tion to be made between this patent and the patents of the towns of Hempstead (2 Wend. 133) or Oyster Bay, (1 Wend. 237.) Under this grant, therefore, title vested in the town. The Dongan charter was granted 10 years later. It can hardly be presumed that it could have been intended by that deed to have changed the title to the land. Prior to the date of the Andros charter, all the Indian deeds had been delivered, and the rights of the Indians extinguished. Under that charter, the title had vested absolutely in the town. We have no evidence to show what the exigency was that demanded the Dongan charter, other than the recitals in the instrument itself. These do not show that any person had complained of the title to the land being in the town, or that the rights of the original proprietors had thereby been prejudiced. After setting out in full the Andros

MARSHALL, in Johnson v. McIntosh, 8 Wheat. 543, and by Chief Justice TANEY in Martin v. Waddell, 16 Pet. 367; and in these cases the supreme court of the United States said: "If the discovery be made, and possession of the country be taken, under the authority of an existing government, which is acknowledged by the emigrants, it is supposed to be equally well settled that the discovery is made for the whole nation, * * * and that the vacant soil is to be disposed of by that organ of the government which has the constitutional power to dispose of the national domains." “The Indian tribes in the new world were regarded as mere temporary occupants of the soil, and the absolute rights of property and dominion were held to belong to the European nation by which any particular portion of the country was first discovered. Whatever forbearance may have been sometimes practiced toward the unfort-charter, it recites a difference between the Inunate aborigines, either from humanity or policy, yet the territory they occupied was disposed of by the governments of Europe at their pleasure, as if it had been found without inhabitants." The supremacy of the Dutch government was never established over the eastern end of Long island, and, although there may have been assertion of dominion and title, there never was any exercise of sovereign power over the lands in that part of the island until the final establishment of the power of England through the government and laws promulgated by the Duke of York. We must look, therefore, for the origin of the title to the land within the plaintiff's town, to the grant of the Duke of York, and to the royal charters issued under his government.

dians and the inhabitants as to the bounds of the town, and that the Andros charter had not conferred all the privileges and immunities of the town which it was understood it should have; recited a request by order of the freeholders that the government would determine the difference with the Indians, erect the town into one township, within the limits and bounds aforesaid, and “confirm unto the freeholders all the above-recited tracts and parcels of land." Such we must assume to have been its purpose. I cannot presume that it was intended to change or alter the title to the lands, and take it from the corporate town, and vest it in individuals. Such an act would have been a clear case of confiscation, and entirely beyond the power of the governor of the province. Johnson v. The first patent of the town was in 1676 McIntosh, supra, 580. There is nothing in by Governor Andros. It recited the exist- the instrument to indicate any intention to ence of a town commonly called and known vest any of the land in individuals, except it by the name of "Southampton," and granted be found in the peculiar phraseology of the the lands within the town to John Topping, habendum clause. The grant is to 12 patenjustice of the peace, and 14 others, for tees, described as "freeholders and inhabitand on behalf of themselves and their associ- ants of Southampton, hereinafter erected, and ates, the freeholders and inhabitants of said made a body corporate, to be called by the town, their heirs, successors, and assigns, name of the Trustees of the Freeholders and "to have and to hold the same to their proper Commonalty of the Town of Southampton.' use and behoof forever," stipulating that The patentees are subsequently declared "to said lands should "have relation to the town be the first trustees of the town, to continue in general, for the well government thereof," in the aforesaid office from and after the date and created said patentees a body corporate un- of these presents until the time that others der the name of "Southampton." There can be elected." There can be elected." Under this grant, the title to be no doubt that under this patent the title to the common lands was confirmed to the town, all the lands vested in the corporate body unless the legal effect of the habendum clause thereby created. The grant was from the was to vest it in the individuals as tenants in sovereign, who gave the grantees capacity to common. The defendant contends that, by take and hold in a corporate character, and the statute of uses, no title under the Dongan was made to individuals who might be trus-charter remained in the town, but that the tees. It recognized the existence of a civil legal title immediately passed to the individcommunity occupying the lands granted, hav- ual purchasers under the Indian deeds. Siming some form of government, and made the ilar clauses to the one under discussion are officers of that government patentees, and to be found in the charters issued by Governprovided that the lands granted should "have or Dongan to the towns of East Hampton relation to the town in general, for the well and Brookhaven; and, if the defendants' government thereof," and that the quitrent claim rests in sound law, it is remarkable that should be paid, not by the individual paten- the point escaped the attention of the learned tees, but by the town. I can see no distinc-counsel who argued the cases involving those

