Campbell v. Low. In the present aspect of the case, it is not indispensable to examine whether at the time William M. and Mary M. Jennings executed the mortgage, to Aaron Low, the defendant's intestate, they had any estate in the premises which they could pass to him by that form of conveyance. It will be sufficient for all the purposes of this suit if it appears, as I think it will, that the plaintiff at the time it was commenced, had no right or title to the surplus moneys which are the subject in controversy. The deed contains this trust or provision: that if the said William M. Jennings should die, and the said Mary M. should survive him, the trustee should convey and assure the estate to her absolutely. The power given to the trustee to sell, and his power of management and control, in respect to the income, rents and profits, and the estate which he took by implication, to enable him to execute the trust, was at an end by the terms of the deed itself, whenever this contingency happened. Mary M. Jennings then became entitled to an absolute conveyance of the entire estate in the premises. The whole beneficial interest or right in equity to the possession and profits of the estate belonged to her; and under the forty-seventh section of the act concerning uses and trusts, she must "be deemed to have a legal estate therein, of the same quality and duration, and subject to the same conditions as her beneficial interest." Such rights as Robert S. Gordon would have had, to this fund, had he been living, the plaintiff now has, and no other. The power of this court to supply the place of a deceased trustee, exists only in the case of an express trust which has not been executed. The trust in the present instance was executed by force and operation of the forty-seventh section of the statute, the moment William M. Jennings died, leaving Mary M. surviving him, and therefore at the time Mr. Campbell was substituted in the place of Robert S. Gordon, there was no express trust unexecuted, within the meaning of the sixty-eighth section of the act. (4. Paige, 403, 9 Id. 107. 1 Barb. Ch. Rep. 220.) The plaintiff therefore has not, in my judgment, any right to the moneys in controversy. Duke of Cumberland v. Graves. For these reasons I think the judgment given at the special term should be reversed, and judgment rendered for the defendant, but without costs. Judgment reversed. MONROE GENERAL TERM, September, 1850. and Johnson, Justices. Welles, Selden, ERNEST AUGUSTUS, DUKE OF CUMBERLAND, MASTERTON A defect in the proof of a grant, from a state to individuals, offered in evidence at the circuit, on the trial of an action of ejectment, will be cured by the production, upon the argument, of copies of the resolutions and act of cession, duly authenticated according to the act of congress. A trust must be manifested, and proved, by writing. But a trust in land purchased need not be made at the time of the purchase. It may be created, or acknowledged, after the execution of the conveyance. Where an act of the legislature, authorizing aliens to purchase and hold real estate within this state, declared that all and every conveyance and conveyances thereafter to be made or executed to any alien or aliens, &c., should be deemed valid to vest the estate thereby granted, in such alien or aliens; Held that the language was sufficiently comprehensive to embrace sales, purchases, and conveyances in trust. Where a statute provided and declared that deeds and conveyances made in pursuance of a former act, which authorized and enabled aliens to purchase and hold real estate within this state, should vest the lands conveyed, so far forth as related to the question of alienism, in the grantees therein named, and their heirs and assigns, in such manner as to authorize such grantees, their heirs and assigns, being aliens, to give, devise, grant, sell and convey the same to any other alien or aliens; Held that it was the intention of the legislature to remove the objection of alienism in case of any number or succession of descents from one alien to another, and also in case of any number of grants or devises between aliens. Held also, that the terms "heirs and assigns," as used in such statute, were not to be restricted to the immediate heirs or assigns of the grantees in such deeds &c., but that they extended to all persons who might inherit the lands, or to whom they might descend, or be assigned. Under the act of April 2, 1798, allowing aliens to take conveyances of real 9 595 134a 541 Duke of Cumberland v. Graves. estate situated in this state, a release may be executed by one of several trustees in a deed of trust, to his co-trustees, of his estate and interest in the trust property, although the parties to such release are all aliens. Immaterial and irrelevant recitals in an appointment and conveyance, if not repugnant, inconsistent or illegal, can not have the effect to render nugatory the provisions which are material and pertinent. Where a will, which is valid on its face, conveys real estate to trustees, in trust, and the objects of the trust are clearly defined, and are not, at the time the will takes effect, illegal, the trustees acquire a perfect legal title; and in an ejectment brought by them against a stranger and intruder without color or claim of title adverse to that of the plaintiffs, the latter can not be required, in the first instance, to make any further proof of title than to prove the execution of the will. They are not bound to show who are the cestuis que trust. If facts have transpired since the death of the testator, or any other circumstances exist, by which the trust has come to an end, it is incumbent upon the defendant to prove them. The law never presumes the existence of a will, in the absence of proof; nor, after its existence has been proved, will it presume that it embraced the real as well as the personal property of the testator. Where a testator, by his will, conveyed all his real estate, in America or the West Indies, to trustees, in trust to sell, dispose of or otherwise convert the same into money, and