DAVID WILKINSON, PLAINTIFF IN ERROR vs. THOMAS LELAND AND others, DefeNDANTS IN ERROR. J. J. died in New Hampshire, seised of real estate in Rhode Island, having devised the same to his daughter, an infant. His executrix proved the will in New Hampshire, and obtained a license from a probate court, in that state, to sell the real estate of the testator for the payment of debts. She sold the real estate in Rhode Island for that purpose, and conveyed the same by deed; giving a bond to procure a confirmation of the conveyance by the legislature of Rhode Island. The proceeds of the sale were appropriated to pay the debts of the intestate. Held, that the act of the legislature of Rhode Island, which confirmed the title of the purchasers, was valid. The legislative and judicial authority of New Hampshire were bounded by the territory of that state, and could not be rightfully exercised to pass estates lying in another state. The sale of real estate in Rhode Island, by an executrix, under a license granted by a court of probate of New Hampshire, was void; and a deed executed by her of the estate was, proprio vigore, inoperative to pass any title of the testator to any lands described therein. [655] By the laws of Rhode Island, the probate of a will, in the proper probate court, is understood to be an indispensable preliminary to establish the right of the devisee, and then his title relates back to the death of the testator. [655] That government can scarcely be deemed to be free, where the rights of property are left solely dependent on the will of the legislative body, without any restraint, The fundamental maxims of a free government seem to require; that the rights of personal liberty and private property, should be held sacred. At least, no court of justice in this country would be justified in assuming, that the power to violate or disregard them, a power so repugnant to the common principles of justice and civil liberty, lurked under any general grant of legis. lative authority, or ought to be implied from any general expressions of the -will of the people. The people ought not to be presumed to part with rights so vital to their security, and well being, without very strong and direct expressions of such an intention. [657] It is admitted that the title of an heir by descent in the real estate of his ancestor, and of a devisee of an estate unconditionally devised to him, is upon the death of the party under whom he claims immediately devolved upon him, and he acquires a vested estate. But this, though true in a general sense, still leaves his title encumbered with all the liens, which have been created by the party in his life time, or by law at his decease. It is not an unqualified, though it may be a vested interest, and it confers no title, except to what remains after every such lien is discharged. [658] By the laws of Rhode Island, as well as of all the New England states, the real estate of intestates stands chargeable with the payment of their debts upon a deficiency of assets, [658] A legislative act is to be interpreted according to the intention of the legislature apparent upon its face. Every technical rule, as to the construction or force of particular terms, must yield to the clear expression of the paramount will of the legislature. - [662] · [Wilkinson vs. Leland and others.] ERROR to the circuit court of Rhode Island. This case came before the Court upon a bill of exceptions tendered by the plaintiff in error, they having been defendants below, on the trial of the cause in the circuit court. In that court the defendants in error instituted an ejectment for the recovery of a lot of ground called "The Swamp Lot," lying in North Providence in the state of Rhode Island; which lot of ground was, with other lands, devised by Jonathan Jenckes of Winchester in the state of New Hampshire, by his last will and testament, dated the 17th of January 1787, to his daughter Cynthia Jenckes; subject to a life estate therein of his sister Lydia Pitcher, who was then in possession of the same, and so continued until her death on the 10th of August 1794. Jonathan Jenckes was also seised of other lands in north Providence and in Smithfield, Rhode Island; and also of real estate in New Hampshire and in Vermont, most of which were devised to his daughter Cynthia. A small part of his New Hampshire lands was devised for the payment of his debts. Cynthia Jenckes his wife, and Arthur Fenner of Providence, Rhode Island, were appointed the executors of his will. Cynthia Jenckes, alone, qualified as executrix. The testator died at Winchester in New Hampshire, on the 31st of January 1787, a few days after making his will. No probate of the will of Jonathan Jenckes was made in the state of Rhode Island: The plaintiffs in the ejectment are the heirs of Cynthia Jenckes, and claim the premises under the devise to her, she having afterwards intermarried with Joel Hastings. The title of the plaintiff in error was as follows: Cynthia Jenckes the widow and executrix of Jonathan Jenckes, having been qualified in New Hampshire to act as executrix, on the 18th of August 1790, returned to the probate court of the county of Cheshire, an inventory of the real and personal estate in New Hampshire and Vermont, amounting to £1792 128. 9d. A commission of insolvency was afterwards granted by the probate court, and on the 3d of January 1792, the commissioners reported the whole amount of debts due by the estate; of which £920 19s. were due to citizens of Rhode Island. In February 1792, the executrix [Wilkinson vs. Leland and others.] settled her account in the probate court, and a balance of £15 78. 