Ross v. Barland. 1 P.

of the United States, which were not withdrawn till long after the time stipulated by the treaty.

By the 2d section of the before-recited act of congress, of the 3d of March, 1803, it is enacted: "That to every person, or to the legal representative or representatives of every person, who, either being the head of a family or of twenty-one years of age, did, on that day of the year 1797, when the Mississippi territory was finally evacuated by the Spanish troops, actually inhabit and cultivate a tract of land in the said territory, &c., the said tract of land thus inhabited and cultivated, shall be granted; provided, however, that not more than one tract shall be thus granted to any one person, and the same shall not contain more than 640 acres; and provided that this donation shall not be made to any person who claims any other tract of land in the said territory, by virtue of any British or Spanish grant or order of survey."

The 6th section of the act provides for the establishment of two boards of commissioners, one east and the other west of Pearl River, in said territory: "for the purpose of ascertaining the rights of persons claiming the benefit of the articles of agreement and cession between the United States and the State of Georgia, or of the first three sections of this act. And each board, or a majority of each board, shall, in their respective districts, have power to hear and decide in a summary manner all matters respecting such claims; also to administer oaths and examine witnesses, and such other testimony as may be adduced, and to determine thereon according to

justice and equity; which determination, so far as relates [* 666] to any rights *derived from the articles of agreement aforesaid, or from the first three sections of this act, shall be final." The 11th section provides: "That the lands for which certificates of any description whatsoever shall have been granted by the commissioners, in pursuance of the provisions of this act, shall, as soon as may be, be surveyed. And the said surveyor shall cause all the other lands of the United States in the Mississippi territory to be surveyed."

And the 12th section provides that all the lands aforesaid, not otherwise disposed of or excepted, by virtue of the provisions of the preceding sections of this act, shall (with certain other reservations and exceptions) be offered for sale.

As such lands only were authorized to be offered for sale as had not been appropriated by the previous sections of the law, and certificates granted by the commissioners in pursuance thereof, it follows, incontestably, that the right of the plaintiff in the ejectment, derived from a donation certificate, is superior to that of the defend

Ross v. Barland. 1 P.

ant, derived from a purchase at the sales, unless there is some fatal infirmity in the certificate which renders it void. This has not been contested.

But it is objected to this certificate:

1. That it is not a donation certificate.

2. That it is not sufficiently precise, and does not aver all the facts necessary to authorize the commissioners to grant a certificate.

3. The period of occupancy is alleged to be March 30, 1798.

The answer to the first objection is, that the certificate is granted for 640 acres of land, the precise quantity for which a donation certificate was authorized.

This is sufficient evidence of the intention of the board of commissioners to grant a donation certificate. The period of occupancy, too, fits the case of a donation certificate or none, and, if necessary, fortifies the conclusion of its being granted as a donation certificate.

To the second objection, it may be answered that the law requires no precise form in the certificate. It is sufficient, if the proofs be exhibited to the board of commissioners, to satisfy them of the facts entitling the party to the certificate. The facts need not be spread upon the record. It is sufficient if the consideration, to wit, the occupancy, and the quantity granted, appear.

Nothing more is necessary to certify to the government of the party's right, or to enable him, after it is surveyed by the proper officer, to obtain a patent.

The objection that the occupancy is stated to be on the 30th of March, 1798, produces more difficulty.

*The language of the second section of the act of con- [* 667 ] gress, authorizing these donation claims, is, that the persons who, on that day of the year 1797, when the Mississippi territory was finally evacuated by the Spanish troops, &c.

This language is very peculiar, and shows plainly that, although congress, at the time of passing the law, was certain of the fact of evacuation by the Spanish troops, that body was not informed of the precise time when the evacuation took place.

The law was intended to confer a bounty on a numerous class of individuals; and, in construing the ambiguous words of the section, it is the duty of the court to adopt that construction which will best effect the liberal intentions of the legislature.

To interpret this section literally, that land should be granted to those who, on the same day of the year 1797, occupied a tract of land, provided the Spanish troops finally evacuated the territory, and on that very day of that very year 1797, would totally defeat the operation of the law, and the bounty intended by it, if it should have

Ross v. Barland. 1 P.

happened that the final evacuation of the territory, by the Spanish troops, took place on the first day of January, 1798, or on any subsequent day.

If an individual had inhabited and cultivated a tract of land every day in the year 1797, still, according to the letter of this section, he was not entitled to the bounty of the government, because the Spanish troops had not evacuated the territory any day of that year, but some day of the next year; and, although the party continued to occupy the land until the day of the actual evacuation, still, he could not be entitled, according to the letter of the act, because that day was not any day of the year 1797.

This could not be the intention of congress. The country had been settled during the conflict on the subject of boundaries, between Spain and the United States, by the citizens and subjects of both governments. It was a weak and exposed frontier of the United States. The manifest general intent of the act of congress is to confer a bounty upon the inhabitants and cultivators of the soil, who elected to remain in the country at the time of the actual evacuation by the Spanish troops. In this view of the subject, the time of the actual evacuation was very important, but whether it was on some day in the year 1797 or 1798, was comparatively unimportant.

If the fact be supposed, and it must be supposed for the sake of the argument, that the actual evacuation took place on the 30th of March, 1791, then something must be rejected in the construction

and interpretation of the act of congress to make the pro[* 668] visions of the law effectual. Either the words, "of the year 1797," must be rejected as inconsistent with the main scope and general intent of the law, or the claims to donations of all the inhabitants and cultivators, west of Pearl River, must be defeated. This would but defeat the manifest general intent of the law.