999

patents, and the learned judges who decided them. By the unanimous opinion of this court, it was three times decided, in the case of the towns named, that the title to the common land was in the town. Brookhaven v. Strong; East Hampton v. Kirk; Hand v. Newton, supra. We do not think, however, that it is necessary to examine the effect upon this charter of the statute of uses. It may be, if the grant was a recent one, between individuals, by which title passed from the vendor to the vendee, that, as a matter of strict technical law, the point is sound. We express no opinion on the question. This grant is to be tried by other standards, and interpreted in the light of other considerations.

probably be a difficult matter.

aged or disposed of any of the land as tenants in common. And it may be here stated that the defendants' title is wholly inconsistent with any such thing. The foundation of that title is a deed from certain trustees, representing and elected by a majority vote of the proprietors under chapter 155 of Laws of 1818. Nothing can be plainer than that an act of the legislature which purports to give to trustees, elected by a majority vote of tenants in common in land, the power to sell and pass the title to such land, would be absolutely void. If the argument on the part of the appellant is sound, it has demonstrated beyond question that it has no title whatever to the land it claims, unless it can show one As I have already pointed out, the title had gained by adverse possession; and, from the vested in the town under the Andros pat-character of the property involved, that would .ent. No one ever had denied the equitable rights of the original proprietors in the up- Turning again to the construction of this land, as no one appears ever to have denied patent adopted and acted upon by the parties it since that charter. It was recognized by in interest, we find that the management the inhabitants before the charter was grant- and disposition of the lands, until division ed, and by the trustees of the town after the and allotment thereof, was always by the Dongan patent, and subsequently by the leg-town in town meeting, or by the trustees. islature of the state. It may be that some As the town increased in inhabitants, tracts question had arisen concerning the proprie- of the common land were from time to time. tors' rights after the Andros, and before the allotted by the town trustees among the proDongan, charter, and some acknowledgment | prietors, according to their respective interthereof from the ruling power was deemed ests; and these allotments are the source of proper. If there was any claim of a tenancy nearly all the private titles within the town. in common under the Indian deeds, the num- Until this allotment, their control by the trusber of owners must have increased largely tees was unrestricted, except, occasionally, before the date of the Dongan patent. Proper by the town meetings. Instances are cited control and management of the lands, 46 where the trustees disposed of the land absoyears after the original purchase, would lutely. Grants were made to induce the setprobably have been a difficult matter, on ac- tlement of mechanics and others in the town, count of the numerous owners, and the diffi- but in no case was it ever assumed that the culty of ascertaining who such owners were. | legal title was elsewhere than in the town, As an acknowledgment of the rights of the and all deeds were executed by the trustees. original purchasers, and those who had suc- All this as to the uplands. As to the lands ceeded them, the habendum clause of the under water, none were ever allotted or sold, Dongan patent is explainable. The legal or made the subject of individual ownership. title was to be in the town. The rights of The absolute control and management therethe proprietors were recognized, but were re- of has been exercised by the trustees from garded as purely equitable. Whether this the Dongan charter to the present time. construction of the legal effect of the patent They leased the fisheries to particular peris correct or not, it was the one adopted by sons, generally on condition that the fish be all parties in interest, and acted upon by the sold only to the inhabitants of the town. town and the proprietors or purchasers of the They prohibited the taking of fish, clams, Indian rights. In the construction of a pub- and oysters during certain periods of the lic charter granted for the purpose of creat- year, and enforced such prohibition by pening a civil community, the practical interpre-alties. They leased the land under water for tation it has received from those interested oyster planting, and agreed to indemnify and therein, and acquiescence in such interpreta- defend the lessees against assertion of hostile tion for a long series of years, is the most rights in the leased property. They sold the important evidence in the determination of sea-weed from the beaches, gave consent to rights existing thereunder, and the strict let-the erection of wharves and docks, and regter of the instrument becomes of conipara-ulated the use thereof; provided for the buildtively little importance. The fact that stands ing of mills on the streams; and in numerout prominently upon the record, in reading ous instances passed and enforced ordinances it upon this question, is that no one ever regulating the fishing and oystering in the claimed title to any of the land within the bay which is the subject of this suit. town as tenant in common, as that term is Such was the usage under the patents down ordinarily understood. No individual ever to the year 1818. The town held undisputed took title to any of the lands directly under possession of the unallotted lands and of the the patent. There is not an instance cited water within the town, and claimed and asin the very voluminous record before us in sumed to hold the legal title. The equitable which the proprietors or purchasers man-rights of the proprietors were recognized by

