The following words in a will, viz.:
"I give and bequeath unto my brother, E. M., during his natural
life, 100 acres of land. In case the said E. M. should have heirs
lawfully begotten of him in wedlock, I then give and bequeath the
100 acres of land aforesaid, to him, the said E. M., his heirs and
assigns forever; but should he, the said E. M., die without an heir
so begotten, I give, bequeath, devise, and desire that the 100
acres of land aforesaid, be sold to the highest bidder, and the
money arising from the sale thereof, to be equally divided amongst
my six children,"
give to E. M. only an estate for life, and not a fee simple
Under the statute of Maryland, passed in 1785, 1 Maxey's Laws,
chap. 72, the chancellor can decree a sale of land upon the
application of only a part of the heirs interested; and as he had
jurisdiction, the record must be received as conclusive of the
The decree of the chancellor must be construed to conform to the
sale prayed for in the petition, and authorized by the will; and a
sale beyond that is not rendered valid by a final ratification.
A sale ordered by a court, in a case where it had not
jurisdiction, must be considered as inadvertently done, or as an
unauthorized proceeding, and in either branch of the alternative,
as a nullity.
This was an ejectment for 100 acres of land, lying in Alleghany
County in that state.
The plaintiff, who was also plaintiff in the court below,
claimed title under a sheriff's sale, but the opinion of the court,
upon a case stated, being against him, he brought it up to this
The facts were as follows:
In 1789, Zachariah Magruder was in possession of a tract of land
called George's Adventure, containing 456 acres. His title was
admitted, upon all sides, to be good.
In that year he made his will, which contained the following
Page 43 U. S. 44
to his wife:
"I also give to my said beloved wife the full use of my dwelling
plantation, containing in the whole, cleared and uncleared, after
the legacy hereafter given is taken out, about 356 acres, called
George's Adventure, to be by her peaceably and quietly possessed
and enjoyed without molestation during her natural life."
After sundry other bequests, he goes on to say:
"Item. -- I give and bequeath unto my brother, Elias Magruder,
during his natural life, 100 acres of land, being part of a tract
of land called George's Adventure, lying and being in Washington
County, and state aforesaid, to be laid off at the upper end of the
tract aforesaid, so as to include the plantation whereon he now
lives. In case the said Elias Magruder should have heirs lawfully
begotten of him in wedlock, I then give and bequeath the 100 acres
of land aforesaid to him, the said Elias Magruder, his heirs and
assigns, forever; but should he, the said Elias Magruder, die
without an heir so begotten, I give, bequeath, devise, and desire,
that the 100 acres of land aforesaid be sold to the highest bidder,
and the money arising from the sale thereof to be equally divided
among my six following children, to-wit, Samuel Beall Magruder,
William B. Magruder, Richard Magruder, Josiah Magruder, Norman
Bruce Magruder, and Nathaniel Beall Magruder."
"Item. -- I devise, give, bequeath, and desire, that the
remaining part of my land, called George's Adventure, being about
356 acres, lying and being in Washington County, and state
aforesaid, to be sold to the highest bidder, by and at the
discretion of my executrix and executor hereafter named, and the
money arising from such sale to be divided equally amongst my six
sons, to-wit: Samuel Beall Magruder, William Beall Magruder,
Richard Magruder, Josiah Magruder, Norman Bruce Magruder, and
Nathaniel B. Magruder."
After some further provisions, the testator appointed his wife
and son executrix and executor.
In 1796, Zachariah Magruder died, and his brother Elias took
possession of the 100 acres, which were laid off agreeably to the
directions of the will. The title of the defendants is derived
wholly from Elias Magruder, who conveyed the 100 acres to David
Lynn, their ancestor, in fee simple in 1806.
