US SUPREME COURT DECISIONS

Under the statute of Maryland of 1798, c. 101, subch. 12, § 10, the Orphans' Court of the District of Columbia had authority to order a sale by a guardian of real estate of his infant wards for their maintenance and education, provided that before the sale its order was approved by the circuit court of the United States sitting in chancery.

The statute of Maryland of 1798, c. 101, sub-ch. 12, § 10, is not repealed by the Act of Congress of March 3, 1843, c. 87.

The authority of the Orphans' Court of the District of Columbia under the statute of Maryland of 1798, c. 101, sub-ch. 12, § 10, to order a sale of an infant's real estate for his maintenance and education is not restricted to legal estates or to estates in possession.

A testator devised all his real and personal estate to his widow for life, in trust for the equal benefit of herself and their two children or the survivors of them, and devised all the property remaining at the death of the widow to the children or the survivor of them in fee, and if both children should die before the widow, devised all the property to her in fee. Held that the widow took the legal estate in the real property for her life; that she and the children took the equitable estate therein for her life in equal shares, and that the children took vested remainders in fee, subject to be divested by their dying before the widow.

The minute book of a court of chancery is competent and conclusive evidence of its doings in the absence of an extended record.

Real estate devised to the testator's widow for life for the equal benefit of chanrobles.com-red

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herself and their two infant children, and devised over in fee to the children after the death of the widow, and to her if she survived them, was ordered by the Orphans' Court of the District of Columbia, with the approval of the circuit court of the United States sitting in chancery, to be sold, upon the petition of the widow and guardian, alleging that the testator's property was insufficient to support her and the children and praying for a sale of the real estate for the purpose of relieving her immediate wants and for the support and education of the children. Held, that the order of sale, so far as it concerned the infants' interests in the real estate, was valid under the statute of Maryland of 1738, c. 101, subch. 12, § 10.

An order of the Orphans' Court of the District of Columbia, approved by the circuit court of the United States sitting in chancery, under the statute of Maryland of 1738, c. 101, sub-ch. 12, § 10, for the sale by a guardian of real estate of his infant wards for their maintenance and education, cannot be collaterally impeached for want of notice to the infants or of a record of the evidence on which either court proceeded, or of an accounting by the guardian for the proceeds of the sale.

This was an action of ejectment, brought December 12, 1882, by Columbus Thaw against Maria Ritchie to recover possession of an undivided half of lots 1 and 4 in square 160 in the City of Washington. At the trial on the general issue, before Chief Justice Cartter, the plaintiff introduced evidence that his father, Joseph Thaw, died in 1840, seised and possessed of these lots under a title derived from the United States and leaving a will, dated February 26, 1840, and duly admitted to probate in the same year, which, omitting the formal commencement and conclusion, was as follows:

"Imprimis. I hereby appoint and constitute my beloved wife, Eliza Van Tyler Thaw, to be the guardian of my two youngest children, to-wit my daughter Columbia Thaw, and my son Columbus Thaw, and to act in trust for them in all things as fully as I would do if living."

"Item. I give and bequeath to my said beloved wife, Eliza, all my property of every description, real and personal, to hold and enjoy during her natural life in trust for the equal benefit and maintenance of herself and of my daughter Columbia and of my son Columbus, the two children above named, and, if either of them shall die before arriving at the age of majority, then she is to hold the whole property as above for

Page 136 U. S. 521

the equal benefit of herself and the survivor of the two above-named children, or if both of the said children shall die before their mother, my said wife, then she, my said wife Eliza, shall hold the said property during her natural life for her sole own use and benefit, and in no case shall she, my beloved wife Eliza, be deprived of the use of any part thereof during her natural life for the maintenance of herself and of the two children aforesaid while they or either of them shall live, or of herself while she shall survive them both."

"Item. I give and bequeath to my two children above named, Columbia and Columbus, in equal parts, to their heirs and assigns, forever, all my estate, real and personal, that shall remain at and after the death of their mother, my said wife, Eliza, or if either of them shall not survive their mother, then I will that the surviving one shall have the whole."

"Item. If both of my said children shall die before their mother, then, on the demise of the last survivor of them, I give and bequeath to my beloved wife, Eliza, to her heirs and assigns forever, for her own proper benefit, all my estate of every description. I do, moreover, hereby constitute and appoint my beloved wife, Eliza Van Tyler Thaw, above named, the sole executrix of this, my last will and testament, and authorize her to administer and execute the same without giving security in any way whatever."

