says: "And therefore it is that the English | nance and education of the orphan, regard beCourt of Chancery has never, except in the cases above mentioned, undertaken to dispose of an infant's land or inheritance in real estate, and that, although many cases have arisen in which the income of an infant's estate has been found to be entirely insufficient for his support, yet it has rarely occurred that the court has broken in upon the capital of even his personal estate for the purpose of maintenance, though it has frequently done so for his education and putting him out in life."

If any Maryland authority existed before this date, for the power more recently asserted by the court of appeals, Chancellor Bland would surely have known it and referred to it.

It could hardly be, then, that any such opinion prevailed in Maryland thirty years before the date of his opinion.

ing had to the future situation, prospects and destination of the ward; and the said court, if it shall deem it advantageous to the ward, may allow the guardian to exceed the income of the estate and to make use of his principal and to sell part of the same, under its order; Provided, Nevertheless, that no part of the real estate shall, on account of such maintenance or education, be diminished without the approbation of the court of chancery, or general court, as well as of the orphans' court."

It will be observed that the power conferred is not, in terms, limited to personal estate. The income of the estate may be exceeded and part of the principal may be sold.

It will not be disputed that the terms "estate" and “principal" are comprehensive enough to embrace everything, real and personal owned But even were it otherwise, it is to be ob- by the infant. Is there anything in the conserved that the proposition asserted by the court text or in the subject matter to limit their sense, of appeals does not go far enough to be avail-in connection with the power of sale conferred? able for this discussion. It declares the power of chancery to decree a conversion, but no more. It does not assert the power to do that on account of the maintenance and education of the ward, and to apply the proceeds to those objects. And the very ground on which the special Act on which the case of Dorsey v. Gilbert was based was justified as constitutional, was that while it was only an enlargement of the existing power of the court of chancery "The property of the infant is not (by it) in any manner impaired or lessened, but a change in its character alone effected."

We may safely assume, then, that before the Act of 1798 there was no authority in any court in Maryland to decree a sale of an infant's realty for maintenance or education, or for any object except those provided for in the statutes referred to.

If he possessed personalty, the orphans' court might allow his guardian to apply a tenth part of it annually for his education, under authority of the Act of 1785, chap. 80.

But if he was an orphan, having no legal claim for support upon anyone, and his whole patrimony consisted of unproductive realty, his condition was lamentable. However refined his associations may have been, and however capable he might be of receiving a liberal and professional education, his only recourse for a support was to be bound out as an apprentice, under the Act of 1715, chap. 39, unless some charitable person would assume his maintenance and education. His real estate, however ample, was unavailable for those objects, unless, indeed, he would go in debt for necessaries, and leave his creditors to their commonlaw remedies against his property.

In this condition of affairs, the Act of 1798, chap. 101, was enacted "for amending and reducing into system the laws and regulations concerning last wills and testaments, the duties of executors, administrators and guardians, and the rights of orphans and other representatives of deceased persons," the twelfth subchapter, section 10 of which says:

Section 5 provides that on the guardian's executing his bond, the court shall have power to order the land, distributive share or other property of the ward, to be delivered to the guardian. Section 6 directs the guardian to have the real estate appraised and the annual value thereof estimated.

Section 7 forbids waste but allows the wood to be cut down under order of the court, for the ward's education and maintenance.

Section 8 directs the guardian to lease out the real estate, or allows him to undertake it on his own account and be answerable for the annual value, to be every third year ascertained.

Section 9 directs the guardian to account for the profit and increase of the estate or annual value as aforesaid.

Thus the first of these sections grouped together the real and personal estate. Sections 6, 7, 8 and 9 refer entirely to the real estate. Section 9 speaks of it as the estate and then follows immediately section 10, the one under consideration, in which permission is given to exceed the income of the estate (the precise word which in the preceding section referred to realty) and to sell part of the principal. As the preceding four sections had reference solely to real estate and the last described it generally as the estate, it is difficult to understand why the same word in this section should not embrace the realty.

The power to sell the personalty (10 per cent of it annually) already existed under the Act of 1785, chap. 80. If it was intended by the Act of 1798 merely to re-enact this, or to extend it to all the personalty, why was the phraseology changed and the word personal omitted?

If it does not appear from the foregoing considerations that it was omitted de industria, and the power of sale was extended to the realty as an amendment to the existing law, it is made demonstrably clear by the proviso to section 10. The function of a proviso in a statute is to qualify or restrain the enacting clause.

