[Dandridge vs. Washington's Executors.]

whole fund, whatever may be its amount, but to so much of it as is required for the object it is to accomplish.

In ascertaining the amount which is so applicable, the plaintiffs contend that one of the learned professions may be taken as the standard, with as much propriety as the trade or art of a mechanic. The Court does not think so. The distinction between a profession and a trade is well understood; and they are seldom, if ever, confounded with each other in ordinary language. If the testatrix had contemplated what in the common intercourse of society is denominated a profession, she would scarcely have used a term which is generally received as denoting one of the mechanical arts.

But we do not think the bequest is confined to the expense of acquiring the trade, so as to be enabled to exercise it in the common way. Such does not appear to have been the intent of the testatrix. Her bounty is extended to the proper education of three relatives, so that they may be severally fitted and accomplished in some useful trade. Their education is a primary object, as well as their acquisition of of the trade; and when we consider the situation and character of the parties, and the language of the will, we cannot doubt that the testatrix intended such an education as would fit her relatives to hold a distinguished place in that line of life in which she designed them to move. The sum allowed for the object ought to be liberal, such as would accomplish it, if the fund from which it was to be drawn would admit of it.

In a suit for the distribution of this fund, we do not think the residuary legatees necessary parties. They have undoubtedly an interest in reducing the sum to be allowed out of it to the complainant, but they have the same interest in reducing every demand on the estate. Whatever remains sinks into the residuum, and that residuum is diminished as well by the claims of creditors and specific legatees as by this. In all such cases the executors represent the residuary legatees, and guard their interests. It is a part of that duty which requires them to protect the interests of the estate. VOL. II.-2 X

[Dandridge vs. Washington's Executors.]

In such suits the residuary legatees are never made parties. To require it would be an intolerable burthen on those who have claims on an estate in the hands of executors.

We do not think that the bill ought to have been dismissed for want of proper parties, unless the complainant refused to make such as were really necessary; and then it might have been dismissed without prejudice.

The circuit court can make no decree for the distribution of the residuum, unless all those entitled to distribution are brought before the court; but it may grant all other relief to which the complainant may be entitled, on making Bartholomew and Samuel Henley parties.

This Court is of opinion, that the decree of the circuit court, dismissing the complainant's bill, ought to be reversed, and the cause remanded to the said circuit court, with leave to the plaintiff to make new parties; after which the cause ought to be referred to the master, with instructions to compute the several sums which ought to be allowed out of the fund applicable to the education of Bartholomew Henley, Samuel Henley and John Dandridge, in conformity with the will of Mrs Martha Washington deceased; on which sums interest ought to be allowed; and also to compute the sum to which the plaintiff may be entitled, as one of the residuary legatees of the said Martha Washington deceased; provided the other residuary legatees be brought before the Court as parties; on failure to do which, the plaintiff's bill is to be dismissed, so far as it claims a part. of the residuary estate, without prejudice.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Columbia, holden in and for the county of Alexandria, and was argued by counsel; on consideration whereof, this Court is of opinion, that the circuit court erred in dismissing the plaintiff's bill for want of proper parties, and that the said decree ought to be reversed. Whereupon it is ordered and decreed by this Court, that the decree of the

[Dandridge vs. Washington's Executors.]

said circuit court in this cause be, and the same is hereby reversed; and this Court doth further order that the said cause be, and the same is hereby remanded to the said circuit court, with directions to give leave to the plaintiff to make new parties, that the proper accounts may be taken in order to a final decree; in which decree, the plaintiff ought to be allowed interest on the sum due to him for his education out of the money-applicable to that object.

JOHN F. SATTERLEE, PLAINTIFF IN ERROR vs. ELIZABETH MATTHEWSON, DEFENDANT IN ERROR.

