
    GENERAL COURT,
    MAY TERM, 1805.
    The Corporation of the Roman Catholic Clergymen’s Lessee, vs. Hammond.
    The act of 1715 flu'A7, cured no Refects in the acknowledgments of deeds made under pr vious laws, with regard to femes covert.
    
    Before that act, as well as after, those acknowledgments were defective, unless the exact form, mentioned in the acts of assembly on tne subject,'was complied with, •
    A certificate under the act of 1792, ch 55, entitled, An act for securing certain estates and proper■ it/ for the support and vse of the mhxlste» s of the Roman Catholic Religion» b) pustns stating that they were chosen, under the provisions ot said aé‘, as trustees to carry the same into eiTect, and that by virtue of such authority they assumed to thonselves the corporate ñame and style of The Corporation of, &e« which was mane by such trustees, and recorded as directed by said lav;, and which was accompanied with possession by them of the land in dispute, without objection by those who were interested, was held sufficient to authorise the jury to presume that such persons had been chosen in compliance with all the provisions of sain law, though it did not appear by such certificate, or in any other way, that those provisions had been eompln-d with.
    A devise to A, and his heirs, for ever, hut in case of Ins death before that of the devisor, or of his (the devisee) not disposing of the property devised before his (the Devisee's) death, then, with, a remainder over to B. and lns’heirs, a disposition by A, b} last will, is a disposition by him in Inn life, time, and as such defeats the estafe in remainder.
    The undisturbed possession of part of a tract of land, without title, is no evidence that the persons holding ^uch possession claimed the whole tract.
    jQuere.—Whether the true construction of a 11111 is to be made from the will itself, and not to he gathered from matter do hors the will, if it be doubtful as to what is the true construction?
    Ejectment for a tract of land called tyno, lying in Anne Arundel county. Defence or, warrant, and plots returned.
    
      
      1. The Jirst bill of exceptions. The plaintiff gave in evidence a certificate of survey of the tract of land called Jlyno, for which this ejectment was brought, surveyed for Henry Hanslap, on the 30th of September 1682, for 400 acres, and a. patent to him therefor, dated the 2d of August 1682; and that said land was truly located on the plots returned in this cause. He also gave in evidence the will of Henry Hanslap, dated in the year 1697, whereby he devised Jlyno to his daughter Susanna Hanslap, and to her heirs and assigns; and also gave in evidence, that Susanna Han-slap survived tiie devisor, arid became seised and possessed of Jlyno, under and in virtue of the devise; and that being so seised, she intermarried with Thomas. Gassaway', and iie also read in evidence an entry taken from the Kent Boll for Anne-Arumlel county, showing that this land had been surveyed on the 30th -of September 1682, for Henry Hanslap, and that Thomas Gassaway, in right of his wife, the daughter of Hanslap, was in possession at the time the rent roll was made out, and that by the rent roll it appeared that there had been an alienation of the land on the J5th of September 1709, by Thomas Gassaway and wife, to James Carroll. He also gave in evidence the last will and testament of James Carroll, and a codicil thereto, the former dated the 12th of February 1728, and the latter dated the 17th of February 1728, by which will the land is devised to Charles Carroll, cousin and godson of the devisor, and his heirs; but by the codicil, (which recites the devise to Charles of a certain part of his estate, in trust and confidence that he Charles would invest therewith his good friend Mr. George Thorold, of, &c. it is stated, that through apprehension of Charles's death, he (the devisor,) did by the codicil, confirm and give unto theSaid George, what he expected and did not doubt Charles would give pursuant to his intention, if death or other accident did not interpose, and also confirmed his former will in all respects, except the clause whereby he devised to Charles, amongst others the land called Jlyno, which he rescinded, annulled and made void, as to Charles, and by the codicil he devised that land &c to the said George Tliorold, his heirs am! assigns, for ever; and in case of his death, before his (the testator’s,) then he devised the same &c. unto his very good.friend Mr. Peter Mtxuood of, &c. his heirs and assigns, for ever; and in case of both their deaths before the téstatelas, then he devised it unto Mr. Joseph Greaton, his heirs and assigns, for ever. The plaintiff also gave in evidence, that James Carroll died seised of the said land some time about the 27th of July 1729, and that Georgs Thorold, the devisee in the codicil mentioned, entered and became seised thereof. And also gave in evidence the last will and testament of George Thorold, dated the 16th of June 17 C7, whereby he devised the said land unto Richard Molyneux, to him and his heirs, for ever; but in case of his death before the devisor’s;. or his not having disposed of it before his death, either in whole or in part, then the said devisor gave and bequeathed his said estate both real and personal, or the part remaining as above said undispos-ed of, to his well beloved friend James Guin, of Queen-Anne's county, to him and his heirs, for ever. The plaintiff also gave in evidence, that George Tho-rold died seised and possessed of the said land called Jhjno, and that after his death, Richard Molyneux, the devisee in the said last mentioned will named, did enter into the land under and by virtue oí the said will, and became seised thereof, and afterwards died, having first made and executed his last will and testament, dated the 28th of April 1749, which the plain-tiffgave in evidence; whereby the said Molyneux gave and devised ail his real and personal estate wheresoever, and of what denomination soever, to bis well beloved friend George Hunter, of Charles county, or in case of his death before the said devisor, to his well beloved friend Benedict Neale, of .Baltimore county, them, their heirs or assigns, for them and their use and behoof for ever. The plaintiff also gave in evidence, that after the de.ath of Richard Molyneux, George Hunter, the devisee in the said last mentioned will, entered into the said land called Mjno, under and by virtue of the will, and became thereof seised, and being so seised, afterwards, to wit, the 22d of July 1778, duly made his last will and testament, and then died, leaving the same in full force and unaltered, by which will he devised the said land called Jhjno, in fee simple, to James Walton, who entered into the said land under and by virtue of the said devise, and became thereof seised. The plaintiff also read in evidence an act of assembly passed in 1792, ch. 55, (November,) authorising the Roman Catholic Clergy to declare the uses for’ which certain estates had been held by them, and to assume a name and style of corporation. The plaintiff also gave in evidence, that the said Ja'tnes Walton being so seised, did afterwards make and execute a deed or declaration, which, with the several endorsements thereon made, was produced and read in evidence, to wit: «I, James Walton, of the county of Saint Mary’s, and the state of Maryland, do by virtue, of these-presents make known, publish and declare, in conformity and agreeably to an act of assembly of the State of Maryland, entitled, “Jin act for securing certain estates and property for the support and uses of the ministers of the Roman Catholic Religion,” that the real property hereafter specified, viz. St. Inigoes Manor, &c. &c. Hainault, commonly called Jlyno, lying in Anne-Arundel county, &c. and also all other my lands and real estate whatsoever in the state of Maryland, and all the mixed and personal property annexed and appertaining to these several estates, hath been and now is held by me the said James Walton, under a confidential or implied trust, .for the use, benefit and maintenance of the ministers of the Roman Catholic Church, now exercising their ministerial functions within the United States of America, agreeably to the rule and discipline of their church, and who were formerly members of the religions society, heretofore known by the name of The Society of Jesus. In testimony whereof I have hereunto set my hand and seal this 3d of October 1793.
    
      James Walton, (L. S.)
    Signed, sealed and delivered, in the presence ef Henry Barnes, Henry II. Chapman
    
    
      
      Acknowledged the 3d of October 1793, by the said James ÍV“ítou' as Jlis act and deed, before the said Henry Barnes and Henry 11, Chapman, being justices of the peace for Charles countv. An oath annexed, taken by the said VFulton, before the said justices, that the said estates were held by him for pious purposes acquired before the 14ili of August 1776. Recorded in the general court land records the 15th of October 1793.
    The plaintiff also read in evidence, a declaration, with the. several endorsements thereon, which is as follows: “Whereas an act of the assembly of the stare of Maryland was passed at the session begun in the month of November 1792, entitled. An act for securing certain estates and property for the support and uses of the ministers of the Homan Catholic Religion; And whereas it is therein exacted, that trustees be chosen for certain purposes expressed in the said act, we, the undersigned, b' ing so chosen, hereby declare, that we have assumed, and do assume the style, name and title, of The Corporation of the Roman Catholic Clergymen, by which wre, and our successors, for the time being, are to be designated and known; and that we hereby certify the same under our hands and seals, at St. Thomas’ Manor, Charles county, this 5th of October 1793.
    
      James Walton, (L. S.)
    
      John Ashton, (L. S.)
    
      Leonard Neale, (L. S.)
    
      Robert Molynenx, (L. S.)
    
      Charles Sewell, (L. S.)
    Test. Henry File,.
    
