Inglis v. Trustees of the Sailor's Snug Harbour in the City of New York/Opinion of the Court

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THIS case came before the court at January term 1820, from the circuit court of the United States for the southern district of New York: on points of disagreement certified by the judges of that court. After argument by counsel, it was held under advisement until the present term.

It was a writ of right, brought in the circuit court, for the recovery of certain real estate situate in the city of New York, whereof Robert Richard Randall died seised and possessed.

The count was upon the seisin of Robert Richard Randall, and went for the whole premises.

Paul R. Randall and Catherine Brewerton, a brother and sister of Robert Richard Randall, both survived him, but had since died, without issue.

The demandant claimed his relationship to Robert Richard Randall, through Margaret Inglis, his mother, who was a descendant of John Crooke, the common ancestor of Robert Richard Randall, Catherine Brewerton, and Paul R. Randall.

The tenants put themselves upon the grand assize, and the mise was joined upon the mere right.

The cause was tried at October term 1827.

The counsel for the tenants began with the evidence, and showed that they had been in possession for a number of years, claiming and holding the land as owners.

The seisin of Robert Richard Randall was then proved, and that he purchased from one baron Poelnitz. The generalogy of the demandant as next collateral heir of Robert R. Randall on the part of his mother, and that the blood of Thomas Randall, the father of Robert Richard Randall, was extinct, was proved.

It was in evidence that the British troops entered into New York on the 15th of September 1776, and took and had full possession thereof, and of the adjacent bays and islands, and established a civil government there under the authority of the British commander in chief.

Evidence was given to prove that the demandant was not more than one year old when the British troops entered the city of New York, where he was born; that the father of the demandant was a native of Ireland, and had resided for some time in New York, and continued to reside there until he left there for England, on the day of or the day before the evacuation of New York, the 25th of November 1783. He took the demandant with him to England, remained there two years, was appointed a bishop, and went to Nova Scotia in 1785 or 1786, and there resided until his death. The mother of the demandant died in New York on the 21st of September 1783, a little while before the evacuation thereof by the British tropps. It was always considered by a witness who testified in the cause, that Charles Inglis, the father of the demandant, was a royalist. The demandant was certainly born before the year 1779; in 1783 he could not speak plainly, and was considered not more than five years old, between four and five. He took his degree of master of arts in England, was there ordained a clergyman; his place of residence from the time he first arrived at Nova Scotia was with his father, and he has continued to reside there ever since. He went to England to be consecrated a bishop; which character he now holds, being bishop of Nova Scotia. Charles Inglis, the father of the demandant, had four children, the eldest of which, a son, died an infant, 20th of January 1782, two daughters, and the demandant, who was the youngest child.

The following proceedings of a convention of the state of New York, before the British entered the city, were in evidence.

Tuesday Afternoon, July 16th, 1776.

Present, general Woodhull president, and the members of the convention.

Whereas, the present dangerous situation of this state demands the unremitted attention of every member of the convention: Resolved unanimously, that the consideration of the necessity and propriety of establishing an independent civil government be postponed until the first day of August next, and that in the meantime,

'Resolved unanimously, that all magistrates and other officers of justice in this state, who are well affected to the liberties of America, be requested, until further orders, to exercise their respective offices, provided, that all processes, and other their proceedings, be under the authority and in the name of the state of New York.

'Resolved unanimously, that all persons abiding within the state of New York, and deriving protection from the laws of the same, owe allegiance to the said laws, and are members of the state: and that all persons passing through, visiting, or making a temporary stay in said state, being entitled to the protection of the laws during the time of such passage, visitation, or temporary stay, owe, during the same, allegiance thereto.

'That all persons, members of or owing allegiance to this state, as before described, who shall levy war against the said state, within the same, or be adherent to the king of Great Britain, or others, the enemies of the said state, within the same, giving to him or them aid or comfort, are guilty of treason against the state, and being thereof convicted, shall suffer the pains and penalties of death.'

The tenants gave in evidence the acts of the legislature of New York: 'For the forfeiture of the estates of persons who adhered to the enemies of the state,' &c. passed the 22d of October 1779; the 'act supplementary to the act to provide for the temporary government of the southern part of this state,' & c. passed the 23d of October 1779; and the supplement thereto, passed the 27th of March 1783.

Robert Richard Randall died in the city of New York between the 1st of June and the 1st of July 1801, having on the 1st of June of that year made his last will and testament; probate of which was regularly made in the city of New York.

The provisions of the will of Robert Richard Randall under which the tenants claimed their title are the following.

'6. As to and concerning all the rest, residue and remainder of my estate, both real and personal; I give, devise and bequeath the same unto the chancellor of the state of New York, the mayor and recorder of the city of New York, the president of the chamber of commerce in the city of New York, the president and vice president of the marine society of the city of New York, the senior minister of the episcopal church in the said city, and the senior minister of the presbyterian church in the said city, to have and to hold all and singular the said rest, residue, and remainder of my said real and personal estate, unto them the said chancellor of the state of New York, mayor of the city of New York, the recorder of the city of New York, the president of the chamber of commerce, president and vice president of the marine society, senior minister of the episcopal church, and senior minister of the presbyterian church in the said city, for the time being, and their respective successors in the said offices forever, to, for, and upon the uses, trusts, intents and purposes, and subject to the directions and appointments hereinafter mentioned and declared concerning the same, that is to say, out of the rents, issues and profits of the said rest, residue, and remainder of my said real and personal estate, to erect and build upon some eligible part of the land upon which I now reside, an asylum, or marine hospital, to be called 'the Sailor's Snug Harbour,' for the purpose of maintaining and supporting aged, decrepid, and worn out sailors, as soon as they, my said charity trustees, or a majority of them, shall judge the proceeds of the said estate will support fifty of the said sailors, and upwards; and I do hereby direct, that the income of the said real and personal estate, given as aforesaid to my said charity trustees, shall forever hereafter be used and applied for supporting the asylum, or marine hospital, hereby directed to be built, and for maintaining sailors of the above description therein, in such manner as the said trustees, or a majority of them, may from time, or their successors in office, may from time to time direct. And it is my intention that the institution hereby directed and created should be perpetual, and that the above mentioned officers for the time being, and their successors, should forever continue and be the governors thereof, and have the superintendence of the same. And it is my will and desire, that if it cannot legally be done, according to my above intention, by them, without an act of the legislature, it is my will and desire that they will as soon as possible apply for an act of the legislature to incorporate them for the purposes above specified. And I do further declare it to be my will and intention, that the said rest, residue and remainder of my real and personal estate, should be at all events applied for the uses and purposes above set forth; and that it is my desire all courts of law and equity will so construe this my said will, as to have the said estate appropriated to the above uses, and that the same should in no case, for want of legal form or otherwise, be so construed as that my relations, or any other persons, should heir, possess, or enjoy my property, except in the manner and for the uses herein above specified.

'And, lastly, I do nominate and appoint the chancellor of the state of New York, for the time being, at the time of my decease; the mayor of the city of New York, for the time being; the recorder of the city of New York, for the time being; the president of the chamber of commerce, for the time being; the president and vice-president of the marine society in the city of New York, for the time being; the senior minister of the episcopal church in the city of New York, and the senior minister of the presbyterian church in the said city, for the time being; and their successors in office after them, to be the executors of this my last will and testament, hereby revoking all former and other wills, and declaring this to be my last will and testament.'

