ceeds were ever invested, or secured, or even received from the grantees or mortgagees. (5.) That, so far from providing for the children, or protecting the estate, he suffered a large portion of the northern moiety to be sold for assessments, and was proceeding to dispose of the northern moiety for twenty-one years, when, on the 31st of March, 1826, a bill was filed against him on behalf of the children, and an injunction issued. (6.) That the plaintiff, Mrs. Williamson, was from the death of her mother in August, 1815, supported entirely by one of her aunts; and that after about two years from the mother's death, the other children were supported by their friends, and were entirely neglected by their father; and that this was notorious in the city of New York, and would have been immediately known to anyone making inquiry. The defendant's counsel objected; the objection was sustained, and the plaintiffs' counsel excepted. A verdict was then taken for the plaintiffs for one undivided third part of the eight lots, subject to the opinion of the court upon the questions of law, with power to enter a verdict for defendant, if such should be the opinion of the court, and with liberty to either party to turn this case into a special verdict or bill of exceptions. On the 18th of May, 1846, the judges of the Circuit Court pronounce their judgment upon the four following point, viz.: But the judges are divided in opinion upon the following points presented by the case: 1. Whether the acts of the Legislature, stated in the case, devested the estate of the trustees under the will of Mary Clarke, and vested the whole estate in fee in Thomas B. Clarke. 2. Whether the authority given by the said acts to the trustee to sell was a special power, to be strictly pursued, or whether he was vested with the absolute power of alienation, subject only to re-examination and account in equity. 3. Whether the orders set forth in the case, made by the Chancellor, were authorized by and in conformity to the said acts of the Legislature, and are to be regarded as the acts of the Court of Chancery, empowered to proceed as such in that behalf, or the doings of an officer acting under a special authority. 4. Whether the Chancellor had competent authority, under the acts, to order or allow such sale or conveyance of the estate by *the trustee, as is stated in the case, on [*511 any other consideration than for cash, paid on said conveyance. 5. Whether the deed executed by Thomas B. Clarke to George De Grasse, for the premises in question, being upon a consideration other than for cash paid on the purchase, is valid. 6. Whether the said deed is valid, it having no certificate indorsed thereon that it was approved by a master in chancery. 7. Whether Thomas B. Clarke having pre 1. Under the will of Mary Clarke, the first-viously mortgaged the premises in fee to Hen born child of Thomas B. Clarke, at its birth, took a vested estate in remainder, which opened to let in his other children to the like estate as they were successively born. 510*] *2. This estate would have become a fee-simple absolute in the children living on the death of T. B. Clarke, the 1st day of May, 1826; and it is not important now to decide whether the trustees took a fee, under the will, in trust to convey to the children after his decease, or a fee for his life, as in the latter case the estate would vest in possession in the children at the death of T. B. Clarke, and in the former case the law would presume an execution of this trust by the surviving trustee on the death of T. B. Clarke, or the trust would be executed in 1830, by force of the Revised Statutes. 3. The several offers of the plaintiffs to give parol evidence to the jury touching the objects and operation of the acts of the Legislature, referred to in the case, or the effect of the orders of the Chancellor therein stated upon the interests of the children of T. B. Clarke, or the failure of T. B. Clarke to apply or secure the proceeds of the devised estate, when disposed of by him, to and for the benefit of his children, or the consideration on which the devised estate was disposed of by T. B. Clarke, or his neglect to protect the estate from sacrifice for assessments, etc., or to provide for or support his children, were properly overruled by the court, with the exception of such particulars included in those offers as may be embraced in the points hereafter stated, upon which the judges are divided in opinion. 