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    Matthew Cunningham, Plaintiff in error, v. Mary W. W. Ashley, executrix, and sole Legatee of Chester Ashley, deceased, and William E. Ashley, Frances A. Ashley, (now Frances A. Freeman,) and Henry W. Ashley, by Mary W W. Ashley, his guardian, heirs at law of said Chester Ashley, deceased, and Roswell Beebe.
    On the 25th of December, 1824, Cunningham applied to the land-office at Batesville, in Arkansas, to become the purchaser of a quarter section of land under a Cherokee certificate which had-become vestecMn him.
    This application was refused, upon the .ground that two New Madrid certificates had been laid upon the land in 1820. Thc.right under these certificates was claimed by Ashley,
    In 1830, Cunningham said that. Brumbach had an improvement on the same Quarter section, which Brumbach assigned to Ashley. -The law sanctioned the division of a quarter section, under such circumstances.
    In 1831, Cunningham claimed a preemption right under the act of 29th May, 1830., The claims under this act', and under the Cherokee float were were not inconsistent with each other.
    In 1838, two floats were entered'-upon the same quarter section, viz.: one by Plummer, for the east half of it, under the act of 1830, and the supplemental act of ■1832; the other for the west half by Jenbeau, under the act of 1834, and the circular of the General Land-Office of 1837. Patents were issued, and the title- became . vested in Ashley.
    The title of Cunningham is better than that" derived from these floats. The title, under the New Madrid certificates is not decided in this case, or affected in any way by tlie decision.. Cunningham is therefore entitled'to the half "of the quarter section which' he claimed separately from Brumbach.
    The patents obtained- by Ashley and Beebe, being founded upon entries which were void, are void also, so far as th^y interfere with the nreemntive right of Cunningham.
    . Tips case .was brought up from the Supreme Court of the State of Arkansas,- by a writ of error issued under the 25th section of the-Judiciary Act.
    The facts in the case were numerous and eomplicáted, and a statement of the principal ones is given in the opinion of thS court. . It-would not throw light upon any general principle if the reporter were to give a more particular account of thé long series of acts which the respective parties considered to be the foundation of their respective, titles. Nor would it be possible explain the arguments of counsel, commenting on contradictory testimony, without a previous and detailed history of the transactions of twenty years. One of .the briefs -filed in the" cause was upwards of seventy printed pages. The opinion of the court has given a selection of the leading facts in the case, so that its merits upon both sides can be clearly understood.
    , • It was argued by Mr. Lawrence and Mr. Pike, for the plaintiff in error, and by Mr. Bradley and Mr. Johnson, for the defendants-in error.
   Mr. Justice McLEAN

delivered the opinion of the court.

A writ of error to the Supreme Court of Arkansas, brings this case in Chancery before us, under the twenty-fifth section of the Judiciary Act.

Oil the1 25th of December, 1824, Matthew Cunningham, by his attorney, applied to the Register of the Land-Office at Bates-' ville, in Arkansas, to become the purchaser of the south-east quarter of section three, in township one,, north, ánd in range twelve, west of the fifth principal meridian, south of the Arkansas, River; by virtue of a certificate (No. 23) granted by the Register of the said land district, to William Wylee, assignee of William , Morrison, under the act of 26th May, 1824.

That act provided that every person, entitled to the right of preemption by law, in the tract of country north of the Arkansas .River, which was ceded to the Cherokees, should be authorized, in lieu thereof, to enter with the above Register, any tract, in the Lawrence ville district,, on which- he may -have made improvements, previously to the passage of the act; or, on any unimproved tract, within the district, the sale of which is authorized by law

By several mesne assignments, the right of the Cherokee certificate was vested in Cunningham, and the land he proposed to enter, was, by law, authorized»-to be sold. The agent of the complainant informed the. Register and Receiver, that he had the money, and was desirous of paying for the land; but, after con- . sultatjon between the officers, he was informed the. entry would not.be permitted. The ground of this rejection was not stated,, at the timó, nor entered upon the records of either office. There can be.no doubt,.from the facts in the case, which appear in the .correspondence of the General Land-Office, and otherwise, that tfie application to make the entry was rejected, on the ground that the lánd was Covered by New, Madrid locations. And it appears that two New Madrid certificates had been laid on the quarter section ; one on the 19th of April; 1820, and the other on the 1st of May, of the same year.

On the 27th of' May, 1831, the complainant claimed the right of preemption to the same quarter section, under the act of the 29th' of May, 1830. Being duly sworn, he stated, “ that, in the year 1829, he had in; cultivation about four acres, in corn and vegetables, on the land, and had been in possession of it near •ten years; was in possession of it the 29th of May, 1830, and still occupied it.” Several other witnesses proved the same facts, and one of them states,-that he saw the complainant put down on the counter, about .two hundred dollars, and informed the Receiver that it was-.offered in payment of the land.

In the record, there is a list of the preemptions allowed, at the Land-Office at Batesville,. by H. Bciswell and J. Rodman, late Register and Receiver, from the 8th of January, 1831, to the 30th of June, in the same,year, as appears 'from the,papers of that office. In that list, the name of Matthew Cunningham stands first, as having entered the south-east quarter of section' three, first township, north, twelfth range, west. It is certified by Townsend Dickinson, Register. On this paper the word “rejected” is .found,, but by whom written, and for what purpose, does not appear on the paper. The names' of H. Boswell and J. Rodman, are under the word “rejected”; arid several of the witnesses state, that'the word “rejected,” or “ allowed,” was indorsed on the envelop of preemption papers, as. the decision of the land-officers was made.

In the list is the name of Nathan Cloyes, claiming the preemption right to the north-west fractional quarter of section two, in township one, north of range twelve, the claim to which was decreed to his heirs, in Lytle et al. v.- the State of Arkansas et al. 9 Howard, 328.

There is, also, in the record, a certificate, of Samuel W. Rutherford, Register of the Land-Office at Little Rock, where the. papers of the Batesville officers are deposited, dated the 27th of December, 1837, which states, ‘.“-that Matthew Cunningham was allowed., at the Land-Office at Batesville, (Lawreneeville land district,) a preemption claim on the south-east quarter of section three, township one,'north range twelve, west,- as appears from-the papers furnished this office from the Land-Office at Batesville, as having been allowed said Cunningham, prior .to the 30th of June, of the same year.” The year referred to was 1831, as stated in the .above list of preemption claims.

