trust, which can be construed as a contract, of | II. The authority given by the said acts to which their removal was an unconstitutional the trustee to sell, was not a special power to violation; for the reason, among others, that be strictly pursued, but he was vested with the the Constitution protects only such contracts absolute power of alienation, subject only to reand vested rights as are beneficial, and not examination and account in equity. such as are merely onerous; and in this case 1. By the Act of April 1, 1814, the broadest the objection could only be taken by the trus-powers of sale were conferred on the trustees tees themselves; and they not only assented to the act, but solicited its passage; and the change of trustees, being avowedly for the benefit of the children, was within the clearest parental authority of the Legislature. Cruise, title Private acts; Townley v. Gibson, 2 Term Rep. 701.

8. The first act not only devested the trustees of their estate, but provided for its transfer without diminution to new trustees, to be appointed by the Chancellor. The second act, of March 24, 1815, in the absence of such appointment, created Clarke the new trustee, clothed him with all the powers specified in the former act, and, with abundant care lest anything should be omitted, authorized him to 522*] execute and perform *every act, matter, and thing in relation to the real estate, in like manner and with the like effect that trustees under the former act might have done; and made him, in like manner, responsible to the Chancellor for his faithful "management of the estate thereby vested in Thomas B. Clarke." The "estate" here spoken of could only have been the land, as there were then no proceeds for investment. And the third act, passed March 29, 1816, again distinctly recognized him "as trustee under the will of Mary Clarke." He could not have been the trustee for himself; but that trust had merged in the legal estate; he was therefore trustee only of the remainder.

9. The acts cannot be fairly construed as conferring upon Clarke only a power in trust; for, apart from the express recognition of him by the second act, as vested with the estate, the intention to vest it in him may be collected | from all the acts taken together. To suppose that the legal estate was intended to be left in the original trustees, after they were "discharged from the said trust," is not only unreasonable, but utterly irreconcilable with the exercise by Clarke of the rights and duties conferred and imposed upon him-such as the leasing all or any part of the land (sec. 5, Act of April 1, 1814), receiving the rents and profits, and doing other acts requiring and implying the possession of a legal estate. Goodright, on dem. Revell and others, v. Parker and others, 1 Maule & Selw. 692; Doe, on dem. Gillard, v. Gillard, 5 Barn. & Ald. 785; Doe, on dem. Breezley, v. Woodhouse and others, 4 Term Rep.

89.

The words "authorize and empower," in the act, cannot have the effect of turning this into a mere power. They simply declare the trusts for which Clarke was already appointed, and for the execution of which he was vested with the estate. Brown v. Higgs, 5 Ves. 506, per Ld. Kenyon.

10. It has been judicially held, in New York, that the acts did vest the legal estate in Clarke as trustee. Per Walworth, Ch., in Clarke v. Van Surlay, 20 Wend. 377.

And this court will, in accordance with their general practice, follow the ruling of the State tribunals. Swift v. Tyson, 16 Peters, 19.

therein provided for. By sec. 2 of the Act of March 24, 1815, the same powers were conferred on Clarke in express terms. He was authorized and empowered *to execute and [*523 perform every act, matter, and thing in relation to the real estate, in like manner and with like effect that trustees under the former act might have done.

2. This language is only consistent with the supposition, that Clarke held the trust estate in fee under the will. It is irreconcilable with the supposition that he was acting under a special power, to be strictly pursued.

3. The doctrine of naked powers is odious, as often leading to grievous injustice; and the court will not so construe the act, if it will bear any other construction. 4 Term Reports; 1 Kent's Com. 461.

4. The further provision of the act directing the annual accounting before the Chancellor, that the Chancellor might see that Clarke had duly performed the trust reposed in him, was personal to Clarke, and did not abridge the powers conferred upon him as trustee.

III. and IV. The orders set forth in the case made by the Chancellor are to be regarded as the acts of the Court of Chancery of the State of New York, and not as the doings of an officer under a special authority.