    
      John Bolton-
    
    
      Recorded in the law records of"the State in the General Court Office the 15th of October 1793.
    The plaintiff also gave in evidence, that the plaintiff, and those under whom he claims, have been at all times, since the 15th of September 1709, in the actual possession of the land called Ayno, claiming the same as their estate in fee simple under and by virtue of the said patent, ami several wills and declara-ifons before set forth. The plaintiff also gave in evidence sundry depositions of witnesses, admitted-to be read, proving tiiat the said land had always been claimed and held by the plaintiff, and those under whom he claims, since the recollection of the witnesses.
    The defendant produced and read in evidence to the jury, a deed for the said land called Aynor from Thomas Gassaway, and Susanna his wife, to James Carroll, dated the 15th of September 1709, together with the endorsements on the said deed. The acknowledgment of which deed is in these words: ‘«September 20, 1709. Then came before us, Bichará Jones, junr. and Thomas Larkin, two of her majesty’s justices for the county of Ann’é-Arundel, Thomas Gassavoay within mentioned, and acknowledged this deed according to act of assembly; also Susanna his wife, daughter and legatee of the .within mentioned Eanslap, who being examined according to law, declared that she consummates this deed without the compulsion or coercion of the said Thomas her husband. In testimony whereof we have hereunto set our hands the day and year above.” And the defendant then prayed thé opinion of the court, and their direction to the jury, that this deed was inoperative to pass the estate and interest of said Susanna in and to the said land, except during the life of her said husband.
    
      Harper, for the plaintiff,
    contended, that the act of 1.699, ch. 42, was not repealed by that of 1715, ch. 4¡7, but was repealed by the act of 1715, ch. 49. That the deed under consideration was made in 1709, and must have been acknowledged under the act of 1699, ch. 42, s. 6. That the 7th section of the act. of 1715, ch. 47, declares that all deeds made during the continuance* of the act of 1699, ch. 42, if enrolled within 12 months, (the time limited y that act,) should be valid, notwithstanding other defects.- This deed was enrolled within the time prescribed, and the defect of the acknowledgment has been aided by the act of 1715. In this case the defendant dqes not claim up-der any title adverse to the title of the plaintiff: In die case of Paiiisonvs, Chew 
      
      , deeds similar to the present one, were objected to on account of the defect in the acknowledgments by the feme covert; the deeds were dated in 1706 and 1707, and the court sakl5 ‘«that there was nothing in the certificates of the acknowledgments of the deeds repugnant to the directions of the act of assembly directing the manner of acknowledging deeds at that period, and that the said deeds were-sufficient in law to pass the estate of the feme covert in the said lands.” The. courts will fa-vour a remedial act, and protect a title of a century which has never before been controverted as to tiie whole of this land.
    The defendant, 'to proveías loca* lions on the plots, of the land ibr •which he took de-fence, gave in evidence the deposi tion óf a witness, in which refer éneo' is made to ¿tn ancient land commission* He £lso offered to give in evidence a paper purporting to he the wlu.ie proceeding-, appearing on record, under the Said commission; to which the plaintiff objected, because two lines of the land located on the plots, were not conformable to 4he grant, or to the description iu the said paper; Itecause the lines in the said paper mentioned, were atol ioealed by the defendant, and because she plot and survey rnenti oned in ihe said paper to hate been madeand returned, were not produced-— Ilcld^ that the saidpaper was proper evidence to prove by /, • ncral reputation the location of the land, and the ancient possession of the respective proprietors there- • • ■
    
      
      Held, that there was nothing in the certificates, of the acknowledg-in' nts w: <h in 1706 and 1707, of certain daub by a feme covert grant- or, vrpugn-snr to the directions of the act of assembly then in force*
    
      Martin (Attorney General,) for the defendant.
    Tliis deed was executed during the continuance of the act of 1704, ch, 24, which contains a formula similar to the one in the act of 1716', ch. 47, for the examination of fanes covert. The deed was acknowledged and recorded under the act of 1704, and not under the act of 1699. The act of 1715 does not recite the act of 1704, nor cure the defects of1 deeds made during the continuance of that act; nor does-the act of 1715 remedy any defective acknowledgments. The act repeals former acts, and in doing so the legislature always save acts done under former laws. It never was intended to interfere, with Jemes covert, or to aid any defective deeds made by them. If the act of 17" 15 intended to cure the tie-fects in all acknowledgments of deeds, it would have been unnecessary to insert the 12th section, which says, that deeds which had been acknowledged before one justice of the provincial court,, or before one or two of the council, if enrolled according to the directions of the former acts, should be good, There was no art in force previous to 1715, which enabled owe justice of the provincial court to take the acknowledgment-of a deed; nor was there any act which authorised a member of the council to do it. The act of 1715 cn> acted a new method of conveyance different from any of the preceding laws, and other laws upon the subject became thereby repealed. But lest any injury might result from a repeal of former laws, the act of 1715 embraces savings of all rights acquired under former acts, if the. parties had conformed themselves to the manner pointed out by those laws. He cited the case of Harwood vs. Batty, in this court, at October term 1795, which was non prossed by learned counsel, under the full conviction that the act of 1715 was only a confirmatory act,
    TrtTiprc an act of assembly detectes a special authority to a corporate body to assemble and assume a style &c if they mstke a declaration that they had rionero, and thc-*3 had held and possessed lands jmder the ■st) 5e assumed bv them, it is suffici rni to induce the jury to presume that all the requisites of the act had been complied with.
    Chase, Ch. J.. This question has been frequently decided by this court. The certificate of the acknowledgment should be in the manner the law directs, and unless so done, the acknowledgment is defective, and the deed cannot operate so as to bar the female covert. In tins case the acknowledgment is-defective, and the deed cannot operate to pass the estate of the feme covert in the land, except during the life of her husband. The plaintiff excepted.
    2, The, defendant prayed the opinion of the court, and their direction to the-jury, that before the plaintiff can recover in this action, it must he proved that the ministers of the Roman Catholic Religion within !';>>■ state, being citizens thereof, exercising ministerial functions agreeably to the rules and discipline of their church, did convene and appoint, from their nvn body, persons who did assume the style, name and title, in the manner pointed out by the 3d section of the act of November session 1792, ch, 55.
    
    
      
      Key, for the defendant.
    The 3d section of the act Of Nov. 1792, ch. 55, directs “that it shall and may be lawful for the ministers of the Roman Catholic Religion within this state, citizens thereof, exercising their ministerial functions agreeably to the rules and discipline of their church, and in whose favour the said declaration shall have been made,” [alluding to the declaration in the 2d section to be executed by the proprietors of property held in coiifidential trust, &c.] “to convene at a place to be by them agreed on, within twelve months from the passing of this act, and then and there adopt such regulations, for the management of their estates and temporalities, as shall seem fit and advisable to a majority of the ministers so convened; and the said ministers, or a majority of them, so met, shall then and there choose, from their owu body, certain persons, not less than three nor more than five, who shall assume the. style, name and title, by* which they are to be designated and known, and shall certify the same, under their hands and seals, within three months thereafter, to the clerk of the general court of the western shore, who is hereby authorised and required to record the same in the records of the laws of the state,” &c. The declaration of the clergy assuming the style, &c. does not state that the persons pointed out by the act met and made choice of the persons, who have by this declaration assumed the style. These persons have said, that they had Jieen so chosen, but they do not say who had chosen them, at what time, or at what place. This act creates a special%ufhority, and it is a general rule, that a special authority must be pursued precisely. In this case then it must appear that the persons described in. the law gave notice of their intention to meet at a certain place, on a certain day, for the purpose of choosing the persons pointed out by the law; that they met on the day and at the place, and made the choice of persons answering the description, and those persons must certify that they did assume the style, &c. Instead of this they say, “JFc, the undersigned, being so chosen,” &c. without stating that they had the an-thority prescribed by the act to make the -declaration that they had assumed the style of incorporation. Ifc is not sufficient, for them to say they had been chosen - — But it must appear how and in what manner they were chosen, and all legal requisites must appear to have been complied with under the act of assembly, as in land commissions. It has been repeatedly "decided ís¿ this court, under (he acts for marking .and bounding lands, and for perpetuating the bounds of land, that unless it was shewn by the return of the commissioners Iiow and in what manner the- same had been executed, the return was insufficient, and that a certificate, of the commissioners that they had given the notice directed by the law, without saying what notice, was fata!. - Cites Weems vs. Disney, (4 Harr. & M'Hen. 156.)
    