to apply the proceeds, first, in payment of his debts, and the residue in purchasing real estate in Scotland, to be conveyed and settled for the uses and trusts expressed in a settlement or deed of disposition which he had executed, of his estates in Scotland; Held, that if the will was good and legal on its face, to pass the title to the trustees, it was sufficient, for the purposes of an ejectment brought by them, for a portion of the lands devised; and that they were not bound to produce and prove the deed of disposition referred to in the will of the testator. The law will not, in the absence of proof, presume a devise void, as creating a perpetuity. Proof of the death of a person known to be once living is incumbent upon the party who asserts his death; for it is presumed that he still lives, until the contrary is proved. Where land is devised to trustees, in trust to sell the same, and apply the proceeds to certain specified objects, without any limitation as to the continuance of the trust, the title will continue in the trustees until the land is sold, or until a court of equity, upon the application of the beneficiary of the trust, or some person having a right to call the trustees to account, shall remove them. In an action of ejectment, brought by such trustees, the defendant, who shows ⚫ no title whatever to the premises, can not raise the objection that, by reason of their delay in executing the trust, the plaintiffs are divested of the title to the lands in question. Duke of Cumberland v. Graves. EJECTMENT, tried at the Steuben circuit in August, 1848, before Marvin, justice. The plaintiffs claimed to be the trustees and legal owners of the lands known as the Pulteney estate; of which the premises in question, situated in the town of Prattsburgh in the county of Steuben, are a part. On the trial, to prove their title to the land in question, the plaintiffs introduced the following documentary evidence: 1. An exemplified copy of a treaty or compact between the state of New-York and the commonwealth of Massachusetts, by commissioners appointed on behalf of each, dated at Hartford in the state of Connecticut, December 16, 1786, properly proved, and recorded in the office of the secretary of state of the state of New-York, February 2d, 1787. By this treaty, among other things, "the state of New-York ceded, granted, released and confirmed to the said commonwealth of Massachusetts, and to the use of the commonwealth, their grantees, and to the heirs and assigns of such grantees forever, the right of pre-emption of the soil from the native Indians, and all other the estate, right, title and property, (the right and title of government, sovereignty and jurisdiction excepted,) which the state of NewYork had, of, in or to, all the lands and territories within the following limits and bounds, that is to say," &c., describing the tract of country bounded on the east by a line commencing in the north boundary line of the state of Pennsylvania in the parallel of forty-two degrees of north latitude, at a point distant eighty-two miles west from the northeast corner of the state of Pennsylvania, and running thence on a due meridian line north to the boundary between the United States and Great Britain, and including all of the state of New-York west of that line, excepting a strip of land one mile wide along the "strait or waters between lake Ontario and lake Erie.” 2. An exemplified copy of a record of resolutions of the legislature of Massachusetts, agreeing to sell the same lands to Nathaniel Gorham and Oliver Phelps, adopted and passed, April 1st, 1788. Also, an exemplified copy of a record of an act of the same legislature, passed November 21st, 1788, granting and confirming to the said Gorham and Phelps, so much of the said Duke of Cumberland v. Graves. land last described, as lies between the eastern boundary thereof, and a north and south line passing through the confluence of the waters of the Genesee river and Kanahasguaicon (Canascraga) creek; recorded in the office of the secretary of state of New-York, February 6th, 1787. 3. A deed from Gorham and Phelps and their wives, to Robert Morris, conveying to the latter the same lands last mentioned, except some parcels which had before been sold, dated November 18th, 1790, duly proved and recorded. 4. A deed from Robert Morris and wife, to Charles Williamson, for the same lands, dated April 11th, 1792, duly acknowledged and recorded. 5. A deed from Charles Williamson and wife, to Sir William Pulteney, for the same lands, dated March 31st, 1801, duly acknowledged and recorded. 6. Exemplified copies of the depositions of John Greig, Robert Troup and Joseph Fellows, taken under and by virtue of an act of the legislature, entitled "An act to perpetuate certain testimony respecting the title of the Pulteney estate in this state," passed January 26, 1821, filed in the office of the register in chancery, August 30, 1821, with the opinion of the Chancellor, that the said "depositions furnished good prima facie evidence of the facts therein set forth;" showing, First. The death of Sir William Pulteney in the month of May, 1805, intestate, leaving Henrietta Laura Pulteney, his only child and heir at law, him surviving. Second. The death of Henrietta Laura Pulteney, intestate, as to her real estate, after having disposed of her personal estate by will, in the month of July, 1808, without issue, leaving Sir John Lowther Johnston, her cousin and heir at law, her sur viving; that the said Sir John Lowther Johnston was the only lawful issue of Gov. George Johnston, deceased, who was the oldest brother of Sir William Pulteney, that left lawful issue; and such of the brothers as had been older than said George, having died before the death of the said Henrietta Laura Pulteney. Third. The death of Sir John Lowther Johnston, in the month of December, 1811, after having published his last will and testament. 7. An exemplified copy of the last will and testament of Sir John Lowther Johnston, bearing date August. 7, 1811, duly proved in the supreme court of this state on the |