Fletcher, J.
[After stating the facts.] The resolve of the legislature confirms, in the first place, the conveyances which had been made by the executrix, under and by virtue of the license from the judge of probate. The resolve, so far, being designed to perfect and quiet titles, by curing defects which have happened by reason of mistakes or accidents, in matters of form, is clearly within the scope of the highly useful and even necessary power often exercised by the legislature, at all periods, and without complaint or objection.
The resolve proceeds to confirm the conveyances made by the daughters, in fee, of the land, contracts for which had been made with the testator in his lifetime; also the conveyances made and received by the daughters, in fee, upon partition of lands held by the testator in common with other persons; and also the conveyances made by the daughters, ir fee, of lands of which the testator died seized, and which [493]*493were sold by the daughters and son, the devisees, and the consideration received by them in full.
In all the foregoing cases, the conveyances made by the daughters, in fee, are confirmed by'the resolve; and William Sohier is authorized to make full and complete confirmatory deeds. But no provision whatever is made for securing the interests of those, who are entitled to the remainder of these lands, after the decease of the daughters. The daughters, who have but a life interest, convey the lands absolutely in fee, and receive the whole consideration, and these conveyances are by the resolve fully confirmed. The effect of this is, to deprive those having the remainder completely and entirely of their estates, without any consideration. It is, in fact, by a special act of legislation, taking away from persons their estates, without their consent, and without any compensation, or provision for compensation. It is taking from one person his property, without his knowledge or consent, and without his being heard, or having an opportunity to be heard, and transferring it to others, without compensation, and without supposing, or any ground for supposing, that the person whose property is taken away is or can be benefited by the act.
It surely can require no argument to show, that such an act is contrary to the spirit and the terms of the constitution of this commonwealth, and not within the powers granted by the people to the legislature. Every individual has a right, under the constitution, to be protected in the enjoyment of his property, and no one can be wholly and entirely deprived of it, by having it taken from him and transferred to another, without compensation or benefit in any way, by a special act of legislation. All this part of the resolve, therefore, is clearly unconstitutional and void. The court is bound to presume, that the effect and operation of this part of the resolve escaped the notice of the legislature, and that it could not have been their intention to do what is in fact done by this portion of the resolve, in its present form.
The remainder of the resolve relates to estates of which [494]*494Benjamin Joy died seized, and which had not been conveyed away, but were still held by the devisees. Partition of these estates by the devisees had been made among themselves, but made upon the understanding that the daughters had estates in fee, and conveyances were made by and to them in fee, so that the titles under this partition were invalid. The intention of the devisees was, therefore, to abandon this partition,, and have a new partition or sale of their estates under and by virtue of the resolve.
The resolve, accordingly, empowered William Sohier, the plaintiff, to make partition, at his discretion, of the whole or any part of these estates, and also of any estates held in severalty, under partitions made between the devisees and other persons, who held in common with the testator. It is probably competent for the legislature to provide for making partition by a special act, as they may authorize a sale by a special act, though there are general laws on these subjects. The power given to the plaintiff is very general and extraordinary. He is to make partition, at his discretion. The resolve does not say, in terms, that he shall have any regard to the legal rights of the parties, though such might perhaps be the proper construction.
There is no provision for notifying or hearing the parties ; or for making any return to any place, or to any tribunal; or for revising or examining in any way his doings. The resolve does not in terms authorize or require the plaintiff, in making partition, to convey any part of the estate to the trustees of the daughters under Benjamin Joy’s will, though, perhaps, by construction, and inference, it might be held, that he was in substance and effect so authorized and required. The resolve authorizes the partition of estates set out to the devisees, in severalty, upon the partition of the estates, in which the testator was a tenant in common with other persons. But these estates were set out to the devisees, in consideration of conveyances made by the daughters in fee, which they had no right to make, and which are therefore invalid.
[495]*495If these conveyances, made by the daughters in fee, are not confirmed by the resolve, according to the views herein-before expressed, it could hardly have been intended by the legislature, that the estates conveyed to the devisees should be confirmed or held by them. That is, if the estates conveyed by the devisees are invalid, it could not probably have been intended that they should hold the estates conveyed to them in exchange, and have partition of them. These are the general principles and views, upon which the validity of the resolve in regard to making partition would have to be determined, if it were necessary to make any decision on this point.