In 1805, four of the six children mentioned in the will, filed a
petition in the high Court of Chancery of Maryland, stating that
the executrix was dead; that the letters testamentary which had
been granted to the executor had been revoked; that no sale of the
Page 43 U. S. 45
estate had been made; that the testator devised that the
remaining part of his land called George's Adventure, being about
356 acres, should be sold to the highest bidder, and the money
equally divided amongst his six children, including the
petitioners. The petition prayed the court to grant them relief, by
appointing a trustee to sell all the property devised to be sold,
and apply the proceeds to the purposes directed by the will.
The chancellor granted the prayer, and decreed that the real
estate directed to be sold in the will, should be sold, and
appointed a trustee in the usual way.
The decree ran thus:
"That Roger Perry be, and he is hereby appointed trustee for
making the said sale, and that the course and manner of his
proceedings shall be as follows: he shall first file with the
register of this Court a bond executed by himself and a surety or
sureties approved by the chancellor,"
The decree was passed at December session, 1805.
On 10 March, 1806, Elias Magruder conveyed to David Lynn, as has
been already stated, the 100 acres of land upon which he, Elias,
On 22 March, 1806, the trustee proceeded to sell the 356 acres
mentioned in the will, stating in his report that he excepted the
100 acres devised to Elias Magruder, saying, "The 100 acres, part
of said tract devised to be sold in case Elias Magruder should die
without heirs, as expressed in the will, still remains unsold."
The report passed through the regular process, and was finally
ratified in June, 1807, the net proceeds of sale being equally
amongst the six children of Zachariah Magruder.
At some period prior to 1 January, 1812, Elias died unmarried,
not having at the time of his decease nor ever having had any heir
or issue begotten by him in wedlock.
On 15 February, 1812, the trustee proceeded to sell, as he said
in his report,
"all the remaining part of the real estate of Zachariah
Magruder, deceased, consisting of 100 acres of land, part of a
tract of land called George's Adventure, it being that part devised
to Elias Magruder,"
when Walter Slicer became the highest bidder and purchaser.
This report was finally ratified in February, 1813, and, in
August, 1813, the trustee executed a deed to Slicer, describing the
100 acres by the same metes and bounds by which they had been
originally located when Elias Magruder took possession under the
Page 43 U. S. 46
In October, 1817, one Arnold, for the use of David Shriver Jr.
the lessor of the plaintiff in this cause, and one Lamar, for
himself, brought suits against Slicer in the County Court of
Alleghany County, and in February, 1818, one Evans, also for the
use of Shriver, brought suit against Slicer in the same court.
The defendant in the present case relying, as a ground of
defense, upon an outstanding title existing in Lamar or his heirs
under these proceedings, and the plaintiff resting his title wholly
upon them, their progress is exhibited in a tabular form, showing
the history of each one, up to the consummation by a sale of the
100 acres now in dispute.
Page 43 U. S. 47
In 1827, Shriver, the purchaser under the two elder judgments,
brought suit in the circuit court of the United States, he being at
that time a citizen of Virginia, against David Lynn, the assignee
of Elias Magruder, as already stated.
In 1836, the death of David Lynn was suggested and his devisees
In 1839 a verdict was found for the plaintiff subject to the
opinion of the court upon a case to be stated; upon which case,
when stated, the opinion of the court below was in favor of the
defendants and judgment rendered accordingly. To review this
opinion, the writ of error was sued out.
It was agreed at the trial of the cause,
"that the court might, in deciding this case, presume from the
aforesaid proceedings in chancery any fact which they would direct
a jury to presume from said proceedings. "
Page 43 U. S. 53
MR. JUSTICE McLEAN delivered the opinion of the Court.
An action of ejectment was commenced by the lessor of the
plaintiff to recover the possession of 100 acres of land, part of
the tract called George's Adventure, situated near the Town of
Cumberland. In the circuit court, a verdict was found for the
plaintiff, subject to the opinion of the court upon a case stated.
A judgment was entered for the defendant, and the cause is now
before us, on the facts agreed.