The plaintiff also introduced evidence tending to show that his mother, Eliza V. Thaw, died in February, 1866, and for the purpose of showing a severance of the joint tenancy claimed to have existed between himself and his sister Columbia Thaw in these lots, put in evidence a deed dated May 16, 1848, from his sister and one Henry Walker, of their interest in these lots to Agricol Favier; a deed, dated October 22, 1874, from a trustee appointed in a suit in equity for the partition of Favier's real estate after his death, purporting to convey the whole of these lots to one Ingersoll; a deed of the lots, dated May 24, 1878, from Ingersoll to Mary J. France, and the will of Mrs. France, admitted to probate in January, 1881, devising all her real estate to the defendant. chanrobles.com-red

Page 136 U. S. 522

It was admitted that the real estate sought to be recovered was worth more than $12,000, and that the defendant was in possession thereof, claiming title adversely to the plaintiff. The defendant claimed title under a deed of the two lots to Favier from Eliza V. Thaw, dated March 17, 1848, purporting to be executed pursuant to an order of sale made, upon her petition, by the Orphans' Court for the County of Washington, in the District of Columbia, and approved by the circuit court of the United States of the District of Columbia, sitting as a court of chancery. In support of this defense, the defendant offered in evidence, and the court admitted, against the objection and exception of the plaintiff, the following maters:

(1) From the office of the Supreme Court of the District of Columbia, a book entitled "Chancery Rules No. 4," of its predecessor, the Circuit Court of the United States of the District of Columbia, containing this entry:

"No. 344. Eliza V. Thaw, guardian, to Columbus and Columbia Thaw, infant children of Jos. Thaw, dec'd. Petition, exhibit, decree of orphans' court. 1844, Oct. 12. Decree affirming decree of orphans' court."

(2) From the same office, the only paper on file there in said case No. 344, certified by E. N. Roach, Register of Wills, under date of April 29, 1844, to be "a true copy from an original filed and recorded in the office of the register of wills for Washington County aforesaid," and consisting of a petition addressed to the judge of the orphans' court for that county, dated March 29, 1844, signed by Eliza V. Thaw, and having annexed to it a certificate of a justice of the peace to her oath that "the facts contained in the within petition are true, to the best of her knowledge and belief," together with the order of the orphans' court thereon, which petition and order were as follows:

"To the Hon. N. P. Causin, Judge of the Orphans' Court of Washington County:"

"The petition of the subscriber respectfully represents that she has paid all the debts due by her deceased husband, Joseph Thaw, and that the property left by the deceased is insufficient to support her and the children provided for in the

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will of the deceased, and a portion of the estate belonging to the deceased consists of two vacant and unimproved lots of ground situate, lying, and being in the City of Washington, in the District of Columbia, to-wit, lots numbers one and four, in square number one hundred and sixty. Your petitioner respectfully prays that the court will deem it expedient and cause the said lots to be sold for the purpose of relieving the immediate wants of the petitioner, and for the support and education of the children named in the will of the said Joseph Thaw, deceased, and that an order may be granted for the sale thereof at as an early a day as practicable, and, as in duty bound, will ever pray &c."

"29th March, 1844 ELIZA V. THAW"

"Orphans' Court of Washington, D.C."

"In the case of the petition of Eliza V. Thaw, executrix and guardian to Columbia and Columbus Thaw, minor children of Joseph Thaw, deceased. This case coming on to be heard in the orphans' court on the petition, exhibits, accompanying proofs, and representation of said Eliza V. Thaw, in her capacity as guardian and executrix aforesaid, the same were by the court read and duly considered, and thereupon it is by the said court, this 29th day of March, 1844, ordered, adjudged, and decreed, provided that the Circuit Court of the District of Columbia for the County of Washington, sitting as a court of chancery, shall, by its proper order in the premises, approve thereof, that the said guardian, for the petitioner's minor children of said Joseph Thaw and herself, be, and she is hereby, authorized and empowered to sell the said real estate mentioned in said petition at public or private sale, after such notice by advertisement as she shall deem reasonable and sufficient, on the following terms, viz., either for cash or on credit at the option of the said guardian, and on the full payment of the purchase money and interest, and on the ratification of the sale by this Court, to execute to the purchaser, his heirs or assigns at his or their cost and request, a valid and sufficient deed of conveyance in fee simple of the said premises, with all the right and estate therein of the said

Page 136 U. S. 524

Columbia and Columbus Thaw, minor children aforesaid, provided that the said guardian, before proceeding to act hereunder, shall file with the register of wills her bond, with security, to be approved by the judge of this court, in the penalty of seven hundred and fifty dollars, with the usual condition for the due and faithful performance of the trust reposed in her as guardian of said children, and immediately after making said sale to report the same under oath to this Court."