the inhabitants of the town. At the annual town meeting held in April, 1831, for the election of trustees, it was voted as follows: "In consequence of an application to the legislature at their thirty-fourth session, in the winter of 1831, for a law in regard to the powers and duties of the trustees, about which there began to be so many conflicting opinions, as construed from the charter of Governor Dongan, it is thought advisable for the trustees not to meet till they could meet and act under the new law." The law having been passed, the trustees met on August 30th, and the act was transcribed in full on the trustees' book.

We have, then, not only an uninterrupted user, under the patents, by the town and its inhabitants for over two centuries, recognizing the right of the town to control and manage the waters of the town and their productions, and to exercise over them all the rights which flow from ownership and possession of title, but the distinct recognition by the legislature of the state on two occasions that the title thereto was in the town. In the face of such evidence, the assertion that the proprietors are, or ever claimed to be, tenants in common of the lands or waters of the town, can find no foothold in the case. I can find no instance, until the origin of the present claim to Mecox bay, of any claim to individual ownership. If I have overlooked any evidence of such as to the uplands, it may be confidently asserted that none can be found as to the lands under the water. As to that species of property, the inhabitants of the town appear to have maintained inviolate the agreement of the original under

frequent divisions among them of the income | of 1818. Of this act there is clear evidence received from the lands, and by frequent al- to show that it was passed at the request of lotments of lands among them. In the year 1818 the legislature enacted a law which authorized the proprietors, by a majority vote, to elect from their number trustees with such power to manage all the undivided lands of the town "as the trustees of the freeholders and commonalty of the town of Southampton now have," and empowered such trustees to sell, lease, or partition the same, but especially reserved to the town trustees the management of the waters, fishing, sea-weed, and production of the waters "for the benefit of said town as they had power to do before the passing of this act." Since the enactment of this law, the common lands have been managed by the trustees elected by the proprietors, and the waters and their products have been managed by the town. As I have already pointed out, if the title to the lands was held by the proprietors as tenants in common, this law could not be sustained as a valid exercise of legislative power; but otherwise, if the title was in the town. Philadelphia v. Fox, 64 Pa. St. 180; Girard v. Philadelphia, 7 Wall. 1; Montpelier v. East Montpelier, 29 Vt. 12; North Yarmouth v. Skillings, 45 Me. 133; People v. Morris, 13 Wend. 325; Darlington v. Mayor, 31 N. Y. 164. It is very likely that at this time some controversy existed as to the rights of the inhabitants of the town under the grants, and that this law was the result of a compromise. We find a record of a special town meeting held February 17, 1818, at which it was voted "that there shall be some alteration made respecting the privileges of said town;" and "that the bill brought forward now, and which has been read to the house, be the form of a law;" and "that there be two commit-takers, made at the very inception of the entees, one on the part of the town; the other terprise, as follows: "Furthermore, no peron the part of the proprietors." "A com- son or persons whatsoever shall challenge or mittee on the part of the town was then ap- claim any proper interest in seas, rivers, pointed." Alterations in the privileges of creeks, or brooks, howsoever bounding or the town could only be made by the legisla-passing through his grounds; but freedom of ture, and the appointment of committees to represent the conflicting interests existing in the town upon the subject of these lands would have been in accordance with modern notions in respect to obtaining necessary leg-on these grants must, we think, control the islation from the law-making power. The decision in this case. In speaking of this act was passed on April 15, 1818, and if it class of evidence, Chief Justice CHURCH, in was the result of a compromise its validity Brookhaven v. Strong, says: "These elecould not be questioned. However this may ments of title are very much strengthened by be, there is no doubt that it was acquiesced possession and user during the long period in, and from such acquiescence