The Chancellor, in a court of law, must be assumed to have had competent authority, under the acts, for every order which he made in the matter, whether such order allowed a sale for any other consideration than cash paid or not.

1. That the assent and direction of the Chancellor in this case, required and given under the acts, was a judicial proceeding, not to be assailed collaterally in a court of law, was held in the courts of New York by Mr. Justice Cowen, Clarke v. Van Surlay, 15 Wend. 447; Chancellor Walworth, in Cochran v. Van Surlay, 20 Wend. 378; Mr. Senator Verplanck, Ibid. 384.

2. The accountability of Clarke to the Chancellor was a continuance of the accountability which rested upon the trustees under the will, and which was expressly intended by the first act of the Legislature (sec. 6) to rest upon their successors, and which properly belonged to his position as trustee. 2 Story, Eq. Jur. secs. 960, 974, 978; 2 Fonb. 36, note; 3 Ves. Jun.

9.

3. The presumption of the acts of the Chancellor being judicial, even if no reference to the Court of Chancery had been made in the former act, would result from the appointment of a judicial officer having exclusive jurisdiction over matters of trust and the estates of infants; and the fact that the rights of Clarke, as life tenant and contingent remainderman, and the rights of the children in the proceeds of sales and in the profits, required judicial adjustment, not according to the technical and unbending rules of the common law, but at the hands of the presiding *officer of the [*524

VII. The fact that Clarke had previously mortgaged the premises in fee to Henry Simmons, did not at all effect his competent authority to sell and convey the same to De Grasse.

High Court of Equity, having authority to take | lay, 15 Wend. 447; per Walworth, Ch., in Cocha wider range, as the interest of the parties ran v. Van Surlay, 20 Wend. 378, 379. might require. Fisher v. Fields, 10 Johns. 505, per Kent, Ch.; 2 Story, Eq. Jur. sec. 331. 4. The contemporaneous action, under the acts, by the Chancellor, was judicial, and not ministerial, and that action is evidence of the true construction of the acts. The Act of 1816 refers to the proceedings already had by the Chancellor, and adopts them, and thus gives a legislative exposition of the prior act, showing them to have been judicial; and being judicial, they cannot be impeached collaterally.

5. That the Chancellor regarded his acts as the acts, not of an individual, but of the High Court of Chancery, and that he regarded that court as having exclusive jurisdiction in the future of all matters connected with the sales and mortgages, is clear from the repeated permission given in the successive orders to "all parties interested, or to become interested, in the premises, to apply to the court at any time or times thereafter, for further orders or di

rections."

The power given to Clarke as trustee was not one which called only for a single execution. The words "either" and "or" are not alternative, but distributive, and the beneficial intent of the act not having been satisfied by the execution of the mortgage, the power to sell survived. Omerod v. Hardman, 5 Ves. 732. VIII. If it be assumed (which is hardly possible), that Clarke had only a naked power, that the rules fixed by the Chancellor were conditions to its exercise, and that the loose and random recollections of the witness who testified touching the consideration of the deed to De Grasse were admissible, and sufficient evidence on that point, still the title of a bona fide purchaser, without notice, cannot be questioned in a court of law, for the want of the master's certificate required to conveyances in satisfaction, for the reason that the deed on its face was a deed for cash, executed in legal conformity to the power, and the remedy of the plaintiff is in equity, where the payment of the purchase money might be enforced. Sugden on Powers, ch. 11, secs. 1 and 2; Wood v. Jackson, 8 Wend. 32; Anderson v. Roberts, 10 Johns.; Jackson v. Terry, 13 Johns. 471, per V. and VI. The deed executed by Clarke to Thompson, Ch. J.; Astor v. Wells, 4 Wheaton, De Grasse, for the premises in question, is 487; Bean v. Smith, 2 Mason, 273; Fletcher v. valid, even if it were given for a consideration | Peck, 6 Cranch, 141; Jackson v. Henry, 16 other than cash paid on the purchase (of which Johns. 195; Jackson v. Van Dolsen, 5 Johns. there is no proper evidence), and without hav-43; Franklin v. Osgood, 14 Johns. 527. ing a certificate indorsed thereon, that it was approved by a master in chancery, supposing Clarke to have taken only a power in trust.