    
      Shaqff, for the plaintiff.
    The gentleman, who has just urged the objection to the court, was one of the members of the, legislature at the time the law passed, and no doubt was friendly to the passage of the act. It was not his intention certainly that no benefit should result to the clergy by the law. But if this declaration is adjudged defective, the legislature have done lidie for the benefit of the Roman Catholic Clergymen. The act directs that they shall “certify the same.” What was intended by the law to be certified? The style, no doubt, of incorporation. This lias been done, they have certified the style, which is directed to be recorded amongst the laws of the state. The declaration says, “being^so chosen” — ■ meaning no doubt, in pursuance of the act. The act does not require that the proceedings should be recorded. It only directs that a declaration of the style, which may he assumed, shall be recorded. How is the act to be construed? St surely meant to hold out a benefit to the clergy, and should he construed beneficially, and the court will strive not to defeat the salutary provisions of the legislature. If it is objectionable now, it will be so fifty years hence; and how could it be proved at that distance of time who met, since, the act docs not direct the proceedings to be recorded; and if the proceedings had been recorded, (the law not directing them to be recorded,) they ■would have received thereby no additional validity, and of course would not be proof of the meeting, livery thing is recorded which the act requires, ánd if more had been recorded than was directed, it would have availed nothing. It' has been said, that it must be proved who met, and that they were in the exercise of their ministerial functions. It may he asked, how it could be proved, except by one of their own hot?.}, it alive, and, il dead, it could not be proved at all. The case of. commissions to mark and bound lands is different. There the whole proceedings are directed to be returned and recorded. But by this act, only the result of the meeting is to be ceis iHled, and nothing preparatory is deemed by the law at all necessary. The court will not surely give a rigid construction to this law. If the court adopt the opinion of the counsel of the defendant, the corporation fail, and they cease to be a corporate body — they will be completely defeated, and- the consequence must be very destructive to the clergy'. By the law the ministers are directed to meet and make choice of persons to assume a style, who are to “certify the same.95 A certificate that they had assumed the style is prima facie evidence that the procedure was correct, and the onus probandi lies on the defendant, to prove that they did not meet and make choice, &c. as they were directed. It was intended that what the ministers should do was to become a part of the law — {'or the law was full and conclusive, except as to the corporate name, which the legislature did not choose to give, but left for the clergy; and a bare certificate of the name, to be of record, was all that was deemed necessary. This has been done, and it is confidently expected the court will consider it sufficient. There is no instance of the acts of a corporate body being questioned in this incidental manner. In actions for money had and received, brought by a corporate body, there is no instance in the books where the corporation have bees* compelled to prove themselves a corporate body, by proving they had , complied with'the terms of the act of incorporation, to enable them to act in a corporate capacity. And if. would not be possible for any of the chartered banks, companies or corporations, to show that they have complied in every particular with the laws granting their charters; and if the strictness is required which the counsel for the defendant contend for, there is not a corporation in the state. St would be impossible, for instance, to prove that no person voted but such as had a right to vote. In the case of mandamus's it must be shewn that notice was given.
    Harper, on the same side. This is not an act required to be done under a special power, which is to be construed with the same strictness as in cases where other persons are to be affected by it. Where special powers are delegated, the courts have been strict, because the rights of the persons delegating ‘lie powers are to be affected. But here the rights of those conferring the power, were not to be affected, nor the interest of others as in land commissions. This is an act to give a name to a corporation, and the legislature leave it to the Roman Catholic Clergymen to choose a name, It is a mere power delegated for giving formality to an act for completing a power, anil surely not one of those cases where, all that, rigid strictness ought to be observed. In the case of commissions to mark and bound lands, third persons may be affected. This is the reason why the law relating to them is to be strictly pursued. But in the present case no one can be injured by the style which the Roman Catholic Clergymen have adopted. In the returns to mandamus’s, there are acts which may bind and preclude the rights of third persons, which is the reason that the utmost strictness is required to be pursued. But this is a mere formality, wherebj no person is to be affected. This. declaration declares that to be done, which Hie act lias directed to be done, and it is immaterial how the persons who have certified, have been appointed. The act has been complied with, if it lias not, the onus probandi is on the defendant. — - Corporate elections or constitutions are not to be incidentally examined. In the case of the Bank of Columbia vs. Ross, C4 Iíarr. and M'Hen. 456,J the law creating the bank gave an authority to the president of the bank to issue executions against the person op 'property of any of the .debtors to the bank, upon complying with ‘certain requisites; and the president accordingly directed a fieri facias against Ross. At the return day of the writ* there was a motion to set aside the writ; and among other reasons one was, that it did not appear that General Mason, who had directed the fieri facias, was president of the bank; but the court said, they would consider General Mason as the president of the bank, lie having stated himself so, and the contrary not appearing,
    
      Martin, (Attorney General,) in reply. Unless there js legal evidence that the clergy have done that which the law requires to be done, it is not sufficient. How can it be said that other persons are not to be affected by this proceeding of the clergy, since the corporation are authorised to bring suits in their corporate name? The legislature did not ask a favour of the Roman Catholic Clergy, it was the Roman Catholic Clergy who solicited this law, and it was passed in compliance with their wishes, and there was no dif-iiculty in their acting under it, so as to comply strictly with its provisions. It has been said that it was merely to give a name to the corporation. This was a very necessary requisite; for until a name, there was no life in the corporation. It was the first act of their existence. There can be no doubt but there ought to have been notice given before the clergy met, and that the purpose of their meeting should have been set forth in the notice. The proceedings ought to state who met, so as to show that the persons who acted had authority to meet under the law, and that persons of the description mentioned in the law, were chosen. It does not appear that the persons who acted are of the description pointed out by th® ^aw* Every member of the Roman Catholic Clergy is interested; every member of the community may be interested. The corporation may sue or be. sued by their corporate name and style. The words of the declaration are, the undersigned, being so chosen,,f &c. without setting forth who chose them, and without shewing that the persons who chose had given the notice, and were of the description of persons designated by the law. It has been said that there was no necessity to record the proceedings. It has ahva\ s been deemed necessary to record a power of attorney to acknowledge a deed, and yet there is no law directing a power of attorney to he recorded. Though it may bo necessary to prove the meeting at this time, it does not follow it must be proved fifty years hence — for it-is only necessary to prove recent, transactions — but in transactions of a long 'standing the law will presume them to have been correctly done. Feoffments of ancient dates need not be prove-, w here possession has been held under them. It would have been proper to record the whole proceedings of the meeting, choice, &c. But taking it as unnecessary, there must be proof that there was a meeting in the manner the law directs. In the cases of commissions to mark and bound lands, it is not only necessary that the commissioners should state they gave the notice} but they must show what notice they did give — for the law says no man shall be the judge of what he himself does. So in the case of Whet-croft vs. Dorsey, (4 Harr. & M-Hcn. 557,J it was decided in the court of appeals, that the authority under which this court acted must appear, it being under a private act of assembly, and could not be noticed unless stated in the record, so as to enable the superior court to determine whether the general court had pursued the special authority delegated to them by the law. So in the case of Harper vs. IIawpton(a), this court decided, that a power given ought to have been strictly pursued by the attorney in executing the trust reposed in him. The corporation could not (a) See i Harr. M‘Uen. 175. (Note.) fee seised of the estates until the name and style had been assumed. The whole life and soul of the corno- * ration depended upon this act. Hence the importance of a proper’ procedure to effect the purpose. The five persons who have certified, may be methodists, quakers, or any other sect of Christians, for any thing that legally appears. So that the Roman Catholic Clergy may be injured by this assumed act. They may never have met, or assumed the style here given. In cases of mandamus’s for the purpose of turning out and admitting ministers, it has been judged necessary that the proper notice should be given. In that case who are affected by the notice? No one. The lessors of the plaintiff will be precisely in the. situation they were previous to the passage of the law, if the court should be of opinion they have not. pursued the mode pointed out to entitle them to become a corporate body; and upon their application;, no doubt, the legislature would grant a similar law— and they would then take care to comply with the terms of it. The case of land commissions is of more serious consequence than this. — for there the. party is without redress. He is deprived of testimony which be had taken under the commission, and which it might not be afterwards in his power to obtain. If this is not the proper mode of contesting the right and title of the corporation, where, when or how, is the right to be called in question? The plaintiff claims under a demise from <fi The Corporation the Roman Catholic Clergymen,” ar?d the defendant is endeavouring to show there was no such corporation who could make the demise, In any action by a corporate body, they may be compelled to show they have done all those acts necessary to constitute them a corporate body. If a general power is to be executed, and the power is certified to be executed, it is prima facie evidence of its having been done; but it is different with a special power — there it must be specially certified* aud nothing is to be presumed which does not appear.
    
      
      &. T. by his will devised a? follows; eil give all my estate, both real and personal, tu K. AT. to him and his heirs for ever; but in case of his death before mine, or his not. having disposed of it before his death either in whole or in part, then I give and bequeath my said estate, both real ami personas, or the part remain* jug as abovt. un-disposed oí”, to my well beloved friend J, Gr. to, him and his heirs for ever,** li. M. survived the testator, and devised the said estate to G- H. Held by iho general court, that the ítevtse b; R. M. was not such a disposition of the court of appeal. estate so as to defeat the limitation over to J. G» But, on appeal, reversed by the
    
      Key, also ii> reply. The arta to be done under the *aw are conditions piecedent to fluir existence as a body corporate-, and unless these conditions were performed, they had no existence, and c«u;<i not make the demise under which the plaintiff chums. By a subsequent section in the act of 1792, ch. 55, it is enacted, that when these acts are done tin n they are to be in the seism and possession of the estates — these acts not being done, they hayo never been seised of the estates
    Chase, Ch. J. The court are of opinion, that the declaration, that the ministers of the Roman Catholic Religion have ássumed the name, style and title, of ¿‘The Corporation of the, Homan Catholic Clergymen’* agreeably to the law, ¡Í accompanied with evidence that the lessors of the plaintiff are, and ever since the recording the said declaration have been, in ti>o solo use, occupation and control, of the land for which this action is brought, without objection from those interested, it is sufficient to induce the jury to presume, and they ought to presume, that the ministers bad assembled and made choice of the persons who have assumed the said mime, style and title, and that all previous requisites had been complied with according to the act of 17'92, ch. 55.
    
    There was no exception taken to this opinion.
    3. The second bill of exceptions. The defendant then prayed the opinion of the court, and their direction to the jury, that the will of Richard Molynenx did not operate to pass a fee simple estate to George Hunter, the devisee in the said will named, so as to enable him to devise the same by will, but that on his death the fee simple estate in the land called Jyiio, in the declaration mentioned, did pass by virtue ot George Yhorold’s will to James Quin and his heirs.
    