It was admitted, that at the time of the decease of Robert Richard Randall, and of the probate of the will, the offices named in the will were respectively filled by different persons, and that they, or some of them, immediately upon the death of the testator, entered upon the premises under the will, claiming to be the owners in fee, until the legislature of New York, on their application, on the 6th of February 1806, passed 'an act to incorporate the trustees of the marine hospital, called the Sailor's Snug Harbour, in the city of New York.'

Those offices continued to be filled respectively by different persons, from the time of the death of the testator until the time of the trial.

The act incorporating 'the trustees of the marine hospital,' &c. provides,

Whereas, it is represented to the legislature, that Robert Richard Randall, late of the city of New York, deceased, in and by his last will and testament, duly made and executed, bearing date the 1st day of June, in the year of our Lord 1801, did, after bequeathing certain specific legacies therein mentioned, among other things give and devise and bequeath all the residue of his estate, both real and personal, unto the chancellor of this state, the mayor and recorder of the city of New York, the president of the chamber of commerce in the city of New York, the president and vice president of the marine society of the city of New York, the senior minister of the episcopal church in the said city, and the senior minister of the presbyterian church in the said city, for the time being, and to their successors in office respectively, in trust, to receive the rents, issues and profits thereof, and to apply the same to the erecting or building on some eligible part of the land whereon the testator then resided, an asylum, or marine hospital, to be called 'the Sailor's Snug Harbour,' for the purpose of maintaining and supporting aged, decrepid and worn out sailors, as soon as the said trustees, or a majority of them, should judge the proceeds of the said estate would support fifty of such sailors and upwards; and that the said testator, in his said will, declared his intention to be, that the said estate should at all events be applied to the purposes aforesaid, and no other; and if his said intent could not be carried into effect without an act of incorporation, he therein expressed his desire that the said trustees would apply to the legislature for such incorporation; and, whereas, the said trustees have represented that the said estate is of considerable value, and if prudently managed, will in time enable them to erect such hospital, and carry into effect the intent of the testator; but that as such trustees, and being also appointed executors of the said will, in virtue of their offices, and only during their continuance in the said office, they have found that considerable inconveniences have arisen in the management of the said estate, from the changes which have taken place in the ordinary course of the elections and appointments to those offices, and have prayed to be incorporated for the purposes expressed in the said will, and such prayer appears to be reasonable: therefore,

1. Be it enacted by the people of the state of New York, represented in senate and assembly, that John Lansing, Jun. the chancellor of this state, De Witt Clinton the mayor, and Maturin Livingston the recorder of the city of New York, John Murray the president of the chamber of commerce of the city of New York, James Farquhar the president, and Thomas Farmer the first vice president of the marine society of the city of New York, Benjamin Moore, senior minister of the episcopal church in the said city, and John Rogers, senior minister of the presbyterian church in the said city, and their successors in office respectively, in virtue of their said offices; shall be, and hereby are constituted and declared to be a body corporate, in fact, and in name, by the name and style of the trustees of the Sailor's Snug Harbour in the city of New York; and by that name they and their successors shall have continual succession, and shall be capable in law of suing and being sued, pleading and being impleaded, answering and being answered unto, defending and being defended, in all courts and places whatsoever, and in all manner of actions, suits, complaints, matters and causes whatsoever; and that they and their successors may have a common seal, and may change and alter the same at their pleasure; and also, that they and their successors, by the name and style aforesaid, shall be capable in law of holding and lisposing of the said real and personal estate, devised and bequeathed as aforesaid, according to the intention of the said will; and the same is hereby declared to be vested in them, and their successors in office, for the purpose therein expressed; and shall also be capable of purchasing, holding and conveying any other real and personal estate, for the use and benefit of the said corporation, in such manner as to them, or a majority of them, shall appear to be most conducive to the interest of the said institution.

The second section gives to the trustees the power to make rules and regulations, and to appoint officers for the government and business of the corporation, and provides for the mode of transacting the same.

The third section declares that 'this act shall be deemed and taken to be a public act, and be construed in all courts and places, benignly and favourably, for the purposes therein intended.'

On the 25th of March 1814, an act supplementary to the act of incorporation was passed, declaring, that persons holding certain offices should act as trustees, and declaring it to be the duty of the corporation to make an annual report of their funds to the common council of the city, of the state of their funds.

The counsel for the tenants gave in evidence the act of the legislature of New York, 'for relief against absconding and absent debtors,' passed the 4th of April 1786; and a report made to the superior court of judicature of the state of New York, of proceedings under the act against Paul Richard Randall, by which he was declared an absent debtor.

Under this act all the estate, real as well as personal, of Paul Richard Randall, as an absent debtor, of what kind or nature soever the same might be, were, on the 13th of November 1800, attached, seized, and taken, and were, by the recorder of New York, under and in pursuance of the provisions of the law, upon the 22d of December 1801, by an instrument of writing under his hand and seal, conveyed to Charles Ludlow, James Brewerton, and Roger Strong, all of the city of New York; to be trustees for all the creditors of the said Paul Richard Randall, who afterwards duly qualified as trustees.

Subsequently, on the 14th of April 1808, upon a further application to the recorder of New York, Paul Richard Randall being still absent, other trustees are appointed, according to law, who were, on the same day, qualified to act as trustees.

The demandant gave in evidence the following rules of the supreme court of judicature of the people of the state of New York:

February 17th, 1804.

'In the matter of Paul Richard Randall, an absent debtor.

'On reading and filing the petition of Alexander Stewart, White Matlack, and Catherine Brewerton, agents and attorneys of the said Paul Richard Randall, and also reading and filing the answer of Charles Ludlow, James Brewerton, and Roger Strong, trustees for all the creditors of the said Paul Richard Randall, to the said petition, and on motion of Mr Hamilton, attorney of the said Alexander Stewart, White Matlack, and Catherine Brewerton, it is ordered by the court, that the said trustees pay to the said Paul Richard Randall, or to his said agents and attorneys, for his use, the sum of five thousand five hundred dollars, out of the moneys now remaining in the hands of the said trustees.'

August 9th, 1804.

'In the matter of Paul R. Randall, an absent debtor, and his assignees, &c.

'On reading and filing the petition of Alexander Phoenix, the attorney and agent for Paul Richard Randall, together with a certified copy of the power af attorney, and the acknowledgements of the trustees and former attorneys of the said Paul, thereunto annexed, and on motion of Mr Van Wyck, of counsel for the said Alexander, ordered that the rule heretofore, in February term last, made in the said matter, be vacated, and that the said sum of five thousand five hundred dollars, acknowledged to be still remaining in the hands of the said Charles Ludlow, James Brewerton, and Roger Strong, trustees as aforesaid, be paid over by them to the said Alexander Phoenix, as the attorney and agent of the said Paul Richard Randall.'

It appeared in evidence, that Catherine Brewerton died some time in or about the year of our Lord 1815, and that Paul R. Randall died some time in the year of our Lord 1820, Catherine Brewerton, having first, while a widow, made her last will and testament, dated the 5th of June A. D. 1815, duly executed and attested to pass real estate, and devised among other things as follows, that is to say:

'Secondly, I give, devise and bequeath, all my estate, real and personal, whatsoever and wheresoever, in law or equity, in possession, reversion, remainder or expectancy, (excepting such as is herein otherwise specially mentioned) unto my executors hereinafter named, and to the survivor of them, his heirs and assigns for ever, upon trust nevertheless for the uses and purposes hereinafter mentioned and intended, that is to say, that my executors shall,' &c.

Upon the trial of the cause in the circuit court the judges were opposed in opinion upon the following points, which were certified to the court.