6. Of that permission the plaintiffs should have availed themselves, if Clarke had in anything abused his powers, to enforce the trust and recover the purchase money, instead of seeking to review the orders of a court of chancery in ejectment suits at common law. Mitford's Pleadings, 133; 2 Story, Eq. Jur. sec. 1127; 2 Madd. Ch. 125; Potter v. Gardner, 12 Wheaton, 499, per Marshall, Ch. J.

1. Under the acts of the Legislature Clarke had authority to sell and dispose of the land, in such manner, and upon such terms, as he might deem best for the interest of the several parties. The Chancellor had full authority under the acts to assent to a sale in satisfaction, if Clarke thought such a disposition of the land expedient, the terms being altogether in Clarke's discretion, and that assent being judicially given is not to be questioned.

Further Points in Favor of the Defendant.

I. By the Act of March 24, 1815, it was provided that Clarke should account annually to the Chancellor, or to such person as he might appoint, for the principal of the proceeds of each sale *made by him, and if on such [*526 return, or at any other time, and in any other manner, the Chancellor should be of opinion that Clarke had not duly performed the trust by that act reposed in him, he was authorized to remove Clarke from his said trust, and appoint another in his stead.

There is no proof in the case that the Chancellor ever removed Clarke, as he was bound to do, if he thought he had not duly performed his trust, or that the Chancellor ever disapproved of the sale to De Grasse, or of the consideration thereof. On the contrary, it appears from the offers of evidence made by the plaintiffs, that on the 31st of March, 1836, Clarke was still acting as trustee and making sales, and it is therefore a sound legal presumption, that the Chancellor approved of this conveyhad he disapproved of them, Clarke would have ance, and of Clarke's conduct generally; for been removed or enjoined, as the plaintiffs say he was, at the instigation of the children, at a later period.

The rules fixed by the Chancellor for Clarke's guidance, in regard to the valuation, and approval, and certificate of a master, in certain cases, were merely directory to the trustee, and not conditions precedent to the validity of the sale, and no omission can invalidate the exer525*] cise of Clarke's power given by *the act, nor of the deed to De Grasse given under it. Mineuse v. Cox, 5 Johns. Ch. 447, per Kent, Chancellor, in a closely analogous case. 2. But the legal estate being necessarily vested in Clarke, as already shown, the deed to De Grasse conveyed a title absolute in a court of law, whether the conditions of the trust had been complied with or not. The plaintiffs are estopped at law, though not in equity, from impugning a deed duly executed The Chancellor had been by the act, "virby the trustee, and their remedy for any sup- tually made the trustee of the property" (per posed fraud or breach of trust is in equity Jones, Ch., in Sinclair v. Jackson, 8 Cowen, alone. Taylor v. King, 6 Munf. 366, per 548, quoted and approved by Verplanck, SenRoane, J.; per Cowen, J., in Clarke v. Van Sur-ator, in Cochran v. Van Surlay, 20 Wend.

387), and the care and exactness exhibited in |itations of remainders in the alternative are the orders contained in the case forbid the im- lawful and valid. Luddington v. Kime, 1 Ld. putation of carelessness or neglect in his fulfill-Raym. 203.

An important act on the part of the trustees was required to be done, viz., the conveyance to the children in fee after the death of Thomas B. Clarke, or in the alternative to Clement C. Moore. The trust was therefore active, and not executed by the statute. Mott v. Buxton, 7 Ves. Jun. 201; Leonard v. Sussex, 2 Vern. 526.