The resolve also authorizes and empowers the plaintiff to sell and convey, at his discretion, all the estates of which Benjamin Joy died seized, and which have not been conveyed, but are now held by the devisees, and also all estates set out in severalty to the devisees, upon partition between them and other persons, who were tenants in common with the testator. The same remarks apply to the sales of the last named estates, which were made in reference to the partition of these. It could not probably have been the intention of the legislature, to confirm to the devisees the estates set out to them, in partition, when their conveyances, which formed the consideration, are not confirmed, and are invalid. But, upon this part of the resolve, it is not necessary to express any decided opinion.
So far as respects the sale of the land, of which Benjamin Joy died seized, the case stands thus. There are the following parties: John B. Joy who had an interest in fee ; the twc daughters who had an interest for life in the shares which they took under the will of their father, with remainder over to their issue or heirs generally, and an interest in fee in the shares which came to them from their brother Joseph, in part directly, and in part through their mother ; and the trustees of the daughters, appointed by the judge of probate under the wills of Benjamin and Hannah Joy, who hold the estates for the daughters during their lives, and then for their issue or general heirs, who have the remainder.
[496]
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Fletcher, J.
[After stating the facts.] The resolve of the legislature confirms, in the first place, the conveyances which had been made by the executrix, under and by virtue of the license from the judge of probate. The resolve, so far, being designed to perfect and quiet titles, by curing defects which have happened by reason of mistakes or accidents, in matters of form, is clearly within the scope of the highly useful and even necessary power often exercised by the legislature, at all periods, and without complaint or objection.
The resolve proceeds to confirm the conveyances made by the daughters, in fee, of the land, contracts for which had been made with the testator in his lifetime; also the conveyances made and received by the daughters, in fee, upon partition of lands held by the testator in common with other persons; and also the conveyances made by the daughters, ir fee, of lands of which the testator died seized, and which [493]*493were sold by the daughters and son, the devisees, and the consideration received by them in full.
In all the foregoing cases, the conveyances made by the daughters, in fee, are confirmed by'the resolve; and William Sohier is authorized to make full and complete confirmatory deeds. But no provision whatever is made for securing the interests of those, who are entitled to the remainder of these lands, after the decease of the daughters. The daughters, who have but a life interest, convey the lands absolutely in fee, and receive the whole consideration, and these conveyances are by the resolve fully confirmed. The effect of this is, to deprive those having the remainder completely and entirely of their estates, without any consideration. It is, in fact, by a special act of legislation, taking away from persons their estates, without their consent, and without any compensation, or provision for compensation. It is taking from one person his property, without his knowledge or consent, and without his being heard, or having an opportunity to be heard, and transferring it to others, without compensation, and without supposing, or any ground for supposing, that the person whose property is taken away is or can be benefited by the act.
It surely can require no argument to show, that such an act is contrary to the spirit and the terms of the constitution of this commonwealth, and not within the powers granted by the people to the legislature. Every individual has a right, under the constitution, to be protected in the enjoyment of his property, and no one can be wholly and entirely deprived of it, by having it taken from him and transferred to another, without compensation or benefit in any way, by a special act of legislation. All this part of the resolve, therefore, is clearly unconstitutional and void. The court is bound to presume, that the effect and operation of this part of the resolve escaped the notice of the legislature, and that it could not have been their intention to do what is in fact done by this portion of the resolve, in its present form.
The remainder of the resolve relates to estates of which [494]*494Benjamin Joy died seized, and which had not been conveyed away, but were still held by the devisees. Partition of these estates by the devisees had been made among themselves, but made upon the understanding that the daughters had estates in fee, and conveyances were made by and to them in fee, so that the titles under this partition were invalid. The intention of the devisees was, therefore, to abandon this partition,, and have a new partition or sale of their estates under and by virtue of the resolve.
The resolve, accordingly, empowered William Sohier, the plaintiff, to make partition, at his discretion, of the whole or any part of these estates, and also of any estates held in severalty, under partitions made between the devisees and other persons, who held in common with the testator. It is probably competent for the legislature to provide for making partition by a special act, as they may authorize a sale by a special act, though there are general laws on these subjects. The power given to the plaintiff is very general and extraordinary. He is to make partition, at his discretion. The resolve does not say, in terms, that he shall have any regard to the legal rights of the parties, though such might perhaps be the proper construction.
There is no provision for notifying or hearing the parties ; or for making any return to any place, or to any tribunal; or for revising or examining in any way his doings. The resolve does not in terms authorize or require the plaintiff, in making partition, to convey any part of the estate to the trustees of the daughters under Benjamin Joy’s will, though, perhaps, by construction, and inference, it might be held, that he was in substance and effect so authorized and required. The resolve authorizes the partition of estates set out to the devisees, in severalty, upon the partition of the estates, in which the testator was a tenant in common with other persons. But these estates were set out to the devisees, in consideration of conveyances made by the daughters in fee, which they had no right to make, and which are therefore invalid.
