been attempted to be enforced. We are not prepared, therefore, to admit that the people of Rhode Island have ever delegated to their legislature the power to devest the vested rights of property, and transfer them without the assent of the parties. The counsel for the plaintiffs have themselves admitted that they cannot contend for any such doctrine.

The question then arises, whether the act of 1792 involves any such exercise of power. It is admitted that the title of an heir by descent in the real estate of his ancestor, and of a devisee in an estate unconditionally devised to him, is, upon the death of the party under whom he claimed, 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 lifetime, or by the law at his decease. It is not an unqualified, though it be a vested interest; and it confers no title, except to what remains after every such lien is discharged. In the present case, the devisee under the will of Jonathan Jenckes without doubt took a vested estate in fee in the lands in Rhode Island. But it was an estate, still subject to all the qualifications and liens which the laws of that state annexed to those lands. It is not sufficient to entitle the heirs of the devisee now to recover, to establish the fact that the estate so vested has been devested: but that it has been devested in a manner inconsistent with the principles of law.

By the laws of Rhode Island, as indeed by the laws of the other NewEngland states, (for the same general system pervades them on this subject) the real estate of testators and intestates stands chargeable with the payment of their debts, upon a deficiency of assets of personal estate. ficiency being once ascertained in the probate court, a license is granted by the proper judicial tribunal, upon the petition of the executor or administrator, to sell so much of the real estate as

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may be necessary to pay the debts and incidental charges. The manner in which the sale is made is prescribed by the general laws. In Massachusetts and Rhode Island, the license to sell is granted, as matter of course, without notice to the heirs or devisees; upon the mere production of proof from the probate court of the deficiency of personal assets. And the purchaser at the sale, upon receiving a deed from the executor or administrator, has a complete title, and is in immediately under the deceased, and may enter and recover the possession of the estate, notwithstanding any intermediate descents, sales, disseisins, or other transfers of title or seisin. If, therefore, the whole real estate be necessary for the payment of debts, and the whole is sold, the title of the heirs or devisees is, by the general operations of law, devested and superseded; and so, pro tanto, in case of a partial sale.

From this summary statement of the laws of Rhode Island, it is apparent, that the devisee under whom the present plaintiffs claim, took the land in controversy, subject to the lien for the debts of the testator. Her estate was a defeasible estate, liable to be de vested upon a sale by the executrix, in the ordinary course of law, for the. payment of such debts; and all that she could rightfully claim, would be the residue of the real estate, after such debts were fully satisfied. In point of fact, as it appears from the evidence in the case, more debts were due in Rhode Island than the whole value for which all the estate there was sold; and there is nothing to impeach the fairness of the sale. The probate proceedings further show, that the estate was represented to be insolvent; and in fact, it approached very near to an actual insolvency. So that upon this posture of the case, if the executrix had proceeded to obtain a license to sell, and had sold the estate according to the general laws of Rhode Island, the devisee and her heirs would have been devested of their whole interest in the estate, in a manner entirely complete and unexcep

tionable. They have been devested of their formal title in another manner, in favour of creditors entitled to the estate; or rather, their formal title has been made subservient to the paramount title of the creditors. Some suggestions have been thrown out at the bar, intimating a doubt whether the statutes of Rhode Island, giving to its courts authority to sell lands, for payment of debts, extended to cases where the deceased was not, at the time of his death, an inhabitant of the state. It is believed that the practical Construction of these statutes has been atherwise. But it is unnecessary to consider whether that practical construction be correct or not, inasmuch as the laws of Rhode Island, in all cases, make the real estate of persons deceased chargeable with their debts, whether inhabitants or not. If the authority to enforce such a charge by a sale be not confided to any subordinate court, it must, if at all, be exercised by the legislature itself. If it be so confided, it still remains to be shown, that the legislature is precluded from a concurrent exercise of power.

What then are the objections to the act of 1792? First, it is said that it devests vested rights of property. But it has been already shown that it devests no such rights, except in favour of existing liens, of paramount obligation; and that the estate was vested in the devisee, expressly subject to such rights. Then again, it is said to be an act of judicial authority, which the legislature was not competent to exercise at all; or if it could exercise it, it could be only after due notice to all the parties in interest, and a hearing and decree. We do not think that the act is to be considered as a judicial act; but as an exercise of legislation. It purports to be a legislative resolution, and not a decree. As to notice, if it here necessary, (and it certainly would be wise and convenient to give notice, were extraordinary efforts of legislation are resorted to, which touch private rights,) it might well be presinted, after the lapse of more than

thirty years, and the acquiescence of the parties for the same period, that such notice was actually given. But by the general laws of Rhode Island upon this subject, no notice is required to be, or is in practice, given to heirs or devisees, in cases of sales of this nature; and it would be strange, if the legislature might not do without notice, the same act which it would delegate authority to another to do without notice. If the legislature had authorized a future sale by the executrix for the payment of debts, it is not easy to perceive any sound objection to it. There is nothing in the nature of the act which requires that it should be performed by a judicial tribunal, or that it should be performed by a delegate, instead of the legislature itself. It is remedial in its nature, to give effect to existing rights.

