Argument for the purchaser.

In these cases the right of which the heir at law was de prived by the court was a mere naked possibility.

In this case the right of which he has been deprived by the legislature was the same.

In this country, laws affecting such contingent rights in property have never been held to be beyond the scope of legislative power. Cases sustaining such laws are very nunerous. We shall refer to only a few of them.

Thus it has been held that the legislature might take away a contingent right of dower or courtesy.*

Also, the contingent right of the husband in the choses in action of the wife.t

Also, the possibility of reverter to the owner of the fee, in land taken for a street in a city, on the ground that the interest thus taken is too remote to be deemed an interest, in property of any value.‡

So an act of the legislature by which an estate in fee tail was declared to be a fee simple in the grantees of the tenant in tail, who were infants, and which authorized a sale of the land, was declared valid.§

So a law empowering a court of equity to order the sale of real estate owned in common, where partition would not, in the opinion of the court, be advantageous to the owners.

And so, a statute validating the levy of execution in cases where the levy was void, for the reason that the officer had included in his return fees not allowed by law.¶

It must be admitted that the act under consideration in the last case was not only retrospective, but affected essentially vested rights of property; yet inasmuch as those rights of

* Strong v. Clem, 12 Indiana, 37; Thurber & Stevenson v. Townsend & Wilbur, 22 New York, 517.

Barbour v, Barbour, 46 Maine, 9; Clarke v. McCreary, 12 Smedes and Marshall, 347.

People v. Kerr, 27 New York, 188.

De Mill v. Lockwood, 3 Blatchford, 56.

Richardson v. Monson, 23 Connecticut, 94.

¶ Beach v. Walker, 6 Id. 190, and see Goshen v. Stonington, 4 Id. 209; Mather v. Chapman et al., 6 Id. 54.

Argument for the purchaser.

property were not unjustly affected, the act was declared to be valid.

So a private act of the legislature, divorcing a woman from her husband, was held to be valid, though its effect was to deprive a creditor of the husband of a vested estate in the lands of the wife acquired by the previous levy of an execution on the husband's estate therein.*

These last three cases arose in Connecticut. In Massachusetts and in Pennsylvania† it has been decided that a law which changed the tenure of estates by declaring a joint tenancies to be tenancies in common, was constitutional and valid.

Private acts authorizing tenants for life and trustees to support remainders, to sell real estate devised, and convert the same into personal estate, to be held subject to the same provisions and trusts as the land, are numerous, and have always been sustained, though in opposition to the will of the testator; and although the effect was to compel those in remainder to take personal estate instead of the real estate devised, and in which they had both a vested and valuable interest.

It cannot be denied that in each of the cases just referred to, and given in the note below,‡ the law took away or modified and controlled interests in property more immediate and tangible than any which the plaintiffs had under the will in question.

From the whole tenor of Mr. Stanley's will it is apparent that this society was the sole object of the testator's bounty in respect to the land in question, and that this condition (if there be a condition) was imposed for the purpose of protecting the society in the enjoyment of it, and not to enable the heir at law to deprive them of it.

* Starr v. Pease, & Id. 541.

Holbrook v. Finney, 4 Massachusetts, 568; Annable v. Patch, 3 Pickering, 363, and Bambaugh v Bambaugh, 11 Sergeant & Rawle, 191.

Norris v. Clymer, 2 Barr, 284; Blagg v. Mills, 18 C. C. R. 427; Sohier v. Massachusetts General Hospital, 3 Cushing, 483; Rice v. Parkman, 16 Massachusetts, 326; Clarke v. Van Sarlay, 15 Wendell, 436.

Argument for the purchaser.

There is no limitation in favor of his heirs at law, no devise over, nor any other provision in the will tending to show that the testator ever intended or expected that his heirs at law would succeed to the estate in any event.