V. By the Act of 1815, the legal estate in the three trustees named in the will was transferred to Thomas B. Clarke in trust.

ment of the important duties especially imposed III. The legal estate of the trustees was not upon him by the Legislature. He must be pre-executed by the statute of uses, by transferring sumed to have done his duty intelligently, "dil- it to the parties entitled to the equitable esigently, and faithfully, and that presumption tates and interest in fee. which forbids the supposition that the premises in dispute were disposed of fraudulently or improperly is to govern in this court until overthrown by positive proof to the contrary. Best on Presumption of law, 63, and cases cited; Co. Litt. 103 and 232, b; Dig. lib. 50, title 17; Sutton v. Johnstone, 1 Term Rep. 503; Cowen & Hill's notes to Phillips on Evid. 205, et seq. II. The conveyance to De Grasse was made IV. The legal estate in the hands of the trust29 March, 1822; this suit was commenced in ees involved *the power to lease, such [*528 1845. Although the marriage of Mrs. William-power being necessary for the production of son, in 1827, before the completion of her rents and profits of city property. Attorneyinfancy, has saved her from being barred by General v. Owen, 10 Ves. 560. the statutes of limitation, the singular and unexplained want of diligence and vigilance on the part of the plaintiffs in seeking to enforce their claims, if any they had, to these premises, until after the lapse of so many years of acquiescence and delay, and when the true state of the transaction has been forgotten, or become incapable of explanation, do not entitle them to the favorable consideration of the court; for they have slept upon their rights, and have thereby created a difficulty and imposed a hardship, misleading innocent parties 527*] by their silence. 2 Ball & Beat. 433; Hawley v. Cramer, 4 Cowen, 483, per Walworth, Ch.; Broadhurst v. Balguy, I Younge & Col. N. R. 16, 28 to 32; 2 Story's Equity, secs. 1284, 1520, and cases quoted in note c; Wendell v. Van Rensselaer, 1 Johns. Ch. 354, per Livingston, Ch.; Higginbotham v. Burnet et al. 3 Johns. Ch. 184, per Kent, Ch.; Roberts v. Tunstall, 4 Hare's Ch. R. 263, per Wigram, V. Ch.

1st. The language of the act shows an intention to transfer it, and not to confer upon him a mere power in trust.

2d. It is not necessary that words of grant should be found in the act. The intention to vest him with the legal estate may be collected from the context. Euchelah v. Welsh, 3 Hawks, etc., 155. It is unreasonable to suppose the legal estate was meant to be left in the original trustees under the will, after they were stripped of the trust, and when they had no beneficial interests.

3d. Under the second section of said act, all the rights and duties are conferred upon him which would have devolved upon the trustees under the Act of 1814, by the fifth section of which they were to lease from time to time, receive rents and profits, and do other acts requiring a legal estate.

III. The length of time which has elapsed 4th. A legal estate in trust may be implied since the conveyance to De Grasse, coupled with even in private instruments, when the acts to the fact that this very deed has been sustained be done are such as to render it proper and esby the court of last resort in the State of Newsential that the trustees should have the legal York, after prolonged litigation, will incline | estate, and not a mere trust power. Griffiths this court to give to the acts of the Legislature v. Smith, Moore, 753; Goodright v. Parker, 1 and the order of the Chancellor, in questions of Maule & Selw. 692; Doe v. Cundall, 9 East, doubt, the most favorable interpretation for the 400; Doe v. Gillard, 5 Barn. & Ald. 785; Anmaintenance of the title, and the protection of thony v. Rees, 2 Cromp. & Jerv. 75; Carter v. the rights of bona fide purchasers and incum- Barnardiston, 1 P. Wms. 505; Thong v. Bedbrancers. The best interests of society demand ford, 1 Bro. C. C. 313; Striker v. Mott, 2 Paige, that causes of action should not be deferred an 389; Brewster v. Paterson, Court of Appeals, unreasonable time, and this remark is peculiar- S. P., on this same will, in M. 5; Doe, ex dem. ly applicable to suits in ejectment, since noth-Breezeley v. Woodhouse, 4 Term. Rep. 89; Oates ing so much retards the growth and prosperity v. Cooke, 3 Burr. 1685.

of the country as the insecurity of titles. Per VI. The act devesting the trustees under the
McLean, J., Lewis v. Marshall, 5 Peters, 470; | will of the legal estate in trust was not uncon-
Per Marshall, Ch. J., in Bell v. Morrison, 1
Peters. S. C. 360.

