John McLean

“ The executor had not power to sell them; here was a case, then, where property ought to be sold, and there was nobody to sell it. If the chancellor appoints a trustee, he has decided that a trust exists. This court has said that the decision of a court of competent jurisdiction must stand; and must assume that the necessary facts were proved.
The Court of Appeals in Maryland have decided (M. S. Denison and Dublin) that a proceeding under the fourth section of the act of 1785 is like a suit. One person is enough to petition; others can go in and be heard. ”

“ It would be difficult to convey in more explicit language, than is done in the above sentences, the intention of the testator. He gives a life-estate; and then, on the happening of the contingency named, he gives an estate to the devisee and his heirs in fee-simple; but, should the contingency not happen, he directs the land to be sold and the proceeds distributed among his children. No other conclusion can be arrived at, on this view of the will, than that Elias Magruder took only a life-estate in the land. ”

“ In the first clause of the devise a life-estate is clearly given to him. 'I give and bequeath unto my brother, Elias Magruder, during his natural life, 100 acres of land,' &c. The second clause of the devise is equally explicit. 'In case the said Elias Magruder should have heirs lawfully begotten of him in wedlock, I then give and bequeath the 100 acres of land aforesaid, to him, his heirs and assigns, for ever.' Now the condition of having heirs as above expressed, is clearly a precedent condition and must happen before the estate vests. ”

“ The devise to the children is a good executory devise, to take effect unless a contingency happened. The object of the testator was to benefit his children; but the argument of the other side would defeat that intention.
Mr. Justice McLEAN delivered the opinion of the court.
This case comes up on a writ of error to the Circuit Court for the district of Maryland. An action of ejectment was commenced by the lessor of the plaintiff, to recover the possession of 100 acres of land, part of the tract called George's Adventure, situated near the town of Cumberland. ”

“ In the language of this court, in the case of Voorhees v. The Bank of the United States, 10 Pet., 450, the record imports absolute verity. But when a judgment or decree is given in evidence, its nature and effect can only be ascertained by an examination of the record. Let this test be applied to the proceedings of the chancery court under consideration.
It is admitted, and the fact appears from the record, that at the time these proceedings were instituted, Elias Magruder was living and continued to live for seven years afterwards. ”

“ But there is a rule of construction applicable to all instruments, and especially to wills, that is, the intention of the parties, which should control any arbitrary rule however ancient may be its origin. ”

“ Afterwards on the 22d of May, 1806, the trustee reported that he 'had sold the real estate in the said will and decree mentioned,' and had made distribution, &c. At the close of his report he says, 'the 100 acres, part of the said tract devised to be sold in case Elias Magruder should die without heirs, as expressed in the will, still remains unsold.' The sale was ratified by the chancellor. ”

“ The defendant in the present case relying, as a ground of defence, upon an outstanding title existing in Lamar or his heirs under these proceedings, and the plaintiff resting his title wholly upon them, their progress is exhibited in a tabular form, showing the history of each one, up to the consummation by a sale of the 100 acres now in dispute. ”

“ The chancellor, however, decided (2 Bland (Md.) Ch., 323) that a judgment cannot lie dormant for ever. Some illustrative cases are 2 Harr. & J. (Md.) , 66; 8 Gill & J. (Md.) , 38; 7 Id., 360.
It is settled in Maryland that there must be a scire facias where a new party is to be charged; such party must have a day in court. 2 Harr. & J. (Md.) , 72; 10 Gill & J., 373.
4. The demise is for an entirety.
Two children did not join in the petition, and the record does not show that they ever received a distributive share of the proceeds of the second sale of 100 acres. Their title is not extinguished ”