■ Various efforts were made by the complainant, at the Land-Office at Batesville, and at the General Land-Office, at Washington, to procure a full recognition of his preemption claim. Appeals on the subject were rriade to the Secretary of the Treasury, and to the Attorney-General, all of which resulted in the denial of his claim, on. the ground that the quarter section was not subject to a preemptive right, by reason of the prior New Madrid locations.

It appears, from the record, that at the Land-Office at Little Rock, on the 6th of June, 1838, there was entered, by “ Samuel Plummer, by virtue of his preemption float, under the' act of 1830, and the supplemental _act of 1832, the east half of the south-east quarter of fractional section three, south o'f the Arkansas River, in township-one, north of range twelve, west, containing .eighty acres, &e., as per certificate granted to him, No. 3549 ” And that, on the same day, “ Mary L. Jenbeau entered, by virtue of her preemption float, under the act of 1834, and circular of the General Land-Office, of the 9th of June, 1837, the west half of the south-east quarter of section three, in township one, north of range twelve, west, &c., as per certificate granted to her, No. 3554.”

In their-answers, the defendants say,- “that' they caused áp-, plication to be made by legal and valid floating preemption rights, fully authorized-by-law,'to locate and enter' said southeast quarter of section three, the same being then vacanfpublie land, and liable, by-law, to be entered by such floating rights; and this defendant, ( Ashley,) in conjunction with said Beebe, caused the same to be entered, on the east half in the name of Samuel Plummer, and the west half in the name of Mary L. Jenbeau,” &c. “ Which said floating preemption rights were'located, entered,- and transferred, according to law and all the lawful rules and regulations of the General Land-Office.; and were duly patented to said Beebe,-' by the. President of the United States, on the 25th of September, 1839.”

On tfio 26th of December, 1838, the Commissioner of the General Laúd-Office, required the land-officers at Little Rock, to-‘inform him, “ why entries 3549 and 3554, with two others, were permitted to be made on land already occupied by prior claims long since located, and' against the validity of which this office possesses no evidence.'’ In reply, dated 30th January, 1839, the land-officers'stated, that the entries were permitted “ upon the ..demand of Roswell Beebe, and the several allegations made 'by him, setting forth and showing, conclusively, that the .Treasury Department had disallowed the preemption claims under the act-of 1814, upon all- the lands south of the Arkansas River, ceded by the Q,uapaw treaties of 1818, and 1824,” &c. And they say, “ The original plat of survey embracing those entries, was, at the time,'complete, and represented the subdivisional lines, and. the; number of acres corresponding respectively with those certificates of entry; and there was no evidence of record bn file, in either of our offices, to show that these lands were ever- regularly entered, or located, and due return made thereof, according to law, except such evidence as was exhibited by the preemption, abstract from Batesvi'lle, under the act of 1814, and the coloring of the plat. The capitol of the State of Arkansas is built upon a portion of these lands, at a cost of Some, seventy thousand dollars, or more. The corporate authorities of the city of Little Rock, as well as the inhabitants, all hold under conveyances derived from, as under the preemption claim, and against the New Madrid claims, either by a compromise made by the respective claimants about the year 1821, or, by the decision of the land-officers at Batesville, of which we are not particularly informed. All parties, within the limits of the city, we belieye, are fully satisfied that these entries which embrace it will cure the defects in their titles, as no dissatisfaction is believed to. exist with any one interested in the question. Those entries were therefore allowed by us upon due reflection, under the belief that we were acting correctly in the faithful discharge of our duties; and by which the individuals who supposed they rightfully claimed those lands, will be' enabled to obtain at perfect title, and thereby save and protect the rights gnd titles of the numerous persons claiming under them, and to whom they are bound by obligation or deed.”

In a letter from the Commissio.ner of;the General Land-Office, dated the 24th of September, 1839, to the Register and Receiver at Little Rock, he says, “ Your letter- in reference to certain tracts of land located by floats 3549 and 3554, under the act of the 19th of June, 1834, has been received; ” and he remarks, “ after an attentive and careful examination of all the questions connected with the different claims preferred to the land above referred to,' this office, on the. 18th instant, transmitted to the Secretary of the Treasury, agreeably to his request, all the papers in reference to the case, with an opinion of this office in favor of a confirmation of these floats, regarding the bond filed by Roswell Beebe, as a sufficient compliance with the spirit of the circular of 11th of October, 1837; and I have this day received from him a communication concurring in that opinion. Patents will, therefore, issue for certificates 3549 and 3554, and two other numbers stated.”

The circular referred to by the Commissioner, in the above letter .of the 11th of October, 1837,- contains the following'sentences : “ The President of the United/ States has directed that, until the further action of Congress thereon, the rights of preemption of eighty acres of land elsewhere, usually called floating rights, granted by the second section of the act of Congress, approved May 29th, 1830, which act.was revived and continued by the act approved June 19th, 1834, and’which, also, as you were informed by my circular of June 9th, 1837, is for certain' purposes therein stated, still in force; shall be restricted in their location to unimproved and vacant public land.”

“ You are therefore instructed not to permit the entry, by virtue of a floating right, of any tract on which there is a cultivation, improvement, settlement, or occupant,unless the.owner of the float shall first produce to 'you the written consent thereto, of the person or persons claiming th<? same improvement, cultivation, settlement, or occupancy, attested by two witnesses.”

The second section of the act of the 29th of May, 1830, provides, “ that where two persons are settled upon the same quarter section) each may receive a preemption for eighty acres, and a. right to enter eighty acres elsewhere; so as not to interfere with other settlers having a right of. preference.”

In his letter to the Secretary of the Treasury, “ in favor of a confirmation of the above floats/.’ the Commissioner says, “ the claipi of Matthew Cunningham, under'the act of 26th of May, 1824, has heretofore been disposed of; ” and further, ,K that the claims of Christian Brumbach and Matthew Cunningham, under the preemption act of 29th May, 1830,-have no Validity. TJie report of the Register and Receiver, dated 20th July, 1839, and its accompanying papers, together with the Receiver’s letter of the 25th July, 1839, with the inclosure, show that no action had been had on the claim of Christian Brumbach, by the land-officers; that no tender of the purchase-money was made by him, and nó explanation can be given why his claim has been suffered to sleep from 1831 to 1839; and then only revived upon the rejection of the claim of Mrs. Backus, for the same quarter section under the act of 1838, who claims also to hold under Brumbach’s claim of the act of 1830. ' Brumbách’s own testimony shows, also, that he was living there by the permission of one of the proprietors of the town, and made the improvements for their benefit under a contract, and his deed of December 22d, 1824, accompanies those papers whereby those improvements were conveyed to- Chester Ashley, one of the proprietors.” '■

And-further in relation to Cunningham’s claim under the act of 1824, he says, it was rejected under the opinion of the Attorney-General; and remarks, “ there is a strong point against the validity of that claim, which circumstances did not render it necessary heretofore to make, viz., that as the law of 26th May,'1824, granted the privilege of entering vacant land only, except where the preemp'tor or his legal representatives was desirous of securing his own improvements made prior to the passage of the land, &c;, and he argues that Cunningham should not be permitted to locate one hundred and sixty acres of land, to secure improvements on a few .town lots.”