      Johnson, for the defendant, objected to the will of George Thorold as not devising y fee simple to Richard Molynenx. From the expressions in the will, a fee simple is devised to Molyneurc, with an ex ecu-tory devise to James Quin. The words of the wiil are — -‘*1 give all my estate, both real and personal, &c. to Richard Molyneux of Charles county, to him and Ills lit-irs for ever,* but in case of Ms death before mine, or his not having disposed of it before Ms death either m whole or in part, then Í give and bequeath my sa;d estate, both real and personal, or the part remaining as above undisposed of, to my well beloved friend James Quin, of, Ac. to him and his heirs for me1..” Richard Molyneux having, by will, devised the estate, ¡1 is not such a compliance with the will Rh the ur-tator contemplated. Toe estate therefore bee une vested in James Qnrii, and could tmt pass under tii. aoviso ui the wiil of Richard Molyneux. Tí -:ere a future interest without a preceding estate, or a toutiiigent interest mv upportedby any preceding freehold, or any estate after a preceding vested fee simpie, is limbed by a devise, such limitation, as it caimoi be good as a-remainder, may take effect as an executory devise. 2 fern. Coni. Mem. 17. An executor) duvise is good if it takes effect. In the case of joint tenants, upon the death of one, the estate survives, and the right by survivorship overreaches any disposition by the other joint tenant. Executory devises are not to be defeated by any alteration whatever in the estáte out of vvhiclq or after which it is limited. A secret trust is not countenanced by our laws, and if this was a secret trust, it was illegal and cannot be resorted to in order to aid the will. The case is to be considered as if the question had occurred on the will of any other person. If Molyneux did not by deed dispose of the estate, the moment he died it vested in Gain. It is precisely like the case of joint tenants — upon the death of one, the estate goes over to the survivor. Gould Molyneux by will defeat the disposition by Thorold) who had limited the estate to Quin, if he (Molyneux) did not in Ms life-time dispose of if! The object of the defendant is to show that the title is not in the plaintiff.
    
      
      Harper, contra. The question, is, whether or not the events did happen which are stated in the will, and whether it was an executory devise? The intention, as evidenced in the wilis produced in this cause, go to show that the estate was held under secret trusts tor pious uses, and it is evident that the present will was intended to transmit the estate down, so that it might he devised to such person in whom the testator had a confidence to hold it for those pious uses. In wills the intent of the testator, and the circumstances in which he stood, are to govern, and his will is to be construed with reference to his intent. The devise in this case should be construed <‘in case of Molyneux’s dying without will, or omits to make a disposition, &c. then to Guin,” &c. There were two events contemplated by the will. 1. If Richard Jtfolyneums should die in the life-time of the testator. 2. If he should not make a disposition of the estate. A devise by will is a disposition of the estate to take effect at his death — the same as if he had in his lifetime made a deed to take effect after his death. A voluntary gift by deed is subject to the same control of the donee, as a will is. If a man gives his estate by will, the general parlance is he has disposed of it, The case of joint tenants is not applicable to the present case. There the whole interest terminates, with the death of the first tenant, unless measures had been taken to prevent it by a severance of the joint tenancy. Suppose the phrase was, “or dying without making a disposition by will,” would there be any doubt? Surely not. The words used are intended in this case to have the same effect — and the intent should be enforced. A disposition made by will is one made in the life-time of the party. Suppose a man by deed makes a settlement to his own use during his life, inserting a clause of revocation if he should judge' proper — this would be nothing more than a will. It the disposition of an estafe, to. take effect at his death, with ,a power of revocation by will. It would considered, if he did not revoke it, to be a disposition in his life-time. If there ever was a case where the court would be astuti, this is one, where the defendant sets up rights out of himself, to defeat the plaintiff’s recovery.
    
      Shaaff, on the same side. We admit that the devise in question would be an executory devise if the events had happened. But the true question is, whether a will of Molyneux is a compliance with the expressions used by his testator. What did the testator mean? For his mcaningis to prevail. It appears that the estate had been held in confidential trust. What was the object of Thorold’s will? That Moly-neux might hold the estate as long as he lived, and after his death that some person, in whom Molyneux might have confidence, should hold it under the same trust. What is a will? Is it not a disposition of a man’s estate? And if a man gives his estate to A. is it not said lie has disposed of his estate? When is the estate disposed of? Surely in the life of the party, though to take effect after his death. It is a common phrase to say a man disposed of his estate by will. Covenant to stand seised to uses to take effect in fu-turo. Wilson's Rep. If a man enters into a covenant to stand seised to uses to take effect after his death, it is considered a disposition in his life-time. A will, which can only take effect after his death, is equally a disposition of his estate in his life-time. The manifest meaning of the testator is, that Molyneux should continue possessed, during his life, and that the estate was not to go to Quin if Molyneux did make his will, so as to dispose of it.
    
      'Key, in reply. Much has been said as to secret trusts; yet there is nothing in the will upon the subject either expressed, or which can be implied. It; cannot be collected from the will that the testator meant that Molyneux might dispose of the estate by will. It was not necessary to say, «unless he disposed of it in Ms life-time,” if the intention was that he might dispose of it by will. If it was for the benefit of trusts it would not be left to the last moments of 
      Molynenx to carry into effect that secret tras*: 16 'víls a ra 51 tier (°° oiuch consequence to be delved. The words are, that he should »•dispose of it in his. life-time.” It was never said, that a person had fits-posed-of his estate in his life-time where he had (levied it by will. A will is nothing during the lif * of the testator, ft is subject to his control, and he can revoke it when he ¡deases. But a deed of lands to take effect after the death of the grantor is different, and if recorded, cannot he revoked by the grantor. The interest was complete in Gum if Molyneux did not in his life dispose of the estate bv deed. A joint tenant may sever the estate; hut if he neglects to do so, it goes over upon his death to the survivor; so in this case, Molyneux having neglected to convey, the estate is complete in Guin.
    
    
      Martin, (Attorney-General,) also in reply. It vs immaterial whether there was or was not a secret trust, because, no circumstances, but the will itself, is to betaken into view in the construction of it. If it was a secret trust, the. devisor could not tell to whom Molyneivx might devise. The. testator knew Guin, and knew he was a person in whom confidence might be placed. But the court cannot take notice of secret. trusts. These kind of trusts were considered by our laws as impolitic, and therefore not to be countenanced. Wills cannot be construed, upon events which might afterwards happen. if the meaning of the testator was, that if Molyneux died without disposing of the estate by will, how easy was it to have said so. ’ Bid it was supposed that Molyneux might in health make a good disposition by deed, which he might not do in old age, or in sickness, upon his death-bed. A covenant to stand seised to uses, to take effect after the death of the covenantor, is an actual conveyance of the estate, and is unchangeable. An essential to a deed is that it should bo delivered over. But a will is subject to be changed by the testator. We admit that, a power may be given to dispose of an estate by will. But we con-■send that if the disposition is to be made in the life of the party, it cannot be done by -will. It does not appear'by the will of Richard Mohjneux that this land is mentioned at all—nor is there any tiling in his will to shew that he believed he had right to devise it. It js a general rule in the construction of Wills, that all Words which will bear a construction, shall have one. But the gentlemen would have the words “zb his lifetime,” omitted, and this will to be construed as if no such words were in the will. This caso has been assimilated to the case of a deed subject'to revocation. A deed subject to revocation is a complete deed, and no judgments afterwards rendered against the grantor would bind the lands conveyed by such deed. But it is well known, that lands devised by will are subject to judgments rendered against the devisor.
    
      Held, that eer*. tain matters offered in evidence, were not pr •per or competent evidence, to prove-possession u£ land*'
    Chase, Ch.J.
      
      . The question is, whether th® will of Richard Mohjneux is suq!i a disposition as to defeat the executory interest of James Gain, the remainder-man over. The court are of opinion, that the will of Richard Mohjneux is not such a disposition of the estate so as to defeat the devise over to James Gain, the remainder-man, and that it did not pass a fee simple estate to George Hunter, so as to enable him to devise the same by will, but that on the death of Richard Mohjneux the ice simple did pass by virtue of Thorold’s will to James Gain, and his heirs. The will of Richard Mohjneux was at ail times during his life subject to revocation, and the court think the estate was not disposed of before his death.
    Doste, J. did not concur in the opinion of the court. He was of opinion, that the devise in the will of Richard Mohjneux was a disposition of the estate.
    The plaintiff excepted to the court’s opinion.
    4. The third bill of exceptions. The plaintiff then to support the issue on his part,. gave in evidence to ' the jury, the patent to Henry Hanslap; the will of Henry Hanslap devising to his daughter Susanna; and the deed from Gussaway, and Susanna his wife, to Janies Carroll; and that the said Carroll entered and became seised, and being seised devised to Tharold; the will and codicil of Carroll; the will of Tharold; the will of Molyneux; tne will of Hunter; the act,of assembly, &c. and the declaration by James Walton. And also gave in evidence, that TliQrold, Afolynmx, Hunter,, Walton and James Guin, were severally, in their lifetimes, priests and ministers of the Roman Catholic Religion. And to prove that the said Carroll, Tharold, Molijtmix, Hunter, Waiton, and the Lessors oj ilie plaintiff’, have at ail times, from the 15f/i of September 1709, been in the actual possession and ■ occupation of the-said land called Aysq, under the patent thereof, and •.under the said deea, several wills and declarations mentioned, claiming the same as their estate, gave in evidence an extract from the rent roll of Anne-Arundel, showing that the said land was surveyed for Henry JJanslap the 30th September 1682, and possessed by Thomas Gassaway in right of his wife, the daughter of Hanstap, who alienated to James Carroll on the 3.5th September 1709. And also gave in evidence the plots and explanations iii tais cause, and the depositions taken on the survey, and' the plots and explanations, ami depositions taken and filed in an ejectment formerly depending in this court, in which the present defendants lessor was plaintiff, and a certain John Ashton, priest, was defendant; and also, that for more than forty years last passed, the .priests of the Roman Catholic Religion, and after them the lessors of the plaintiff, have ■ held, possessed and occupied, the said land called A'yno., by themselves'.- nd their agents, cultivating part, and claiming the whole as their estafe in fee simple, and that there is no recollection or tradition of the said land, or any part of it, having ever been held or claimed as such by any person or persons other than the priests and their agents, and the lessors of the plaintiff and their agents.
    But the defendant, by his counsel, objected to the said testimony for the said last mentioned purpose.
    