it will be which has elapsed. * * * The defendant deemed to have been passed by consent of the put in some evidence with the view of showinterested parties. Society v. Curtis, 22 Pick. ing that the right had been disputed and re320; Humphrey v. Whitney, 3 Pick. 164; sisted from time to time. Without referring Rogers v. Goodwin, 2 Mass. 475. In the to it in detail, it can only be claimed to esyear 1831, the legislature enacted another tablish that dissatisfaction was evinced. law, (chapter 283, Laws 1831,) in which it * ** It is not necessary, in order to was provided that the trustees of the town claim the benefit of the user, that every pershould have the "sole control" and manage- son in the community should acknowledge ment of the fisheries, sea-weed, waters, and the right. It may be disputed, or even deproductions of the waters of the town grant-nied; * ** but this is of no moment, ed by the Dongan charter, except so far as provided the claimants always vindicate their they had been changed and altered by the act right whenever an effort was made to dis

fishing, fowling, and navigation shall be common to all within the banks of the said waters whatsoever." The practical construction that is thus shown to have been put up

lodge them.

This long user and declared that they have succession forever, occupancy, though probably not a technical and that they "shall be forever in future bar under the statute of limitations, on ac- times persons able and capable in law to count of the nature of the property, ***have, perceive, receive, and possess, not only is sufficient to give the plaintiffs the benefit all and singular the premises, but other mesof any presumption which may be legitimate-suages, lands, tenements, privileges, jurisly indulged to supply defects, if not a title by dictions, franchises, and hereditaments, of prescription." See, also, 2 Greenl. Ev. 178; whatsoever kind or species they shall be, to Vandyck v. Van Beuren, 1 Caines, 83; Jack-them and their successors in fee forever." son v. McCall, 10 Johns. 377; Ricard v. Williams, 7 Wheat. 59; Livingston v. Ten Broeck, 16 Johns. 14; Attorney General v. Parker, 3 Atk. 577.

It further provided that they shall, as such, "give, grant, release, aliene, assign, and dispose of lands, tenements, hereditaments, and all and every other act and acts, thing and In this case there is no dispute as to the things, to do and execute by the name aforeuninterrupted user by the town under these said." It will thus be observed that a corpatents for 200 years, and in the face of such poration was created for and on behalf of the user it would be idle to discuss the technical township; that the land was granted to the or literal meaning of the language of the corporation. So far as regards those who had, charter. The parties interested have settled prior to that time, taken up and appropriated that beyond recall. Even though it be sus-land under a former patent, their title and ceptible of the meaning claimed for it by the right thereto was confirmed. As to that which appellants, the strict letter of the instrument had not been taken up or appropriated by any must now give way to the practical construc- person, it was held for the benefit of such as tion adopted and acted upon by the inhabit- had been purchasers thereof, and their asants of the town. Upon such construction signs, in proportion to their several purchases all the private titles to lands within the town thereof, made as tenants in common. If it rest; and, as has been appropriately said in was by this provision intended to make the the brief of the learned counsel for the re- inhabitants, who had taken up and were spondent, "courts should not undertake to re- then owners of land, tenants in common of verse the action and traditions of centuries, that which had not been taken up, then the and change titles which have become vested title vested in them as tenants in common, under contrary views." We think the judg- and they could convey. But, if this clause ment of the lower courts was correct, and is to be given this interpretation, what beshould be affirmed, with costs. comes of the subsequent clauses, in which the corporation is given the power to grant and convey? Surely it was not intended that the corporation should grant and convey that which had already been taken up by persons whose titles had been confirmed by the provisions of this charter. The power to grant and convey by the corporation must, of necessity, be limited to those lands which had not, as yet, been taken up. So that we have not only the granting clause, vesting the title in the corporation, but we have the concluding clause, giving the corporation the