4. The acts of the Legislature of the State of New York, of April 1, 1814, March 24, 1815, and March 29, 1816, referred to in the case, are constitutional and valid. ry Simmons had competent authority to sell and convey the same to De Grasse. S. Whether the subsequent conveyance of the premises as set forth in the case, made by George De Grasse, rendered the title of such grantee or his assigns, valid against the plaintiffs. It is thereupon, on motion of the plaintiffs, by their counsel, ordered that a certificate of division of opinion, upon the foregoing points, which are here stated during this same term, under the direction of the said judges, be duly certified, under the seal of this court to the Supreme Court of the United States, to be finally decided. Upon this certificate, the case came up to this court. It was argued in conjunction with the next two cases which will be reported in this volume, by Mr. Field and Mr. Webster for the plaintiffs, and Mr. Jay and Mr. Wood for the defendants. Mr. Flanagan also filed a brief for the defendants. Each one of the counsel pursued his own. train of argument, and filed a separate brief The statement of these points will make the report of this case unusually long, but the importance of the principles discussed makes it necessary to place before the reader the view which each counsel took in the case. They will be stated in the following order: Mr. Field. for the plaintiffs, Mr. Jay and Mr. Wood for the defendant, and Mr. Webster for the plaintiffs, in reply and conclusion. Mr. Field: The plaintiffs maintain 1. That the acts of the Legislature stated in the case, whether they devested the estate of the trustees under the will of Mary Clarke or not, did not vest the whole estate in fee in Thomas B. Clarke. 2. That the authority given by the said acts | trust. The word "trustee," used in reference to the trustee to sell, was a special power, to be strictly pursued. 3. That the orders set forth in the case were not authorized by, and in conformity to, the said acts of the Legislature, and are to be regarded, not as the acts of the Court of Chancery, empowered to proceed as such in that behalf, but as the doings of an officer acting under a special authority. 512*] *4. That the Chancellor had no competent authority, under the acts, to order or allow such sale or conveyance of the estate by the trustee, as is stated in the case, on any other consideration than for cash paid on such conveyance. 5. That the deed executed by Thomas B. Clarke to George De Grasse, for the premises in question, being upon a consideration other than for cash paid on the purchase, is not valid. 6. That it is invalid for this reason also, that it was not approved by the Chancellor, or by a master in chancery. hancery. 7. That Mr. Clarke, having previously mortgaged the premises in fee to Henry Simmons, had exhausted his power over the subject, and had not competent authority to sell and convey the same to De Grasse. 8. That the subsequent conveyance of a part of the premises, as set forth in the case, made by George De Grasse, did not render the title to that part, of such grantee or his assigns, valid against the plaintiffs. In support of these positions, the plaintiffs make the following points: First Point. The acts of the Legislature changed the equitable life estate of Mr. Clarke into a legal estate, but they did not give him the legal estate in remainder. His power over the remainder of the children was a statutory power, and, like all such powers, to be strictly pursued, and when once executed was exhausted. I. Whether even the trustees appointed by the will took a fee is not certain. In Clarke v. Van Surlay, 15 Wend. 442, it was conceded that "the legal interest in the property under the will was in the cestuis que trust." to him, has not of itself force enough to give him the fee. He was, both in popular and in legal phrase, trustee of a power. He was to have the proceeds invested in his name as trustee. Sec. 3 of second act. The expression is not so strong as that in the preamble of the second act, "whereby the said real estate became exclusively vested in the said Thomas B. Clarke and his children." The fee not being expressly given to Mr. Clarke, if he took it at all, he took it by implication. But a fee by implication is never allowed, except where it is necessary to the purposes of the trust; and here it was not necessary, for everything which he was to do could be done under the power as well, and far more safely to the rights of the children. 