thereof, it shall be lawful for such guardian” to bring a suit in equity in the Circuit Court of the District of Columbia, in which the infant shall be made a party, and shall be represented by a

Opinion of the Court.

guardian ad litem, and the facts alleged in the bill, whether admitted or not, shall be proved by disinterested witnesses, and the court, upon being satisfied that “the interest of the infant manifestly requires the sale of his real estate, or any part thereof,” and that “by such sale the rights of others will not be violated,” may decree a sale, in which case the proceeds of the sale shall be invested and applied for the benefit of the infant, “either in the purchase of real estate, or in such manner as the court shall think best," and upon his death shall descend as real estate. 5 Stat. 621, 622; Rev. Stat. D. C. SS 957-968.

But this act contains no express repeal of the Maryland act of 1798; it does not mention the maintenance or education of infants, but authorizes the sale of their real estate whenever their interest manifestly requires it; its chief purpose evidently is to authorize a change of investment; and it cannot be presumed to have been intended to take away the authority of the orphans' court, when discharging its appropriate duty of ascertaining the amount proper to be ex. pended for an infant's maintenance and education, to order a sale of his real estate for this single object with the approval of the Court of Chancery.

There is nothing in the nature of the interest that these children took under the will of their father, which should prevent a sale of it under the statute of 1798, when necessary for their maintenance and education. That statute is not restricted to legal estates, or to estates in possession. The effect of the testator's dispositions, though obscured by some confusion and superfluity of language, was to give the legal estate in all his land to his widow for life; the equitable and beneficial estate for her life to her and the two children, or the survivors of them, in equal shares; and the legal estate in remainder, after the death of the widow, to the two children, in fee; with two limitations over in fee, by way of executory devise, (neither of which impaired the precedent estates, or ever took effect,) the one, of the share of a child, dying before the mother, to the surviving child; and the other, of the whole estate to the mother, in case she should survive both


Opinion of the Court.

children. The legal estate in remainder in the children, which nothing but their own death before the determination of the widow's life estate could prevent from vesting in possession, vested in them from the death of the testator, subject to be divested by their dying before the widow. Doe v. Considine, 6 Wall. 455, 476 ; McArthur v. Scott, 113 U. S. 340, 379. Their legal estates in remainder, as well as their equitable estates for life, were present interests, which might be sold for their maintenance and education.

The records of the orphans' court, and of the Circuit Court of the United States of the District of Columbia sitting in chancery, produced from the proper custody, clearly prove the following facts: Mrs. Thaw, who by the will of her husband was appointed executrix thereof, and guardian of their two children, and exempted from giving bond as executrix, gave bond as guardian on March 24, 1844. On March 29, 1814, she presented to the orphans' court a petition on oath, representing that she had paid all her husband's debts, and that the property left by him was insufficient to support her and the children, and praying for an order of sale of the real estate for the relief of her immediate wants and for the support and education of the children. On that petition, the orphans' court, on the same day, by an order reciting that it had heard and considered the case "on the petition, exhibits, accompanying proofs and representation of Eliza V. Thaw in her capacity of guardian and executrix,” decreed that, provided the Circuit Court of the United States of the District of Columbia sitting as a Court of Chancery should by proper order approve thereof, she should be authorized, as guardian of the children and for herself, to make sale and conveyance of the said real estate, first giving bond for the performance of the trust thereby imposed upon her, and immediately after the sale making report thereof to the court. On or about April 29, 1814, a copy of that petition and order, duly certified by the register of wills, was filed on the chancery side of the Circuit Court of the United States of the District of Columbia. On October 12, 1844, the order of the orphans' court was approved by the Circuit Court sitting in chancery, as is

Opinion of the Court.

shown by the entry on its docket or minute book, which, in the absence of any extended record, is competent and conclusive proof of its doings. Philadelphia, Wilmington & Baltimore Railroad v. Howard, 13 How. 307, 331. On May 17, 1845, the petitioner gave bond with sureties for the performance of the trust imposed upon her by the order so approved. The dates of the sale and of the report thereof to the orphans' court do not appear. But it does appear, by the minutes of its proceedings, that on January 21, 1848, there was filed in and approved by that court a “sale of real estate of Joseph Thaw, deceased,” which, in the absence of evidence of any other sale of his real estate having been ordered or made, must be inferred to have been a report of this sale. All the facts recited in the deed executed by Mrs. Thaw to Agricol Favier on March 17, 1848, are thus proved by independent evidence, the competency of which is beyond doubt.

The objection that the petition presented by Mrs. Thaw to the orphans' court was irregular and insufficient to support the jurisdiction of that court, because it asked for a sale of the land for the benefit of the petitioner, as well as of her wards, is sufficiently answered by Mr. Justice Cox, delivering the judgment below, as follows: "It is true that the guardian, in her application, confused somewhat her own interests with those of the wards, and alleged the insufficiency of the property to support herself and the children as a ground for selling, and asked the sale as well to relieve her own immediate wants as for the support of the children. But it is fair to read this part of the application as referring to her own undivided interest for life in the property. It is not to be read as an application to sell the estate of the children for her support. It is also true that the court had no jurisdiction over the wife's interest in the property, and could not pass title to it by its decree. But if the wife chose to unite in the sale and convey her interest, which she must be held to have done, we see no reason why the court could not decree a sale of the share of the infants." “And if there was error in the form of the decree because it embraced the widow's interest also, it did not affect its efficacy as to the interest of the infants, but was a

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