in direct conflict with the interpretation that the inhabitants took as tenants in common. We must therefore see if such construction was in fact intended.

HAIGHT, J. I fully concur in the views expressed by Judge BROWN. Perhaps the most serious question to be considered arises upon the construction of that portion of the habendum clause in the Dongan charter which provides that "as, for, and concerning all and every such parcel or parcels, tract or tracts, of land, remainder of the granted premises not taken up or appropriated to any particular person or persons by virtue of the aforerecited deed or patent, to the use, benefit, and behoof of such as have been purchas-power to grant and convey, which would be ers thereof, and their heirs and assigns, forever, in proportion to their several and respective purchases thereof, made as tenants in common," etc. In construing this provision, we must take into consideration that which precedes and follows, in order that we may arrive at the purpose and intent of the grantor. The granting clause of the charter was to the freeholders and inhabitants of Southampton, who were made a body corporate and politic, called by the name of the "Trustees of the Freeholders and Commonalty of the Town of Southampton," and their successors. The first provision of the habendum clause confirmed the title to those who had taken up and appropriated land by virtue of an aforerecited deed or patent, unto their several and respective heirs and assigns forever. The subsequent provisions of the charter constituted the freeholders and inhabitants of the town of Southampton a body corporate and politic, in deed and name, and

It will be observed that it does not provide that the inhabitants shall take that which remains of a tract of land not taken up as tenants in common, but does, in substance, provide that the parcels of land remaining, not taken up or appropriated, shall be held "to the use, benefit, and behoof of such as have been purchasers thereof, and their heirs and assigns, forever." It then provides that it shall be in proportion to their several and respective purchases thereof, made as tenants in common. It was their former purchases that were made as tenants in common. This is consistent with their former history; for, when their settlement was originally made, a community was organized, consisting of 40. to each of whom was assigned a part, the whole being held in commonalty. While

their past relation was recognized, the gov-| real estate devised to her. Charles Pardee ernor, in delivering to them a new charter, died on the 9th day of April, 1878, leaving a did not see fit to vest in them the title as ten- last will and testament, which was duly ants in common, but, instead, placed it in proved and admitted to probate on the 17th the corporation created by him. Whether or day of July, 1878. The provisions of the not he intended that they should share in the will, aside from the formal parts, are as folproceeds of the sales, as tenants in common, lows: "I do order and direct my executor in proportion to their purchases, it is not nec- hereinafter named to pay all my just debts essary for us to now determine. But his in- and funeral expenses as soon after my decease tent and purpose to vest the title in the cor- as can conveniently be done. I give and beporation, and give it the power to sell and queath unto my adopted daughter, Mary E. convey, is quite apparent. At that time the Moses, wife of Lucien Moses, the household community had increased in numbers, and furniture, and whatever may be in the house the unoccupied lands were required by new- and used as housekeeping articles. I give comers. The obstacles in the way of obtain- and bequeath unto Amos R. Pardee my gold ing a deed from several hundred tenants in watch. I give and bequeath to Eliza Broncommon were such as to make it necessary son, widow of Henry R. Bronson, deceased, that the title should be so vested that it could one hundred dollars; to Mrs. Sarah Greenman, readily be reconveyed. one hundred dollars; to Mrs. Triphina Austin, if living at my decease, one hundred dollars. I do give unto my daughter, Mary E. Moses, the rest and residue of my estate, real and personal, making her residuary legatee

All concur.

