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 a tract called George’s Adventure, situated near the town of Cumberland.' In the Circuit Court a verdict was found for the plaintiff, subject to .the opinion of the court upon a cause stated. A judgment was entered for the defendant; and the cause is now before us, on the facts agreed.
By his last will and testament,'Zachariah Magruder, a citizen of Maryland, among other things devised to his wife Sarah, the full use of his dwelling-plantation, containing in the whole, after a certain legacy was deducted, about 356 acres, called George’s. Adventure, in Washington county; to be by her peaceably and quietly possessed and enjoyed without molestation, during her natural life.”
The will also contained the following, “ I give and bequeath unto my brother, Elias Magruder, during his natural life, 100 acres of land, being part of a tract of land called George’s Adventure,' lying and being in Washington county, and state aforesaid; to be laid off at the upper 'end of the tract aforesaid, so as to include the plantation on which he now lives. 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, the said Elias Magruder, his heirs and assigns, for ever; but should he, the said Elias Magruder, die without an heir so begotten, I give, bequeath, devise, and desire, that the 100 acres of land aforesaid be sold to the highest bidder, and the money arising from the sale thereof to be equally divided among my six following children, to wit: Samuel,” . &C-. The testator having died, proof was made of his will, and letters testamentary were granted, the 3d of May, 1796, to Sarah Magruder his wife and his son Nathaniel B. Magruder, named as executrix and executor in the will.
After the decease of the testator, Elias Magruder took possession
of the 100 acres of land devised to him, and being so in possession he conveyed the tract to David Lynn, who devised the same to the present defendants.
On the 30th of December, 1805, Samuel B. Magruder and three other, brothers, sons of Zachariah Magruder, filed .their petition to the chancellor of Maryland, representing that their father after making particular dispositions of property, devised that the remaining' part of his land, called George’s Adventure, being about 356 acres, should be sold to the highest bidder, by and at the discretion of his ' executrix and executor, and the money equally divided amongst his six children, including the petitioners.”
The petitioners stated that the executrix was deceased, and that ' Nathaniel B. Magruder, being, insolvent, at the instance of his sureties, his power as executor had been revoked by.the Orphan’s Court. And the petitioners prayed that a trustee might be appointed “ to sell all the property devised to he sold by the will, and such other and further relief,” &c. The. will was filed, as an exhibit.
On the day of filing the petition, the chancellor decreed, “that the real estate in the said will directéd to be sold shall be sold; that Roger Perry be appointed trustee,-who. shall, give bond in $2000, conditioned for the faithful performance of the trust reposed in him by the decree, or to be reposed in him by any future decree or order in the premises, and that he shall proceed to sell,” &c.
Afterwards on the 22d of May, 1806, the trustee reported that he “had sold the real estate ip 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.
And afterwards, on the 9th of June,. 1812, the trustee made a' second report, that he “ had sold the remaining part of the real estate of Zachanah Magruder, deceased, consisting of 100 acres of land,” &c. This sale was also ratified by the chancellor, and a deed was executed to Walter Slicer, the purchaser. In the year 1818, a judgment was obtained against Walter Slicer, and two others in the year 1819. On one of the junior judgments execution was issued, under which the land in question was sold to Lamar. On the other junior judgment, obtained at the same term, an execution w&s issued, and the same tract was sold, after the above sale, to David Shriver, jr.,
the lessor of the plaintiff He also purchased, subsequently, the same tract, under the prior j udgment.
The first question for consideration arises out of the devise, in the will, to Elias Magruder. Did he take a life-estate' only, or a fee-simple ? That he took an estate in fee-simple conditional in the 100, acres, is urged by the defendants’ counsel.. And a statute of Maryland of 1786, entitled “an act to direct descents,”
2
Ketty’s Laws, chap. 45, which provides that lands held “ in fee-simple or fee-simple conditional, or in fee-tail to the heirs of the body generally,” shall descend in the same manner, is relied on as giving a fee-simple to the devisee. Under this' statute, it must be admitted, whether- the estate vested be technically considered a. fee-tail general or a conditional fee-simple, in effect, it is a fee-simple.