7d. remained in her hands,, "the guardian of the heirs appearing and consenting" to the settlement. On the 22d of July 1790, a license to sell the real estate of Jonathan Jenckes, to pay and discharge the debts of the estate, was granted by the probate court of Cheshire county; and on the 12th day of November 1791, Cynthia Jenckes, as executrix of Jonathan Jenckes, sold and conveyed by deed to Moses Brown and Oziel Wilkinson, the reversion of the three acre Swamp lot, the premises in dispute. The other real estate in Rhode Island was also sold and conveyed by her at the same time.". On the day the sale was made, Cynthia Jenckes executed a bond to the purchasers, reciting that by virtue of the license, and in pursuance of its directions, a sale had been made of all the estate which belonged to the testator in the towns of Providence, Smithfield, and North Providence, in the county of Providence, and state of Rhode Island, and that she had received pay for the same; "and whereas some doubts may arise whether a sale and conveyance so made, by virtue of the license of the judge of probate, in the state of New Hampshire, will give a good and sufficient title to lands and tenements lying in the state of Rhode Island, and Providence plantations; now, for the clearing of all doubts respecting the premises, I, the said Cynthia Jenckes, in my said capacity, do covenant, and engage for myself, my heirs, executors and administrators, to and with the said Moses Brown, Oziel Wilkinson and Thomas Arnold, their heirs, executors and administrators,, that I will procure an act to be passed by the legislature of the state of Rhode Island, ratifying and confirming the title by me granted and con· ́veyed as aforesaid, to them and their heirs and assigns forever; or in failure thereof, that I will repay the purchase money which I have received for the same, with lawful interest, and such reasonable costs and damages which they may or shall thereby sustain, as shall sufficiently indemnify, and save them free from loss in the premises, to all intents and purposes." At the June sessions of the legislature, Cynthia Jenckes, [Wilkinson vs. Leland and others.] by her attorney regularly constituted, petitioned the legislature of the state of Rhode Island, representing, "that the personal estate of the said Jonathan Jenckes, being insufficient to pay his debts, your petitioner obtained authority from the honourable John Hubbard, judge of probate for the county of Cheshire, in said state of New Hampshire, where the said Jonathan last lived, to make sale of so much of the real estate of the said Jonathan Jenckes, as should be sufficient for the purpose of paying his debts; that your petitioner, in pursuance of said authority, sold and conveyed a part of said deceased's estate, situate in this state; that for the said estate your petitioner received a part of the consideration money, and the residue thereof is to be paid when the deed executed by your petitioner shall be ratified by this assembly; your petitioner would further show, that the residue of the said purchase money is absolutely necessary to pay the debts due from said estate, and which are now running in interest. She therefore humbly prays, your honours will be pleased to ratify and confirm the sale aforesaid, being by a deed made by your petitioner unto Moses Brown and others, on the 12th day of November, A. D. 1791, for the consideration of five hundred and fifty dollars; whereby your petitioner conveyed the right of redemption to a certain mortgaged estate, and also other lands in said deed mentioned, situate in Smithfield and North Providence." Whereupon the legislature passed the following act: At June session of the General Assembly, A. D. 1792. Whereas, Cynthia Jenckes, late of Winchester, in the state of New Hampshire, now of the state of Vermont, executrix of the last will and testament of Jonathan Jenckes, late of Winchester aforesaid, deceased, preferred a petition and represented unto this assembly, that his personal estate being insufficient for the payment of his debts, she obtained authority from the honourable John Hubbard, esq., the judge of probate for the county of Cheshire, in the state of New Hampshire aforesaid, where the said Jonathan last lived, to make sale of so much of the real estate of the said Jonathan Jenckes, as should be sufficient to pay his debts; that [Wilkinson vs. Leland and others.]. by virtue of said authority she made sale to Moses Brown and others, of part of the said real estate, situate within this state; that she hath received part of the consideration money, and the remainder is to be paid when the sale aforesaid shall be ratified by this assembly; and that the residue of said purchase money is necessary for the payment of said debts; and thereupon, the said Cynthia prayed this assembly to ratify and confirm the sale aforesaid, which was made by a deed executed by her on the 12th day of November last past, for the consideration of five hundred and fifty dollars, whereby she conveyed the right of redemption to a certain mortgaged estate, and also other lands in the said deed mentioned, situate in Smithfield and North Providence. On due consideration whereof, it is enacted by this general assembly, and by the authority thereof, that the prayer of the said petitioner be granted, and that the said deed be, and the same is hereby ratified and confirmed, so far as respects the conveyance of any right or interest in the estate mentioned in said deed, which belonged to the said Jonathan Jenckes at the time of his decease. A judgment pro forma, for the plaintiffs, was entered in the circuit court, and this writ of error was sued out. The case was argued by Mr Whipple, and Mr Wirt, for the plaintiff in error; and by Mr Webster, with whom was Mr Hubbard, for the defendants. Mr Whipple, for the plaintiffs in error, after stating the facts of the case, proceeded to say, that the whole case before the Court, turns upon the constitutional validity of the act of the legislature of Rhode Island. All the lands of Jonathan Jenckes, in the state of New Hampshire, were sold for the payment of debts. A large amount of debt was due in Rhode Island; and it is admitted that the proceeds of the sale of the swamp lot were applied to the payment of the debts of the testator. It is also admitted that all the personal estate had been absorbed by the payment of debts in New Hampshire. The question arising from these facts of the case is, whether a deed of land in Rhode Island, made by a New Hampshire executor, qualified |