      
      giutt'e* Can the court take notice ofany secret trust, or lake into view any extraneous matter m the corf? struetion of a will?
    Chase, Ch. J .
      
      . The court are of opinion, and ¡so direct the jury, that the matters offered in evidence, for the purpose of proving that Carroll, Tho-rold, Molyneux, Hunter and Walton, were in possession as aforesaid, are not proper or competent evidence to prove that George Hunter was in possession of the land, or any part thereof, claiming the whole. The plaintiff excepted.
    5, The fourth bill of exceptions. The plaintiff, for the purpose of proving that the land, for which the ejectment was brought, and other large estates, had at all times been held, claimed and occupied, by the said Thorold, Molyneux, Hunter and Walton, being priests and ministers of the Roman Catholic Religion, so far as they had or supposed themselves respectively to have had any right, title or interest, in and to the same, on a secret and confidential trust for the use, support and maintenance, of the ministers of the Roman Catholic Religion in this state, and that the object and intention of the. said Thorold in making his will, was to provide a trustee for holding the said lands and estates in case the said Molyneux should either die in the life-time of the said Thorold, or in case of surviving him should omit to devise or convey the said lands and estate to some proper person, who might hold the same as trustee, and transmit it in like, manner, offered in evidence all the matters stated in the next preceding bill of exceptions; and also offered in evidence, for the purpose aforesaid, that for many years last passed, the rents and profits of the lands mentioned in the declaration of the said ■James Walton, had been applied by the persons respectively holding the same, to the use and support of' the ministers of the Roman Catholic Church in this state. But the defendant objected to the said evidence for the purpose aforesaid.
    Chase, Ch. J. The. court are unanimous in their opinion, that they cannot take notice of any secret trust, and in the construction which they have given fo the wii! of Bichará Mohjneux, they did not tales into view any extraneous matter. They think .that the true' construction of the will must depend alone upon the will itself. The court therefore refuse to receive the said facts and circumstances for the purpose for which they are offered, being of opinion that the said facts and circumstances can have no influence in deciding on tiie true construction of the said will. The plaintiff excepted.
    
      Sliaaffi stated, that by the decisiotf which the court liad given on the construction of tiie will of George Thorold, an estate of upwards of J?30,000 was thrown into jeopardy. That the point had been raised by the opposite counsel very unexpectedly, and that the counsel for the plaintiff had had no opportunity of examining it. That he had just met with an authority which, with the permission of the court, be would read to them. It was Powell on Powers, 35 to 57<, where it is said, that where T.- being seised in fee, devised to M. his wife all the rest of his freehold lands and tenements in York for life, and “then” to be at her disposal, provided that she disposed of the same “after her death,”’ to any of her children. After the testator’s death, the wife, having issue a son and daughter, married again, and she and her husband by lease and release, conveyed the lands to the use of herself for life, after her death to her daughter in tail, and for want of such issue, to her son, and his heirs, with a power of revocation. And one question ore the execution of this power was whether it were good being by way of lease and release? It was contended against the execution of the power, that this disposition by M. should have been “by will” and not by deed;, the devise being to her for life, and “then” to be at her disposal. Three judges Were of opinion that the power was well executed; which judgment was unanimous-, íy affirmed by the court of King’s Bench. That this conveyance was &n“ejfedual}” though improper execution of the power-cited Com. 194, Salk, 339. 1 Wils. 149. In Powell on Powers 57, a devise to a wife for life, and “after her decease," she to give them “to whom” she would. The wife granted the reversion to a stranger. It was adjudged she might grantaway the reversion in her life-time. He also cited 3 Leon. 71. Jhnbler, 64. Father had a power to make provision for the children by deed. He made it by will for children before provided for, and it was held good. He cited 2 P. Wms. 469. 1 Cha. Cas. 284.
    The Court, however, continued of the same opinion.
    Yerdict and judgment for the defendant. The plaintiff appealed to the Court of Appeals. The appeal, by agreement of the parties, was put to issue, and came on for argument at the first term, in June 1805, on the second bill of exceptions. The other bills of exceptions are stated to have been withdrawn by the counsel of the parties.
    
      Shaajf, for the appellant, on the second bill of ex* eeptions, The only facts material on this exception are — that James Carroll, being possessed of the land in dispute, devised it to George Tkorold in fee; thafr Thorold entered and devised to Richard Molyneux in these words: “I bequeath all my estate, both real and ^personal, that is to say, &c. to Richard Molyneux, “to him and his heirs for ever; but in case of his death, “before mine, or his not having disposed of it before his ‘¿death, either in whole or in part," then there is a'devise over to James Guin and his heirs. Mohjneux, made his will, devising all his real and personal estate to George Hunter, and in case of his death in the lifetime of the testator, then to Neale, to them and their heirs, &c. It does not appear that Molyneux had any other estate to devise to Hunter except what he derived under ThoroWs will. The general court determined that the will of Molyneux did not pass a fee to Hunter, so as to enable him to devise it, but that on the death of Molyneux the estate in the land for which the ejectment was brought, passed over to James Guin.
    
    
      in the examination of this subject it is necessary considcp two S°neral questions:
    1* Whether Mblyneux had, under Thorold’s will, any authority to devise the estate?
    2. Whether, supposing1 Molyneux to have that authority, he has in fact made such a will as will pass the estate?
    
      First question. Had Molyneux, under Thorold’s will, any authority lo devise the estate?
    In the consideration of this question it is material to examine into the nature of the estate devised t® Molyneux by Thorold’s will. He can only be const-dered as taking either an estate for life* with a power to dispose of the inheritance before his death, and in default of such a disposition, a devise over to Gtiin; or he took an estate in fee, the estate of inheritance, subject to be divested upon his not disposing of it before his death. Under the will, he was a tenant ok' the fee; but if he took either estate, he had equally the power to dispose of it by last will.
    < Let us first consider him as acting undeh a power of appointment. If the parties, in the creation of a power, have not particularly described the instrument by which the power is to be executed, the courts will go far to support the execution of it, by whatsoever instrument it may be intended to have been executed; and the doctrine “that powers are strictly to be pursued,” has long since been exploded. On the construction of powers, and their manner of execution, courts of law have of late proceeded with the same liberality as courts of equity. 3 Burr. 1446. The British authorities go expressly to prove, “that if provision is not expressly made as to the nature of the instrument by which the power is to be executed, it may be done either by deed or will at the election of the donee.” Powell on Powers, SS. In Cro. Car. 376, Tylle vs. Peirce, an action of debt was brought on a bond, conditioned to be void if there was paid to the obligee £300 to and for such uses as A. 8. by writing under her hand and seal, subscribed and pub-lisked in presence of two witnesses, should appoint: It was held, that a will, under his hand and seal, and published, &c. was a good appointment. If a man has power bj writing under his band and seal, and testified by two witnesses, to make an estate to his children, it will be well executed by a ivitl devising a rent charge, executed before two witnesses, &c, 3 Cha. Ca. 69, Bath and Montague's Case. In Kibbet vs. Lee, f Hob. 312,J George Lee covenanted to stand seised to certain uses, provided that he should at any time (hiring Ms life be minded, upon any occasion, to make void or change the said uses, that then it should be lawful for him, &c. by writing under his hand and seal, and bj him delivered in presence of three witnesses, to declare that his pleasure was that the said uses, or any of them, should he altered or made void, and that then and from thenceforth the said uses should he void, and the said George Lee, and ail others, should stand seised to such uses as by such writing should be limited. George Lee by will, signed, sealed and published, in presence of three witnesses, devised the estates. It was held a good revocation and limitation over. See also 1 Vent. 280. In the case in Cowp. 260 to 265, the power reserved was “to the use of such persons, &c. as the said W. by any deed or deeds should limit,” &c. Here there is no doubt it must be by deed, for it is expressly said to be by deed, and a will has never been considered a deed. This case is cited to show the opinion of Lord Mansfield, continued on to page 268, where there is a case cited, where the power was to be executed by “any writing” under hand and sea!, &c. or any other deed. A will was made, and considered a due execution of tiie power, from the words “any writing.”
    