On the 15th of' July, 3 839, it appears, by the certificate of the Receiver at Little Rock, that the complainant again tendered the sum of two hundred dollars, in payment of the quarter section in controversy.

As the legal title to the land in controversy is in the defendants, the right of the complainant can be sustained only by showing a paramount;equity. .This he has attempted to do. But before we enter upon this investigation, it may be proper to state, distinctly, the grounds on which the title of the respective parties will be considered. From the issue made by the pleadings, we do not consider the New Madrid locations, or any right under them, as involved in the case. They were necessarily set aside, if not abandoned, by the defendants, when they located their floating rights on the land' in controversy, on which patents were obtained. The right of tlf complainant has, from its origin, been hostile to the New Madrid claims.

The equity of the complainant must rest upon his occupancy and improvement of the land, whether he claims under the Cherokee warrant, or a preemption under the act of 1830. ,The defendant’s legal title will be considered as founded, exclusively on. the locations made by the floating rights, on which the patents were obtained.

The two claims, set up by the complainant in his bill, require different facts, in the order of time, to sustain them; but they are in no respect inconsistent with each other. The Cherokee float could be located only on unoccupied land, or on land improved by the holder of the warrant.

As the land-officers at Batesville would not permit the complainant to make an entry under either claim, it is therefore important to ascertain on what ground they decided; and also as to the sufficiency of the evidence to sustain the right as claimed. There can be no question that the decision of these officers was founded On the prior New Madrid locations. • .These were made before the complainant took possession of the land. This, under the circumstances, being an insuperable objection to the entry' no court can presume that their decision was made on any other ground, unless such grorind was stated, or . the evidence was defective.

The voluminous ■ correspondence of the General Land-Office shows, that the laijd-officers considered .the above New Madrid locations as an appropriation of the land. Was the evidence adduced by complainant sufficient to establish his right ? •

The authority to Samuel C. Roane to make the entry, as the agent of Cunningham, under the act of 1824, was undoubted. The application to make the entry was made in due form. The Cherokee warrant had been issued by the land-officers, who were called upon to make the entry. : The assignments upon the warrant were primd facie evidence of right in Cunningham, and there does not appear to have been any objection to them; -they must be considered, therefore, as having been held sufficient. The money on the entry was offered to be paid to the Receiver, and the only defect in- the evidence was as to the improvements and occupancy of the complainants. These, it is contended, the court may presume were within the knowledge of the land-officers, or that the facts were proved by parol, or that they were proved by affidavits, which have become mislaid or lost. As the proof in the record, in regard to these facts, applies to the preemption claimed under the act of 1830, there is'no occasion to resort to presumptions on this head.

The preemption act of the 29th of May, 1830, in the first section, provided, “that' every settler or occupant of the public lands, prior to the pássage of this act, who is no\V in possession, and cultivated any part theréof in the year 1829, shall be, and he is hereby authorized to enter, with the Register of the land-office for the district in .which the lands may lie, by legal subdivisions, any number of acres, not more than one hundred and sixty, or a' quarter section* to include his improvement, upon paying to the' United States the then minimum price of said lands.”

Under this law the applicant was a witness, and Cunningham •was interrogated by the land-officers on his application. He stated that in the year 1829, he cultivated about four acres on the quarter séctidn claimed, and that he had been in possession of said improvement for near ten years, and that he was still-in possession of it. And .'he further stated, Christian Brumbach had an improvement on the same quarter section which he had in cultivation, in the year 1829, and has continued to hold possession of the same to- this time. This statement is corroborated .by the oath of C. Brumbach, and as to the occupancy and improvement' of complainant, by C. fh Pelham and Richard Searcy.

It is clearly shown, that the improvements of Cunningham, up to 1831, were wholly on the quarter section- claimed; and that his cultivation and occupancy continued without. interruption from the time he took possession in 1821, until the fall of the year 1831. ' He then removed to his present residence, the principal part of which is on the north-west "quarter section, but a part, if not all, of his outbuildings, are on the south-east quarter. His former residence was south of his present on'e. The improvement he made at first is still cultivated by him.

As lot number one, on which the complainant’s first house was built, was conveyed to Bertrand, his step-son, in 1821, by O’Harra, it is contended that the complainant had no such-residence on the land’, as to entitle him to preemption. Bertrand was a minor, and lived with his step-father at the time, and it is quité, clear, that a minor cannot claim a preemptive right. But, in addition to this, as the case is now before us, it does not appear that O’Harra had any right to "the lot conveyed.

It is objected that Cunningham’s improvements, though on the quarter section claimed, are limited by the boundaries of a certain square, of lots, within the city of “ Little Rock;” and that, consequently, he cannot claim a preemption for the quarter section.

On the 20th of November, 1821, certain individuals, assuming to be owners'and proprietors of the north-east fractional quarter of section number threé, and of fractional section number two, of township number -one, north of the base line in range number twelve west, entered into a deed of assurance, in which they agreed to lay out the town of Little Rock, specifying the streets and alleys, and making certain donations of public squares and lots for-public purposes. This plat appears to have been surveyed so as to embrace the quarter section j n controversy. In their answers, the defendants specify a number of lots sold in the south-east quarter, and they, allege the greater part of it has been sold in lots. The proprietors in their deed say, that they extended the plat to adjoining lands not owned by them.

This survey' of lots in the south-east quarter of section three, if made without authority, cannot, embarrass the complainant’s right. The New Madrid locations being out of the case, should the right of the complainant be sustained against the.legal title of the defendants, the surveys must be considered as void.- The to\yn was incorporated in 1825, and, by the act of 1827, the corporation was extended so as to embrace the whole of the town plat.

When the improvement of the complainant was commenced, the south-east quarter was in its natural state, unchanged by any improvement.