2. To give Mr. Clarke the fee for the execution of the trust, would involve this absurdity, that it would suppose a conveyance by him after his death. The testamentary trustees, if they took the legal estate, were to convey to estate, the children at Mr. Clarke's death. That is a sufficient reason why he was not, and could not be, put in the place of those trustees. 3. If the fee was given to Mr. Clarke, at the passing of the second act, it must either have been then taken out of the children to be vested in him, or it must have been in abeyance since the passing of the first act. That discharged the trustees under the will. Sec. 1 of first act. If, then, the children were not vested with the fee, it remained in abeyance. But abeyances are not favored, nor are they allowed by construction or implication. Com. Dig. Abeyance, A. 3; Catlin v. Jackson, 8 Johns. 549. If, however, as we contend, the fee was then in the children, there was no reason for taking it out, and vesting it in the father. To do so would, besides, have been open to grave constitutional objection. It would have exposed the estate of the children to a peril, for which there was no necessity, real or supposed. III. If Mr. Clarke was not vested with the legal estate in remainder, he was clothed with a statutory power-a common law authority, as defined by Mr. Sugden. "A power given by It is a general rule in the construction of de-a will, or by an act of Parliament, as in the in vises, that trustees take no greater estate than is necessary to support the trusts, whatever words of inheritance may have been used. Stanley v. Stanley, 16 Ves. 401; Doe v. Simpson, 5 East, 162; Doe v. Nichols, 1 Barn. & Cress. 336; Doe v. Needs, 2 Mees. & Welsb. 129; Warter v. Hutchinson, 3 Dowl. & Ryl. 58; Hill on Trustees, 240. II. But if the testamentary trustees took a fee, their estate, when devested, did not pass to Mr. Clarke alone. It passed to him and his children; to him for life, and to his children in fee. The reasons are: 1. There is no language in any of the acts expressly giving the fee to him. On the contrary, the expressions seem carefully chosen to avoid that conclusion. He is "authorized and empowered to execute and perform every act, matter, and thing, in like manner, and with like effect, that trustees duly appointed under 513*] *the said act might have done." (Sec. 2 of second act.) This is language appropriate to a power, not to a conveyance. It clothes him, not with the estate, but with a power in stance of the land tax redemption acts, to sell an estate, is a common law authority." I Sugden on Powers, 1. A power is to be strictly pursued. Doe v. Lady Caven, 5 *Term Rep. 567; Doe [*514 v. Calvert, 2 East, 376; Cholmeley v. Paxton, 3 Bing. 207; Cockerel v. Cholmeley, 10 Barn. & Cress. 564; 3 Russ. 565; 1 Russ. & Myl. 418; 1 Clark & Fin. 60; 2 Sug. Pow. 95, 197, 198, 330, 331, 413. And a statutory power in particular. Rex v. Croke, Cowp. 26; Collett v. Hooper, 13 Ves. 255; Richter v. Hughes, 2 Barn. & Cress. 499; Proprietors of Stourbridge Canal v. Wheeley, 2 Barn. & Ad. 792; Lessee of Carlisle v. Longworth, 5 Ham. 370; Smith v. Hileman, 1 Scam. 324; Sharp v. Spier, 4 Hill. 76; Williams v. Peyton's Lessee, 4 Wheat. 77; Thatcher v. Powell, 6 Wheat. 119. The leases under ecclesiastical statutes in. England are instances. Bac. Abr. Leases, E. 2; Cro. Eliz. 207, 690. Wherefore, not having pursued his authority, Mr. Clarke conveyed nothing by his deed. quired," etc. IV. A statutory power once fully executed | Mary Clarke, and to apply the money, so is exhausted. "An authority once well exe- raised by mortgage or sale, to the purposes recuted cannot be executed de novo." 3 Vin. Abr. p. 429, sec. 42; Palk v. Lord Clinton, 12 Ves. 48; Barnet v. Wilson, 2 Younge & Coll. 407; 1 Sug. Pow. 359. Therefore Mr. Clarke, having once fully executed his authority by a mortgage to Simmons, could not execute it again by a conveyance to De Grasse. If "to sell and dispose of" included every kind of alienation, it included a mortgage, and the third act was unnecessary. On a similar expression in a will, the Supreme Court and Court of Errors of New York held, that a sale must be for cash, or something which could be invested. Waldron v. McComb, 1 Hill, 111, and Bloomer v. Waldron, 3 Hill, 361. And though the Court of Errors reversed the first judgment, they did not impugn the principle. 