In 1 Inst. 20 s. it is said that “ all limitations-confined to the heirs of the body, either by direct or circuitous expression, and which are not estates-tail under the statute
de donis,
remain conditional .or qualified fees at the common law. A gift of land to a man and his heirs generally, if he shall have heirs of his body, without any other expression to qualify the word heirs óf his body, is a conditional fee. Fleta, b. 3, c. 9, 136. And in Plow, 233, it is said, “ and. the Lord Dyer in his argument took exception to the ratification, for that it confesses the estate-tail in King Henry VH., and then says, that he having issue, Prince Arthur, entered and was seised in fee; whereas, he said, the-having issue did not make him' to have the fee, for the fee e''her accrued to him by the. remainder or never.” The same doctrine is found in page 250; Machell
v.
Clarke, 2 Lord Raym. 778. By the statute
de donis,
Westm. 2, 13 Ed. 1, a fee-simple conditional estate at common law, in certain cases, was converted into a fee-tail which, by alienation,'the ancestor could not change.
The estate under consideration, it is "insisted, is a conditional fee-simple ; or in other words that the fee vested is liable to be.defeated on the failure of heirs as provided in the will. On the other side it is argued, that the condition was a precedent one, which must happen before the fee vested. The doctrine above cited seems to favour the first of these positions, as does also the rule in Shelly’s case.
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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 a tract called George’s Adventure, situated near the town of Cumberland.' In the Circuit Court a verdict was found for the plaintiff, subject to .the opinion of the court upon a cause stated. A judgment was entered for the defendant; and the cause is now before us, on the facts agreed.
By his last will and testament,'Zachariah Magruder, a citizen of Maryland, among other things devised to his wife Sarah, the full use of his dwelling-plantation, containing in the whole, after a certain legacy was deducted, about 356 acres, called George’s. Adventure, in Washington county; to be by her peaceably and quietly possessed and enjoyed without molestation, during her natural life.”
The will also contained the following, “ I give and bequeath unto my brother, Elias Magruder, during his natural life, 100 acres of land, being part of a tract of land called George’s Adventure,' lying and being in Washington county, and state aforesaid; to be laid off at the upper 'end of the tract aforesaid, so as to include the plantation on which he now lives. 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, the said Elias Magruder, his heirs and assigns, for ever; but should he, the said Elias Magruder, die without an heir so begotten, I give, bequeath, devise, and desire, that the 100 acres of land aforesaid be sold to the highest bidder, and the money arising from the sale thereof to be equally divided among my six following children, to wit: Samuel,” . &C-. The testator having died, proof was made of his will, and letters testamentary were granted, the 3d of May, 1796, to Sarah Magruder his wife and his son Nathaniel B. Magruder, named as executrix and executor in the will.
After the decease of the testator, Elias Magruder took possession
of the 100 acres of land devised to him, and being so in possession he conveyed the tract to David Lynn, who devised the same to the present defendants.
On the 30th of December, 1805, Samuel B. Magruder and three other, brothers, sons of Zachariah Magruder, filed .their petition to the chancellor of Maryland, representing that their father after making particular dispositions of property, devised that the remaining' part of his land, called George’s Adventure, being about 356 acres, should be sold to the highest bidder, by and at the discretion of his ' executrix and executor, and the money equally divided amongst his six children, including the petitioners.”
The petitioners stated that the executrix was deceased, and that ' Nathaniel B. Magruder, being, insolvent, at the instance of his sureties, his power as executor had been revoked by.the Orphan’s Court. And the petitioners prayed that a trustee might be appointed “ to sell all the property devised to he sold by the will, and such other and further relief,” &c. The. will was filed, as an exhibit.
On the day of filing the petition, the chancellor decreed, “that the real estate in the said will directéd to be sold shall be sold; that Roger Perry be appointed trustee,-who. shall, give bond in $2000, conditioned for the faithful performance of the trust reposed in him by the decree, or to be reposed in him by any future decree or order in the premises, and that he shall proceed to sell,” &c.