Every legal requisite appears to have been complied with under the act of 1830, to entitle the complainant to a preemption. His improvement and occupancy under the law were clearly proved., Indeed it would seem, from the facts, tfyat he waserititled to become the purchaser of the land under the law of 1824. But all the facts, necessary to establish his right, were before the Register and Receiver on his second application. His application to make the entry may be said to have been rejected,because it was not allowed. But no doubt can .exist as to the ground of. the rejection. It was‘not on account of any ..deficiency in the proof, but-on the ground of the New Madrid locations. This is placed beyond question,, by the parol proof in the case, and .the correspondence of the General Land-Office. Other objections to the claim, after the second- rejection, were stated by that officer, which alleged a want of diligence by the complainant, in failing to do what he has proved was done,- in the prosecution of his right. Some of these objections showed r misapprehension.of the facts, others' of the law.

The offices at. Batesville were loosely kept, and it appears in proof that some year or two before his death, Boswell, the Register, became intemperate, and his duties were neglected. Great labor was required- from his successor to reduce to system the confused mass of papers he -found in the office.

It -was the practice of the office to indorse on the envelop of the preemption papers, the decision, of which no other entry was made. And one of the witnesses states that “rejected” was indorsed on the envelop which inclosed the papers of Cun-* ningham. It is difficult to reconcile this .fact with two lists in the record, duly certified, of preemptions allowed, in both of which the name of Cunningham is found. The word ‘.‘rejected” is on one of the lists. There can be no doubt the claim was rejected as often as it was brought to the notice of the land department, so long as the New Madrid locations were sanctioned. No other decision co.uld be made. But on the 6th of June, 1838', floats were ■ permitted to be located on the quarter section in controversy, covered by the New Madrid locations. This was procured, through the agency of the defendants, and for their benefit.,

It was the result of a controversy of nearly twenty years’ corn tinuance. Since eighteen hundred and twenty-one, Cunningham had occupied the land, and had carried on the controversy with a commendable energy, and at no small expense of time and money. He urged his claim at the General Land-Office, personally, and by agents. The correspondence on the subject was,earnest and voluminous. But the defendants, having made their entrjes, received the legál title.' And their equity must now be compared with that of the complainants.

The New Madrid locations.were controlled by the defendants. .And they were not withdrawn, or the obstacle which they created removed, until the defendants’ entries were made. The floats under, which these entries were permitted, were issued under the act of 183.0, continued in force by the áct of 1834. The second section of. the act declared that these floats should be so located, “ as not to interfere with other settlers, having a right of preference.” And the circular of the land-office di-. rected that they “ should be restricted to unimproved and vacant lands.”

Thqse stringent regulations were not sufficient to protect the rights of the complainant. His occupancy, improvements, and claim, Ayere known to the defendants, and to all-the officers of the government, who acted on the subject. They excused or justified themselves on the ground, that by permitting'the entry to be made, many of the citizens of “ Little Rock ” would be quieted in their titles.,

On tire 6th of July, 1838, an instrument, und.er seal, was entered into between Roswell Beebe, to whom the patent’s were issued, of the .one part, and the Mayor and Aldermen of the city of “ Little Rock,” in behalf of said city, as well as in behalf of the "State of Arkansas, and also in behalf of any person or persons who may have in his own right a proper and regular chain of conveyance or conveyances of' any town lot or lots, situated in the first original town, now city of “ Little Rock,” derived from, by* or under, any one or more of the original owners and proprietors of the town, as represented upon the first .original plan as then surveyed and laid off into town lots, of the other part, witnesseth, that Whereas the said Roswell Beebe has caused to be located and entered with preemption floating claims, at the Land-Office at “ Little Rock,” and.upon which the city, south of the Arkansas River, and west of the Q,uapaw line, is, now built, the following described tracts or parcels of land, to wit, the northreast fractional quarter of fractional section three, and the west fractional part of the north-west and south-west fractional quarters of fractional section two, all in township one, north of the base line of range twelve west, &c.‘ And in all cases, where purchases of lots had been made in the above tracts, Beebe bound himself to release to the purchasers.

This arrangement induced the land-officers to permit the entries to be made, as well on the south-east quarter in controversy, as on the tracts above described. And it was considered at the General Land-Office as- a sufficient compliance with .the circular of that office, dated the 11th of October, 1837.' The -patents on this view were issued to Beebe; and on the 11th of January, 1842, Beebe conveyed one half, of the south-east quarter in controversy, to Ashley.

However satisfactory the agreement of Beebe may have béen to claimants of lots on the tracts specified in his agreement, as it did not embrace the land claimed by the complainant, it was hot designed for. his benefit. And it is unaccountable that thé land-officers at “ Little Rock” and at Washington, should have considered the arrangement as a compliance with the regulation which, prohibited the entry of floats upon improved or occupied land. And it is worthy of remark, that these. locations were permitted to be made at “ Little Rock,” while the claimant was at Washington, prosecuting his claim.

Has -the complainant placed himself in¡ a position to object to the defendants’ equity? .He did everything he could reasonably be required to do, to locate his Cherokee warrant on the land, under the act of 1824. Ha(j it been objected, on that application, that he did not prove his improvement and occupancy, the witnesses would, át once, have been called. With ‘this exception, he did every thing the law required to perfect his claim.

But, under the act of 1830, his proof was in no respect defective. It was worthy of the highest credit, and full to every point; and the money was offered to be paid. • But the locations pf the New Madrid warrants were an obstacle then, as they had been on the first application. These locations were not in the way of defendants’ floats, and it is not ráaterial to inquire by what means they were set aside. This being done, the rights of the complainant were paramount to those acquired under the new location. Those rights were founded on the settlement and improvement in 1821, and on the acts done subsequently in the prosecution of his claim. Having done every thing which was in his power to do, the law required nothing more. And the defendants who caused the floats to be located on the premises, had full notice of the complainant’s rights. They are •chargeable with this notice. Under the second section .of the act of the 29th of May, 1830, and the circular of the Commissioner of the General Land-Office, of the 11th of October, 1847, so far as the new entries interfered with the rights of the complainant, they were void. They were in conflict with the law and the regulation.

The pretence that the agreement of Beebe, which bound him to execute deeds to the purchasers of lots, was a compliance with the above circular, so far as regards the land in controversy, was without foundation. It may have misled the officers at Washington, and in this it may have answered its purpose. The officers of the government are the agents of the law. They cannot act beyond its provisions, nor make compromises not sanctioned by it.