I. Whether, inasmuch as the count in the cause is for the entire right in the premises, the demandant can recover a less quantity than the entirety.

II. Whether John Inglis, the demandant, was or was not capable of taking lands in the state of New York by descent, which general question presents itself under the following aspects:

1. Whether, in case he was born before the 4th of July 1776, he is an alien, and disabled from taking real estate by inheritance.

2. Whether, in case he was born after the 4th of July 1776, and before the 15th of September of the same year, when the British took possession of New York, he would be under the like disability.

3. Whether, if he was born after the British took possession of New York, and before the evacuation on the 25th of November 1783, he would be under the like disability.

4. What would be the effect upon the right of John Inglis to inherit real estate in New York, if the grand assize should find that Charles Inglis, the father, and John Inglis, the demandant, did, in point of fact, elect to become and continue British subjects and not American citizens?

III. Whether the will of Catherine Brewerton was sufficient to pass her right and interest in the premises in question, so as to defeat the demandant in any respect; the premises being, at the date of the will and ever since, held adversely by the tenants in this suit.

IV. Whether the proceedings against Paul R. Randall, as an absent debtor, passed his right or interest in the lands in question to, and vested the same in the trustees appointed under the said proceedings, or either of them, so as to defeat the demandant in any respect.

V. Whether the devise in the will of Robert Richard Randall of the lands in question is a valid devise, so as to divest the heir at law of his legal estate, or to affect the lands in his hands with a trust.

The cause was argued by Mr Ogden and Mr Webster, for the demandant, and by Mr Talcott and Mr Wirt, for the tenants. The argument was commenced and concluded by the counsel for the tenants.

Mr Justice THOMPSON delivered the opinion of the court.

This case comes up from the circuit court for the southern district of New York, upon several points, on a division of opinion certified by that court. In the examination of these points, I shall pursue the order in which they have been discussed at the bar.

I. 'Whether the devise in the will of Robert Richard Randall, of the lands in question, is a valid devise, so as to divest the heir at law of his legal estate, or to affect the lands in his hands with a trust.'

This question arises upon the residuary clause in the will, in which the testator declares: that as to and concerning all the rest, residue, and remainder of my estate, both real and personal, I give, devise and bequeath the same unto the chancellor of the state of New York, the mayor and recorder of the city of New York, &c. (naming several other persons by their official description only) to have and to hold all and singular the said rest, residue and remainder of my said real and personal estate, unto them, and their respective successors in office, for ever, to, for and upon, the uses, trusts, intents and purposes, and subject to the directions and appointments hereinafter mentioned and declared concerning the same, that is to say: out of the rents, issues and profits of the said rest, residue and remainder of my said real and personal estate, to erect and build upon some eligible part of the land upon which I now reside, an asylum, or marine hospital, to be called 'the Sailor's Snug Harbour,' for the purpose of supporting aged, decrepid, and worn out sailors, &c. And after giving directions as to the management of the fund by his trustees, and declaring that it is his intention, that the institution erected by his will should be perpetual, and that the above mentioned officers for the time being, and their successors, should for ever continue to be the governors thereof, and have the superintendence of the same, he then adds, 'and it is my will and desire, that if it cannot legally be done, according to my above intention, by them, without an act of the legislature, it is my will and desire, that they will as soon as possible apply for an act of the legislature to incorporate them for the purposes above specified. And I do hereby declare it to be my will and intention, that the said rest, residue and remainder of my said real and personal estate, should be at all events applied for the uses and purposes above set forth; and that it is my desire all courts of law and equity will so construe this my said will as to have the said estate appropriated to the above uses, and that the same should in no case, for want of legal form or otherwise, be so construed as that my relations, or any other persons, should heir, possess or enjoy my property, except in the manner, and for the uses herein above specified.'

The legislature of the state of New York, within a few years after the death of the testator, on the application of the trustees, who are also named as executors in the will, passed a law, constituting the persons holding the offices designated in the will, and their successors in office, a body corporate, by the name and style of 'the Trustees of the Sailor's Snug Harbour in the city of New York,' and declaring that they and their successors, by the name and style aforesaid, shall be capable in law of holding and disposing of the said real and personal estate, devised and bequeathed as aforesaid, according to the intentions of the aforesaid will. And that the same is hereby declared to be vested in them and their successors in office for the purposes therein expressed.

If, after such a plain and unequivocal declaration of the testator with respect to the disposition of his property, so cautiously guarding against, and providing for every supposed difficulty that might arise, any technical objection shall now be interposed to defeat his purpose, it will form an exception to what we find so universally laid down in all our books, as a cardinal rule in the construction of wills, that the intention of the testator is to be sought after and carried into effect. But no such difficulty in my judgment is here presented. If the intention of the testator cannot be carried into effect, precisely in the mode at first contemplated by him, consistently with the rules of law, he has provided an alternative, which, with the aid of the act of the legislature, must remove all difficulty.

The case of the Baptist Association vs. Hart's executors, 4 Wheat. 27, is supposed to have a strong bearing upon the present. This is however distinguishable in many important particulars from that. The bequest there was, 'to the Baptist Association that for ordinary meets at Philadelphia.' This association not being incorporated, was considered incapable of taking the trust as a society. It was a devise in presenti, to take effect immediately on the death of the testator, and the individuals composing it were numerous and uncertain, and there was no executory bequest over to the association if it should become incorporated. The court therefore considered the bequest gone for uncertainty as to the devisees, and the property vested in the next of kin, or was disposed of by some other provision in the will. If the testator in that case had bequeathed the property to the Baptist Association on its becoming thereafter, and within a reasonable time incorporated, could there be a doubt but that the subsequent incorporation would have conferred on the association the capacity of taking and managing the fund.

In the case now before the court, there is no uncertainty with respect to the individuals who were to execute the trust. The designation of the trustees by their official character, is equivalent to naming them by their proper names. Each office referred to was filled by a single individual, and the naming of them by their official distinction was a mere designatio personae. They are appointed executors by the same description, and no objection could lie to their qualifying and acting as such. The trust was not to be executed by them in their official characters, but in their private and individual capacities. But admitting that if the devise in the present case had been to the officers named in the will and their successors, to execute the trust, and no other contingent provision made, it would fall within the case of the Baptist Association vs. Hart's executors.

The subsequent provisions in the will must remove all difficulty on this ground. If the first mode pointed out by the testator for carrying into execution his will and intention, with respect to this fund, cannot legally take effect, it must be rejected, and the will stand as if it had never been inserted; and the devise would then be to a corporation, to be created by the legislature, composed of the several officers designated in the will as trustees, to take the estate and execute the trust.

And what objection can there be to this as a valid executory devise, which is such a disposition of lands, that thereby no estate vests at the death of the devisor, but only on some future contingency? By an executory devise, a freehold may be made to commence in futuro, and needs no particular estates to support it. The future estate is to arise upon some specified contingency, and the fee simple is left to descend to the heir at law until such contingency happens. A common case put in the books to illustrate the rule is: if one devises land to a feme sole and her heirs upon her marriage. This would be a freehold commencing in futuro, without any particular estate to support it, and would be void in a deed, though good by executory devise, 2 Black. Com. 175. This contingency must happen within a reasonable time, and the utmost length of time the law allows for this is, that of a life or lives in being and twenty-one years afterwards. The devise in this case does not purport to be a present devise to a corporation not in being, but a devise to take effect in futuro upon the corporation being created. The contingency was not too remote. The incorporation was to be procured, according to the directions in the will, as soon as possible, on its being ascertained that the trust could not legally be carried into effect in the mode first designated by the testator. It is a devise to take effect upon condition that the legislature should pass a law incorporating the trustees named in the will. Every executory devise is upon some condition or contingency, and takes effect only upon the happening of such contingency or the performance of such condition. As in the case put of a devise to a feme sole upon her marriage. The devise depends on the condition of her afterwards marrying.