By his last will and testament, Zachariah Magruder, a citizen of
Maryland, among other things, devised to his wife Sarah,
"the full use of his dwelling-plantation, containing in the
whole, after a certain legacy was deducted, about 356 acres, called
George's Adventure, in Washington County; to be by her peaceably
and quietly possessed and enjoyed without molestation, during her
The will also contained the following,
"I give and bequeath unto my brother, Elias Magruder, during his
natural life, 100 acres of land, being part of a tract of land
called George's Adventure, lying and being in Washington County,
and state aforesaid; to be laid off at the upper end of the tract
aforesaid, so as to include the plantation on which he now lives.
In case the said Elias Magruder should have heirs lawfully begotten
of him in wedlock, I then give and bequeath the 100 acres of land
aforesaid to him, the said Elias Magruder, his heirs and assigns,
forever; but should he, the said Elias Magruder, die without an
heir so begotten, I give, bequeath, devise, and desire, that the
100 acres of land aforesaid be sold to the highest bidder, and the
money arising from the sale thereof be equally divided among my six
following children, to-wit: Samuel,"
&c. The testator having died, proof was made of his will,
and letters testamentary were granted, 3 May, 1796, to Sarah
Magruder his wife and his son Nathaniel B. Magruder, named as
executrix and executor in the will.
After the decease of the testator, Elias Magruder took
Page 43 U. S. 54
of the 100 acres of land devised to him, and being so in
possession he conveyed the tract to David Lynn, who devised the
same to the present defendants.
On 30 December, 1805, Samuel B. Magruder and three other
brothers, sons of Zachariah Magruder, filed their petition to the
Chancellor of Maryland, representing that their father after making
particular dispositions of property, devised that the remaining
part of his lands, called George's Adventure, being about 356
acres, should be sold to the highest bidder, by and at the
discretion of his executrix and executor, and the money equally
divided amongst his six children, including the petitioners.
The petitioners stated that the executrix was deceased, and that
Nathaniel B. Magruder, being insolvent, at the instance of his
sureties, his power as executor had been revoked by the orphan's
court. And the petitioners prayed that a trustee might be appointed
"to sell all the property devised to be sold by the will, and such
other and further relief," &c. The will was filed as an
On the day of filing the petition, the chancellor decreed
"That the real estate in the said will directed to be sold shall
be sold; that Roger Perry be appointed trustee, who shall give bond
in $2,000, conditioned for the faithful performance of the trust
reposed in him by the decree, or to be reposed in him by any future
decree or order in the premises, and that he shall proceed to
Afterwards on 22 May, 1806, the trustee reported that he "had
sold the real estate in the said will and decree mentioned," and
had made distribution &c. At the close of his report he says,
"the 100 acres, part of the said tract devised to be sold in case
Elias Magruder should die without heirs, as expressed in the will,
still remains unsold." The sale was ratified by the chancellor.
And afterwards, on 9 June, 1812, the trustee made a second
report, that he "had sold the remaining part of the real estate of
Zachariah Magruder, deceased, consisting of 100 acres of land,"
&c. This sale was also ratified by the chancellor, and a deed
was executed to Walter Slicer, the purchaser. In the year 1818, a
judgment was obtained against Walter Slicer, and two others in the
year 1819. On one of the junior judgments execution was issued,
under which the land in question was sold to Lamar. On the other
junior judgment, obtained at the same term, an execution was
issued, and the same tract was sold, after the above sale, to David
Page 43 U. S. 55
the lessor of the plaintiff. He also purchased, subsequently,
the same tract under the prior judgment.
