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Stoddard et al. v. Gibbs.

now deemed the settled law of that State.1 But it is observable, that the decision in that case was not founded upon any positive language of the Legislature, directly applicable to the case. There was no Statute of Connecticut, which called for any interpretation by the Court. The doctrine was avowedly founded upon analogies furnished by the local law of the State. It was said, that the Statute of limitations of Connecticut in its terms did not take away the title of the original proprietor, but only tolled his right of entry; and yet that it had always been construed to bar all claim of title; while the same words in the English Statute had been considered as having no effect whatever upon the title, but only upon the right of entry. It was also said, that actual seisin was not necessary in cases of descents or devises; but that it was sufficient, that there was a right of property. And if not necessary in such cases, the question was asked, why should it be thought necessary to the husband's title by the curtesy ? And the conclusion, to which the Court arrived, was, that the English law respecting the efficacy of seisin had long since been departed from in Connecticut, and to adhere to it in the case of the curtesy would mar the symmetry of the law of that State.

Now, however satisfactory this reasoning was to the learned judges, who decided this case, it has not been deemed equally satisfactory to other learned judges in other States, where the local jurisprudence furnished, in whole or in part, similar analogies. They have held, that the common law rule must prevail, until altered by the Legislature; and that they were not at liberty to imply such a repeal upon mere analogy. This doctrine is, à fortiori, to be followed in Rhode Island; for, the common law having been adopted by Statute in that State,

VOL. VI.

1 Reeve's Domestic Relations, pp. 33-35.

35

Stoddard et al. v. Gibbs.

nothing short of a legislative repeal, either express or necessarily implied, could justify any court of justice, sitting in that State, in an abandonment of it. Now, I confess, that I see not the slightest reason for supposing, that the Legislature, in the Statute already cited, had the least intention to repeal the common law in regard to tenancy by the curtesy. The language of the Statute is merely affirmative, leaving what is intended by the words, "seised of any real estate," &c., to be ascertained upon the sound rules of interpretation applied to similar cases. It is a general rule of construction, not to presume the common law repealed by a Statute, unless the language naturally and necessarily leads to that conclusion. Besides, though the language is not inconsistent with a larger intent, yet the subsequent words, "the husband shall have and hold such estate during his life," more naturally apply to a present possessory estate, than to one, which may never fall into possession during his life.

The Connecticut law, however, cannot apply to the present case; and indeed is repugnant to the Statute of Rhode Island. By the decision alluded to, it is not necessary, that the wife should have any seisin, either in law or fact, of the estate, to give her husband an estate by the curtesy. In the very case decided, she was actually disseised at all times during the coverture; and yet her husband was held entitled, as tenant by the curtesy. Now, the Statute of Rhode Island positively requires a seisin in the wife during the coverture.

Nor, indeed, in another view, is the Connecticut decision in point. There the wife had a present estate, of which she was, though disseised, entitled to a present possession. No question arose as to curtesy of a reversion or remainder. How that question would have been decided, if it had arisen, this Court have no means of ascertaining.

I cannot agree with one remark of the counsel for the

Stoddard et al. v. Gibbs.

plaintiff in the present case, that Eliza Gibbs, the mother of the plaintiffs, was not seised in law of the estate, because she had only a reversion therein, after the tenancy of her father by the curtesy should expire. My opinion is, that there can, technically speaking, be a seisin in law of a reversion, though not in deed; and that such was her predicament. She was, in the strictest sense of the terms, seised of the reversion.1

Upon the whole my opinion is, that the plaintiffs upon the special verdict are entitled to recover their purparty, as heirs of their mother, Eliza Gibbs.

The District Judge concurs in this opinion, and judgment is to be given accordingly.

1 See Cook v. Hammond, 4 Mason R. 488, 489. Plowden R. 191.

CIRCUIT COURT OF THE UNITED STATES.

BEFORE

Spring Circuit.

MAINE, MAY TERM, 1833, AT PORTLAND.

Hon. JOSEPH STORY, Associate Justice of the Supreme Court.
Hon. ASHUR WARE, District Judge.