The doctrine sanctioned by the court in Porter's case, 1 Coke's Rep. 24, admits the validity of a devise to a future incorporation. In answer to the argument that the devise of a charitable use was void under the statute 23 Hen. 8, it was said, that admitting this, yet the condition was not void in that case. For the testator devised that his wife shall have his lands and tenements, upon condition that she, by the advice of learned counsel, in convenient time after his death, shall assure all his lands and tenements for the maintenance and continuance of the said free school, and alms men and alms women for ever. So that although the said uses were prohibited by the statute, yet the estator hath devised, that counsel learned should advise, how the said lands and tenements should be assured, for the uses aforesaid, and that may be advised lawfully: viz. To make a corporation of them by the king's letters patent, and afterwards, by license, to assure the lands and tenements to them. So if a man devise that his executors shall, by the advice of learned counsel, convey his lands to any corporation, spiritual or temporal, this is not against any act of parliament, because it may lawfully be done by license, &c. and so doubtless was the intent of the testator, for he would have the lands assured for the maintenance of the free school, and poor, for ever, which cannot be done without incorporation and license, as aforesaid; so the condition is not against law: quod fuit concessum per curiam.

The devise in that case could net take effect without the incorporation. This was the condition upon which its validity depended. And the incorporation was to be procured after the death of the testator. The devise then, as also in the case now before the court, does not purport to be a present devise, but to take effect upon some future event. And this distinguishes the present case from that of the Baptist Association vs. Hart's executors, in another important circumstance. There it was a present devise, here it is a future devise. A devise to the first son of A. he having no son at that time, is void; because it is by way of a present devise, and the devisee is not in esse. But a devise to the first son of A. when he shall have one, is good; for that is only a future devise, and valid as an executory devise. 1 Salk. 226, 229.

The cases in the books are very strong to show, that for the purpose of carrying into effect the intention of the testator, any mode pointed out by him will be sanctioned, if consistent with the rules of law, although some may fail. In Thellusson vs. Woodford, 4 Ves. Jun. 325, Buller, Justice, sitting with the lord chancellor, refers to, and adopts with approbation, the rule laid down by lord Talbot in Hopkins vs. Hopkins: that in such cases, (on wills,) the method of the courts is not to set aside the intent because it cannot take effect so fully as the testator desired, but to let it work as far as it can. Most executory devises, he says, are without any freehold to support them; the number of contingencies is not material, if they are to happen within the limits allowed by law. That it was never held that executory devises are to be governed by the rules of law, as to common law conveyances. The only question is, whether the contingencies are to happen within a reasonable time or not. The master of the rolls in that case says, (p. 329,) he knows of only one general rule of construction, equally for courts of equity and courts of law, applicable to wills. The intention of the testator is to be sought for, and the will carried into effect, provided it can be done consistent with the rules of law. And he adds another rule, which has become an established rule of construction. That if the court can see a general intention, consistent with the rules of law, but the testator has attempted to carry it into effect in a way that is not permitted, the court is to give effect to the general intention, though the particular mode shall fail. 1 Peere Wms, 332. 2 Brown's Ch. 51.

The language of Lord Mansfield in the case of Chapman vs. Brown, 3 Burr. 1634, is very strong to show how far courts will go to carry into effect the intention of the testator. To attain the intent, he says, words of limitation shall operate as words of purchase; implication shall supply verbal omissions. The letter shall give way, every inaccuracy of grammar, every impropriety of terms, shall be corrected by the general meaning, if that be clear and manifest.

In Bartlet vs. King, 12 Mass. Rep. 543, the supreme judicial court of Massachusetts adopt the rule laid down in Thellusson vs. Woodford, that the court is bound to carry the will into effect if they can see a general intention consistent with the rules of law, even if the particular mode or manner pointed out by the testator is illegal. And the court refer with approbation to what is laid down by Powell in his Treatise on Devises, 421, that a devise is never construed absolutely void for uncertainty, but from necessity: if it be possible to reduce it to certainty it is good. So also in Finlay vs. Riddle, 3 Binn. Rep. 162, in the supreme court of Pennsylvania, the rule is recognized, that the general intent must be carried into effect, even if it is at the expense of the particular intent.

A rule so reasonable and just in itself, and in such perfect harmony with the whole doctrine of the law in relation to the construction of wills, cannot but receive the approbation and sanction of all courts of justice; and a stronger case calling for the application of that rule can scarcely be imagined than the one now before the court. The general intent of the testator, that this fund should be applied to the maintenance and support of aged, decrepid and worn out sailors, cannot be mistaken. And he seems to have anticipated that some difficulty might arise, about its being legally done in the particular mode pointed out by him. And to guard against a failure of his purpose on that account, he directs application to be made to the legislature for an incorporation, to take and execute the trust according to his will; declaring his will and intention to be, that his estate should at all events be applied to the uses and purposes aforesaid; and desiring all courts of law and equity so to construe his will, as to have his estate applied to such sues. And to make it still more secure, if possible, he finally directs that his will should in no case, for want of legal form or otherwise, be so construed, as that his relations, or any other persons, should heir, possess or enjoy his property, except in the manner and for the uses specified in his will.

The will looks therefore to three alternatives:

1. That the officers named in the will as trustees, should take the estate and execute the trust.

2. If that could not legally be done, then he directs his trustees to procure an act of incorporation, and vests the estate in it for the purpose of executing the trust.

3. If both these should fail, his heirs, or whosoever should possess and enjoy the property, are charged with the trust.

That this trust is fastened upon the land cannot admit of a doubt. Wherever a person by will gives property, and points out the object, the property, and the way in which it shall go, a trust is created; unless he shows clearly, that his desire expressed is to be controlled by the trustee, and that he shall have an option to defeat it. 2 Ves. Jun. 335.

It has been urged by the demandant's counsel, that these lands cannot be charged with the trust in the hands of the heir, because the will directs that they shall not be possessed or enjoyed, except in the manner and for the uses specified. That the manner and the use must concur in order to charge the trust on the land. But I apprehend this is a mistaken application of the term manner as here used. It does not refer to the persons who were to execute the trust. But to the mode or manner in which it was to be carried into effect, viz. by erecting upon some eligible part of the land an asylum, or marine hospital, to be called the Sailor's Snug Harbour. And the uses were, 'for the purpose of maintaining and supporting aged, decrepid and worn out sailors.' Whoever therefore takes the land, takes it charged with these uses or trusts, which are to be executed in the manner above mentioned. And if so, there can be no objection to the act of incorporation, and the vesting the title therein declared. It does not interfere with any vested rights in the heir. He has no beneficial interest in the land. And the law only transfers the execution of the trust from him to the corporation, and thereby carrying into effect the clear and manifest intention of the testator. But being of opinion that the legal estate passed under the will, I have not deemed it necessary to pursue the question of trust, and have simply referred to it, as being embraced in the point submitted to this court.

If this is to be considered a devise to a corporation, it will not come within the prohibitions in the statute of wills, 1 Revised Laws, 364. For this act of incorporation is, pro tanto, a repeal of that statute.