[495]*495If these conveyances, made by the daughters in fee, are not confirmed by the resolve, according to the views herein-before expressed, it could hardly have been intended by the legislature, that the estates conveyed to the devisees should be confirmed or held by them. That is, if the estates conveyed by the devisees are invalid, it could not probably have been intended that they should hold the estates conveyed to them in exchange, and have partition of them. These are the general principles and views, upon which the validity of the resolve in regard to making partition would have to be determined, if it were necessary to make any decision on this point.
The resolve also authorizes and empowers the plaintiff to sell and convey, at his discretion, all the estates of which Benjamin Joy died seized, and which have not been conveyed, but are now held by the devisees, and also all estates set out in severalty to the devisees, upon partition between them and other persons, who were tenants in common with the testator. The same remarks apply to the sales of the last named estates, which were made in reference to the partition of these. It could not probably have been the intention of the legislature, to confirm to the devisees the estates set out to them, in partition, when their conveyances, which formed the consideration, are not confirmed, and are invalid. But, upon this part of the resolve, it is not necessary to express any decided opinion.
So far as respects the sale of the land, of which Benjamin Joy died seized, the case stands thus. There are the following parties: John B. Joy who had an interest in fee ; the twc daughters who had an interest for life in the shares which they took under the will of their father, with remainder over to their issue or heirs generally, and an interest in fee in the shares which came to them from their brother Joseph, in part directly, and in part through their mother ; and the trustees of the daughters, appointed by the judge of probate under the wills of Benjamin and Hannah Joy, who hold the estates for the daughters during their lives, and then for their issue or general heirs, who have the remainder.
[496]*496All the parties join in the petition, and the resolve provides that the proceeds of the sales authorized thereby shall be paid over to the petitioners, in the proportions to which they are entitled, under the will of Benjamin Joy; that the trustees shall take and hold upon the trusts in and by the wills and settlements respectively declared; and that they shall give bonds, that the proceeds shall be applied upon the trusts, and to and for the uses, intents and purposes in and by the will of Benjamin Joy declared concerning the same. Here are certain persons not known, or not in* being, interested in an estate, who cannot act for themselves and make conveyances. It is important, very important, for all parties, that the estate should be sold. The persons having the interests for life are here and can act, those in remainder are not here and cannot act, but their trustees are here acting in favor of a sale.
The legislature authorizes the sale, taking care that the proceeds shall go to the trustees, duly appointed in pursuance of the provisions of the will of Benjamin Joy, for the use and benefit of those having the life estate, and of those having the remainder, as they are entitled under the will. This is depriving no one of his property, but is merely changing real into personal estate, for the benefit of all parties in interest._ This part of the resolve, therefore, is within the scope of the power exercised from the earliest times, and repeatedly adjudged to be rightfully exercised by the legislature. In the case of Rice v. Parkman, 16 Mass. 326, it was adjudged, that the legislature might rightfully and properly authorize a tenant for life to sell the whole estate, thus converting the real into" personal estate; provision being made for securing the interest of those in remainder. The same doctrine was held by the circuit court of the United States for this circuit, in the case of Blagge v. Miles, 1 Story, R. 426. The same doctrine has been fully illustrated and maintained, in this court, in the case of Davison v. Johonnot, 7 Met. 388. See also Clarke v. Van Surlay, 15 Wend. 436; Cochran v. Van Surlay, 20 Wend. 365; Bambaugh v. Bambaugh, 11 Serg & R. 191; Estep v. Hutchman, 14 Serg. & R. 435.
[497]*497It is deemed indispensable, that there should be a power in the legislature to authorize a sale of the estates of infants, idiots, insane persons, and persons not known,.or not in being, who cannot act for themselves. The best interest of these persons, and justice to other persons, often require that such sales should be made. It would be attended with incalculable mischiefs, injuries, and losses, if estates, in which persons are interested, who have not capacity to act for themselves, or who cannot be certainly ascertained, or are not in being, could under no circumstances be sold, and perfect titles effected. But, in such cases, the legislature, as parens patries, can disentangle and unfetter the estates, by authorizing a sale, taking precaution that the substantial rights of all parties are protected and secured. That the legislature has such power and may rightfully exercise it, has been fully settled, and the reasons and grounds of it fully illustrated and ex plained, in the adjudged cases, to which reference has already been made.