The first question for consideration arises out of the devise,
in the will, to Elias Magruder. Did he take a life estate only, or
a fee simple? That he took an estate in fee simple conditional in
the 100 acres, is urged by the defendants' counsel. And a statute
of Maryland of 1786, entitled "an act to direct descents," 2
Ketty's Laws, ch. 45, which provides that lands held "in fee simple
or fee simple conditional, or in fee tail to the heirs of the body
generally," shall descend in the same manner, is relied on as
giving a fee simple to the devisee. Under this statute, it must be
admitted, whether the estate vested be technically considered a fee
tail general or a conditional fee simple, in effect, it is a fee
In 1 Inst. 20 s., it is said that
"All limitations confined to the heirs of the body, either by
direct or circuitous expression, and which are not estates tail
under the statute de donis,
remain conditional or
qualified fees at the common law. A gift of land to a man and his
heirs generally, if he shall have heirs of his body, without any
other expression to qualify the words heirs of his body, is a
Fleta, b. 3, c. 9, 136. And in Plowd. 233, it is said,
"and the Lord Dyer in his argument took exception to the
ratification, for that it confesses the estate tail in King Henry
VII, and then says that he having issue, Prince Arthur, entered and
was seized in fee, whereas, he said, the having issue did not make
him to have the fee, for the fee either accrued to him by the
remainder or never."
The same doctrine is found in page 250; Machell v.
2 Ld.Raym. 778. By the statute de donis, Westm. 2, 13
Edw. 1, a fee simple conditional estate at common law, in certain
cases, was converted into a fee tail which, by alienation, the
ancestor could not change.
The estate under consideration, it is insisted, is a conditional
fee simple, or in other words that the fee vested is liable to be
defeated on the failure of heirs as provided in the will. On the
other side it is argued that the condition was a precedent one,
which must happen before the fee vested. The doctrine above cited
seems to favor the first of these positions, as also does the rule
in Shelly's Case.
By that rule, "in any instrument, if a
freehold be limited to the ancestor for life, and the inheritance
to his heirs, either mediately or immediately, the first taker
takes the whole estate." This rule had its origin in feudal times,
and was perhaps in no small degree influenced by considerations
which have long since ceased to exist.
Page 43 U. S. 56
The rule, Mr. Preston says, 1 Pres. on Estates 369,
"is of positive institution, and has this circumstance of
peculiarity and variance from rules of construction. . . . Instead
of seeking the intention of the parties and aiming at its
accomplishment, it interferes in some, at least, if not in all
cases, with the presumable, and in many instances, the express
intention. . . . In its very object, the rule was leveled against
the views of the parties."
That this effect has been given to the rule by some
adjudications is admitted. But there is a rule of construction
applicable to all instruments, and especially to wills -- that is,
the intention of the parties, which should control any arbitrary
rule however ancient may be its origin. And of this opinion was
Lord Mansfield in Perrin v. Blake,
4 Burr. 2579. He says,
"the rule is not a general proposition, subject to no control,
where the intention is on the other side, and where objections may
be answered." And he agreed, as Mr. Preston remarks, with Justices
Wilmot and Aston, that "the intention is to govern, and that
does not constitute a decisive
uncontrollable rule." Mr. Justice Buller, in the case of
Hodgson v. Ambrose,
Doug. 337, was of the same opinion,
and also Lord Hardwicke, in Bagshew and Spencer,
583. Where technical words are used in a deed of conveyance, the
legal import of such words must govern. But there is no rule better
established than that in giving a construction to a will, the
intention of the testator must prevail. His expressed intention
constitutes the law unless it shall conflict with some established
legal principle. Under this rule, the nature and extent of the
estate devised to Elias Magruder must depend upon the words of the
In the first clause of the devise, a life estate is clearly
given to him. "I give and bequeath unto my brother, Elias Magruder,
during his natural life, 100 acres of land," &c. The second
clause of the devise is equally explicit.
"In case the said Elias Magruder should have heirs lawfully
begotten of him in wedlock, I then give and bequeath the 100 acres
of land aforesaid, to him, his heirs and assigns, forever."