    A feoffment, with power of revocation by writing sealed and delivered in the presence of three witnesses. Ji will devising these lauds, sealed and published in the presence of three witnesses, was held a good execution. Tow. on Powers, 61. A man has power, by any writing subscribed and sealed by him in presence of three witnesses, in express words, to revoke, &c. He makes a will and devises the land— Held a revocation. Sir Tho. Eaym. 295. Though ^ie style directing the mode of executing a power be by words which, in their ordinary import, must be understood to mean a deed; yet the execution will be good, although it be by will. Powell on Pow. 37. In Com. Rep. 194. Salk. 239. 1 Wils. 149. Powell on Powers, 53. The converse of the doctrine of the aforegoing cases is equally well established, viz, Where the power seems at first view as if intended to be executed by '•will, yet if the express contrary does not appear, it may be well executed by deed. These adjudications clearly prove, that a power reserved by expressions similar to the present, is well executed by will — all the authorities go to prove itj but the case of ICibbetvs. Lee, Hob. SIS, is so fully in point as to leave no room for doubt. There the party-had power to do an act in his life-time, under hand and seal, and delivered, &c. which is the legal description of a deed; yet this power was well executed by will. Here the party has power to dispose before, his death, which is the same as if it had been said in bis life-time It is therefore contended, that if Moly-neux took an estate for life, with a power only to dispose of the estate before his death, he might well execute that power by last will.
    ■ Yfe will next consider Molyneux as taking a fee under the will of Thorold, the estate of inheritance, subject to be divested by his not disposing of it before Ins death. Nor is this an unusual estate in the law. Towel on Dev. 251. Thorold by his will, devises the estate to Molyneux and his heirs; but if the devisee died in the life of the testator, (which did not happen,) or did not dispose of the estate before his dealh, then if was devised over to Ouin. This devise conveys-to Moly-neux a fee, which may be divested on the happening of a contingency, viz. his not disposing of it in his life-time. Tiiis fee will carry with it the incidental powers of such an estate, and with others, tho power of disposing of it by deed or by will. The testator does not give to Molyneux any express power to dispose, but only provides for the event of his not exercising a power which the general nature of h:s estate gave him. In this view of the subject Mii-uneux, in disposing of the property, only exercised one of the powers inse})arable from the estate devised to himj be did not act in execution of any power, (legally speaking,) but as the owner of the land; the nature of his estate gave him the power to convey by deed, or dispose of it by will, and these instruments will take effect, according to their legal operation, out of the estate of (Molyneux as the proprietor of that estate. If Mohjneux had executed a deed, it must be admitted that it would have conveyed the land; and it will also be. admitted, that the deed in such case would Lave operated out of the grantor’s estate, and not in execution of any power. If he is not controled, he has equal power to dispose of the estate by last will; and it is presumed the will also takes effect out of his estate, and not in execution of a power. Let us next look info the will to see if (he testator has prevented the devisee from disposing of the estate by last will. In the first place it is to be remarked, that there are no express words to prevent the devisee from disposing by will, ami the nature of his estate will give him the power. The general intent of the testator is too plain to be mistaken; his object was to let Mohjneux remain the legal owner* of the fee during his life; but inasmuch as the heirs of Molyneiix were unknown to the testator, and they might be such as he was? not “willing to place the same confidence'in which he had reposed in his own devisee, the will provides for the case of intestacy, by directing that the estate shall pass over if no disposition is made of it by the devi-see. The wish and the iment of the testator was to provide some person, in whom the devisee could confide, to succeed him in the estate, and it was perfectly immaterial whether this was done by deed or by will. The particular circumstances which in fact are connected with this title, show the intention of the testator to have been in reality that which we contend his words themselves convey The land in question was originally given by James Carroll for the benefit of 
      the Roman Catholic Clergy, and it has been so held ever since; the devisees have all been priests. Thorold devised to Molyneux, in trust, for the same purpose; a fee was created to secure the title; but, as the heirs of Molyneux might not be clergymen, a confidence is reposed in him to make a disposition to some proper person, whom he might knowvand might think worthy of trust. The general intent of the testator is,- surely? as contended for,- and courts have gone, so far as to give effect to this general intent, even if some secondary intent is defeated, and some words wholly disregarded. 8 T. R. 9. But we are not here driven to search for the intent of the testator,- and to gratify it at the expense of any of his expressions; the literal meaning of the words of the will warrant the construction we contend for.- The words of the will are- — “hut in «‘case of his death before mine, or his not having dis-slposed of it before his death” — {hen a devise over. I. am at a loss to conjecture how this can be considered as excluding a disposition by last will.- In common parlance, a man is said to dispose of his estate by last will. Our elementary w riters speak of a last wilt as a method of disposing of property, and of the devise contained in the will as a disposition of the estate, g Bla. Com. 373-4. This must - necessarily be a disposition before the testator’s death, although the devi-see takes no beneficiary interest until after. The disposition o-f property, and the time when that disposition will give the enjoyment of the estate, are things totally different, A man may dispose of his; estate in futuro; every last will makes a disposition, and yet the disposition of the estate is before the death of the party. It is difficult to produce authorities to a point which depends on the words of a will, seemingly so plain in themselves; howrever, it appears that all the authorities before cited, to prove that the will of Molyneux would have been a good execution of a power, considering him as acting under a power1 of appointment, also strongly bear on this part of the case. It seems perfectly clear, that, if a last will is a good mode of executing a power reserved to a par-
      if «to dispose of an estate before his death,” in like manner a lasf will may also he such a disposing of an «state, before the party’s death, as will prevent the estate from passing over, when by the words of the conveyance it is not to pass over unless the party does not dispose of it before his death. In the case of the power, a will is determined to be a disposal before the party’s death; so we contend here, that the will of Molyneux is a disposal of the estate before his death. The case before cited of Mbbet vs. Lee, Hob. 312, is particularly full to this point; the party there had power, in his life-time, to revoke the old uses and limit new ones, by writing under hand and seal, and delivered. It was there held, that a will was a proper inode to execute this power, although it was to ba done in Ids life-time. Then to do a thing in a man’s life-time, and to do so before Ms death, (the words of Thorald’s will,) are surely synonimous terms. It is said in 6 Goin. Dig. tit, Poiar. (G„ 5) — If a woman has power to dispose by writing under hand and seal, &c. a writing in nature, of a will signed and sealed, &c. will be good. Powell on Powers, 57. Hence it is contended, that Molyneux took a fee under the will of Thorold; that he had power to devise such estate, and that his will operated out of the estate devised to. him, and not in execution of a power. But that if it should be thought that Molyneux had barely a power to dispose of the estate, yet it is contended that a last will is a good method of executing that power. This leads to the
    
      Second question. Whether Molyneux has, i» fact devised the estate by his will?
    This will has only general expressions devising all the estate to Hunter, There is no devise of the land by name. If I am right that Molyneux. took a fee under Thorold’s will, subject to be divested upon his not disposing of it, and that his last will is a dispose tion within the words, and that his will operates oa his estate, and not in execution of a power, it will follow that the will of Molyneux does pass the estate in question to his devisee; because there are ample words to pass the inheritance, if the devisor had i,i him the inheritance to devise — This is clear.
    It only remains to be considered, whether a will, with these general expressions alone, will operate to pass the land, supposing- that Molyneux only had a power to dispose of the property, and that his will can only have operation in execution of a power. The objection is, that it. docs not appear that Moly-neux by his will intended to pass this land; inasmuch as he has not named it, but could have designed to devise only what he had an estate in. Here again we must resort to the. intent of the testator. On examination, we will find that Molyneux devises the estate to Hunter under the same description by which he received it from Thorold, viz. by the words "all his estate.” &c. it is therefore fair to infer that he meant to pass to his devisee all the land and pro» perty he. /tad received from his testator. But it is particularly to be remarked, that it does not appear in the bill of exceptions, that Molyneux: had (my other real estate for his will to operate on, except what he derived under Thorobfs will. It is, to be sure, net stated in tin0 exception negatively that he had no other estate; nor was it. necessary, because the opposite party should have shown any other estate for the will of Molyneux to pass, if any such existed; but this is not done — nor is it a «act, that there was any such other estate, it will therefore follow, that if Molyneux did not mean to puss the estate in question under the description of his real estate, lie meant to pass nothing by h«« will uno'.-r that description. It is true., that a person acting under a power to dispose of an estate, must in some way evidence his intention to dispose of that estate. ¡lore the execution of the power is by will, in which tlie intention is to govern; and if it should appear that the testator meant, to devise the estate subject to the power, his intention is to be gratified in whatever words it may be, expressed. How can any man doubt in this case that the testator meant to pass the land in question? When by supposing the contrary, nothing will pass by his will — An absqr-dify not to be attributed to any testator. In 6 Com. Big. tit Poi'ir, (C.4.) and Powell on Powers, 111 — If a man executes a power by deed, without noticing the power, it wiil be good, it’ the deed will have no operation except in execution of the power. And in Poxveil on Powers, 119, it is said, it is not necessary to refer particularly to the estate subjected to the power, if it be suilicientiy described by general expressions. A man has power to charge, an estate with J?2000, and a term is raised for that purpose. He executes the power by his will, in these words: “I charge all my real estate” — Held a good execution of the power. llohrrt vs. .Morgan and Clifford, 1 Mk. 441. These authorities seem to establish all we contend for, viz. That the general description in .Molyneux’s will is sufficient to pass the land, indeed, the words in 1 Mk. 441, are the very expressions of this will. It maybe urged, that there is another decision which is adverse to our present doctrine — I mean the case of Moulton vs. Hutchison, 1 Mk. 559. That case, as decided, was simply this: C. had an estate for life, with power to appoint to certain uses, and in default, of appointment, the estate was settled on J. G. A will was made by C. in which he devises “all the rest and residue.of Ms estate” to G. without taking notice of the estate subject to the power. C. had other real estates to-be affected by the devise of-f/ie residue. The chancellor determined that the power was not well executed. On examination of this authority, it will be found that the chancellor laid great stress upon the circumstance of the testator’s having other lands for his will to operate on, and seems to admit, that if the testator had had no other land, the land subject to the power would have passed by these general expressions. So far therefore from this being an authority against us, it is strongly in favour of our principles; because in this instance, if the will of Molyneux does not operate on the land subject to the power, it can pass, no real estate, nor have any kind of operation. It is therefore contended, that the will of Molyneux, will pass the land to Hunter: — *
    