7 Hill, 335. So, also, in the case of Darling v. Rogers, 22 Wend. 486, it was held by the Court of Errors, that the words "to sell" did not include the power to mortgage. 5 Answer. But it is not so in cases where for payment of debts; then may mortgage. Johns. 43. No sale in fact, yet legal title passed. If he took the fee, he took it qualified, and with a restricted power of disposition. The general rule of law, that he who has the legal estate can convey the legal estate, was modified in his case. It might have been so modified by deed at common law. M'Williams v. Nisly, 2 Serg. & Rawle, 513; Burton on Real Property, 11, note; Doe v. Pearson, 6 East, 173; Perrin v. Fourth Point. The Chancellor's order of Lyon, 9 East, 170. The private acts of the March, 1817, did not authorize any conveyLegislature, whence he derived his right, were ance, and least of all a conveyance for such a laws repealing to that extent the general law. consideration as this, unless it were approved Chancellor exercised a special and limited juris- | further and insurmountable objection to it; M'Laren v. Pennington, 1 Paige, 102; Hibblewhite v. M'Morine, 6 Mees. & Welsb. 200; Myatt v. St. Helens Co. 1 G. & D. 663; Earl of Lincoln v. Arcedeckne, 1 Collyer, 98. There is now a general law in New York, that a conveyance by a trustee, in contravention of the trust, is void. 1 Rev. Stat. 730, sec. 65. This is but an extension to all cases of the principle established for this case by these private acts. Instances of restricted powers of alienation, imposed upon the fee, are not uncommon. The case of Indian lands is a familiar instance. See, also, Prince's case, 8 Coke's Rep. 1. 515*] *The consent of the Chancellor was interposed as a check upon Mr. Clarke. The first act did not prescribe it for the trustees to be appointed by the Chancellor; but when, by the second statute, the tenant for life was authorized to act, the consent of the Chancellor was required, for the protection of the infant children. Third Point. Mr. Clarke was also disabled from alienation, except for a money consideration. G The acts give no authority to do more than to sell or to mortgage. The purpose was to raise funds for investment. The first act provides, that the trustees shall invest the "proceeds in any public stock of the United States, or of this State, or bank stock, or shall put the same out at interest on real security." Sec. 3 of first act. Section fourth of the same act provides, that the "principal sum of money arising from the said sales" shall be held, etc. Section third of the second act provides, that the Chancellor shall "direct the manner in which the proceeds of such sale, or so much thereof as he shall think proper, shall be vested in the said Thomas B. Clarke as trustee." The third act is still more explicit. It authorizes Mr. Clarke, under the order before granted, or any subsequent one, "either to mortgage or to sell the premises, which the Chancellor has permitted, or hereafter may permit, him to sell, as trustee, under the will of by a master. The language is, "Provided, nevertheless, that every sale and *mortgage and con- [*516 veyance in satisfaction, that may be made by the said Thomas B. Clarke, in virtue hereof, shall be approved by one of the masters of this court, and that a certificate of such approval be indorsed upon every deed or mortgage that may be made in the premises." The defendant claims, that this qualification applies only to the conveyance in satisfaction; the plaintiffs, that it applies to every deed or mortgage that might be made. That the latter is the true construction is claimed, because I. The statute declared, that no sale of any part of the estate should be made without the assent of the Chancellor to such sale, who was, at the time of giving the assent, to direct the mode in which the proceeds, or so much as he should think proper, should be vested in Mr. Clarke, as trustee. This implied that the Chancellor's consent was to be given to every sale. The Chancellor delegated the power to a master of his court. Supposing such a delegation lawful, the power was to