Afterwards on the 22d of May, 1806, the trustee reported that he “had sold the real estate ip 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.
And afterwards, on the 9th of June,. 1812, the trustee made a' second report, that he “ had sold the remaining part of the real estate of Zachanah Magruder, deceased, consisting of 100 acres of land,” &c. This sale was also ratified by the chancellor, and a deed was executed to Walter Slicer, the purchaser. In the year 1818, a judgment was obtained against Walter Slicer, and two others in the year 1819. On one of the junior judgments execution was issued, under which the land in question was sold to Lamar. On the other junior judgment, obtained at the same term, an execution w&s issued, and the same tract was sold, after the above sale, to David Shriver, jr.,
the lessor of the plaintiff He also purchased, subsequently, the same tract, under the prior j udgment.
The first question for consideration arises out of the devise, in the will, to Elias Magruder. Did he take a life-estate' only, or a fee-simple ? That he took an estate in fee-simple conditional in the 100, acres, is urged by the defendants’ counsel.. And a statute of Maryland of 1786, entitled “an act to direct descents,”
2
Ketty’s Laws, chap. 45, which provides that lands held “ in fee-simple or fee-simple conditional, or in fee-tail to the heirs of the body generally,” shall descend in the same manner, is relied on as giving a fee-simple to the devisee. Under this' statute, it must be admitted, whether- the estate vested be technically considered a. fee-tail general or a conditional fee-simple, in effect, it is a fee-simple.
In 1 Inst. 20 s. it is said that “ all limitations-confined to the heirs of the body, either by direct or circuitous expression, and which are not estates-tail under the statute
de donis,
remain conditional .or qualified fees at the common law. A gift of land to a man and his heirs generally, if he shall have heirs of his body, without any other expression to qualify the word heirs óf his body, is a conditional fee. Fleta, b. 3, c. 9, 136. And in Plow, 233, it is said, “ and. the Lord Dyer in his argument took exception to the ratification, for that it confesses the estate-tail in King Henry VH., and then says, that he having issue, Prince Arthur, entered and was seised in fee; whereas, he said, the-having issue did not make him' to have the fee, for the fee e''her accrued to him by the. remainder or never.” The same doctrine is found in page 250; Machell
v.
Clarke, 2 Lord Raym. 778. By the statute
de donis,
Westm. 2, 13 Ed. 1, a fee-simple conditional estate at common law, in certain cases, was converted into a fee-tail which, by alienation,'the ancestor could not change.
The estate under consideration, it is "insisted, is a conditional fee-simple ; or in other words that the fee vested is liable to be.defeated on the failure of heirs as provided in the will. On the other side it is argued, that the condition was a precedent one, which must happen before the fee vested. The doctrine above cited seems to favour the first of these positions, as does also the rule in Shelly’s case. By that rule, «in any instrument^ if a freehold be limited to the ancestor for life, and the inheritance to his heirs, either mediately or immediately, the first-taker takes the whole estate.” This rule had its origin in feudal times, and was, perhaps, in no small degree influenced by considerations' which have long since ceased to exist.
The rule, Mr. Preston says, 1 Pres, on Estates, 369, "is of positive institution, and has,this circumstance of peculiarity and variance from rules of construction.” “ Instead of seeking the intention of the parties and aiming at its accomplishment, it interferes in some, at least, if' not in all cases, with the presumable, and in many instances, the express intention.” “ In its very object, the rule was levelled against the views of the parties.”
That-this effect has been given to the, rule by some adjudications is admitted. But there is a rule of construction applicable to ail .instruments, .and especially:to wills, that, is, the intention, of the parties, which should control any arbitrary rule however ancient may be its origin. And of this opinion was Lord Mansfield, in Perrin
v.
Blake, 4 Burr. 257.9. He says, “ the rule is not a general proposition, subject to nO control, where, the intention is on the other side, and where objections may be answered.” . And he agreed, as Mr. Preston remarks, with Justices Wilmot and' Aston, that “ the intention is to govern, and that Shelly’s case does not constitute a decisive uncontrollable rule.” Mr. Justice Buller, in • the case of Hodgson and wife
v.