By the. second section of the act of 1.830, it is provided, “ That if two or more persons be settled upon the same quarter section, the same may be divided between the two first actual settlers, if by a north and south, or east and west line, the settlement or improvement of each can be included in a half quarter section.”

At the time the complainant applied for a preemption- under the act of 1830,' he stated that Christian Brumbach had an improvement on the same quarter section', which he had in cultivation in the year 1829, and has continued to hold possession of the same to this time. • And it was proved that Brumbach cultivated the land in 1830. The improvement occupied by complainant was commenced pbout the same time as the one occupied by Brumbach ; and the evidence shows that they were ■the first settlers on the land. This we suppose, under the law, .limits the preemption claimed by the complainant to one half ■of the quarter section. The residence and improvement of Brumbach brought him primd facie within the law; whether he applied for and attained ¿'preemption or not. It was necessary, under the regulations of the' General Land-Office, that the comjplainant. should state, in his applications, the occupancy, improvement, and cultivation of Brumbach, and whatever objection may be made to his preemption claim by the government, cannot enlarge the right of the complainant. Brumbach applied for a preemption in the quarter section, under the act of 1830, and established bis right in every thing, except the tender of the money. His claim was rejected, no doubt, oh the same ground, as was that of the complainant’s.

Brumbach had conveyed his right to Ashley, in whom the legal title is vested to one half of the quartet section. This removed the objection to the location of one of the floating rights for eighty acres on the quarter, as the improvement, if not made by Ashley, was owned .by him. In regard to- the one half of the quarter, the entry was not prohibited by. the second section of the act of 1830, or the circular of 1837. To extend the preemptive right of the complainant over the entire quarter, would cover improvements of another individual, made about the same time as those on which his preemption is founded. This would disregard the express provision of the law, which gives to each settler, where there are two upon the same quarter section, eighty acres.

As the right set up by the complainant arises under an act of Congress, and the decision of the Supreme Court of Arkansas was against that right, this court has jurisdiction of the case;

We"-have not considered any right equitable or legal, as arising under the New Madrid locations, laid upon the land in dispute. Such right, if .any existed, is not presented in the pleading, in such a form as to require its consideration an decision. It therefore remains wholly unaffected by the decree.

The facts in the case are exceedingly voluminous ana complicated ; but we have considered them, and the legal and equitable bearing .they have upon the title of the parties. • Upon this view,'we. are brought to the conclusion, that the entries on which the defendants’ patents were issued, were void, so far as they interfere with the claim of the complainant, for the reasons stated, and that, consequently, the patents are also'void. The decree of the Supreme Court of Arkansas is therefore reversed; and the cause is remanded to that' court, with instructions to enter a decree in pursuance of this. opinion. And in order'to give more definitely our views, w.e state, that, on a full consideration of the pleadings and proof in the case, we consider that the two entries of eighty acres each, made in the name of Samuel Plummer and Mary Louisa Jenbeau, oh the south-east quarter of section number three, in township one north, and in-range twelve, west of the fifth'principal meridian, south of theArksms&s River, are void'.’so far as they interfere with the preerppffive right of Matthew Cunningham >to one half of the said quarter; and that Roswell Beebe, and the heirs' of Chester Ashley, deceased, defendants, ¿hall execute a deed of quitclaim to the said Cunningham, on his paying or tendering to them the minimum price of the public land, with interest from the sixth of June, 1838, the time the above entries were made, to one half of .the above quarter section, by east and west, or north arid south lines, so as to include his improvement on the quarter section, or, if such a division cannot be made, that they convey to him, as aforesaid, a joint interest of one half in the quarter section.

And the court order that tne decree shall in no respect affect any right which may or does exist, under the New Madrid locations, in the defendants or other persoris, if any there be.

Order.

This .cause came on to be heard on the transcript of the record from the Supreme Court of the State of Arkansas, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed, by this court, that the decree- of the said Supreme Court in this canse be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Supreme Court, for, further proceedings to be had therein in conformity to the opinion of this court.


source: Caselaw Access Project

author: Mr. Chief Justice TANEY

license: Public Domain

text:
    Mary Lucinda Bosley, Henry Bosley, Mary Jane Davis, Sally Ann Davis, James Bosley and Meldrid Bosley, (infants,) by their guardian and next friend John Bosley, and John Bosley son of the said John, v. Margaret E. Wyatt, Executrix of Elizabeth N. Bosley, deceased.
    Jumes Bosley, in his will, after sundry specific devises and bequests, devised and bequeathed all his lands and other real estate in Baltimore, Cecil, and Alleghany counties, in Maryland, and also in Elorida, and his house and lot in Santa Croix, .and. all the real estate he might have elsewhere, to his wife Elizabeth, her heirs and assigns; in trust to sell the same and divide tljc net proceeds thereof, with all ihe residue of his estate, equally between herself and the children of his brother.
    After making'his will, he sold all of the lands, particularly mentioned in the residuary clause of the will above stated, except some lands lying in Baltimore county. At the time of making the codicil hereafter-mentioned, he held some of the proceeds of these sales in bonds and other securities, and- with the residue had purchased other property. . '
    . He afterwards made a cotTibil, by which he devised his summer residence, in Baltimore county( to his wife, and also the securities he held for the lands sold in Cecil county, and directed all the property he had acquired after the date of his will to be sold, and the proceeds to be equally divided between his wife -and her sister Margaret, Then-followed a residuary-clause in the following words:

      “ Lastly, my pew in St. Paul’s Church and all my other property, real or personal, and all money in bank belonging to me at the time of my decease, I give, devise and bequeathe unto my said wife Elizabeth and her heirs forever; and I ratify and confirm my said last will in every thing, except where the same is hereby revoked and altered as aforesaid.”
    The residuary clause in this codicil is inconsistent with that in the will, and consequently revokes it. But the devise of the property, specifically mentioned in the will, is not revoked by the clause in the codicil.
    After the execution of the codicil, the testator agreed to lease some land .for the term of ninety-nine years, renewable forever, a ground rent being reserved upon thé same. The lessee was to pay cash for a part', and the residue of the purchase-money was to remain on interest, as ground rent, which the lessee could extinguish at any time by the payment of the.prineipal sum.
    This property was a part of that which was specifically mentioned in the will, and not revoked by the clause in. the.codicil.
    But the conduct of the testator, in making this agreement, so altered the condition of the property that it amounted to a revocation of the devise, and manifests an intention on his part, when taken in connection with other circumstances of the case, to give it to his wife under the residuary- clause in the codicil.
    This was an appeal from the Circuit Court of the United States for the District of Mainland.
    The bill was filed by the plaintiffs in error, who were the children of Dr. John Bosley, mentioned in the will of James Bosley.
    That part of the will which gave occasion to the controversy is stated in the opinion, as are also the material facts' in the case.
    The Circuit Court decided that, the -residuary devise in the will was revoked by the residuary clause in the codicil; that the devise of the property, specifically mentioned in the will, was not revoked by the clause in the codicil, and ordered an account to be taken of such part as-remained subject to thé trust, one half of the proceeds whereof to be paid over to the complainants; and that the testator’s agreement, made after the date of the will and the codicil, to lease a part of that real estate for a term of ninety-nine years; the principal sum payable at the option of the lessee, operated to revoke the'devisé as to that part.
    From this decree, the complainants appealed to 'this court.
    It was argued by M. Mayer, for the appellants, and Mr.' Campbell and Mr. Johnson, for the appellees.
    ■ Mr. Mayer, for the appellants, made the following points.
    1» The final clause of the codicil institutes, no new i „siduary devisee and legatee; and the words supposed to effect that, are not the appropriate, nor any constructive phrase, for a residuary disposition in a will; .and those words (which are, “ all other • my property, real‘or- personal,”) must be construed either — 1st, to comprise all property “ other” than the pew, and so to purport to annul all devises and bequests of will and codicil, except those in favor of Mrs. Bosley; which result must condemn the paragraph as incongruous and absurd; br,.2dly, to point to only property ejusden generis with the pew, and with the real property- just-in a preceding clause given to Mrs. Bos? ley and Miss Noel, and- being the acquisitions-subsequent to the date of the will; or, 3dly, must be rejected altogether as incapable'of any consistent of reasonable application; or, as militating against the general intent of the testator, of- dedicating his estate- (with but small'exceptions) to the children of John Bosley, and to Mrs. Bosley. 3 P. Wms. 112; 3 Atk. 61; 3 My. & Cr. 661; 1 Eq. Ca. Abr. 301; pl. 14; 1 Bro. C. C. 127, 39; 1 Russ. 146; 2 Atk. 113; 1 Jarman, 395, ’9, 417; Greenl. Cruise [Devises] 133 and note to ch. 8, § 39; 6 Watts, 192; 3 Peters, 117, 118; 11 Gill & J. 206; 2 Paige, 22; 8 Mass. 3; 11 Ed. 528; 22 Maine, 257, 413; 4 B. & Cres. 620; 2 Wms. Ex’rs, 789, 790; 6 Peters, 83, 84; 5 Ves. 247; 10 Wheat. 239; 13 Peters, 173; 5 Ves. Jr. 247; 21 E. C. L. 352; 1 Jarman, 594, 595, 596.
    2. The paragraph adverted- to, is no residuary disposition; because, a specific bequest follows it to Mrs. Bosley, which would be utterly needless and idle, if it were preceded by the supposed all-comprehending residuary appropriation. 13 Ves. Jr. 39; 1 Russ. 149; 3 Atk. 61; 1 Jarman, 595, 598, 599, 600.
    . 3, There is, by those words, no revocation of the residuary devise and • bequest of the will, because, the codicil, in ..erms following-those words, confirms the will, except where the same is (by the codicil) “ revoked and altered.” The testator introduces several express revocations info hjs codicil; -and to only those revocations must he be understood to refer — and to modifications, by name of “alterations,” of his will — for any interferences with the will; as meant to be revoked, or affecte'". by the 'codicil. If the words in question touch at all the residuary-disposition of thé will, they must affect it only as a revocation ; and, leaving out of view mere modifications, or “ alterations,” the inquiry is, what revocation the testator meant should trench upon the broad confirmation -his codicil gives to the will,. thus declared as of continuing force ? The will speaks anew frpm the date of the codicil, even without any confirmatory reference to it in the codicil,, and the two acts are thus intimately allied; and any revocation of any part of the will, imputed.' to the’ codicil, must. be by wolbds as precise and unequivocal, and .positive, as are the terms of the dispositions supposed tó bé revoked.
    The testator has given his awn limitation to the effect of his “alterings” 'of his will, or .of any estate 'disposed of -by it, by declaring, in the codicil, that where Mrs. Bosley, (under the clause next to the last,) shall “alter” any estate,.it shall nevertheless take the course prescribed in the will, and that “ alteration” is not, in his view, and by the .law of his will, the 'same as revocation; and he thus precludes the idea that he had in view any revocations but those he had expressly declared in' the codicil. 3 Mason, 486; 10 B. & Cres. 895, (21 E. C. L. 192); 3 Pick. 216; 5 Johns. C. R. 534; 1 Wms. Ex’rs, 114, 116; 21 Eng. C. L. R. 352; 4 Kent, 531; 8 Cowen, 58; 1 Jarman, 189, 395; 2 How. Rep. 580.
    4. The will and codicil being thus blended and- cooperative, the codicil avails as - a republication of the will, except where such an inference at law is, by the express terms or necessary construction of the codicil, excluded. The will, in this .relation-to the codicil, is to be treated as if inserted in the; codicil. If so, if even there be those contradictory residuary dispositions, the residuary estate must, as modern adjudications now dea.1 with such contrariant clauses, be shared by the parties named or embraced in both clauses. This construction would virtually restore the residuary- clause of the will, as the only rule; because, as under the construction just asserted, Mrs. Bosley and the children, the subjects of the two clauses, share equally, by the will, in the residuary estate. 14 Pick. Rep. 521; 6 Johns. C. R. 375; 3 My. & Cr. 376; 1 Jarman, 202, 397, 412; 2 Atk. 374; 2 My. & Keen, 165; Yelv. 209; Cro. Eliz. 9; Greenl. Cruise, (Dev.) 149, (marg.); 10 B. & Cres. 895, (21 E. C. L. 192.)
    5. The agreement of the testator to lease a part of his land in Baltimore county, had not the effect to revoke the devise of that part of the land in favor of the complainants, and only modified the devise so as to give the rent and reversion on the leáse, in place of the land. This construction applies also to the lot and house by the will devised to “ Old Sarah,” and, subsequently to the codicil, agreed to be leased to William Hollins, as stated iri the defendant’s schedule. The privilege, accorded by the agreement of lease, to extinguish the rent and so acquire the reversion, does not render the transaction a sale, and give to the contracting lessee the equitable fee of the land. If the agreements, for leasing revoked the devises of these pieces of property; then the testator died intestate as to them; the agreements dating after the codicil. Greenl. Cruise, 105, 109, (note to 106); 2 Ves. Jr. 428; 1 Jarman, 167, 171, 172; 4 Kent, 530; 7 T. R. 399; S. C. 1 B. & Pull. 576; Cro, Car. 23; Cro. Jac. 49; 1 Vern. 97; 3 Bro. Parl. Ca. 12; 2 Chipman, 74; 4 Greenl. 341; 3 Ves. Jr. 685; 1 Maryland Ch. Decis. 36; Cro Eliz. 9.