"NATH'L POPE CAUSIN"

(3) Certified copies of two bonds, each executed by Eliza V. Thaw as principal, and Henry Walker and John Walker as sureties, to the United States.

One of these bonds, dated March 22, 1844, was in the penal sum of $725, and upon the condition that if

"the above-bounden Eliza Van Tyler Thaw, as guardian to Columbia and Columbus Thaw, orphans of Joseph Thaw, of Washington County, deceased, shall faithfully account with the Orphans' Court of Washington County, as directed by law, for the management of the property and estate of the orphans under her care, and shall also deliver up the said property agreeably to the order of the said court or the directions of law, an shall in all respects perform the duty of guardian to the said Columbia and Columbus Thaw, according to law, then the above obligation will cease. It shall otherwise remain in full force and virtue in law."

The other bond, dated May 17, 1845, was in the penal sum of $750, and upon this condition:

"Whereas Eliza V. Thaw, by a decree of the Orphans' Court of Washington County aforesaid, and confirmed by an order of the Circuit Court of the District of Columbia for the County of Washington aforesaid, has been appointed trustee to sell the real estate of the late Joseph Thaw, mentioned in said order, for the support and maintenance of Columbia and Columbus Thaw, minors, as will more fully appear by the said decree, reference being thereto had, now the condition of the above obligation is such that if the above-bounden Eliza V. Thaw do and shall

Page 136 U. S. 525

well and faithfully perform the trust reposed in her as trustee aforesaid by the said decree, or that may be reposed in her by any further decree or order in the premises, then the above obligation to be void; otherwise in full force and virtue in law."

(4) A book of records from the office of the Register of Wills for the District of Columbia, entitled "Guardians' Docket No. 2," containing numerous entries relating to proceedings of guardians in the orphans' court from 1818 to 1860, but no proceedings of the court relating to the sale of real estate, and the only entry in which relating to Eliza V. Thaw's guardianship was as follows:

"Eliza V. Thaw, guardian to Columbia and Columbus Thaw, orphans of Jos. Thaw. Bond, March 22, 1844, $725; H'y Walker, Jno. Walker, sureties. Trustee bond, 17 May, 1845, $750; H'y Walker, E. Walker, sureties."

(5) Another book of records from that office entitled "Liber E.N.R. No. 2, Proceedings 1846 to 1861," the entries in which appeared to be consecutive, and which was the only record in that office of proceedings between those dates relating to sales of real estate, and was made by binding up loose scraps of paper in the handwriting of E. N. Roach, register of wills during those years, previously kept in portfolios, and contained the only record to be found in the office relating to the real estate of Joseph Thaw, namely, among the proceedings of the orphans' court on Friday, January 21, 1848, the following: "Sale of real estate of Jos. Thaw, dec'd, filed. Order of approval filed" (or "for," the last word being indistinct and uncertain).

(6) Testimony of the Assistant Clerk of the Supreme Court of the District of Columbia and of persons who had served or had made searches in the registry of wills that there was great confusion in the records, both of the Circuit Court of the United States of the District of Columbia and of the orphans' court, before the organization of the Supreme Court of the District of Columbia in 1863, under Act of March 3, 1863, c. 91, 12 Stat. 762.

(7) Docket entries in a great number of other cases on the chanrobles.com-red

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chancery side of the Circuit Court of the United States of the District of Columbia before and after October 12, 1844, and between 1823 and 1863, and on the equity side of the Supreme Court of the District of Columbia between 1863 and July 8, 1865, showing that the practice and forms of proceeding in such cases during those periods were similar to the practice in said case No. 344, and also many later cases in the orphans' court before 1881, in which the practice and forms of proceeding were similar.