Now the condition of having heirs as above expressed is clearly
a precedent condition, and must happen before the estate vests. And
if any doubt could arise from the above sentences whether the
testator intended to vest in Elias more than a life estate, that
doubt must be dispelled by the succeeding sentence,
"But should he, the said Elias Magruder, die without an heir so
begotten, I give, bequeath, devise and desire that the 100 acres of
land aforesaid be sold to
Page 43 U. S. 57
the highest bidder, and the money arising from the sale thereof
to be equally divided among my six children."
It would be difficult to convey in more explicit language than
is done in the above sentences the intention of the testator. He
gives a life estate and then, on the happening of the contingency
named, he gives an estate to the devisee and his heirs in fee
simple, but should the contingency not happen he directs the land
to be sold and the proceeds distributed among his children. No
other conclusion can be arrived at on this view of the will than
that Elias Magruder took only a life estate in the land. His
conveyance therefore could transfer no interest in the land beyond
his own life.
The next question regards the title under the proceedings before
These proceedings were by virtue of "an act of 1875, for
enlarging the power of the High Court of Chancery." 1 Maxcy's Laws,
ch. 72, sec. 4, which provides,
"That if any person hath died or shall die leaving real or
personal estate to be sold for the payment of debts or other
purposes, and shall not by will or other instrument in writing
appoint a person or persons to sell or convey the same property, or
if the person or persons appointed for the purpose aforesaid shall
neglect or refuse to execute such trust, or if such person or
persons or any of them shall die before the execution of such
trust, so that the sale cannot be made for the purposes intended,
in every such case the chancellor shall have full power and
authority, upon application or petition from any person or persons
interested in the sale of such property, to appoint such trustee or
trustees for the purpose of selling and conveying such property,
and applying the money arising from the sale to the purposes
intended, as the chancellor shall in his discretion think
An objection is made to these proceedings in limine
the ground that only a part of the heirs interested, united in the
application to the chancellor. But this objection is not
sustainable. The petition was for the benefit of all the heirs, and
the statute does not require that all shall unite in the petition.
"Any person or persons interested" may apply to the chancellor.
Whether applicants or not, all the heirs equally participated in
the results of the proceedings, and this is a sufficient answer to
any technical objection.
But the main point under this head is whether the sale of the
100 acres now in controversy was of any validity.
That the proceedings before the chancellor constituted a suit
Page 43 U. S. 58
admitted, and also that they are conformable, at least in part,
to the mode of procedure in such cases. The chancellor had
jurisdiction of the cause, as presented by the petition; and this
being the case, no advantage can be taken of errors, however gross,
when the record is used collaterally. If a want of jurisdiction
appear on the face of the record, the judgment or decree will be
treated as a nullity. But where there was the jurisdiction, the
record must be received as conclusive of the rights adjudicated. No
fact established by the judgment of the court can be controverted.
In the language of this Court in the case of Voorhees v. Bank of the
10 Pet. 450, the record imports
absolute verity. But when a judgment or decree is given in
evidence, its nature and effect can only be ascertained by an
examination of the record. Let this test be applied to the
proceedings of the chancery court under consideration.
It is admitted, and the fact appears from the record, that at
the time these proceedings were instituted, Elias Magruder was
living and continued to live for seven years afterwards. And as he
had a life estate in the premises in controversy, and the
contingency on which the estate was to vest in his heirs, being
possible, during his life, the land was not subject to sale under
the will. It could only be sold on the devisee's failure to have
heirs, which could not occur before his decease.
The petition asks an order to sell the remaining part of the
tract called George's Adventure, a part of it having been devised,
containing about 356 acres. The sale of the 100 acres, now in
contest, was not asked and indeed could not be, as the tract at
that time was not liable to be sold. The decree ordered, "that the
real estate in the said will directed to be sold should be sold."
Now this decree could only apply to the 356 acres named in the
petition, for the reason that the sale of that tract only was
prayed for, and it was the only tract, at that time, which the will
authorized to be sold. In the language of the decree, it was the
real estate directed by the will to be sold.