Ambrose, Doug. 337, was of the same opinion, and also Lord Hardwicke, in Bagshéw and Spencer, 2 Atk. 583. Where technical w;ords are used in a deed, of conveyance, the legal import of such words must govern. But there' is no rule- better established, than that in giving a construction to a will, the intention of the testator must prevail, His' expressed intention constitutes the law, .unless it shall conflict with some. established legal, principle. Under this rule the. nature and extent of the estate devised to Elias Magruder. must depend upon the words .of the will.
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. • And -if any dpubt could arise from the above sentences whether the testator intended to-vest in. Elias inore than a life-estate, that doubt must be dispeEed by the succeeding sentence, “.but, should he, the said Elias' Magruder, die without ain heir so begotten, I give’, bequeath, devise, and desire that the 100 acres.of land, aforesaid, be sold to
the-highest bidder, and-the money-arising from the sale thereof, to be 'equally divided among my six children.”
It would be difficult to convey in' more explicit language, than is done in. the abové - 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 ta 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.- His conveyance, therefore, eould transfer no interest in the land, beyond his own life.
The next question regards the title under-the proceedings before the chancéllor.
These proceedings were by virtue of “ an act of 1785, forhplargirig the power of the High Court of Chancery.” 1 Maxcy’s Laws,, ch. 72, sect. 4, which provides, “ that if any person hath died or shall die, leaving 'real or personal'estate to be-sold-for the paymentr of debts, or other .purposes, and shall not, by will or other instrument-in'writing, appoint a person or persons to sell- or -convey , the same-property, or if the person or persons appointed for'the purpose aforesaid shall neglect- or refuse to execute such' trust, or if- such person or persons, or any of them, shall’die before the execution of ■ such trust, so that the sale cannot be-made for the purposes intended, in every such case the chancellor shall have full powerand authority, upon application or petition from, any person or persons interested in-the sale of such property, to appoint, such trustee o.r trustees for the purpose of selling and conveying such property, and applying'the money arising from the sale -to the purposes intended, as the chancellor shall in his discretion think "proper.”
An objection, is made to these proceedings,
in
limine, on the ground that only a part of the heifs interested; united in the applicátion to the. chancellor. But this, objection is not'sustainable. The petition was for the benefit of all the heirs, and the statute does not require that all shall unite in the petition; « Any person or persons interested” may apply to the chancellor. Whether applicants- or not, all the heifs equally participated in the results of the proceedings, and this is a sufficient answer, to any technical objection.
• But the main point under this head is, whether'.the sale of the 100 acres now in controversy was of any validity. •
That the proceedings before the chancellor constituted a suit is
admitted; ,and also that they are conformably, at least in part, to the mode of procedure in such cases. The chancellor had jurisdiction of the cause, as presented by the petition; and' this being the case, no advantage can be taken of errors, however gross,-when the record is used collaterally. If a want of jurisdiction appear on the face of the record, the judgment or decree will be treated as a nullity. , But where there was jurisdiction, the- record must be received as conclusive of the rights adjudicated. No fact established by the judgment of the courtcan be controverted. In the language of this court, in the. case of Voorhees
v.
The Bank of the United States, 10 Peters, 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 jecord. Let.this test fee applied to the proceedings of the chancery court under consideration.
It is admitted, and the fact appears from the fecord, that at the time these proceedings were instituted, Elias Magruder was living and continued to live for seven years afterwards. And as he had a life estate in the premises in controversy, and the contingency on which the estate was to vest in his heirs, being possible, during his life, the land was not subject to. sale under the will. It could only be sold on the devisee’s failure to have heirs, which could not occur before his decease.
The petition asks an order to sell the remaining part' of the tract called George’s Adventure, a part of it having been devised, containing about 356 acres. The sale of the 100 acres, now in contest, was not asked and indeed could not be, as the tract at that time was not liable to be sold. The decree ordered, «that the real estate in the said will directed to be sold should be sold.” Now this decree could only apply to the 356 acres named in th&petition, for the reason- that the sale of that tract- only was prayed'' for, and it was the only tract, at that time, which the will authorized to be sold. In the language of the. decree, it was the real estate directed by the will to be sold.