S. and M. held land in Luzerne county, Pennsylvania, in common, under a Connecticut title. A division of the land was made between them, and S. became the tenant of M. of his part of the land thus set off in severalty, under a lease, to be terminated on a notice of one year. S. afterwards obtained a Pennsylvania title to the land leased to him by M. and on a trial in an ejectment for the land, brought by M against S., the court of common pleas of Bradford county, Pennsylvania, held that S. having held the land as tenant of M., could not set up a title against his landlord. Upon a writ of error to the supreme court of Pennsylvania in 1825, it was held that "the relation between landlord and tenant could not exist between persons holding under a Connecticut title." The legislature of Pennsylvania, on the 8th of April 1826, passed an act declaring that "the relation of landlord and tenant should exist and be held as fully and effectually between Connecticut settlers and Pennsylvania claimants, as between citizens of the commonwealth." The case came again before the supreme court of Pennsylvania, and the judgment of the court of common pleas of Bradford county in favour of M. the landlord, was affirmed; that court having decided that the act of assembly of the 8th of April 1826 was a constitutional act, and did not impair the validity of any contract. S. brought a writ of error to this Court, claiming that the act of the assembly of Pennsylvania, of the 8th of April 1826, was unconstitutional. Held, that the act was constitutional.

Objections to the jurisdiction of this Court have been frequently made, on the ground that there was nothing apparent on the record to raise the question whether the court from which the case had been brought, had decided upon the constitutionality of a law, so that the case was within the provisions of the 25th section of the judiciary act of 1789. This has given occasion for a critical examination of the section, which has resulted in the adoption of certain principles of construction applicable to it. One of those principles is, that if the repugnancy of a statute of a state, to the constitution of the United States, was drawn into question, or if that question was applicable to the case, this Court has jurisdiction of the cause; although the record should not in terms state a misconstruction of the constitution of the United States; or that the repugnancy of the statute of the state, to any part of that constitution, was drawn into question. [409]

There is nothing in the constitution of the United States which forbids the legis lature of a state to exercise judicial functions. [413]

There is no part of the constitution of the United States which applies to a state law which divested rights vested by law in an individual, provided its effect be not to impair the obligation of a contract. [413]

In the case of Fletcher vs. Peck, 6 Cranch, 87, it was stated by the Chief Justice, that it might well be doubted whether the nature of society and of government do not prescribe some limits to the legislative power, and he asks, “if any be prescribed, where are they to be found, if the property of an individual

[Satterlee vs. Matthewson.]

fairly and honestly acquired, may be seized without compensation?" It is no where intimated in that opinion, that a state statute which divests a vested right, is repugnant to the constitution of the United States. [413]

THIS case came before the court on a writ of error to the supreme court of the state of Pennsylvania.

In 1784 or 1785, Elisha Satterlee, the father of the plaintiff in error, and Elisha Matthewson, the husband of the defendant in error, the defendant in error being the sister of Elisha Satterlee, went to a large body of land in Luzerne county, Pennsylvania, part of which was the land in controversy, and both took possession of the same, under, as is believed, a supposed title from the Susquehanna Company. They worked on the lands in partnership, the same lying on both sides of the Susquehanna river, until 1790, when it was agreed that Matthewson, who had a house on the west side of the river, should occupy the land before held in common, on that side, and become the tenant of Satterlee for his portion of the land on the said west side of the river; and Elisha Satterlee moved on the lands on the east side, on precisely the same terms: that is, that he should become the tenant of Matthewson for his portion of the land on the said east side. of the river. By this arrangement each became possessed, in severalty, of the particular portion of the lands thus allotted to him, and the tenant to the other of portions of the land before held in common; and it was expressly agreed that either of the parties might put an end to the tenancy at the end of any one year; and in that case, each was to be put into possession of his own lands.

In 1805 Elisha Matthewson died, having bequeathed by his will to his widow during life, and to his children after her death, the interest he had in the said land. Elisha Satterlee repeatedly, after Matthewson's death, acknowledged the original bargain, and that he was a tenant of Matthewson's part; but he wished to buy it; he wished to give other lands for it, &c. &c.; but his sister could only sell for life, and her children were minors. In 1810, she built a house on part of the tract, and put a tenant in it; but her brother would not give her possession of the part he had in cultivation. In 1811 she made application to the land office of