(8) The deed executed by Eliza V. Thaw to Agricol Favier, dated and acknowledged March 17, 1848, and recorded March 7, 1867, containing this recital:

"Whereas, a decree was passed on the twenty ninth day of March, in the year one thousand eight hundred and forty-four, by the Orphans' Court for the County of Washington, in the District of Columbia, upon the petition of Eliza V. Thaw, guardian of her infant children Columbus and Columbia Thaw, and whereas the said Eliza V. Thaw was thereby appointed a trustee to sell lots numbered one and four, in square one hundred and sixty, in he City of Washington, which decree was on the twelfth day of October, in the year one thousand eight hundred and forty-four, confirmed by the Circuit Court for the County of Washington, sitting as a court of chancery, and the said Eliza V. Thaw having, in conformity with said decree, filed a bond with sureties, which was approved by the said orphans' court, and having, in like conformity with said decree, sold said lots above mentioned, and reported the same to said court, which report was by said court, on the twenty-first day of January, in the year one thousand eight hundred and forty-eight, duly approved, ratified, and confirmed, and whereas, the said Agricol Favier was the purchaser of said lots from her, the said Eliza V. Thaw, the trustee as aforesaid, under the power vested in her by the said decree."

By the terms of this deed,

"The said Eilza v. Thaw, for and in consideration of the sum of _____, lawful money of the United States, to her in hand paid by the said Agricol Favier at or before the sealing and delivery of these presents, the receipt

Page 136 U. S. 527

whereof is hereby acknowledged,"

conveyed to Agricol Favier, in fee, these two lots,

"and all the estate, right, title, interest, claim, and demand whatsoever, legal and equitable, of her, the said Eliza V. Thaw, as guardian and trustee as aforesaid, and as well as in her own right as of the said infant children, Columbus and Columbia Thaw, to the same."

(9) A deed of partition of other lands between the plaintiff and his sister Columbia, dated March 1, 1871, which recited that "their said mother, after disposing of the real estate acquired by said will, and investing the proceeds thereof in other real estate," died intestate.

The plaintiff requested the court to instruct the jury as follows:

"1st. Under Joseph Thaw's will, during the life of Mrs. Thaw, his widow, she held the legal title to the real estate devised thereby for her life, in trust for herself and the two children, Columbia and Columbus, according to the terms prescribed in the will. The interest which Columbus Thaw took in the real estate under his father's will during the life of his mother was a remainder in fee after the termination of her life, and was not an estate in possession until after the death of his mother. The orphans' court had no power during Mrs. Thaw's life to decree the sale of the estate in remainder of Columbus Thaw. Her deed therefore purporting to convey said estate is void."

"2d. The Maryland act of 1798, chapter 101, subchapter 12, § 10, did not apply to remainders, and such estates of infant's were not subject to sale on petition of the guardian to the orphans' court, with the approval of the court of chancery, as provided in said act."

"3d. The alleged entry in the records of the orphans' court, purporting to be of the date of January 21, 1848, in these words: 'Sale of real estate of Jos. Thaw, dec'd, filed. Order of approval for' is indefinite, uncertain, and insufficient to authorize Mrs. Thaw's deed, inasmuch as it does not state what sale, or what real estate was sold, nor by whom, to whom, or for what consideration the sale was made, and inasmuch as no report of sale is shown, and no guardian's account, and no

Page 136 U. S. 528

record evidence of any payment whatever, and the deed itself does not recite any consideration."

"4th. The act of Congress of March 3, 1843, entitled 'An act to provide in certain cases for the sale of the real estate of infants within the District of Columbia,' repealed the Maryland act of 1798 so far as concerned the sale of the real estate of infants, and since that act of Congress was passed, the real estate of infants could only be sold upon a bill filed therefor as prescribed by said act of Congress, and, as no such bill was filed in reference to the real estate in question, the deed of Eliza V. Thaw to Agricol Favier did not convey the interest of Columbus Thaw therein."

"5th. The Orphans' Court of the District of Columbia at the date of the proceedings therein relating to the sale of the real estate by Eliza V. Thaw, guardian, was one of limited jurisdiction, and a party claiming title to real estate under its proceedings must show affirmatively that it had jurisdiction, and, that not having been shown in this case, the deed from Mrs. Thaw to Agricol Favier did not convey the interest of the plaintiff in the real estate in question."

But the court refused so to instruct the jury, and directed a verdict for the defendant. A verdict and judgment were rendered accordingly, and the plaintiff excepted to the refusal and direction.

The court in general term, Justices Hagner and James sitting, reversed the judgment for the reasons stated in an opinion delivered by Mr. Justice Hagner and reported in 4 Mackey 347, 358-390. Upon the defendant's petition, a reargument was ordered before the whole court, and the original judgment was affirmed for the reasons stated in the opinion delivered by Mr. Justice Cox and reported in 5 Mackey 200-228, Mr. Justice Hagner dissenting. The plaintiff sued out this writ of error. chanrobles.com-red

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