From the authorities already cited it appears that it is the constant practice of the legislature where the power has not been delegated by the legislature to the courts, and of the courts where the power has been delegated, to authorize a sale of the lands of infants, idiots, lunatics, and others, who are not sui juris. This is done in the exercise of a tutelary authority on the part of the legislature as parens patriæ. C. J. Parker, of Massachusetts, says that "this power must rest in the legislature in this commonwealth, that body being alone competent to act as the general guardian and protector of those who are incompetent to act for themselves."*

Now the power to authorize the sale of the lands of a charity is derived from the same source, and rests upon the same principles. A charity is never, so to speak, sui juris; it is under perpetual guardianship, and its guardian is the State. It is for this reason that the trustees are primâ facie guilty of a breach of trust in selling the estate of a charity without authority derived from the State. And we submit that it is not in the power of a donor to a charity so to fetter the State as to prevent the sovereign power from authorizing a lawful disposition of the estate given to the charity, its ward, when it is clearly made to appear that it will be for the interest of the charity. This never has been done, and we contend that it cannot be done. We do not mean to assert that the State may divert the fund from the use to which it is given. What we say is, that the State may authorize such modal changes in the property from time to time as may be found to be necessary and proper, and that

Rice v. Parkman, 16 Massachusetts, 328; and see Sohier ". Massachusetts General Hospital, 3 Cushing, 483; Blagge v. Mills, 1 Story, 426; Davison v. Johonnot, 7 Metcalf, 388; Clarke v. Van Surlay, 15 Wendell, 436; Cochran v. Van Surlay, 20 Id. 365; Bambaugh v. Bambaugh, 11 Sergean* & Rawle, 191; Estep v. Hutchman, 14 Id. 435. See also Leggett v. Hunter, 19 New York.. 445.

Argument for the purchaser.

it is not in the power of a donor to provide that this shall not be done.

Even if this were a law impairing the obligation of any contract, how could it avail the plaintiffs? If there is any compact it is that the land shall forever be devoted to pious or charitable uses. Is the heir at law asking to have this compact observed and performed? Is he intending to devote the land to those uses? Clearly not; he is seeking to recover the land, not for the use of the society, in order that the supposed compact may be executed, but for his own private use.

The courts of Connecticut, in some early cases, involving the right of the State to tax such land, may speak of the exemption contained in the statute as a compact or pledge on the part of the State that lands given should be forever exempt from taxation. These decisions have, we think, recently been overruled, and in Brainard v. Town of Colchester,* the court say, that "there is nothing in the language of the statute which makes it differ from ordinary statutes specifying what should or should not be subject to taxation."

The notion that any general law of the State is in the nature of a compact between the State and the citizen, is erroneous, and there is no force in the suggestion that this statute of 1702 created anything in the nature of a compact between the State and any one.

The power which the legislature of Connecticut exercised in this case it has exercised unquestioned for two hundred years, and this in itself would be a sufficient vindication of its right to continue to exercise it.

There is an additional consideration, growing out of the long-continued practice of the legislature in passing such acts as this, of so much importance as to have been deemed worthy of special consideration by courts in similar cases. That consideration is the effect which a decision against the validity of this act would have in unsettling other titles to land. In Davidson v. Johonnot,t the court declares that

* 31 Connecticut, 409.

† 7 Metcalf, 888.

Opinion of the court.

the vast amount of property now held under titles derived from similar legislative acts should lead us to proceed most cautiously in the investigation of this subject, and to deal with it in a liberal spirit when called upon judicially to declare that this course of legislation conflicts with the constitution, and that all the special acts of this character are of no validity. And in Norris v. Clymer,* a case in the Supreme Court of Pennsylvania, Chief Justice Gibson, speaking of the consequences in his own single State, says:

"It is not above the mark to say that ten thousand titles depend on legislation of this stamp, for many of those statutes contained provisions for more than twenty distinct estates, and could not the ruin that would be produced by disturbing them be arrested by anything less than a convention to effect a constitutional sanction of them, the consummation would not be dearly bought."

Mr. Justice NELSON delivered the opinion of the court. This is an action of ejectment by the heirs of William Stanley to recover for breach of condition a tract of land, situate in the city of Hartford, devised by the ancestor to an ecclesiastical society and their successors, on the 7th October, 1786; and one of the principal questions in the case is whether or not the devise was npon a condition, which, when broken, would let in the heir, or was a limitation or trust, the breach of which would work no such consequence.

The material parts of the will are as follows:

"I give and devise the whole of my real estate, of every kind and description, . . . unto the Second or South Ecclesiastical Society, in the town of Hartford, to be and remain to the use and benefit of said Second or South Society and their successors forever." Then comes- the condition or limitation upon the devise: "Provided, that said real estate be not ever hereafter sold or disposed of, but the same be leased or let, and the annual rents or profits thereof applied to the use and benefit of said society, and the letting, leasing.

* 2 Barr, 284.