[Chinoweth et al vs. Lessee of Haskell et al.]

man with him, consequently marked no trees. He was accompanied by only one individual, and does not allege that a chain was stretched.

The defendants in the district court having withdrawn their cause from the jury by a demurrer to evidence, or having submitted to a verdict for the plaintiffs subject to that demurrer, cannot hope for a judgment in their favour, if, by any fair construction of the evidence, the verdict can be sustained. If this cannot be done, the judgment rendered for the defendants in error must be reversed.

It is an obvious principle that a grant must describe the land to be conveyed, and that the subject granted must be identified by the description given of it in the instrument itself. For the purpose of furnishing this description and of separating the land from that which is not appropriated, the law directs a survey to be made by sworn officers, who, "at the time of making such survey, shall see the same bounded plainly by marked trees, except where a water course or ancient marked line shall be the boundary." The persons employed to carry the chain are to be sworn by the surveyor to measure justly and exactly to the best of their abilities. The description of the land thus made by a survey is transferred into the grant. It consists of the courses and distances run by the surveyor, and of the marked trees at the lines and corners, or other natural objects which ascertain the very land which was actually surveyed. The courses and distances are less certain and less permanent guides to the land actually surveyed and granted, than natural and fixed objects on the ground; but they are guides to some extent, and, in the absence of all others, must govern us. If a grant be made which describes the land granted by course and distance only, or by natural objects not distinguishable from others of the same kind, course and distance, though not safe guides, are the only guides given us, and must be used.

In the case at bar the line from D. to E. or from D. to G. which forms the western boundary of the land intended to be granted, was never run or marked. In his office, the surveyor assumed a course and distance, and terminates the line at two small chesnut oaks. But where are we to look

[Chinoweth et al. vs. Lessee of Haskell et al.]

for these two small chesnut oaks in a wilderness in which one man takes up fifty thousand acres of land, and another one hundred thousand? Or how are we to distinguish them from other chesnut oaks? The guide and the only guide given us by the survey, or by the grant, is the course and distance. We are to find them at the end of a line of four thousand six hundred poles, to be run south nine degrees west from the established corner at D. We are furnished with no other guide which may conduct us to them. That the surveyor had in his mind the two small chesnut oaks which he had marked as a corner to Robert Young can be of no avail, since he has not indicated this intention on his survey. He has impliedly indicated the contrary. When the established line or corner of a prior survey is made part of a boundary, it is usual to designate such marked line or corner by naming the person whose line or corner it is. The call for two small chesnut oaks without farther description, would rather exclude the idea that they were already marked as the corner of a previous survey.

The fact that the surveyor on a subsequent day went to Young's corner, and without marking it as a corner for the survey he was then employed to make, walked along the line he intended for the southern boundary of the land nearly half the distance, without marking a single tree, cannot in any manner affect the case.

In estimating this evidence we may inquire what weight would be allowed to it if the grantee claimed to hold the land actually within his patent lines, and this testimony was opposed to him by a junior patentee within those lines? We believe that no person would hesitate an instant to say that his title to the land actually within the lines of his patent, was unquestionable. He cannot be permitted after the grant has issued to elect what ground it shall cover.

This opinion derives some additional weight from the general description of the country as made in the grant, and as shown on the plat and report of the survey made by order of court in the cause.

The grant calls to be on the waters of Tygart valley, and to include part of the waters of Hornback's run, and the VOL. III.-N

[Chinoweth et al. vs. Lessee of Haskell et al.] Cherry Tree fork of Leading creek. This description accords with the survey as required by the plaintiffs in error. The grant, if placed as the defendants in error claim to place it, will include, as is shown by the survey made in the cause, not only part of the waters of Hornback's run and the Cherry Tree fork of Leading creek, but all these two streams, and even all Leading creek itself, of which they are small branchIt will also, instead of being on the waters of Tygart's valley river, lie on the river itself, which it crosses several times. The general description then contained in the grant, fits the land comprehended within the lines of the patent much better than it does that which is claimed by the defendants in error.

es.

It is admitted that the course and distance called for in a grant may be controlled and corrected by other objects of description which show that the survey actually covered other ground than the line of the grant would comprehend. If the grant, in this case, had called for two small chesnut oaks marked as a corner to Robert Young's survey of one hundred thousand acres, the mistake in the course and distance would not have prevented the line from being run from the corner at D. to the chesnut oaks. So if a plain marked line, originally run from the one corner to the other, had shown that the land claimed was the land actually surveyed. But neither the grant nor the face of the plat furnishes any information by which the corner called for in the grant can be controlled. We are therefore of opinion that the defendant in error is not entitled to the land shown by the survey made in the cause to be in possession of the plaintiffs in error, and that the demurrer ought to have been sustained.

The judgment is reversed and the cause remanded with directions to enter judgment in favour of the defendants in the district court.

JOHN INGLIS, DEMANDANT vs. THE TRUSTEES OF THE SAILOR'S SNUG HARBOUR IN THE CITY OF NEW YORK.