Mr. Wood, for defendant:

I. The three trustees under the will of Mary Clarke took the legal estate in fee, in the premises in question, in part. Thomas B. Clarke took an equitable estate in said premises during his life; and his children took an equitable estate in remainder in fee; and Clement C. Moore took an alternate equitable remainder in fee, in case of failure of the issue of said Thomas B. Clarke.

II. Assuming Clarke to take a life estate with a limitation in remainder to his issue, such lim

stitutional.

1st. They had no beneficial interests. Their functions were under the control of equity; they were liable at any time to be removed by the Chancellor. Livingston v. Moore, 7 Peters, 469; Wilkinson v. Leland, 2 Peters, 267, 660.

2d. The Constitution protects only such contracts and vested rights`as are beneficial to the party, not such as are merely onerous.

3d. The objection could only be taken by the trustees themselves, and they assented to the acts displacing their estate and their functions. 2 Peters, 411, 413; Watson v. Mercer, 8 Ib. 88; Sinclair v. Jackson, 8 Cow. 543; Currie's Ad

m'rs v. Mutual Ins. Co. 4 Hen. & Mun. 315; | vested a legal estate in fee in Thomas B. Cochran v. Van Surlay, 20 Wend. 387. This last | Clarke, yet that the same acts imposed condi529*] mentioned case is conclusive *of the tions and restraints on his power of alienation; whole question, being the decision of the high-and that he could make no lawful or valid conest court of the State on a local law. veyance, without having first complied with these conditions and restraints.

It has not been decided that the Chancellor's 2d. The presumption of its being judicial orders in the case were legal, or within the juresults from the fact of its being conferred risdiction conferred upon him by the acts; but upon a high judicial officer, and the rights of it has been decided, that, if acting within his Clarke as life tenant and contingent remainder- jurisdiction, the propriety or legality of his orman, and the rights of the children in the pro-ders could not be examined into, collaterally, in ceeds of sales, and in the profits, required judi- a court of law. cial adjustment.

6th. Being judicial, the orders of the Chan- It has not been decided by the courts in New cellor are final and conclusive, and cannot be York, that, under and by force of the acts, T. impeached collaterally, though the proceeding B. Clarke took a fee-simple estate in the whole is of a summary character. Moody v. Thur- property. That question has not directly ston, Strange, 481; 1 Douglas, 407; 1 Harg. arisen. Chancellor Walworth, arguendo, exLaw Tracts, 446; 4 Greenleaf, 531; Henshaw v. pressed an opinion in favor of the affirmation Pleasance, 2 Bl. R. 1174, note showing the de-of that question. Chief Justice Bronson took cision overruled; Doe v. Brown, 3 East, 15; the negative of the question as a point conGrignon's Lessee, 2 Howard, 319. ceded.

Court, upon which the judges of that court | under the will of Mary Clarke, and vested the differed in opinion.

The suit is an action of ejectment, for the undivided third part of eight lots of land, in the sixteenth ward of the city of New York. The plaintiffs claimed under the will of Mary Clarke. It was admitted by the counsel for the defendant, that Mary Clarke had been seized of the premises in dispute, when she made her will, and when she died in 1802. It was also admitted, that the defendant was the actual | occupant of the premises when the suit was commenced against him.

whole estate in fee in Thomas B. Clarke.

2. Whether the authority given by the said acts to the trustee to sell, was a special power, to be strictly pursued, or whether he was vested with the absolute power of alienation, subject only to re-examination and account in equity.

3. Whether the orders set forth in the case, made by the Chancellor, were authorized by and in conformity to the said acts of the Legislature, and are to be regarded as the acts of the Court of Chancery, empowered to proceed as such in that behalf, or the doings of an officer acting under a special authority.

4. Whether the Chancellor had competent authority, under the acts, to order or allow such sale or conveyance of the estate by the trustee, as is stated in the case, on any other consideration than for cash paid on said conveyance.