But it is said that this is a retrospective act, which gives validity to a void transaction. Admitting that it does so, still it does not follow that it may not be within the scope of the legislative authority, in a government like that of Rhode Island, if it does not devest the settled rights of property. A sale had already been made by the executrix under a void authority, but in entire good faith, (for it is not attempted to be impeached for fraud;) and the proceeds, constituting a fund for the payment of creditors, were ready to be distributed as soon as the sale was made effectual to pass the title. It is but common justice to presume that the legislature was satisfied that the sale was bona fide, and for the full value of the estate. No creditors have ever attempted to disturb it. The sale then was ratified by the legislature; not to destroy existing rights, but to effectuate them, and in a manner beneficial to the parties. We cannot say that this is an excess of legislative power; unless we are prepared to say, that in a state not having a written constitution, acts of legislation, having a retrospective operation, are void as to all persons not assenting thereto, even though they may be for

beneficial purposes, and to enforce existing rights. We think that this cannot be assumed as a general principle, by courts of justice. The present case is not so strong in its circumstances as that of Calder vs. Bull, 3 Dall. Rep. 386, or Rice vs. Parkman, Mass. Rep. 226; in both of which the resolves of the legislature were held to be constitutional.

Hitherto, the reasoning of the court has proceeded upon the ground that the act of 1792 was in its terms sufficient to give complete validity to the sale and deed of the executrix, so as to pass the testator's title. It remains to consider whether such is its predicament in point of law.

For the purpose of giving a construction to the words of the act, we have been referred to the doctrine of confirination at the common law, in deeds between private persons. It is said that the act uses the appropriate words of a deed of confirmation, 66 ratify and confirm ;" and that a confirmation at the common law will not make valid a void estate or act, but only one which is violable. It is in our judgment wholly unnecessary to enter upon any examination of this doctrine of the common law, some of which is of great nicety and strictness; because the present is not an act between private persons having interests and rights to be operated upon by the terms of their deed. This is a legislative act, and it 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. cannot be doubted that an act of parliament may by terms of confirmation make valid a void thing, if such is its

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intent. The cases cited in Plowden, 399 in Comyn's Dig. Confirmation, D, and in 1 Roll. Abridg. 583, are directly in point. The only question then is, what is the intent of the legislature in the act of 1792? Is it merely to confirm a void act, so as to leave it void, that is to confirm it in its infirmity? or is it to give general validity and efficacy to the thing done? We think there is no reasonable doubt of its real object and intent. It was to confirm the sale made by the executrix, so as to pass the title of her testator to the purchasers. The prayer of the petition, as recited in the act, was, that the legislature would "ratify and confirm the sale aforesaid, which was made by a deed executed by the executrix, &c." The object was a ratification of the sale, and not a mere ratification of the formal execution of the deed. The language of the act is, " on due consideration whereof, it is enacted, &c. that the prayer of the said petitioner be granted, and that the 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." It purports, therefore, to grant the prayer, which asks a confirmation of the sale, and confirms the deed, as a conveyance of the right and interest of the testator. It is not an act of confirmation by the owner of the estate; but an act of confirmation of the sale and conveyance, by the legislature in its sovereign capacity.

We are therefore all of the opinion, that the judgment of the circuit court ought to be reversed, and that the cause be remanded, with directions to the court to award a venire facias de novo,

WILLIAM TILGHMAN.

April 30, 1827. At Philadelphia, died WILLIAM TILGHMAN, late Chief Justice of the Supreme Court of Pennsylvania, in the 71st year of his age.

William Tilghman was born on the 12th of August, 1756, upon the estate of his father, in Talbot county, on the eastern shore of Mary. land.

His paternal great grand-father, Richard Tilghman, emigrated to that province, from Kent county, in England, about the year 1662, and settled on Chester river, in Queen Anne's county.

His father, James Tilghman, was secretary of the Proprietary Land Office, and brought that department into a system as much remarked for order and equity, as, from its early defects, it threatened to be otherwise.

His maternal grandfather was Tench Francis the elder, of Philadelphia, one of the most eminent lawyers of the province, the brother of Richard Francis, author of "Maxims of Equity," and of Dr. Philip Francis, the translator of Horace.

In 1762, his family removed from Maryland to Philadelphia.

In February, 1772, he began the study of the law in Philadelphia, under the direction of the late Benjamin Chew, afterwards chief justice of the supreme court of Pennsylvania, and, at the close of

the high court of errors and ap peals, its venerable president.

In the office of this gentleman, he continued until December, 1776.

From 1776 to 1783, partly on his father's estate, and partly at Chestertown, whither his family had removed, he continued to pursue his legal studies, and applying his intervals of leisure to the education of a younger brother. In the spring of 1783, he was admitted to the courts of Maryland.

In 1788, and for some successive years, he was elected a representative to the legislature of Maryland. His temper and habits were not perfectly congenial with active po. litical life, nor was he at any time attracted by that career; but he took an active part in procuring the adoption of the Federal Constitution, to which he felt and uniformly declared the most profound attachment.

In 1793, a few months previous to his marriage with Miss Margaret Allen, the daughter of Mr. James Allen, he returned to Philadelphia, and commenced the practice of the law, which he prosecuted until his appointment by President Adams, on the 3d of March, 1801, as chief judge of the circuit court of the United States for the third circuit.

His powers as an advocate, but more especially his learning and judgment, were held in great re. spect. His law arguments were remarkable for perspicuity and ac.