      The counsel for the appellee made the following points.
    1. That the residuary clause in the codicil revokes the residuary clause in the will. 4 Black. 381; 4 Kent, 535, (note); 3 Greenl. Cruise, 139; Rowley v. Eyton, 2 Mer. 128; Rogers v. Pettis, 1 Addams, (Prerog.) 30.
    2. That the decree of the court below was right; because, if no part of the specific property devised by the last clause in the will, which contains also the residuary devise, was not revoked by the' last clause in the codicil, a large part of that, specific property was subsequently disposed of, by the testator, and other parts of it otherwise specifically devised by the codicil.
    3. Because that portion of such property so specifically devised' by said last clause in the will, his lands in Baltimore county, was revoked by the testator’s agreement of lease; afterwurds executed by Mrs. Bosley, by her lease to Armstrong, on the 18th of January, 1845, for the term of ninety-nine years, renewable forever. 7 Bac. Ab. tit. Wills and Testaments, G. 344; 4 Kent, Com. 528 to 530, and cases there cited, 6 ed.; Colegrave v. Manley, 6 Madd. 84; Ward v. Moore, 4 Madd. 368; 5 Pick. 112; 7 Johns. Ch. Rep. 261.
   Mr. Chief Justice TANEY

delivered the .opinion of the court.

The dispute in this case arises out of the will and codicil of' James Bosley, late of the city of Baltimore. The will was executed in 1828, and the codicil in 1839. He died in December, 1843'.

In his will, after sundry specific devises and bequests, he devised and bequeathed all his lands and other real estate, in Baltimore, Cecil, and Alleghany counties, in Maryland, and also in Florida, and his house and lot in Santa Croix, and all the real estate he might have elsewhere, to his wife Elizabeth N. Bosléy, her heirs and assigns, in' trust'to sell the same to the best advantage, and directed the net proceeds, together with all the residue of his estate, real, personal, and mixed, not therein before devised, to be equally divided —one half to his wife, and the other to the children of his brother, Dr. John Bosley. After making his will, and previous to the codicil, he sold all of the lands particularly mentioned in the residuary clause of the will above stated, except some lands lying in Baltimore county, and except also his Florida land and part of that in Alleghany county, of which it seems he had been unable to obtain possession. And at the time of making, the codicil, he held some of the proceeds of. these sales in bonds and other securities, and with the residue had purchased other property.

By the codicil he devised his summer residence, situated in Baltimore county, to his wife, and also 'the securities he held for the lands sold in Cecil county, — and directed all the property he had acquired after the date of his will to be sold and the proceeds to be equally divided between his wife and her sister, Margaret E. Noel. Then follows a residuary clause in the following words:

“ Lastly, my pew1 in St. Paul’s Church,- and all my other property, real or personal, and all money in bank belonging to me at the time of my decease, I give, devise and bequeathe unto my said wife Elizabeth N. Bosley, and her heirs forever; and J ratify and confirm my said last will in every thing except' where the same is hereby revoked and altered as aforesaid.”

Upon this will and codicil, the appellants, who are the children of Dr. John Bosley, claim the one half of this personal property left by the testator at his death, and also one half of the lands not specifically devised, upon the ground that the residuary clause in the will is not revoked by that in the codicil.

This claim is altogether untenable. The residuary clause in the codicil is inconsistent with- that in the will, and consequently revokes 4t.

.There is another claim, however, which presents a question of more difficulty.

It appears that at the time of making his will the testator held, in fee-simple, -fifty ácres of land in Baltimore county; and that in 1842, after the execution of the codicil, he entered into a contract with a certain Horatio G. Armstrong, whereby he covenanted that in consideration of the payment óf two thousand dollars, at the times specified in the agreement, and the annual ground rent of two hundred and ten dollars, payable semiannually, he would lease the said land to Armstrong, his executors, administrators, and assigns, for .ninety-nine years, renewable forever, with the right to the said Armstrong to ex-' tinguish the ground rent, upon the payment of three thousand five hundred dollars at any time,-to the said James Bosley, his heirs and assigns. The testator died before the cash payments were made; and the money was afterwards received by his, widow, and the lease executed by her according to the termaei. the covenant.

As this was a part of the land in Baltimore county, apd was therefore specifically devised in the residuary clause óf the will, it was not revoked by the general devise of the residue pf his real and personal property in the codicil. The question therefore is, whether the contract with Armstrong was an implied re-, vocation of the devise in the will.

The adjudged cases upon implied revocations are collected together in 4 Kent’s Com. 528, and the rule he deduces from them is this, “ that the same' interest which the testator had when he made his will should continue to be the same interest; and remain unaltered to his death, and that the least alteration in that interest is a revocation.” A valid agreement or. covenant to convey, which equity will' specifically enforce^ will operate in equity as a revocation of a previous demise of the land. Walton v. Walton, 7 Johns. Ch. Rep. 258.

In the case before us, the interest which' the testator had in this land- at the time of making his will, was converted into money by/his contract with Armstrong. It was a sale and an agreement to convey his whole interest in the land. It is therefore unlike the case of a lease for years, or of ninety-nine years renewable forever, in which the lessor retains the reversion — and doesipot bind himself to convey it on any terms to the lessee.