be exercised on every sale. To restrict it, therefore, to a conveyance in satisfaction, is not only to pervert the Chancellor's order, but to repeal the statute. II. The language of the order itself is free from ambiguity; it being thus: "Provided, nevertheless, that every sale and mortgage and conveyance in satisfaction, that may be made by the said Thomas B. Clarke, in virtue hereof, shall be approved," etc. This is a repetition of the words previously used to express, (1) a sale for cash, (2) a mortgage for cash, and (3) a conveyance in satisfaction. So, in the last part of the sentence, the words are repeated with added emphasis. The approval is to be indorsed on "every deed or mortgage that may be made in the premises." It does not seem a fair interpretation to construe this to mean, not "every deed or mortgage that may be made in the premises," but a particular kind of deed, namely, a conveyance in satisfaction of an antecedent debt. III. The ruling of the State court on this point was made with great hesitation. Judge Bronson gave no reasons for his opinion. It does not appear to have been discussed at the argument in the Supreme Court. In the Court of Errors, the Chancellor said, "Upon this point, I concur, though with much hesitation;" in the conclusion, that the restriction was only intended to apply to sales and conveyances in satisfaction of debts. 20 Wend. 379. He overlooked altogether the word "mortgage," twice used in the same sentence. Mr. Verplanck, who delivered the only other opinion, 517*] was clear that the restriction *applied to sales and mortgages, as well as conveyances in satisfaction. 20 Wend. 386, 387. What were the opinions of the remaining members of the court does not appear. But the opinions of the courts of New York do not bind the courts of the United States, in the construction of a writing like this. In the case of a will, this court rejected the construction given by the courts of Mississippi. Lane v. Vick, 3 How. 464. In the present case, however, the conveyance was not for cash, but chiefly in payment and satisfaction of a debt, and therefore, within the decision of the Supreme Court and Court of Errors of New York, it should have been approved by a master. Not having been so approved, it was void. Fifth point. So far as the order sanctioned a conveyance for any other than a money consideration, it was unauthorized by the acts, and therefore beyond the Chancellor's jurisdiction. Consequently it gave no force to the title. In acting under these private statutes, the There are many cases in this court which go to the same point. Griffith v. Frazier, 8 Cranch, 9; Thatcher v. Powell, 6 Wheaton, 119; *Elliot v. Peirsol, 1 Pet. 340; Bank of [*518 Hamilton v. Dudley's Lessee, 2 Pet. 523; Wilcox v. Jackson, 13 Pet. 498; Shriver's Lessee v. Lynn, 2 How. 43; Lessee of Hickey v. Stewart, 3 How. 750. In this case the "subject matter" over which the Chancellor had jurisdiction by these private statutes was not the real estate, for then he might have authorized its alienation by another person than Mr. Clarke; nor was it every alienation by him, for then a mortgage or an exchange might have been authorized under the first act; but it was to determine whether or not the circumstances were such as to justify his assent to a sale or mortgage for cash, and upon a sale or mortgage to superintend the application of the proceeds. When he went beyond this, his act was coram non judice, and void. There are two fatal errors in the Chancellor's order of the 17th of March: 1. He could not delegate his power to a master at all. The authority was personal, and to be exercised by himself. It was not the discretion of a master, but the discretion of the Chancellor, that was trusted. 2. He could not authorize a conveyance in satisfaction of Mr. Clarke's debts. The statutes gave him no such authority; and if they had, they would have been void, for the Legislature had not power to appropriate one person's property to the debts of another. And even if it were held that the Chancellor could delegate the power of consenting, and the order were construed to allow a sale with the consent of a master, there would be a diction, and where he exceeded his jurisdiction his acts were void. The proceeding was not by suit between party and party, where an appeal could be had from an erroneous determination. Cases of this kind are numerous in the books. In New York, the cases upon assessments are familiar instances. Striker v. Kelley, 7 Hill, 9; Matter of Beekman Street, 20 Johns. 