      j. Because be had afee under Thorold*s will, an4 bis own will passes the inheritance operating out of 1 * «_» his own estate.
    2. Because, if Molyneux bad only a power of appointment, his will sufficiently describes the estate so as to'pass it to his devisee.
    
      Pinkney, on the same side. In the fourth hill of exceptions there is evidence of a variety of facts, calculated to show, that Thorold held the land in question under a secret trust and coiifidence, which lead us to the true construction of his will as to what he meant by the words «not fyaving dispose4 of it” These facts were,
    1. That this property has passed, through a long series of years, by a regular succession of devises, from Carroll to Thorold — from Thorold to Molyneux— from Molyneux to Hunter — from Hunter to Walton, who, in 1793 made a declaration according to the act of 1792, eh, 55, that this land had been, and then was held by him under a confidential or implied trust, for the use, benefit and maintenance, of the Roman Ca? tholic Church in the United States.
    2. That the said Carroll, and his devisees, (as well he who took as they who did not;) Thorold and both his devisees; Molyneux and both his devisees; Hunter and his devisees — In short, all the conduits of this title, until it became vested by the declaration of the last of them in the lessors of the plaintiff, were Roman Catholic Clergymen.
    3. That for more than forty years past the priests of the Roman Catholic Religion, and after them the lessors of the plaintiff, have held, possessed, and occupied the said land, by themselves and their agents, cultivating part, and claiming the whole, and that there is no recollection or tradition of the said land, or any part thereof, having ever been held or claimed as such by any person other than the said priests, and their agents, and the lessors of the plaintiff, ant! their agents.
    
      4. That the rents and profits for many years past have been applied to the use and support of the ministers of the Roman Catholic Religion. — And
    5. The wills of James Carroll,' George Thorold, Richard Molyneux, and George Hunter.
    
    The land was originally conveyed to James Carroll, a Roman Catholic Clergyman. He devised it in 1728-to George Thorold and his heirs; and his will shows his care and caution to provide a trustee. So also does the will of George Thorold} who in 1737 devised the land to Richard Molyneux and his heirs;' the will of Richard Molyneux, who in 1749 devised the- land to George Hunter and his heirs; and the will of George Hunter, who in 1778 devised the land to James Walton and his heirs; all show the same. The fact, that Thorold held in trust, is in point of law entitled to influence the construction of his devise; and the general court’s doubtful principle is an erroneous one in the latitude they give iL A doubt arises on the terms of the devise in the will of George Thorold, whether Molyneux was excluded by it from disposing of the land by ■will. The words are general' — Re devised the land to his friend Richard Molyneux, and his heirs, forever; “but in case of his death before mine, or his not having disposed of it before his death,” &c. then he devised the land to his friend James Guin, and his heirs. If it is not clear that these words do allow of a disposition by a will made before the death of Thorold, (as I contend it is,) it certainly is not clear on the other hand that they exclude a will. — It is then, at the worst, doubtful, and to remove this doubt, to assist the court in expounding the words of the devise, and giving.to it its true interpretation, I contend that they have a right to look, and ought to' look to the fact, that Thorold, was himself a trustee. No proposition can be more clear. Vide Powell on Powers, 55 to 57, which explains the whole doctrine, with all its distinctions.
    As to the influence of the fact of trusteeship on the devise. It follows from this fact, that the great object of Thorold was to perpetuate the trust — to mak.» a provision of trustees for the future. He hud selected •M’olyneiiai as the first object of his confidence — makes him the trustee in the first instance, and intends to give him power to appoint a successor. The whole scheme of the will is at once developed by this fact. Molyneux, a trustee, appoints a successor, who again is to appoint his successor, but in case he should omit to do so, Molyneux provides another himself. If this is the object, it is impossible to imagine a reason why Molyneux should be deprived of power to appoint by will as well as by deed. He was confessedly confided in by Thorold. or he would not have appointed him at all; and there can be no greater inconvenience or danger from an appointment by will than by deed. So far as Thorold can be supposed to have been influenced by example, lie had the example of Carroll for providing a trustee by will, and not by deed. Yet further, he himself does the same thing by this very will. He devises to Molyneux, and over to Guin. This will is therefore decisive proof, that the testator could have no view to distinguish between deeds and wills, so as to exclude the last; and if he distinguished between them at all, it was only to prefer the last. He w'as himself a trustee under a will, and lie provides for the succession by will. Upon the intention therefore, it would be clear, if Thorold was a trustee, that he could not mean to deny to Molyneux the power of devising so as to provide a future trustee. He gave him complete control over the estate, and it is ridiculous to suppose he could intend to check that control only with reference to a will. The evidence ought 'therefore to have been admitted, that Thorold was a trustee; or in other words, that the property was trust property. But this will be yet more evident when we examine the second bill of exceptions, on the construction of the will of Thorold; from which it will appear that this intent is not only perfectly consistent with the words of the will, but that it is the intent which the words do naturally and even technically indicate.
    
      Second bill of exceptions. In the argument of this exception it is material to consider what estate Moly-
      mem took under the devise to lire. He took afee., The object is admitted on all bauds to have been to give to Molyneux, during li«s life, confíete control over the estate — to dispose of it as he thought proper. This object was to be accomplished in two ways — »
    1. By making' him tenant for Ife, with power to dispose of the fee.
    2. By making him tenant in fe'*, and adding a de-feazance in case he did not dispose.
    In the first case the uses raised by the power would be served out of the devisor’s estate. In the second, .the act of the devisee would take effect out of the fee passed to him for the purpose of enabling him to dispose. The power of disposition would arise out of the nature of the estate devised, and be one of its qualities. The first of these modes was certainly not adopted in terminis, although undoubtedly, if if were necessary to resort, to implication, the power might be and would be implied. 6 Com. Dig, 2, (A. 2.) But the second mode is adopted expressly, by a devise of the land “to Molyneux and Ms heirs for ever.” These words necessarily pass a fee, unless plainly controled by others. But there are none others to control them. The power of disposition, belonging to and characterising afee, is impliedly recognized; but this rather confirms than controls. The defeasance is nothing; it may be annexed to an estate in various ways, and does not lessen it, till the event happens by which it is to be destroyed; and the purpose of it was simply to guard against accidents. The intent of the testator is clear that Molyneux should have a fee. It was obviously his meaning that he should have power to dispose absolutely; yet he gives no such power in words. He proceeds on the supposition that the power belongs to the estate devised, i, e. an estate to Molyneux, and his heirs. He takes the power for granted; he speaks of it as existing, and only makes ulterior provisions on the event of Malyneux’s omitting or neglecting to use it. A devise to a woman, and to be at her disposa 1, “provided she disposes of it to my children” — it was held to be a foe, deiermi-nable ón a disposition by her to others than the tegy tator’s children. Powell on Powers, 35, 57. If then it is afee,’ the right to devise it necessarily arises out of the estate, and the court, before they can lie justified in deciding such a devise void, must see clearly and affirmatively that there is in the will a negative upon that right; The testator having’ devised a fee, that estate will be kept in possession of all its qualities, and he suffered to produce all its legal effects, except so far only as a limitation is placed upon' it by the will; and as a power to devise is one of its qualities, that power must appear to be unequivocally taken away by the will giving the fee, before the court can Say it did not exist in Molynenx. It is otherwise-in the case of a mere power. There the right to devise mXi'st stand on the words of the power. It does, jiot'-exist if not granted; and before the court can say it does exist, they must see- clearly that it is given-. In a word, when a fee is given, as here, the right to»' devise exists if not taken away. In a power'it doc» not exist if not unequivocally granted. This case therefore is more favourable than a case upon a mere power, whether reserved or granted; and consequently cases upon powers, which will be cited hereafter, must apply to it with peculiar force and. effect. With these preliminary observations in view I will proceed to a consideration of Thorol'd’s devise. It may be considered in a twofold view:
    1. On the general intent.
    2. On the words, or particular intent.
    I. On the general intent, It has already been shown, that if the estate was held in trust, the testator’s ge» neral intent was to make provision for perpetuating trustees; that Molyneux was the trustee whom he preferred, and that Molyneux was to provide a successor to himself. That as he, Thorold, provided a trustee by will, and Carroll before him had done the same, he could not have meant to deprive Molyneux of the same power, but intended to give it. The rule is, that you are so to construe a will as best to give effect to the testator’s general intent, even though by so .-¡¡loing you may defeat some particular intent. Doe ¡on Deni. Blandford, etui. vs. Jipplin, 4 T. R. 82. Robinson -os, Robinson, 1 Burr. 38. in this case I will show that no particular intent is or can be defeated by supporting tliis general intent. But let us even suppose that the estate was no irasi — -Then the genera! intent, is to give such a control to Molyneux over the fee as tenants in fee usual! y have, and to grant over only in case he should not execute that control. This is evident, 1st. By his devising to him in fee, which imports an uuhmited.control. 2d. By the words of de-feazance, which speak of a disposition without any limitation during his life. Molyneux was therefore to do with the estate as lie pleased^ to dispose of i.t as he pleased. What motive could induce the testator to place the estate absolutely at Molyneux’s disposal during his life, by deed, aud exempt it from a disposition by will? if he might sell or give it away by deed on his death-bed, why not devise it? What rational ground of distinction? Caprice and folly might suggest a distinction, but reason could suggest none, in a word it would be inconsistent with the general intent, and therefore not to be admitted, if it can b« avoided.
    2. But the •words, and the particular intent, are la correspondence with the gcnerpl intent. The words «sed are, “die without having disposed of it before hi$, death.” These words may be divided, and separately considered.
    1. “Without having disposed of it.”
    2. “Before his death.”
    1. “Before his death,” can make no change, They were introduced perhaps to guard against a descent. But (or whatever reason introduced, as every disposition by the act of a party must be made during the life of that party, these words, add nothing to the others. They imply no more than the act, whatever it was, should be during the life of .Molyneux.
    