Taking this devise therefore in either of the points of view in which it has been considered, the answer to the question put must be, that it is valid, so as to divest the heir of his legal estate, or at all events, to affect the lands in his hands with the trust declared in the will.

If this view of the devise in the will of Robert Richard Randall be correct, it puts an end to the right and claim of the demandant, and might render it unnecessary to examine the other points which have been certified to this court, had the questions come up on a special verdict or bill of exceptions. But coming up on a certificate of a division of opinion, it has been the usual course of this court to express an opinion upon all the points.

It is not however deemed necessary to go into a very extended examination of the other questions, as the opinion of the court upon the one already considered, is conclusive against the right of recovery in this action.

II. The second general question is, whether John Inglis, the demandant, was or was not capable of taking lands in the state of New York by descent.

This question is presented under several aspects, for the purpose of meeting what at present from the evidence appears a little uncertain, as to the time of the birth of John Inglis. This question as here presented, does not call upon the court for an opinion upon the broad doctrine of allegiance and the right of expatriation, under a settled and unchanged state of society and government. But to decide what are the rights of the individuals composing that society, and living under the protection of that government, when a revolution occurs; a dismemberment takes place; new governments are formed; and new relations between the government and the people are established.

If John Inglis, according to the first supposition under this point, was born before the 4th of July 1776, he is an alien; unless his remaining in New York during the war changed his character and made him an American citizen. It is universally admitted, both in the English courts and in those of our own country, that all persons born within the colonies of North America, whilst subject to the crown of Great Britain, were natural born British subjects, and it must necessarily follow, that that character was changed by the separation of the colonies from the parent state, and the acknowledgement of their independence.

The rule as to the point of time at which the American ante nati ceased to be British subjects, differs in this country and in England, as established by the courts of justice in the respective countries. The English rule is to take the date of the treaty of peace in 1783. Our rule is to take the date of the declaration of independence. And in the application of the rule to different cases, some difference in opinion may arise. The settled doctrine of this country is, that a person born here, who left the country before the declaration of independence, and never returned here, became thereby an alien, and incapable of taking lands subsequently by descent in this country. The right to inherit depends upon the existing state of allegiance at the time of descent cast. The descent cast in this case being long after the treaty of peace, the difficulty which has arisen in some cases, where the title was acquired between the declaration of independence and the treaty of peace, does not arise here. Prima facie, and as a general rule, the character in which the American ante nati are to be considered, will depend upon, and be determined by the situation of the party and the election made at the date of the declaration of independence, according to our rule; or the treaty of peace according to the British rule. But this general rule must necessarily be controlled by special circumstances attending particular cases. And if the right of election is at all admitted, it must be determined, in most cases, by what took place during the struggle, and between the declaration of independence and the treaty of peace. To say that the election must have been made before, or immediately at the declaration of independence, would render the right nugatory.

The doctrine of perpetual allegiance is not applied by the British courts to the American ante nati. This is fully shown by the late case of Doe vs. Acklam, 2 Barn. & Cresw. 779. Chief Justice Abbott says, 'James Ludlow, the father of Frances May, the lessor of the plaintiff, was undoubtedly born a subject of Great Britain. He was born in a part of America which was at the time of his birth a British colony, and parcel of the dominions of the crown of Great Britain; but upon the fact found, we are of opinion that he was not a subject of the crown of Great Britain at the time of the brith of his daughter. She was born after the independence of the colonies was recognised by the crown of Great Britain, after the colonies had become United States, and their inhabitants generally citizens of those states. And her father by his continued residence in those states manifestly became a citizen of them.' He considered the treaty of peace as a release, from their allegiance, of all British subjects who remained there. A declaration, says he, that a state shall be free, sovereign and independent, is a declaration, that the people composing the state shall no longer be considered as subjects of the sovereign by whom such a declaration is made. And this court, in the case of Blight's Lessee vs. Rochester, 7 Wheat. 544, adopted the same rule with respect to the right of British subjects here. That although born before the revolution, they are equally incapable with those born subsequent to that event of inheriting or transmitting the inheritance of lands in this country. The British doctrine therefore is, that the American ante nati, by remaining in America after the treaty of peace, lost their character of British subjects. And our doctrine is, that by withdrawing from this country, and adhering to the British government they lost, or, perhaps more properly speaking, never acquired the character of American citizens.

This right of election must necessarily exist, in all revolutions like ours, and is so well established by adjudged cases, that it is entirely unnecessary to enter into an examination of the authorities. The only difficulty that can arise is, to determine the time when the election should have been made. Vattel, B. 1, ch. 3, sec. 33. 1 Dall. 58. 2 Dall. 234. 20 Johns. 332. 2 Mass. 179, 236, 244, note. 2 Pickering, 394. 2 Kent's Com. 49.

I am not aware of any case in the American courts where this right of election has been denied, except that of Ainsley vs. Vartin, 9 Mass. 454. Chief Justice Parsons does there seem to recognise, and apply the doctrine of perpetual allegiance, in its fullest extent. He then declares that a person born in Massachusetts, and who, before the 4th of July 1776, withdrew into the British dominions, and never since returned into the United States, was not an alien, that his allegiance to the king of Great Britain was founded on his birth, within his dominions, and that that allegiance accrued to the commonwealth of Massachusetts, as his lawful successor. But he adds what may take the present case even out of his rule: 'It not being alleged,' says he, 'that the demandant has been expatriated, by virtue of any statute or any judgment of law.' But the doctrine laid down in this case is certainly not that which prevailed in the supreme judicial court of Massachusetts, both before and since that decision, as will appear by the cases above referred to of Gardner vs. Ward, and Kilham vs. Ward, 2 Mass. and of George Phipps, 2 Pickering, 394, note.

John Inglis, if born before the declaration of independence, must have been very young at that time, and incapable of making an election for himself; but he must, after such a lapse of time, be taken to have adopted and ratified the choice made for him by his father, and still to retain the character of a British subject, and never to have become an American citizen, if his father was so to be considered. He was taken from this country by his father before the treaty of peace, and has continued ever since to reside within the British dominions without signifying any dissent to the election made for him; and this ratification, as to all his rights, must relate back, and have the same effect and operation, as if the election had been made by himself at that time.

How then is his father Charles Inglis to be considered? Was he an American citizen? He was here at the time of the declaration of independence, and prima facie may be deemed to have become thereby an American citizen. But this prima facie presumption may be rebutted; otherwise there is no force or meaning in the right of election. It surely cannot be said, that nothing short of actually removing from the country before the declaration of independence will be received as evidence of the election; and every act that could be done to signify the choice that had been made, except actually withdrawing from the country, was done by Charles Inglis. He resided in the city of New York at the declaration of independence, and remained there until he removed to England, a short time before the evacuation of the city by the British in November 1783; New York during the whole of that time, except from July to September 1776, being in possession, and under the government and control of the British, he taking a part and acting with the British; and was, according to the strong language of the witness, as much a royalist as he himself was, and that no man could be more so. Was Charles Inglis under these circumstances to be considered an American citizen? If being here at the declaration of independence necessarily made him such, under all possible circumstances he was an American citizen. But I apprehend this would be carrying the rule to an extent that never can be sanctioned in a court of justice, and would certainly be going beyond any case as yet decided.

The facts disclosed in this case, then, lead irresistibly to the conclusion that it was the fixed determination of Charles Inglis the father, at the declaration of independence, to adhere to his native allegiance. And John Inglis the son must be deemed to have followed the condition of his father, and the character of a British subject attached to and fastened on him also, which he has never attempted to throw off by any act disaffirming the choice made for him by his father.