271; Matter of Third Street, 6 Cow. 571. So in cases of partition. Deming v. Corwin, 11 Wend. 647. So in cases of bankruptcy, jurisdiction to grant the discharge must be specially shown. Sackett v. Andross, 5 Hill, 330; Stephens v. Ely, 6 Hill, 607. Other cases in the State courts: Yates v. Lansing, 9 Johns. 431; Borden v. Fitch, 15 Johns. 141; Bloom v. Burdick, 1 Hill, 139; Rogers v. Dill, 6 Hill, 415; Wickes v. Caulk, 5 Harr. & Johns, 42; Pringle v. Carter, 1 Hill, S. C. 53. See, also, Fisher v. Harnden, 1 Paine, 55. In the English courts: Shelford on Lunatics, 375; Matter of Janaway, 7 Price, 690. "If a conveyance were made by an infant, even under the order of the court, it would not be valid, if he were not within the act of Parliament. These things, I am sorry to observe, pass too often sub silentio." By the Lord Chief Baron, in The King v. Inhabitants of Washbrook, 4 Barn. & Cress. 732. that the consent of the Chancellor, either directly or through a master, could not be dispensed with, according to the letter or spirit of the statutes. The Chancellor conferred upon Mr. Clarke no portion of his authority; that came directly from the statutes. The Chancellor could neither give it nor enlarge it. The lands, if they passed at all, passed by force of the statutes. The Chancellor had no power, except to dissent from the sale; to interpose his veto. He could not even compel Mr. Clarke to act; he could only say when he should not act, and if he acted, what should be done with the proceeds of the estate. Sixth Point. The subsequent conveyance of a part of the property to a purchaser, for value, and without notice of the defect in the title, did not make the title valid, as against the plaintiffs. This is so upon general principles. If the conveyance by Mr. Clarke do not devest the plaintiffs' title, the subsequent *transfer [*519 did not. There is no principle of law which would make De Grasse give a better title than he had. In most of the cases, upon defective execution of authority, the property was in the hands of innocent holders. Wilson v. Sewall, 1 Bl. 617; Bloom v. Burrdick, 1 Hill, 130; Rogers v. Dill, 6 Hill, 415. There is no room here for an estoppel. The children were neither parties nor privies to the conveyance to De Grasse. They take as devisees under the will. See Roe v. York, 6 East, 86; Roxburghe Feu case, 2 Dow. 189. Mr. John Jay, for defendant: Defendant's Points on the Eighth Questions stated in the Certificate. I. The acts of the Legislature stated in the case devested the estate of the trustees under the will of Mary Clarke, and vested the whole estate in fee in Thomas B. Clarke, as trustee in their place and stead. 1. To determine the meaning and scope of these acts, we must discover what were then understood to be the interests and rights of the parties to be affected by them; and for this purpose we must refer to the judicial decisions which governed the courts and the Legislature at the time of their enactment, even though these decisions have been departed from by later judges; for it would be contrary to the first principles of law and justice to give to long subsequent adjudications a retroactive operation in the interpretation of ancient statutes; and such a course would lead to the worst evils of ex post facto legislation in regard to vested and sacred rights. 2 Inst. 292; 1 Kent's Com. 461; Doe v. Allen, 8 Term R. 504, per Ld. Kenyon. 2. The trustees under the will took the legal estate in fee in the premises in question. This is clear from the language of the devise, and from the powers given to them to lease the premises during Clarke's life, and to convey to the parties who should become entitled to the same on his decease. 