    
      3. “Without having disposed of it.” It is said that devising is not disposing of it, within the intent of these words. I contend it is, whether the words. are considered technically or vulgarly. That a will is a disposition of lands, and consequently that the testator disposes of the in, is too clear to be disputed. A devise is a disposition of a real or personal estate, to take effect after the death of the deviso?. Com. Mg, tit. Devise, and Co. LitL 111. a. The formula of eve* ry will is, “and as to such, he. I give and dispose thereof as follows,’* he. The statute of wills makes use of the same words ••give and dispose.” There can be no doubt then that a will is a disposition. Rut the general court say it is no disposition until death* I say it is a disposition as soon as made, although its effect is postponed until death. And here is the mistake, in imagining that tiie words “disposed of it,” refer to tne time, oft lie operation ot the disposition* and not to the time of the making it. By the statute pf wills an} person seised, he. may give, dispose, &c. You are to. took to the date of the will, and property afterwards acquired does not pass by it. In common Jpa;'Anee, when speaking of a man on his death-bed, would it not he correct to say, if he had made his will, that he had disposed of his property? Was it ever heard that a man should be said to have died without having disposed of his property who had left' a good will of it? in speaking of the disposition, we-do not mean to determine whether the disposition has taken effect or not, we simply mean that it has been piade. Suppose a covenant to stand seised, or bargain' and sale, to take effect at the death of covenantor or bargainor, might it not be said immediately thereafter that covenantor or bargainor had disposed ‘ of the property? As to its being revocable as a will, it is of no importance. A lease and release, with express power of revocation, would be a disposition certainly. In truth, the phraze «disposed of,” is ths very largest and the most comprehensive phraze that can be conceived. It embraces every mode and form ' of alienation or settlement. But suppose the words are capable of being referred to the time of the effect of ibo act. They are certainly capable of the other in-íerpretatio n also, and why prefer the first? It has already been shewn, that the power to dispose by devise, stands here upon the fee devised, and that the court must see that this power is taken away by the will. Bat if the words are capable of two interpretations, one consistent with the power, and the other against it, it is impossible to maintain that the power is taken away. It can only be taken away by that which cannot be reconciled with it. There must be repugnancy, but there is no repugnancy if the words relied upon, though by one construction they may be *et against the power, may by another construction, equally plausible, be made to stand with it.
    Whether therefore the subject be considered, as it ought to be, upon the ground that the thing devised was held in trust, (in which case there can be no room for reasonable doubt that one interpretation of the will is sound,) or whether that ground be excluded, if; is clear that Molyneuoe took a fee, and had power to devise as he has done; He also cited ’Powell on Powers, 55, 57. Hoi. 312. 1 Ves. 299. 2 Verm •329.
    
      Martin, (Attorney-General,) Key and Johnson, for the Appellee,
    did not argue the case in the Court of Appeals.
    
      
      
         Patticon’s Lessee vs. Chew General Court, October Term, 1790. This was an action of ejectment for Town Land, or Evans’s Purchase, Hunt’s Mount, and Irent, lying in Anne-Arundel county. Defence was taken on warrant, and plots were made.
      1. The' plaintiff, at the trial, offered in evidence, and read to the jurv, the certificate and patent oi the land Called Town Land, or Evans’s Punka e. The defendant located on the plots, two lines of the land called 'Town Land or Evans’s Purchase, and took defence Ibr all the land included in his I-. cation of a tract of lamí called Ayres, which lies to the south of one of the said lines; and to prove his said location of the said two lines, and also his location of the land called Ayres, 'or which he took defence, produced and read to the jury the deposition o. John Carr, taken at the beginning of tile lora'iovi of the said two lti.es, and reaci by the consent of the plaintiff, via “The deposition of John Carr, aged 75 years, being duly sworn, de¡.oseth and saith, that about 30 years a;;o lie, tills deponent, had a commission, and this place we are now at, where formerly s.ood a cedar post, was proved by George, and William Eimmons, and sundry others, to be the beginning of Eequolan’s t koice, and a corner tree of eannuel Chew’s land thal lays to the S. W of this place,” dec. The dei fendant produced to the court, and offered io read in evidence to the jury, a paper, the same being the Whole proceeding appearing on record íelalive to the said transaction, [viz the commission and return alluded to In Carr’s deposition,] to winch ihe plaintiff objected, because the said <wo lines so located as above mentioned on the plots, were not agieea'ble to the certificate or grant of the said land, orto the description in the said paper; and because the said lines and courses in the paper mentioned, were not located, or mentioned to be located by the defendant on the plots i.-: this cause; and because the whole proceedings were not produced, including the plot and survey in the said paper mentioned to have been made and returned.
      Johnson, Ch. J.(a), was of opinion, that the paper offered in evidence was proper evidence to prove, by general reputation, the location of the lands called Ayres and Evans’s Purchase or ll’own hand, and the ancient possession of the respective proprietors of the same. The plaintiff excepted.
      
        (a) Gvlclst/orough, 3. was absent, and Chase 3, had been counsel in the cause.
      
        2. The defendant, to make title to the land fot* "which he took defence, produced to the court two deeds from Thomas Watkins, and’ Mary his wile, who was entitled to the fee simple in the said latid, to Samuel Chew junior, one dated the 28th of February 1706, and the other dated the 17th of March 1707, and acknowledged on the day of their respective dates, as follow: «Memorandum, the, &c. came the within Thomas Watkins* and Mary his wife, before me &c. one of her majesty’s justices of the provincial court, and the said Mary having been first privately and se~ creily examined touching her consent to the alienation of the within granted land and premises,. she then freely, and after-wards, together with her husband the said Ihomas Watkins, acknowledged the sa;d within granted land and premises to be the right and estate of the within mentioned Kamnel Chew, Junr his heirs and assigns, according to the purport «and intent of the within indenture, and accotdingto the act of assembly in that case made and provided for acknowledgment of conveyances.” And the defendant offered to make title to the said land under and from the said Samuel Chew But the plaintiff objected to the reading the said deeds to the jury for the purpose of making title to the land therein mentioned, and that the deeds and acknow* lodgments were defective, and not sufficient in law to pass the estate of the said Mary Watkins.
      Johnson, Ch. J was of opinion, and so instructed .the jury, that there was nothing in the certificates of the acknowledgments of the said deeds repugnant to the directions of the act of assembly directing the manner of acknowledging deeds at that period, and that the said deeds were sufficient in law to pass the estate ol the said Mary Watkins in the said land. The plaintiff excepted.
      
        Marlin, (Attorney General,) and Pinkney, for the Plaintiff.
      
        Cooke and Duvall, for the Defendant.
      
        Verdict for the plaintiff, agreeably to his pretensions, for that part of Hunt’s Mount described on the plots F, &c. also fovTown Jjancl, &c. from D, &c. and for the defendant, as to the residue, according to his pretensioi s.
      
        N. B. As this ease 1ms not been before reported, it is here given at length, al though the question which arose under the second b/U of exceptions, was alone re ferred to.
    
    
      
      
         Done and Spring, J. concurred.
    
    
      
      
         Sprigg, J. concurred.
    
    
      
      
         Sprigg, J. concurred,
    
   The Court or Appears,

[Rumsey

Ch. J. Jones, Potts and Dennis, J.]

Reversed the judgment of the General Court upon the second bill of exceptions, (the other bills of exceptions having been waived,) and awarded a Procedendo,  