The case of M'Ilvaine vs. Coxe's Lessee, 4 Cranch, 211, which has been relied upon, will not reach this case. The court in that case recognized fully the right of election, but considered that Mr. Coxe had lost that right by remaining in the state of New Jersey, not only after she had declared herself a sovereign state, but after she had passed laws by which she pronounced him to be a member of, and in allegiance to the new government; that by the act of the 4th of October 1776 he became a member of the new society, entitled to the protection of its government. He continued to reside in New Jersey after the passage of this law, and until some time in the year 1777, thereby making his election to become a member of the new government; and the doctrine of allegiance became applicable to his case, which rests on the ground of a mutual compact between the government and the citizen or subject, which it is said cannot be dissolved by either party without the concurrence of the other. It is the tie which binds the governed to their government, in return for the protection which the government affords them. New Jersey, in October 1776, was in a condition to extend that protection, which Coxe tacitly accepted by remaining there. But that was not the situation of the city of New York; it was in the possession of the British. The government of the state of New York did not extend to it in point of fact.

The resolutions of the convention of New York of the 16th of July 1776, have been relied upon as asserting a claim to the allegiance of all persons residing within the state. But it may well be doubted whether these resolutions reached the case of Charles Inglis. The language is, 'that all persons abiding within the state of New York, and deriving protection from the laws of the same, owe allegiance to the said laws, and are members of the state.' Charles Inglis was not, within the reasonable interpretation of this resolution, abiding in the state and owing protection to the laws of the same. He was within the British lines, and under the protection of the British army, manifesting a full determination to continue a British subject. But if it should be admitted that the state of New York had a right to claim the allegiance of Charles Inglis, and did assert that right by the resolution referred to, still the case of M'Ilvaine vs. Coxe does not apply.

It cannot, I presume, be denied, but that allegiance may be dissolved by the mutual consent of the government and its citizens or subjects. The government may release the governed from their allegiance. This is even the British doctrine in the case of Doe vs. Acklam, before referred to. The act of attainder passed by the legislature of the state of New York, by which Charles Inglis is declared to be for ever banished from the state, and adjudged guilty of treason if ever afterwards he should be found there, must be considered a release of his allegiance, if ever he owed any to the state. 1 Greenleaf's Ed. L. N. Y. 26.

From the view of the general question referred to in this court, the answers to the specific inquiries will, in my judgment, be as follows.

1. If the demandant was born before the 4th of July 1776, he was born a British subject; and no subsequent act on his part, or on the part of the state of New York, has occurred to change that character; he of course continued an alien, and disabled from taking the land in question by inheritance.

2. If born after the 4th of July 1776, and before the 15th of September of the same year, when the British took possession of New York, his infancy incapacitated him from making any election for himself, and his election and character followed that of his father, subject to the right of disaffirmance in a reasonable time after the termination of his minority; which never having been done, he remains a British subject, and disabled from inheriting the land in question.

3. If born after the British took possession of New York, and before the evacuation on the 25th of November 1783, he was, under the circumstances stated in the case, born a British subject, under the protection of the British government, and not under that of the state of New York, and of course owing no allegiance to the state of New York. And even if the resolutions of the convention of the 16th of July 1776 should be considered as asserting a rightful claim to the allegiance of the demandant and his father, this claim was revoked by the act of 1779, and would be deemed a release and discharge of such allegiance, on the part of the state, and which laving been impliedly assented to, by the demandant, by withdrawing with his father from the state of New York to the British dominions, and remaining there ever since, worked a voluntary dissolution, by the assent of the government and the demandant, of whatever allegiance antecedently existed, and the demandant at the time of the descent cast was an alien, and incapable of taking lands in New York by inheritance.

4. When Charles Inglis, the father, and John Inglis, his son, withdrew from New York to the British dominions, they had the right of electing to become and remain British subjects. And if the grand assize shall find, that in point of fact they had made such election, then the demandant at the time of the descent cast was an alien, and could not inherit real estate in New York.

III. The next question is, whether the will of Catherine Brewerton was sufficient to pass her right and interest in the premises in question, so as to defeat the demandant in any respect; the premises being at the date of the will, and ever since, held adversely by the tenants in the suit.

Mrs Brewerton was the sister of Robert Richard Randall, and if the devise in his will is void and cannot take effect, she, as one of his heirs at law, would be entitled to a moiety of the lands in question. She died in the year 1815, having shortly before made her last will and testament, duly executed and attested to pass real estate. By this will she devised and bequeathed all her real and personal estate, whatsoever and wheresoever, in law and equity, in possession, reversion, remainder, or expectancy (except some specific legacies) unto her executors, upon certain trusts therein mentioned. If this will was therefore operative, so as to pass her right to her brother's estate, it will defeat the demandant's right to recover, as to one moiety of the premises in question.

The objection taken to the operation of this will is, that the premises were at the date thereof, and ever since have been held adversely by the tenants in the suit.

The validity of this objection must depend upon the construction of the statute of wills in the state of New York. By that statute (1 N. Y. Rev. Laws, 364, sec. 1.) it is declared, that any person having any estate of inheritance, either in severalty, in coparcenary, or in common, in any lands, tenements, or hereditaments, may at his own free will and pleasure, give or devise the same, or any of them, or any rent or profit out of the same or out of any part thereof, to any person or persons, (except bodies public and corporate) by his last will and testament, or any other act by him lawfully executed.

This being a question depending upon the construction of a state statute, with respect to the title to real property, it has been the uniform course of this court, to apply the same rule that we find applied by the state tribunals in like cases. 1 Peters, 371. This statute upon the point now under consideration has received a construction by the supreme court of the state of New York, in the case of Jackson vs. Varick, 7 Cowen, 238. The question arose upon the validity of a devise in the will of Medcef Eden, the younger. The objection was, that at the time of the devise, and of the death of the testator, the premises in question were, and had been for several years before in the adverse possession of the defendant, and that he and those under whom he claimed entered originally, without the consent of the devisor or any one from whom he claimed. The court say, the facts present the question whether the owner in fee can devise land, which, at the time of the devise and his death, is in the adverse possession of another. That is, whether a person having a right of entry in fee simple, shall be said to have an estate of inheritance in lands, tenements or hereditaments in the language of our statute of wills.

It is unnecessary to pursue the course of reasoning which conducted the court to the conclusion to which it came. The result of the opinion was, that under the comprehensive words used in the act, a right of entry, as well as an estate in the actual seisin and possession of the devisor, was devisable; and that an estate that would descend to the heir is transmissible equally by will. The judge who delivered the opinion adverted to some cases that had arisen in the same court, wherein a contrary doctrine would seem to have been recognized, but came to the conclusion, that no decision had been made upon the point.

In the case of Wilkes vs. Lion, 2 Cowen, 355, decided in the court of errors, in New York, one of the points relied upon by the counsel for the plaintiff in error, was, that this same will of Medcef Eden, the younger, was inoperative as to the premises then in question; they being lands of which he was not seised at the time of his death. I do not find that any direct opinion was given upon this point; but the objection must have been overruled, or the court could not have come to the conclusion it did.

It is said, however, by the demandant's counsel, that these cases do not apply to the one now before the court; but only such estate as would descend to the heir of the devisor, and that the premises in question here would not descend to the heirs of Mrs Brewerton for want of actual seisin. According to the rule laid down in Watkins on Descents, 23, that where the ancestor takes by purchase, he may be capable of transmitting the property so taken to his own heirs, without any actual possession in himself; but if the ancestor himself takes by descent, it is absolutely necessary, in order to make him the stock or terminus, from whom the descent should now run, and so enable him to transmit such hereditaments to his own heirs, that he acquire an actual seisin of such as are corporeal, or what is equivalent thereto, in such as are incorporeal.