To construe the decree as embracing the 100 acres tract, would
go beyond the prayer of the petition and the jurisdiction of the
court. One of the trustees named in the will was deceased, and the
other, being insolvent, had been removed by the orphan's court. The
substitution of a new trustee gave to him no power beyond the
special order of the court. Under the statute it seems not to
Page 43 U. S. 59
been the practice of the court to appoint a trustee generally,
to carry into effect the will; but to point out by a specific
decree what he shall do and the mode of doing it. His duties being
limited by the decree, he is made the instrument of the court,
having no discretion or power under the will. Consequently, in his
decree, the chancellor required the trustee to give security, and
directed him what notice should be given, and in what manner the
sale should be made. This mode of executing the act was clearly
within the discretion of the chancellor, specially given to him in
the close of the above section. The rule was made and ratified by
the chancellor. A deed was executed by the trustee to the
purchaser, and nothing further was done until in June, 1812, when
the trustee made a second report, that in pursuance of the above
decree, after giving public notice, "he had sold to Walter Slicer,
the remaining part of the real estate of Zachariah Magruder,
deceased, consisting of the 100 acres devised to Elias
Now it is clear that this sale was not made in pursuance of the
decree. Neither in the petition nor in the decree was the tract of
100 acres named or referred to. This proceeding then, by the
trustee, was without authority. It could derive no sanction from
the decree. From the record is would seem that there had been no
continuance of the cause for six years, and no step taken in it.
The second report is then made by the trustee as stated. This
report was ratified and confirmed "unless by a given day cause to
the contrary should be shown," of which public notice was given. No
cause being shown, there was a final ratification of the sale on 22
February, 1813. At the time of this sale, it is admitted that Elias
Magruder was deceased, without heirs, in the language of the will,
"lawfully begotten of him in wedlock." And here a question arises
whether the above sale can be treated as a nullity.
That the trustee was not authorized to sell by the decree has
already been shown. It would seem, however, from the form of his
report, that he assumed to act only in virtue of the decree.
Does the ratification of the sale bring it within the rule,
which applies to a case where the court has jurisdiction, but has
committed errors in its proceedings. Had the court jurisdiction of
the tract of land in controversy. At the time the decree was
entered, that tract was no more subject to the power of the court
than every other tract in the county. The devisee was in
possession, having a life estate in it subject to become a fee
simple on his having heirs lawfully
Page 43 U. S. 60
begotten by him. He had no notice of the proceeding and was in
no sense a party to it. The petition did not pray for the sale of
this land. In fact that proceeding can in no point of view be
considered as authorizing the sale by the trustee. The validity of
the sale then must rest upon the fact of its having been made by
the trustee, and sanctioned by the chancellor. There would seem to
be no ground for doubt on this point.
The chancellor is authorized to proceed in a summary mode, under
the statute, for the sale of land, in the predicament of the above
tract, after the decease of the devisee, without heirs. But he can
only proceed on the application of persons interested. Here was no
such application for the sale of this land. The sale being without
authority, the ratification of it by the court must be considered
as having been given inadvertently. If given deliberately and on a
full examination of all the facts, still it must be regarded as an
unauthorized proceeding. There was no case before the court --
nothing on which its judgment could rest.
No court, however great may be its dignity, can arrogate to
itself the power of disposing of real estate without the forms of
law. It must obtain jurisdiction of the thing in a legal mode. A
decree without notice would be treated as a nullity. And so must a
sale of land be treated which has been made without an order or
decree of the court, though it may have ratified the sale. The
statute under which the proceeding was had requires a decree; at
least such has been its uniform construction.
This view being decisive of the title of the lessor of the
plaintiff, it is not necessary to consider the other questions in
The judgment of the circuit court is
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Maryland, and was argued by counsel. On consideration whereof, it
is now here ordered and adjudged by this Court, that the judgment
of the said circuit court in this cause be, and the same is hereby
affirmed with costs.