The testator gave all the rest and residue and remainder of his estate, real and personal, comprehending a large real estate in the city of New York, to the chancellor of the state of New York, and recorder of the city of New York, &c. (naming several other persons by their official description), to have and to hold the same unto them and their respective successors in office to the uses and trusts, subject to the conditions and appointments declared in the will; which were ; out of the rents, issues and profits thereof, to erect and build upon the land upon which he resided, which was given by the will, an asylum, or marine hospital, to be called "the Sailor's Snug Harbour," for the purpose of maintaining and supporting aged, decrepid and worn out sailors, &c. And after giving directions as to the management of the fund by his trustees, and declaring that the institution created by his will should be perpetual, and that those officers and their successors should for ever continue the governors thereof, &c. he adds, "it is my will and desire that if it cannot legally be done according to my above intention, by them, without an act of the legislature, it is my will and desire that they will as soon as possible apply for an act of the legislature to incorporate them for the purpose above specified; and I do further declare it to be my will and intention, that the said rest, residue, &c. of my estate should be at all events applied for the uses and purposes above set forth; and that it is my desire all courts of law and equity will so construe this my said last will as to have the said estate appropriated to the above uses, and that the same should in no case, for want of legal form or otherwise, be so construed as that my relations, or any other persons, should heir, possess or enjoy my property, except in the manner and for the uses herein above specified."

Within five years after the death of the testator, the legislature of the state of New York, on the application of the trustees, also named as executors of the will, passed a law constituting the persons holding the offices designated in the will, and their successors, a body corporate, by the name of "the Trustees of the Sailors Snug Harbour," and enabling them to execute the trusts declared in the will.

This is a valid devise to divest the heir of his legal estate, or at all events to affect the lands in his hands with the trust declared in the will.

If, after such a plain and unequivocal declaration of the testator with respect to the disposition of his property, so cautiously guarding against and providing for every supposed difficulty that might arise, any technical objection shall now be interposed to defeat his purpose; it will form an exception to what we find so universally laid down in all our books as a cardinal rule in the construction of wills, that the intention of the testator is to be sought after and carried into effect. If this intention cannot be carried into effect precisely in the mode at first contemplated by him, consistently with the rules of law, he has provided an alternative, which with the aid of the act of the legislature must remove every difficulty.

[113]

[Inglis vs. The Trustees of the Sailor's Snug Harbour.]

In the case of "The Baptist Association vs. Hart's Executors," 4 Wheat. 27, the court considered the bequest void for uncertainty as to the devisees, and the property vested in the next of kin, or was disposed of by some other provisions of the will. If the testator in that case had bequeathed the property to the Baptist association, on its becoming thereafter and within a reasonable time incorporated, could there be a doubt but that the subsequent incorporation would have conferred on the association the capacity of taking and managing the fund? [114]

Whenever a person by will gives property, and points out the object, the property, and the way in which it shall go, a trust is created, unless he shows clearly, that his desire expressed, is to be controlled by the trustee, and that he shall have an option to defeat it. [119]

What are the rights of the individuals composing a society, and living under the protection of the government, when a revolution occurs, a dismemberment takes place, and when new governments are formed, and new relations between the government and the people are established. A person born in New York before the 4th of July 1776, and who remained an infant with his father in the city of New York, during the period it was occupied by the British troops; his father being a royalist, and having adhered to the British government, and left New York with the British troops, taking his son with him, who never returned to the United States, but afterwards became a bishop of the episcopal church in Nova Scotia; such a person was born a British subject, and continued an alien, and is disabled from taking land by inheritance in the state of New York. [126]

If such a person had been born after the 4th of July 1776, and before the 15th of September 1776, when the British troops took possession of the city of New York and the adjacent places, his infancy incapacitated him from making an election for himself, and his election and character followed that of his father; subject to the right of disaffirmance in a reasonable time after the termination of his minority; which never having been done, he remained a British subject, and disabled from inheriting land in the state of New York. [126]

The rule as to the point of time at which the American ante nati ceased to be British subjects differs in this country and in England, as established by the courts of justice in the respective countries. The English rule is to take the date of the treaty of peace in 1783. Our rule is to take the date of the declaration of independence. [121]

The settled doctrine in this country is, that a person born here, but who left the country before the deciaration of independence, and never returned here, became an alien and incapable of taking lands subsequently by descent. The right to inherit depends upon the existing state of allegiance at the time of the descent cast.

[121]

The doctrine of perpetual allegiance is not applied by the British courts to the American ante nati; and this court, in the case of Blight's Lessee vs. Rochester, 7 Wheat. 544, adopted the same rule with respect to the rights of British subjects here. That although born before the revolution, they are equally incapable with those born subsequent to that event of inheriting or transmitting the irheritance of lands in this country. [121]

The British doctrine therefore is, that the American ante nati, by remaining in America after the peace, lost their character of British subjects; and our doctrine is, that by withdrawing from this country, and adhering to the British