This power can by no means be considered as dangerous or objectionable, but, on the contrary, is a most necessary, useful, and beneficent power, which has long been habitually exercised, and should now by no means be fettered, or its rightfulness drawn in question. So far, therefore, as the resolve authorizes the sale of such estate as Benjamin Joy died seized of, the rights of all persons to the proceeds being fully protected and secured, there can be no valid objection. The validity of this part is not impaired by the invalidity of other distinct and independent portions of the resolve. That a third person, a stranger, is appointed to make the sale, cannot affect the principle, he being a suitable person.
Having now given a general view of the provisions of the resolve, I will proceed to a consideration of the acts done under and by virtue of it, out of which arise the particular questions presented to the consideration of the court in this case. All the acts done were under and by virtue of that part of the resolve, which authorizes the plaintiff to make [498]*498partition of, and to sell at his discretion, any or all the estate of which Benjamin Joy died seized, which remained in the hands of the devisees, and which had not be,en conveyed away. Under this portion of the resolve, the plaintiff made a contract with the trustees of the Massachusetts General Hospital, to sell them a small piece of land at Somerville, of which Benjamin Joy died seized, and the defendants agreed to purchase it, or any part of it to which the plaintiff could himself make, or could procure, a good title.
Having made this contract, the plaintiff, with a view, it would seem, to present a question as to his power to make partition, made a deed of a small piece of the land, contracted to be sold to the defendants, to Elizabeth Joy, and then procured the deed of Elizabeth Joy of this piece, and offered it to the defendants, and offered his own deed of the remainder of the piece sold ; but the defendants refused to accept either deed, or to complete the purchase for any part of the land, alleging that no good title was made to any part. This action at law was then instituted on the contract, alleging, in the first place, that the deed of Elizabeth Joy made a good title to the land described in that deed.
The plaintiff, in his deed to Elizabeth Joy, refers to the resolve authorizing him to make partition, and also to the deed of the other heirs to him, and then conveys to her in fee a piece of land particularly described. The argument for the plaintiff is, that by making the deed to Elizabeth Joy, he made partition to her of that land, and that her deed to the defendants made a good title. But Elizabeth Joy was entitled to no land in fee, except the share she inherited from her brother, Joseph B., or her mother. Whether the land conveyed to her was intended as her share from her brother or mother does not appear. In fact, no calculation was made as to what she was entitled to in partition, but this piece was arbitrarily conveyed to her, merely to raise a question for the court. Nothing was conveyed to the other tenants in common, and no calculation made to ascertain the amount of the [499]*499shares of the respective parties in the whole or any part of the estate. There was in fact no partition.
To make partition, is to distribute to the parties in interest, the shares to which they are respectively entitled. To convey to Elizabeth Joy a piece of land, without any reference to the share to which she was entitled, and doing nothing as to the shares of others, would not be making partition. Supposing the plaintiff to have been duly authorized by the resolve to make partition, upon which it is not necessary now to express any opinion, and in regard to which, for the reasons before' stated, there is great doubt, to say the least, he in fact made no partition to Elizabeth Joy of her share, so that her deed did not convey a good title to the defendants. The plaintiff, therefore, cannot recover on this part of his case. Then, as to the deed of the plaintiff himself, its sufficiency to convey a good title depends upon the general power given in the resolve to sell and convey the estate of which Benjamin Joy died seized, and which has already been referred to and considered at length.
This part of the resolve comes within the acknowledged power of the legislature, and has all the requirements and provisions, and was passed under all the circumstances, necessary to give it validity. All the parties in interest were represented, and the rights and interests of all persons are fully provided for and secured. In truth, the whole effect of this part of the resolve is merely to change real into personal estate, ample provision being made for securing to all persons all their rights and interests, in and to the proceeds of the real estate authorized to be sold.
The validity of this part of the resolve, therefore, is fully sustained by the reasons, which have been herein before given at large, and which need not be here repeated, and by the authorities which have been referred to, which bear directly on the point, and which are full and conclusive. This is a separate and distinct part of the resolve, and can well stand by itself, and is not affected by the invalidity of other portions of the resolve
[500]*500So far as regards this part of the plaintiff’s case, therefore, he is entitled to recover.
The portion of land, to which the plaintiff, by this decision, could make a good title, being very small, neither of the parties was disposed to carry into effect any part of the contract, and by an arrangement between them, a general judgment was entered for the defendants.