(116 N. Y. 144)

CLIFT v. MOSES et al.1

(Court of Appeals of New York, Second Divis- of this my last will and testament. I do

ion. Oct. 8, 1889.)

WILLS-CHARGES ON LAND-CONVERSION.

*

1. Testator, after giving the most of his property to a residuary devisee, who was appointed executrix, declared in his will: "I do order and direct my executor hereinafter named to pay all my just debts and funeral expenses as soon after my decease as can be conveniently done. * * I give and devise to my executor and executrix all my real and personal property of every kind, in trust for the purpose of paying my debts and legacies named in this my last will, giving them power to sell, mortgage, or convey any and all my real estate for the purposes above named." On the death of testator the devisee renounced as executrix, and took charge of the property, chiefly real estate, which she managed, and from which she collected rents and profits till its sale. Held, that the will made no charge on the real estate of the debts, beyond that provided by law, under which it became subject to sale for that purpose when the personal estate proved insufficient, and the devisee was not liable to account for the rents.

2. There being no provision in the will authorizing the trustees to receive the rents and profits, the devisee was entitled to collect them as the one in whom the real estate vested on the death of testator, under 1 Rev. St. N. Y. p. 729, § 56, providing that "a devise of lands to executors or other trustees, to be sold or mortgaged, where the trustees are not also empowered to receive the rents and profits, shall vest no title in the trustee, but the trust shall be valid as a power, and the lands shall descend to the heirs, or pass to the devisees of the testator, subject to the execution of the power." 3. Where the testator gives his executor power to sell the real estate to pay the debts, without commanding that it be done, there is no constructive change in the property on the death of the testator, but it retains its character as realty until actually converted.

Appeal from supreme court, general term, fourth department.

William G. Tracy, for appellant. Louis Marshall, for respondents.

HAIGHT, J. This action was brought by the plaintiff, as a creditor of the estate of Charles Pardee, deceased, to compel the defendant Mary E. Moses, as residuary devisee under the will of the deceased, to account for the rents and profits received by her from the

1Affirming 41 Hun, 640, mem.

hereby nominate and appoint Benoni Lee and Mary E. Moses my executor and executrix of this my last will and testament, revoking all former wills by me made. I give and devise to my executor and executrix all my real and personal property, of every kind, in trust for the purpose of paying my debts and legacies named in this my last will, giving them power to sell, mortgage, or convey any and all real estate for the purposes above named." Benoni Lee and Mary E. Moses having renounced as executor and executrix and trustee under the will, Jacob C. De Witt was appointed administrator with the will annexed and trustee to execute the trust and power in trust therein contained. He having died, the defendant Sidney Smith was duly appointed such administrator and trustee. The value of the personal property left by the deceased, over and above the expenses of administration, amounted to the sum of $3,893.60, and the value of his real estate, over and above the necessary expenses of selling the same, amounted to the sum of $26,077.91. The debts owing by Pardee at the time of his decease amounted to the sum of $171,751.15. The amount of the plaintiff's claim, as settled by the judgment recovered against the estate, is the sum of $62,070.89. One Daniel Wallace was also a creditor to the amount of $3,742.35, which has been assigned and transferred to the plaintiff. The greater part of the estate of the deceased consisted of an undivided third part of certain real estate in Buffalo, N. Y., known as the "Mansion House Property," from which the defendant Mary E. Moses collected one-third of the rents and profits after the decease until the same was sold by the trustee for the purpose of paying the debts, and the amount so collected by her amounted to the sum of $7,221.92. On or about July 1, 1881, the property was sold by Smith, as trustee, by virtue of the power in trust contained in the will for the purpose of paying the debts of