The form of the contract adopted in this instance, between the testator and Armstrong, is in familiar use in the sale of lots in the city of Baltimore and the adjacent country. It has nearly if not altogether superseded the old forms of contract where the vendor conveyed the lands'and took a mortgage to secure the payment of the'purchase-money — or gave his bond for the conveyance and retained the. legal title in himself until the purchase-money was paid. And it has taken the place of these forms of coritract, because it is far more convenient, both to the seller and the phrehaser. For it enables the vendee to postpone the payment of a large portion of the purchase-money until he •finds.it entirely convenient to pay it: and at the same time it is' more advantageous to the vendor, as it gives him a better security for the punctual paymeut of the interest; and while an extended credit is given to the vendee, it is to the vendor a sale for cash. For if his ground rent is well secured, he can at •any time sell it in the market, for the balance of 'the purchase-money left in the hands of the vendee. It will be observed that the rent.reserved is precisely the interest on the amount of the purchase-money remaining unpaid. And when it must be admitted that a sale in which a bond of conveyance is given, and dhe title retained by the vendor, to secure the payment of the purchase-money, is in equity a revocation, there would seem to be no good reason for holding otherwise in the case before us, where the vendor is equally-bound to convey when the whole purchase-money is paid. A distinction between the cases would rest on a difference in form rather than of substance and principle. It would moreover make the revocation depend upon the will, of a stranger, and not upon that of the testator. For-if- Armstrong had paid to him in his lifetime, the whole amount of the purchase-money, as he had a right to- do under the contract, it is very clear that the 'devise wpuld then have been revoked.- And if the purchaser’s omission to pay prevents the contract from being a revocation, the validity of the devise is made to depend, not upon the will or the act of a testator, but that of a stranger, over-which the testator has no. control. We think a distinction leading to that result cannot be maintained, and that the devise in question was revoked by the contract with Armstrong.

The counsel for the appellants, however, contends, that if the will is' revoked, and the land converted into- money, yet there was a legal reversionary interest remaining in him; and that the rent reserved, being incident to the reversion and pertaining to the realty, cannot pass under a bequest of money or personal estate.

But it must be remembered that the residuary clause in the codicil gives to his wife all his real as well as personal property, not otherwise disposed of; and therefore is broad enough to embrace the interest in question, although, in contemplation of. law, it belongs to the realty. •

■We do not mean to say, that every residuary clause in a codicil will pass land specifically devised in a will, where, by some act of the testator, the devise is impliedly revoked after the codicil was executed. There are adjudged eases upon certain wills where it has been held otherwise. But whether the. property passes to the devisee or descends to the heir, as in a case of intestacy, must depend upon the intention of the testator, to be gathered from the will and codicil. It is hlways necessarily a question of intention. No two wills, probably, were ever written in precisely the same language throughout: nor any two testators die under the same circumstances inlrelation to their estate, family, and friends. And it would be very unsafe as well as unjust to expound the will of one man, by the construction which a court of justice had -given to that of another, merely because similar words were used in paticular parts of it.

Undoubtedly there are fixed rules of law in relation to the construction of certain Words and phrases in a will, which have been established by a' long course of judicial decisions; an.d which have become landmarks of property, and cannot therefore be disturbed. But in most of the cases in which they have been applied, it is to be feared that they have not accomplished, but defeated, the testator’s intentions.

They owe their origin to the principles of the feudal system, which always- favored the heir at law* because it -was its policy to perpetuate large estates in the same family. And, acting upon this principle, the English courts of justice have, in some instances, placed the narrowest possible construction on the words of a will. And a testator sometimes being held to die intestate as to portions 'of his property, and left it to descend to his heir, when a fair and reasonable interpretation, according to the ordinary acceptation of the words used, plainly showed that the whole .estate was intended to be devised to another.

It has not been the disposition of courts of justice, in moderri times, to extend the application of these rigid technical rules: but rather to carry out the intention of the testator, when no fixed rule of legal interpretation stands in the way. And this is, and ought to be, more especially the case in this country. For wills here are most frequently drawn by persons unacquainted with legal phraseology, and ignorant of .the meaning which the law attaches to the words they use. The property devised is, perhaps, in the greater number of cases, the fruits of the testator’s own industry. And the policy and institutions of the country are adverse tp the feudal policy of favoring the heir at the expense of the devisee; and of construing, for that purpose, the words of the will in their most restricted sense, although that construction obviously defeats the intention of the testator.

But the question, arising upon this will and codicil, does not depend upon any word or phrase- to which the law has affixed a certain and definite meaning. The words used are legally sufficient to pass the property to his widow, and the only question is, was that his intention, as we gather it from the will and codicil, considered together ? We think it was.

Eleven years elapsed between the date of the will and that of the codicil. The situation of the testator’s property had undergone considerable changes during that time; and his mind also had materially changed as to the manner of disposing of it. The lands mentioned in the residuary clause of his will, had, with a very small exception, been sold. And the property he purchased with the proceeds of these sales or otherwise acquired after the date of the will, was devised by the codicil to his wife and her sister, and not, as before, divided between his wife and 'his brother’s children; and the whole of his personal estate is given exclusively to his wife, instead of the one half only bequeathed in the will.. The land, which has given rise to this controversy, was also sold by the testator in his lifetime, and two thqusand dollars of the purchase-money had become personalty, and as such, unquestionably passed to the wife, by the residuary clause in the codicil. The testator’s remaining interést in this property, was also money, and not land; but by reason of the form- in- which he contracted to sell it, this portion, of the money belonged to the realty. It is impossible to suppose, after looking at these bequests to his wife, that he meant to die intestate of .this money, and to divide this small portion of his estate in two parts, giving her the two thousand dollars, but withholding from her the residue, and leaving it to be claimed by whoever might chance to be his heir at law at the time of his death. On the contrary, it is manifest, from the whole context of the will and codicil, that he did not mean to die intestate of any portion-of his property; and that what did not pass to others by a specific devise or bequest, should go to his wife. The codicil is evidently drawn by unskilful hands, and therefore,, according to settled principles of law, must receive a fair and liberal interpretation to accomplish the intent. And as that intent is apparent in favor of the widow, it ought not to be defeated by a narrow and technical construction of particular words.

It was suggested, in the argument, that the appellants might be entitled to a remainder in fee, in the two lots on which, it would seem from the will and the codicil, that two old servants of the testator were living. But this point, very' properly, was not pressed. For the lots mentioned in .that clause of the will, in which a remainder in fee is given to the appellants after the death of Mrs. Bosley, are lots pn which there were improvements, and which yielded an income. The lots in question were not of that description. They yielded no income, and consequently are not embraced in that devise.

Upon the whole, therefore, we think the decree of the Circuit Court was right,, and must be affirmed.

Order.

This cause came on to be heard on. the transcript of the record from the Circuit Court of the United States for the District of Maryland, and was argued by counsel.1 On consideration whereof, it is now here ordered, adjudged, and decreed, by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby, affirmed with costs.

Dissenting, Mr. Justice GRIER.