3. The children, as they came in esse, were then supposed to take, under the will of Mary Clarke (according to the uniform ruling of all the courts, both in England and America, at that time, and for a long time previously), not a vested remainder in fee, liable to open and let in after-born children, and subject to be defeated by their death during Clarke's life, but simply a contingent remainder dependent upon their surviving their father, and that remainder 520*] (excepting so far as *their interest in the premises was enlarged by the acts of the Legislature passed with Clarke's assent) was then regarded as amounting, during their father's life, to a mere presumptive title, a naked possibility, uncoupled with any immediate beneficial interest. Denn, ex dem. Radcliffe v. Bagshaw, 6 Term R. 512, in the King's Bench, per Lord Kenyon, and all the judges, in the year 1796; Doe v. Scudamore, 2 Bos. & Pull. 289, per Lord Eldon, Ch. J., and Heath, Crooke, and Chambre, J. J., in 1800; Roe v. Briggs, 16 East, 406, per Ld. Ch. J. Ellenborough, in 1802-"That no case had been shown where an estate depending on such a contingency had ever been held vested;" Doe v. Pro counting for the discrepancy between the former and the later decisions. See note, 4 Kent's Com. 261, on the case of Jackson v. Waldron, 13 Wend. 178, affirming the judgment of the Supreme Court in Pelletrau v. Jackson, 11 Wend. 121, per Nelson, J. 2 Blackstone's Com. 170; Fearne on Contingent Remainders and Executory Devises; Preston on Abstracts, 21; Cruise, title 16, Remainder, ch. 1, secs. 10 to 27; Jickling's Analogy of Legal and Equitable Estates; Dixon et ux. v. Pickett, 10 Pick. 517; Blanchard v. Brooks, 12 Pick. 47, per Shaw, Ch. J., pp. 63 and 64; Davis v. Norton, P. Wms. 392; Duffield v. Duffield, 3 Bligh. N. S. 260, 329, 355, per Best, Ch. J., on character of a contingent estate; Jackson v. Waldron, 13 Wend. 214 et seq., per Tracey, Senator. 4. Thomas B. Clarke, under the will, took an equitable life estate, and after the transfer to him, by the act of the Legislature, of the contingent estate of Clement C. Moore, the whole estate in remainder was alternate between Clarke and his children, dependent upon the like contingency of survivorship. 5. In whatever light the estate of the children be regarded, the interest of Clarke in the premises in question was larger than theirs; for the life estate was absolutely his, and the remainder was limited on the same condition to each, to wit, survivorship; and as the case shows that one moiety of the devised premises was carefully reserved by the acts of the Legislature and the orders of the Court of Chancery, for the benefit of the children, it is clear that, in addition to the benefit they *derived [*521 from the other moiety, which was partly disposed of, they have received a larger share of the estate than they would have been entitled to, had an equitable division of their relative interests been made between them and their father when the acts and orders were passed and made. 6. The acts having been adjudged constitutional and valid, the only question here is as to their meaning; and since they were remedial statutes, they are to receive an equitable interpretation, by which the letter of the act is sometimes enlarged and sometimes restrained, so as more effectually to meet the beneficial end in view, and to prevent a failure of the remedy. The intention of the Legislature is to be deduced from a view of the whole, and the real intention is to prevail even over the literal sense of the words. Dwarris on Statutes; 1 Kent's Com. 461; Cochran v. Van Surlay, 20 Wend. 365, per Bronson, J. 7. The first act of the Legislature, April 1, 1814, discharging the trustees under the will and providing for the appointment of new trustees by the Court of Chancery in their place and stead, and directing that such new trustees may lease all or any part of the land for a term vost, 4 Johns. 61, in 1809, per Justice Van not exceeding twenty-one years, and may sell Ness; Kent, Ch. J., and Thompson and Yates, or dispose of a moiety in their discretion, and J. J., concurring. See this case commented declaring that they shall be decreed and adupon and sustained in Hawley v. James, 16 judged trustees under the will, in like manner Wend. 242 et seq.; Dunwoodie v. Reed, 3 Serg. as if they had been named therein, clearly de& Rawle, 435, in 1817, per Tilghman, Ch. J., and Gibson, J. See remarks of Savage, Ch. J., in Coster v. Lorrillard, 14 Wend. 311, on the question of remainders dependent on survivorship, showing the conflicting definitions of the statute and common law, and thus ac vested the trustees under the will of their legal estate in the land. The trustees had no beneficial interests. They were liable to be removed by the Court of Chancery. There was nothing in their appointment under the will, and their acceptance of the |