WILLIAM ALLEN v. JOSEPH MCKEEN.

A college, merely because it receives a charter from the government, though founded by private benefactors, is not thereby constituted a public corporation controllable by the government; nor does it make any difference, that the funds have been generally derived from the bounty of the government itself.

The visitatorial power is a mere power to control and arrest abuses, and to enforce a due observance of the Statutes of a charity; it is not a power to revoke the gift, to change its uses or to devest the rights of the parties entitled to the bounty. The visitatorial power is an hereditament founded in property, and valuable in the intendment of law; and where it is vested in trustees, there can be no amotion of them from their corporate capacity, and no interference with the just exercise of their authority, unless it is reserved by the Statutes of the foundation or charter. The trustees are, however, subject to the general superintendence of a Court of Chancery for any abuse of their trust.

Bowdoin College is a private, and not a public, corporation, of which the Commonwealth of Massachusetts was founder, and the visitatorial and all other powers, franchises, and rights of property of the College are vested in the Boards of Trustees and Overseers, established by the Charter, who have a permanent right and title to their offices, which cannot be devested, except in the manner pointed out in the Charter. In the Charter of the College, (§ 16,) it is declared, that the Legislature "may grant further powers to, or alter, limit, annul, or restrain any of the powers by this Act vested in the said corporation, as shall be judged necessary

Allen v. McKeen.

to promote the best interest of the College." Under this clause the authority of the Legislature of the State of Maine is confined to the enlarging, altering, annulling, or restraining of the powers of the corporation, and does not extend to any intermeddling with its property, or extinction of its corporate existence.

By the Act of Separation of Maine from Massachusetts, the powers and privileges of the President, Trustees, and Overseers of the College, are guaranteed under the charter, so that they cannot be altered, limited, annulled, or restrained, except by judicial process, according to the principles of law, unless that Act has been modified by the subsequent agreement of both States. Afterwards the Legisla ture of Massachusetts passed a Resolve, "That the consent and agreement of this Commonwealth be, and the same is hereby, given to any alteration or modification of the abovementioned clause or provision in said Act, relating to Bowdoin College, not affecting the rights or interests of this Commonwealth, which the Presi dent, and Trustees, and Overseers of the said College, or others having authority to act for said corporation, may make therein, with the consent of the Legislature of said State of Maine; and such alterations or modifications, made as aforesaid, are hereby ratified on the part of this Commonwealth." This resolve does not authorize the Legislature of Maine to make alterations in the College charter, which shall divert the funds of the founder from their original objects, or vest the visitatorial power in any other bodies, or persons, than the Trustees and Overseers, marked out in the original charter; and, à fortiori, it does not justify the transfer of these powers from the Trustees to any other persons not in privity with them.

According to the foregoing Resolve, the alterations and modifications are to be made by the Boards of the College, or by their agents, with the consent of the Legislature, and not by the Legislature, without their consent.

The terms of ratification in the foregoing Resolve, being in præsenti, it seems that they cannot be applicable to all possible alterations in all future times.

By the terms of the Act of Separation of Maine from Massachusetts, no modification of it can be made, except by the subsequent agreement of the Legislatures of both States. To effect this agreement, there must be a concurrence of the Legislatures of both States ad idem, that is, an express assent to some specific proposition. Therefore the Act of Maine of the 16th March, 1820, which was never responded to by the Legislature of Massachusetts, and which in its terms does not look to any antecedent Resolve of Massachusetts, (though the foregoing Resolve of Massachusetts was passed four days previous,) but expressly looks to some future act or assent of Massachusetts, is not a sufficient compliance with the articles of separation.

By the Act of Maine of the 16th of June, 1830, it is enacted, that "the President and Trustees, and the Overseers of Bowdoin College shall have, hold, and enjoy their powers and privileges in all respects, subject, however, to be altered, restrained, or extended by the Legislature, &c., as shall, &c., be judged necessary to promote the best interests of said Institution." This cannot be construed to include an authority to annul the charter, or the corporation created by it, or the Institution itself, or to create new Boards, in whom the corporate powers and privileges may be vested; or to transfer to other persons the powers and privileges of

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