It was said at the bar that all the donation certificates, west of the Pearl River, express to be for occupancy on the 30th day of March, 1798, and a certificate from the commissioners of the general landoffice, to that effect, was produced. It is not necessary to decide whether we can or cannot notice this certificate as evidence of the fact that the evacuation took place on that day, or as evidence of the construction given by the board of commissioners, west of Pearl River. It is sufficient if they were authorized to give such construction to the act in the event supposed, that the event happened; or, in other words, that the actual evacuation took place on the 30th of March, 1798, as supposed in the argument; and that the construction of the 2d section of the act of congress, which we are disposed to adopt, is the true construction in the estimation of congress itself,

Ross v. Barland. 1 P.

we think may fairly be inferred from the act of congress of the 21st of April, 1806.1 The 4th section of that act provides that, "wherever it shall appear, to the satisfaction of the register and the receiver of the district east of Pearl River, that the settlement and occupancy, by virtue of which a preëmption certificate had been granted by the commissioners, had been made and taken place prior to the 30th of March, 1798, they shall be authorized to grant to the party a donation certifiate, in lieu of such preemption."

It appears from this section that the commissioners east of Pearl River had adopted the construction of the act of 1803, contended for by the plaintiff in error, and that, instead of granting donation certificates to the inhabitants and settlers, down to the period of the 30th of March, 1798, under the 2d section of the act, they had granted preëmption certificates under the provisions of the 3d section. Congress treat this as a mistaken construction of the law, by directing donation certificates to be made out in lieu of the preëmption certificates.

The act of 1803 puts the settlers east and west of Pearl River on precisely the same footing; and it is inconceivable that congress could have any motive for giving those east of Pearl River any preference by the act of 1806, or that the act could have any other object than to continue upon the same footing the settlers east and west of Pearl River.

The certificate granted in the case before us is sufficient evidence that the commisssioners west of Pearl River adopted a more liberal construction, such as we think they were warranted

* in adopting, and such as we think is manifestly sanctioned [* 669] by congress in the act of 1806.

It is the opinion of this court that the commissioners were authorized to hear evidence as to the time of the actual evacuation of the territory by Spanish troops, and to decide upon the fact. The law gave them "power to hear and decide all matters respecting such claims, and to determine thereon according to justice and to equity," and declares their determination shall be final.

We are bound to presume that every fact necessary to warrant the certificate, in the terms of it, was proved before the commissioners; and that, consequently, it was shown to them; and the final evacuation of the territory by the Spanish troops took place on March 30, 1798.

Upon the whole, it is the unanimous opinion of this court that the supreme court of the State of Mississippi has not misconstrued the act of congress, from which the rights of the parties are derived, and that the judgment of the supreme court be affirmed.

13 P. 436, 498; 16 P. 234; 3 H. 650; 4 H. 449; 18 H. 19; 19 H. 334.

1 2 Stats. at Large, 400.

Pray v. Belt. 1 P.

ANN PRAY, Executrix, J. J. MAXWELL AND GEORGE WATERS, Execu tors of JOHN PRAY, deceased, Appellants, v. GEORGE G. Belt, Trustee, and JAMES P. HEATH, pro. ami.

1 P. 670.

A testator having empowered his executors, his wife to have a voice as executrix, to decide finally what was his intention, in case of dispute - Held, that if this power was valid, it did not enable the executors to decide contrary to the plain intent of the testator, to be judged of by a court of justice, nor to decide a question in which they or either of them was interested.

A legacy being given jointly to several families, whose individual members were not ascertained by the will, all the legatees are necessary parties to a bill for payment of the legacy. Construction of a will; legacy vested and payable from a specific fund.

THE case is stated in the opinion of the court, save that the clauses in the will in question, on which the case turned, were as follows:

[ *671 ]

*"Item 51. Whereas I hold ten bonds, given by John J. Maxwell, payable by ten instalments, the first on the 10th of January next, and the others on the 10th of January in each year after. It is my will, and I direct that the bonds payable 10th of January, 1820, 1821, and 1822, say the first three, shall be applied in aid of the payment of my just debts, if any due, and in the payment of the legacies by me left. It is my request, that my executors do also apply all funds which I may possess at my decease, as also dividends on all my bank stock, (except that part of dividends which I have directed to go immediately to some of my legatees,) and also to apply all moneys due to me as soon as collected, and also all rents and crops of rice and cotton, first to pay any debts, and then legacies, any heretofore left, or which I may hereafter leave to be paid. It is my will, and I do direct that my executors do pay up the one half of all the cash legacies by me left to my relations, out of the first funds they can command from my estate, except those I may have directed to be paid immediately; and after they have paid the one half to my relations, thereafter it is my will that they do pay up, in equal proportions, agreeably to sums left, to all my other legatees; and be it understood, and it is my will and intention, that after they have paid the one half to my relations, that they will continue to pay them the other half in equal proportions with my other legatees; my object and intention is to place them on the same footing with my other legatees, after the payment of one half to my said relations. It is my will and request, that my executors do pay all my debts and legacies as soon as possible after my death; but be it explicitly and plainly understood, that no interest whatever is to be allowed on any legacy by me left to any one of my legatees, as in all probability the