It is very evident, however, that the court could not have intended to apply this rule to the construction of the statute of wills. For they say, in terms, that the question is, whether a person having a right of entry in lands has an estate of inheritance devisable, according to the provisions of the statute. But under the common law rule referred to, a person having only a right of entry, would not be accounted an ancestor from whom the inheritance would be derived. 2 Black. Com. 209. Such a construction would be in a great measure defeating the whole operation of the act.

The demandant in this case states in his count, that upon the death of Robert R. Randall, the right to the land descended to Paul R. Randall and Catherine Brewerton in moieties. So that, by his own showing, she had a right of entry, which, according to the express terms of the decisions in Jackson and Varick, was devisable.

The answer to this question must accordingly be, that the will of Catherine Brewerton was sufficient to pass her right and interest in the premises in question, notwithstanding the adverse possession held by the tenants in this suit, at the date of the will.

IV. The fourth point stated is, whether the proceedings against Paul Richard Randall, as an absent debtor, passed his right or interest in the lands in question to, and vested the same in, the trustees appointed under the said proceedings, or either of them, so as to defeat the demandant in any respect.

Paul R. Randall, as stated in the case, died some time in the year 1820. He and his sister Mrs Brewerton were the heirs at law to the estate of their brother Robert Richard Randall. If therefore the will of Mrs Brewerton operated to pass her right, Paul R. Randall would be entitled to the other moiety. If her will did not operate, then he would be entitled to the whole of his brother's estate.

It does not appear from the case that any objections were made to the regularity of the proceedings against Paul R. Randall, under the absconding debtor act; and indeed the question, as stated for the opinion of this court, necessarily implies that no such objection existed. The question is, whether his right in the land passed to, and became vested in the trustees.

As this is the construction of a state law, this court will be governed very much by the decisions of the state tribunals in relation to it. The question is, whether a right of entry passes under the provisions of the absconding debtor act of the state of New York, 1 Rev. Laws, 157. By the first section of the act, the warrant issued to the sheriff commands him to attach, and safely keep, all the estate, real and personal, of the debtor. The tenth section authorises the trustees to take into their hands all the estate of the debtor, whether attached as aforesaid or afterwards discovered by them; and that the said trustees, from their appointment, shall be deemed vested with all the estate of such debtor, and shall be capable to sue for and recover the same. And the trustees are required to sell all the estate, real and personal, of the debtor, as shall come to their hands, and execute deeds and bills of sale, which shall be as valid as if made by the debtor himself.

These are the only parts of the act which have a material bearing upon this point. And the first question that would seem to arise is, whether the term estate, as here used, will extend to the interest which the debtor has in lands held adversely. An estate in lands, tenements, and hereditaments, signifies such interest as a person has therein, and is the condition or circumstance in which the owner stands with regard to his property. Coke. sec. 345. a. 2 Black. Com. 103.

The language of the act is broad enough to include a right of entry; and there can be no reason to believe that such was not the intention of the legislature.

The doctrine of the court of common pleas in England, in the case of Smith vs. Coffin, 2 H. Black. 461, has a strong bearing upon this question. The language of this absconding debtor act, with respect to the estate of the debtor to which it shall extend, is as broad as that of the English bankrupt laws, and the same policy is involved in the construction. In the case referred to, the court say, the plain spirit of the bankrupt law is, that every beneficial interest which the bankrupt has, shall be disposed of for the benefit of his creditors. On general principles, rights of action are not assignable, but that is a rule founded on the policy of the common law, which is averse to encouraging litigation. But the policy of the bankrupt law requires that the right of action should be assignable, and transferred to assignees, as much as any other species of property. Its policy is, that every right, belonging in any shape to the bankrupt, should pass to the assignees.

The estate of the debtor, under the New York statute, becomes vested in the trustees, by the mere act and operation of law, without any assignment.

The courts in New York have given a literal construction to this act, whenever it has come under consideration, so as to reach all the property of the absconding debtor. In the matter of Smith, an absconding debtor, 16 Johns. 107, the broad rule is laid down that an attachment under this act is analogous to an execution. And in the case of Handy vs. Dobbin, 12 Johns. 220, when the proceeding was under another statute, 1 Rev. Laws, 398, very analogous to the one under consideration, the court say, there can be no doubt that the constable, under the attachment, could take any goods and chattels which could be levied on by execution. The authority in both cases is the same. And in Jackson vs. Varick, 7 Cowen, 244, it is laid down as a rule admitting of no doubt, that a right of entry may be taken and sold under an execution.

It is said, however, that this right of entry does not pass, because, by the tenth section of the act, it is declared, that the deeds given by the trustees shall be as valid as if made by the debtor, and that the debtor could not make a valid deed of lands held at the time adversely.

This objection does not apply to the case: the question does not arise upon the operation of a deed given by the trustees. The point is, whether the trustees themselves had any interest in these lands: not whether they would give a valid deed for them, before reducing the right to possession. If it should be admitted that they could not, it would not affect the present question. The right is vested in the trustees by operation of law, the act declaring that the estate shall be deemed vested in them on their appointment, and that they shall be capable to sue for and recover the same; implying thereby that a suit may be necessary to reduce the estate of possession.

Again, it is said, that after such a lapse of time, it is to be presumed that all the debts of Paul R. Randall have been paid, and the trust of course satisfied; and that the estate thereupon became revested in Paul R. Randall.

This objection admits of several answers. It does not appear properly to arise under the point stated. But the question intended to be put would seem to be, whether the right, being a mere right of entry, passed, and became vested in the trustees. If it did so vest, it could not be revested, except by a reconveyance, or by operation of law, resulting from a performance of the trust, by paying off all the debts of the absent debtor. And whether these debts have been satisfied, is a proper subject of inquiry for the grand assize. There is not enough before this court to enable it to decide that point. It is a question of fact, and not of law. If it was admitted that all the debts have been satisfied, the effect of such satisfaction would be a question of law. The evidence might probably warrant the grand assize in presuming payment; but even that may not be perfectly clear. The order of the court upon the trustees to pay to the agent or attorney of Paul R. Randall five thousand five hundred dollars, out of the money remaining in their hands, does not purport to consider this sum as the surplus after payment of all the debts. It was to be paid out of the moneys remaining in the hands of the trustees, thereby fully implying, that their trust was not closed. And if the fact of payment and satisfaction of the debts is left at all doubtful, this court cannot say, as matter of law, that the interest in the land became revested in Paul R. Randall. It must depend upon the finding of the grand assize.