5. Whether the deed executed by Thomas B. Clarke to George De Grasse, for the premises in question, being upon a consideration other than for cash paid on the purchase, is valid.

The premises are a portion of a tract of land, devised by Mary Clarke to "Benjamin Moore and Charity, his wife, and Elizabeth Maunsell, and their heirs forever, as joint tenants and not as tenants in common," of "all that part of my said farm at Greenwich aforesaid, called Chelsea," etc., "to have and to hold the said hereby devised premises, to the said Benjamin Moore and Charity, his wife, and Elizabeth Maunsell, and to the survivor or survivors of them, and to the heirs of such survivor, as joint tenants, and not as tenants in common, in trust, to receive the rents, issues, and profits thereof, and to pay the same" "to Thomas B. Clarke," etc., "during his natural life; and from and after the death of the said Thomas B. Clarke, in further trust, to convey the same in fee, to the lawful issue of the said Thomas B. Clarke, liv-viously mortgaged the premises in fee to Henry ing at his death. And if the said Thomas B. Clarke shall not leave any lawful issue, at the time of his death, then in the further trust and confidence, to convey the said hereby devised premises to my grandson, Clement C. Moore, and to his heirs, or to such person in fee as he may by will appoint, in case of his death, prior to the death of Thomas B. Clarke."

532*] *It was also admitted, that the trustees named in the will were dead; that Thomas B. Clarke married in 1803; that his wife died in 1815; and that he died in 1826, leaving three children-Catharine, the wife of Charles H. Williamson, plaintiffs in this suit; Isabella, now the wife of Rupert Cochran, and Bayard Clarke, all of whom were still living. Here the plaintiffs rested their case.

The defendant then put his case upon conveyances from Thomas B. Clarke, made, as he says, under legislative enactments of the State of New York and orders of the Chancellor of New York.

The acts and the orders of the Chancellor under them will be the subjects of our consideration only so far as may be necessary to give answers to the points certified to this court. In other words, we will not discuss the quantity of interest which the persons provided for in the devise took under it.

It is right, however, to say, that we concur with the learned judges of the Circuit Court, that, under the will of Mary Clarke, the firstborn child of Thomas B. Clarke, at its birth, took a vested estate in remainder, which opened to let in his other children to the like estate, as they were successively born; and that their vested remainder became a fee-simple absolute, in the children living, on the death of their father.

The points certified are as follows:

1. Whether the acts of the Legislature, stated in the case, devested the estate of the trustees

6. Whether the said deed is valid, [*533 it having no certificate indorsed thereon that it was approved by a master in chancery. 7. Whether Thomas B. Clarke, having pre

Simmons, had competent authority to sell and convey the same to De Grasse.

8. Whether the subsequent conveyance of the premises, as set forth in the case, made by George De Grasse, rendered the title of such grantee, or his assigns, valid against the plaintiffs.

It is thereupon, on motion of the plaintiffs by their counsel, ordered that a certificate of division of opinion, upon the foregoing points, which are here stated during this same term, under the direction of the said judges, be duly certified under the seal of this court to the Supreme Court of the United States, to be finally decided.

Our first observation upon the Act of April, 1814, is, that the first section of it gives to the Chancellor the power to appoint trustees, in the place of those named in the will. This is to be done upon the petition of Thomas B. Clarke, as contradistinguished from a suit by bill for such a purpose; and as occasion may require,. the Chancellor may substitute and appoint other trustees, in the room of these appointed under the act, in like manner as is practiced in chancery, in cases of trustees appointed therein. By the last section of the act, the trustees are said to be liable in all respects to the power and authority of the Court of Chancery, concerning the trusts created by the act.

It will be conceded by all, that the Court of Chancery, without this act, had not the power, under its inherent or original jurisdiction, to change the trustees summarily upon petition, or except by means of a bill filed by and against all proper parties, for such causes as trustees. may be removed in chancery.

The second, third, fourth, fifth, and sixth sections of the act, except the last clause in the sixth already cited, prescribe minutely what may be done by the trustees who might be appointed by the Chancellor, in relation to the