Joseph Story

“ But it is unnecessary to consider whether that practical construction be correct or not, inasmuch as the laws of Rhode Island, in all cases, make the real estate of persons deceased chargeable with their debts, whether inhabitants or not. If the authority to enforce such a charge by a sale be not confided to any subordinate court, it must, if at all, be exercised by the legislature itself. ”

“ There is nothing which prohibits the exercise of all the powers of government by a legislature. If the guarantee of a republican form of government by the United States was violated by the government of Rhode Island, why had not the United States interfered?
The charter of the government of Rhode Island is a skeleton; it does not form the government. It is the usages of Rhode Island that compose the constitution. The people say their legislature shall have certain powers, and be unlimited ”

“ If the creditors had petitioned for a remedy against the estate, common justice would have required notice to the devisee. But the petition was by the legal representative of the estate; the legal representative, in Rhode Island as well as in New Hampshire. The power of an administrator is confined to the state for which he is appointed. He is not the representative of the intestate in any other state. But the power of an executor is coextensive with the estate of the testator. He derives his power from the will, and he has an exclusive right to administer wherever any estate may be found. ”

“ We are not prepared therefore to admit that the people of Rhode Island have ever delegated to their legislature the power to divest the vested rights of property, and transfer them without the assent of the parties. The counsel for the plaintiffs have themselves admitted that they cannot contend for any such doctrine. ”

“ We deny that a confirmation by the devisee of the void deed of the executrix would have been invalid; and if it would, we deny, 2. That it necessarily follows that a confirmation by the legislature, is of the same character.
Would a confirmation by the devisee have been binding? It is admitted that in general a confirmation of a void deed is inoperative. An examination of the reason of the rule, however, will show its inapplicability to this case. It applies to a deed void for want of estate in the first grantor. As for instance, A. is the owner in fee of a lot of land. ”

“ We know of no case, in which a legislative act to transfer the property of A. to B. without his consent, has ever been held a constitutional exercise of legislative power in any state in the union. On the contrary, it has been constantly resisted as inconsistent with just principles, by every judicial tribunal in which it has been attempted to be enforced. ”

“ Accordingly, we find frequent instances of wills proved, and administration granted, by the legislature. The power of granting license to sell real estate, of proving wills and of confirming void deeds, has been so long and so frequently exercised, that it has been known by almost every man in the state. The people, knowing this usage, have acted under it, and there is hardly an acre of land in Rhode Island which, in some period or other, has not been sold by executors, administrators or guardians licensed by the general assembly ”

“ Authority is given in one of them to sell lands in New Hampshire.
It is necessary for the plaintiffs in error to show that the power has been exercised against the bill, in invitum. Parliament, in England, never proceeds upon any private bill, without notice to all the parties; and there is no case in which parliament exercises its authority to dispose of land, without the consent, in writing, of every one who is interested.
The consent of the heirs of Jonathan Jenckes is not recited in the act of the legislature of Rhode Island. ”

“ Resort however to the extraordinary powers of the Rhode Island legislature to protect the present conveyance, is unnecessary. Every legislature in the union possesses similar authority, unless expressly restrained by its local constitution. The subject matter of the conveyance was land lying within the state; and, consequently, exclusively within the jurisdiction of the state. How the land shall pass from one man to another, whether by deed under seal, or by mere delivery; how it shall be appropriated to the payment of debts whether by attachment and sale, or by mesne or final process ”

“ The deficiency being once ascertained in the probate court, a license is granted by the proper judicial tribunal, upon the petition of the executor or administrator, to sell so much of the real estate as may be necessary to pay the debts and incidental charges. The manner in which the sale is made is prescribed by the general laws. In Massachusetts and Rhode Island, the license to sell is granted, as matter of course, without notice to the heirs or devisees ”

“ The executrix in petitioning the legislature of Rhode Island for power to sell, was acting as the representative of Jonathan Jenckes, was taking a step she had a right to take without consulting heirs or devisees, and without giving them notice. The general law of Rhode Island authorized an executor to petition the supreme court for a license, without giving notice. Why should she give notice when she petitioned the legislature?
There is a wide difference between the right to sell, and the right to apply for a license to sell. ”

“ By the laws of New Hampshire the heirs are always to have notice when the estate is to be sold. They also require an inventory of the estate and an order to sell; in this case there was nothing of that kind; there was only a license to sell without any other proceedings. No account was filed in New Hampshire which took any notice of the debts or property in Rhode Island. ”

“ Every technical rule, as to the construction or force of particular terms, must yield to the clear expression of the paramount will of the legislature. It cannot be doubted that an act of parliament may by terms of confirmation make valid a void thing, if such is its intent. ”