It is objected, however, that the defence set up, and embraced in the two last questions, is inadmissible. That in a writ of right, the tenant cannot, under the mise joined, set up title out of himself, and in a third person. That it is a question of mere right between the demandant and the tenant. And it has been supposed, that this is the doctrine of this court in the case of Green vs. Liter, 8 Cranch, 229. If any thing that fell from the court in that case will give countenance to such a doctrine, it is done away by the explanation given by the court in Green vs. Watkins, 7 Wheat. 31; and it is there laid down, that the tenant may give in evidence the title of a third person, for the purpose of disproving the demandant's seisin. That a writ of right does bring into controversy the mere right of the parties to the suit, and if so, it, by consequence, authorises either party to establish by evidence, that the other has no right whatever in the demanded premises; or that his mere right is inferior to that set up against him. And this is the rule recognized in the supreme court of New York. In the case of Ten Eyck vs. Waterberry, 7 Cowen, 52, the court say, that in a writ of right, the mise puts the seisin in issue, as the plea of not guilty in ejectment puts in issue the title, and that under the mise any thing may be given in evidence, except collateral warranty. The same rule is laid down by the supreme judicial court of Massachusetts, in the case of Poor vs. Robinson, 10 Mass. Rep. 131; and such appears to be the well settled rule in the English courts. Booth, 98, 115, 112. 3 Wilson, 420. 2 W. Black. Rep. 292. 2 Saund. 45 f. note 4. Stearns on Real Actions, 227, 228, 372.

The answer to this question will accordingly be in the affirmative, unless the grand assize shall find that the trusts have been fully performed; and if so, the interest in the land will by operation of law become revested in Paul R. Randall.

V. Another point submitted to this court is, whether, inasmuch as the count in the cause is for the entire right in the premises, the demandant can recover a less quantity than the entirety.

This is rather matter of form, without involving materially the merits of the case. And as the action itself has become almost obsolete, it cannot be very important how the point is settled. I have not therefore pursued the question to see how it would stand upon British authority. The leaning of the courts in that country is against the action, and against even allowing almost any amendments, holding parties to the most strict and rigid rules of pleading; and it may be that the English courts would consider, that the recovery must be according to the count. But whatever the rule may be there, I think it is in a great measure a matter of practice, and that we are at liberty to adopt our rule on this subject. And no prejudice can arise to the tenant by allowing the demandant to have judgment for and recover according to the right which, upon the trial, he shall establish in the demanded premises. The cases referred to, showing that a demandant may abridge his plant, do not apply to a writ of right. This is confined to the action of assize, and authorised by statute 21 Hen. 8, ch. 3. This statute has been adopted in New York, 1 Rev. Laws, 88, but does not help the case. But independent of any statutory provision, I see no good reason why the demandant should not be allowed to recover according to the interest proved, if less than that which he has demanded.

It is the settled practice in the supreme judicial court in Massachusetts, in a writ of entry, to allow the demandant to recover an undivided part of the demanded premises. The technical objection, that the verdict and judgment do not agree with the count, is deemed unimportant; the title being the same as to duration and quality, and differing only in the degree of interest between a sole tenancy and a tenancy in common. The tenant cannot be prejudiced by allowing this. He is presumed to know his own title, and might have disclaimed.The courts in that state consider, that with respect to the right to renew a part of the land claimed, there is no distinction between a writ of entry and an action of ejectment. 2 Pick. 387. 3 Pick. 52. Nor is it perceived that any well founded distinction, in this respect, can be made between the action of ejectment and a writ of right.

The opinion of the court upon this point is, that under a count for the entire right, a demandant may recover a less quantity than the entirety.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the southern district of New York, and on the questions and points on which the judges of the said circuit court were opposed in opinion, and which were certified to this court for its opinion, in pursuance of the act of congress for that purpose made and provided, and was argued by counsel; on consideration whereof, it is the opinion of this court:

I. That although the count in the cause is for the entire right in the premises, the demandant may recover a less quantity than the entirety.

II. And under the second general point, the following answers are given to the specific questions:

1. If John Inglis, the demandant, was born before the 4th of July 1776, he is an alien, and disabled from taking real estate by inheritance.

2. If he was born after the 4th of July 1776, and before the 15th of September of the same year, when the British took possession of New York, he would not be under the like disability.

3. If he was born after the British took possession of New York, and before the evacuation on the 25th of November 1783, he would be under the like disability.

4. If the grand assise shall find, that Charles Inglis the father, and John Inglis the demandant, did, in point of fact, elect to become and continue British subjects, and not American citizens, the demandant is an alien, and disabled from taking real estate by inheritance.

III. The will of Catherine Brewerton was sufficient to pass her right and interest in the premises in question, so as to defeat the demandant's right to recover, so far as her right or interest extended.

IV. The proceedings against Paul Richard Randall, as an absent debtor, passed his right or interest in the lands in question to, and vested the same in the trustees appointed under the said proceedings, so as to defeat the demandant's right to recover so far as his right or interest extended; unless the grand assise shall find, that the trusts vested in the trustees have been performed; and if so, the said proceedings will not defeat the demandant in any respect.

V. The devise in the will of Robert Richard Randall of the lands in question is a valid devise, so as to divest the heir at law of his legal estate.

Whereupon it is ordered and adjudged by this court to be certified to the judges of the said circuit court of the United States for the southern district of New York:

I. That although the count in the cause is for the entire right in the premises, the demandant may recover a less quantity than the entirety.

II. And under the second general point, the following answers are given to the specific questions:

1. If John Inglis, the demandant, was born before the 4th of July 1776, he is an alien, and disabled from taking real estate by inheritance.

2. If he was born after the 4th of July 1776, and before the 15th of September of the same year when the British took possession of New York, he would not be under the like disability.

3. If he was born after the British took possession of New York, and before the evacuation on the 25th of November 1783, he would be under the like disability.

4. If the grand assise shall find, that Charles Inglis the father, and John Inglis the demandant, did, in point of fact, elect to become and continue British subjects, and not American citizens, the demandant is an alien, and disabled from taking real estate by inheritance.

III. The will of Catherine Brewerton was sufficient to pass her right and interest in the premises in question, so as to defeat the demandant's right to recover, so far as her right or interest extended.

IV. The proceedings against Paul Richard Randall, as an absent debtor, passed his right or interest in the lands in question to, and vested the same in the trustees appointed under the said proceedings, so as to defeat the demandant's right to recover so far as his right or interest extended; unless the grand assise shall find, that the trusts vested in the trustees have been performed; and if so, the said proceedings will not defeat the demandant in any respect.

V. The devise in the will of Robert Richard Randall of the lands in question, is a valid devise, so as to divest the heir at law of his legal estate.

All of which is accordingly hereby certified to the said circuit court.

Mr Webster, on a subsequent day of the term, submitted to the court an application in behalf of the demandant, for a re-argument of this case. He presented, as the ground of the application, a statement in writing signed by the counsel in the case, Mr Ogden and himself, representing 'that the question in this cause, which arises on the construction of the will of Robert Richard Randall, is one, not only of great importance, but certainly of no small difficulty. The case was argued at a time when there were six judges on the bench. At the time of the decision there were but five judges living who had heard the cause; of these five, three were against the demandant upon the construction of the will, being a minority of the whole court. Under these circumstances, as counsel for the demandant, in a foreign country, the counsel feel it their duty to ask for a re-argument; the more particularly, as it appears from an affidavit now submitted to the court, that a sister of the demandant, who is now and long has been a feme covert, in case of a decision, upon the construction of the will, in favour of the demandant, is not subject to the disability of alienism, and may therefore maintain a suit to recover the property in dispute.'

Mr Wirt objected to the re-argument, alleging, that should it be allowed, it would establish a precedent which would render every decision of the court uncertain; and incumber the court with heavier duties than it could perform. It was without example in the whole course of the court since its organization.

Mr Chief Justice MARSHALL delivered the opinion of the Court.

The court have considered the application for a re-argument in this case. It must be a very strong case, indeed, to induce them to order a re-argument in any of the causes which have been once argued and decided in this court. The present case has been very fully considered, and the court cannot perceive any ground in the present application, to induce them to consent to the motion. It is therefore overruled(4).