To construe the decree as embracing the 100 acres tract, would go beyond the prayer of the petition and the jurisdiction of the court. One of the trustees named in the will was deceased, and the other, being insolvent, • had been removed by the Orphan’s Court. The substitution of a new trustee gave to him no power beyond the special order of the court..- Under the statute it seems not' to have
been the practice of the.court to appoint a trustee generally, to carry into effect the •will: but to point out, by a specific decree, what he shall do and the mode of doing it. His duties being limited by the decree, he is made the instrument of the court, having no discretion or power under the will.. Consequently, in his decree the chancellor required the trustee to give security, and directed him what notice should be given, and in what manner the sale should be made. This mode of executing the act was clearly within the discretion of the chancellor, specially given to him in the close of the above section. . The rule was made and ratified by the chancellor. A deed was executed by the trustee to the purchaser, and nothing further was done until in June, 1812, when the trustee made a second report, that in pursuance of the above decree, after giving public notice, “he had sold to Walter Slicer, the remaining part bf the real estate of Zachariah Magruder, deceased, consisting of the 100 acres devised to Elias Magruder.”
Now it is clear that this sale was not made in pursuance of the decree. ' Neither in the petition nor in the decree was the tract of 100 acres named or referred to. This proceeding then, by the trustee, was without authority. It could derive no sanction from the 'decree. From the record, it-would seem that there had been no continuance of the cause for six years, and no step taken in it. The second’ report is then made by the trustee as stated. This report was ratified and confirmed “unless by a given day cause to the contrary should be shown,” of which public notice was given. No cause being shown, there ■ was a final ratification bf the sale on the 22d of February, 1813. A the time of this sale it is admitted that Elias Magruder was deceased, without heirs, in the language of the will, “ lawfully begotten of him in wedlock.” And here a question arises whether the above sale can be treated as a nullity.
That the trustee was not authbrized to sell by the decree has already been showm. It would seem, however, from die form of his report, that he assumed to act only in virtue of the decree.
Does the ratification of the sale bring it within the rule, which applies to a case where the court has jurisdiction, but has committed errors in its proceedings; Had the court jurisdiction of die tract of land in controversy. At the .time the decree was entered, that tract was no more subject to the power of fire court than every other tract in the county. The devisee was in possession, having a life-estate in it subject to become a fee-simple on his having heirs lawfully
begotten by him.. He had no notice of the proceeding, and was in no'sense a party to. it. ■ The petition did not pray for the Sale of this land:.. In fact that proceeding can, in no point of view, be considered as authorizing the ■ sale •• by the' trustee. The validity, of the sale then must rest up oil the- fact of -ifs having" been made by the trustee, and sanctioned by the chancellor. ■ There would seem to be nb ground for doubt on this point.
The chancellor is authorized to' proceed in a summary mode, under the statute, for the sale of land, in the predicament.'of the above tract, after' the decease of the devisee, without heirs. But He can only proceed on the application of persons interested. Here was no such ' application for the sale of this land. The sale being without authority,, the ratification of it by -the court must be-c'onsidered as having b.eten. given inadvertently. • If given deliberately and on a full examination-of all the facts,.still if must be regarded as an unauthorized proceeding. There was no case beftre the court — nothing on which its judgment could rest:
No :Court, however great may be its .dignify, can arrogate to itself the power of disposing'of real estate without the forms of law. It must obtain jurisdiction of the thing in a legal mode: A decree without notice, would be treated sis. a nullity. And so must a sale of land be treated, which has been made without an order or decree of the court, though, it may have ratified the sale. The statute under which the proceeding was had requires a decreeat least such has been its uniform construction.
This view being decisive of the title of the lessor of - the plaintiff, it is not necessary to -consider the other questions in the- case. '
The judgment 'of the Circuit Court is 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 Mary-' land, and was argued by counsel. On consideration whereof, It is now here ordered and adjudged by this court, that the judgment of the said- Circuit Court in this' cause be, and the same is hereby affirmed with costs.