The enacting clause here confers a power to order sale of part of the principal of the in"And once in each year, or oftener if re- fant's estate, on account of his maintenance or quired, a guardian shall settle an account of his education. The qualification is that the real trust with the orphans' court; and the said court estate shall not be diminished on account of the shall ascertain, at discretion, the amount of the maintenance or education, without the approsum to be annually expended in the mainte-bation of the court of chancery, etc. Dimin

ished how? Clearly, it means by the exercise infants. He also reviewed the legislation of of the power of sale conferred in the preceding Maryland on the subject, including the Act of clause, i. e., the realty shall not be diminished 1798 now under consideration. In his report by such sale without, etc. Why add this quali- of the case, published in 1841, he adds, in a fication unless without it the orphans' court note to this part of his opinion [3 Bland, 200] would have the unrestrained power of selling, a reference to the Goltier Case, decided by by virtue of the enacting clause. Chancellor Kilty in 1810.

the personal estate not suffice to maintain and ed- | ucate suitably to the future destination of the ward, then such maintenance and education may also induce an application of a part of the real estate, with the approbation of the court of chancery, or general court, as well as the orphans' court."

This seems to be a clear recognition of the powers of the orphans' court to decree the sale of the realty, and it was evidently so understood by Chancellor Bland when he cited this case in the same note with the Goltier Case before referred to.

1798 as conferring a power on the orphans' court to decree the sale of an infant's realty under the circumstances mentioned in section 10, subchapter 12 of the Act; and it was assumed without discussion, in the general term, as late as 1874, in the case of Mansell's Appeal.

The practice of decreeing sueh sales has prevailed through a period sixty or seventy years in extent; large amounts of property have changed hands through such sales, and many titles depend upon their validity. If anything can be said to be a rule of property in this District, our interpretation of the statute must be so considered.

This being the case, even if we doubted its propriety, would we be justified in reversing it, with the effect of unsettling titles and affecting values to an extent that cannot now be

So, in the case of Hatton v. Weems, 12 Gill & J. 83, decided in 1841, which was a suit brought by a cestui que trust against the trustee of an estate, for an account, the court referred to the analogous case of a guardian, and said: "According to our laws, a guardian cannot encroach on the capital of his ward's estate without the order of the orphans' court; nor can the real es-appreciated? tate be diminished but by the approbation of the court of chancery."

Although not so pointed as the other case, this seems also to recognize the order of the orphans' court, with the approbation of the court of chancery, as competent to transfer the realty of the ward.

Mr. Alexander, in his well known and authoritative work on the Chancery Practice of Maryland, published in 1839 or 1840, says: "The court of chancery has a general control over the persons of infants in regard to their guardianship, maintenance and marriage. But it is seldom that an occasion is presented for the exercise of these powers. The orphans' court may appoint a guardian to an infant who has acquired an estate in any manner and who is destitute of a testamentary or natural guardian. The power to appoint a guardian with authority to take possession of the estate has very naturally drawn to itself the power of appropriating the estate to the maintenance of the infant. The only case in which the interposition of chancery seems to be necessary is where a sale of a part of the infant's real estate is required for the purposes of maintenance and education." For this, he refers to section 10 of the Act of 1798, subchap. 12.

He, then, clearly understood the diminution of the ward's real estate, referred to in the Act of 1798, to mean a sale of it, through the concurrent action of the orphans' court and chancery court.

We have, then, the chancellor, the court of appeals and the text writers of Maryland, down to a late date, recognizing, as a thing of course, the authority of the orphans' court to decree a sale of realty, and not an intimation of opinion against it from any quarter.

But if it had been otherwise, since the cession of the District of Columbia, it must be remembered that this statute came to us about two years after its enactment, as the law of this jurisdiction, without any interpretation by the highest court of Maryland, and the Circuit Court of this District had as complete authority to interpret it for this District as the Court of Appeals of Maryland had for that State; indeed, as much so as if it had been, originally, an Act passed by Congress for this District.

In the exercise of this authority, the circuit court, and, since its abolition, this court, its successor, have always interpreted the Act of

In the case of Doolittle's Lessee v. Bryan, 14 How. 563 [55 U. S. bk. 14, L. ed. 543], the court said: In the present case it is said the land was sold in 1829; the purchaser paid his money and obtained his deed on the faith of a judgment of the court that the sale was regular, and has held the land under this title ever since. Hundreds of similar cases may probably be found where the same objections to the sale exist. Under such circumstances, a court should be even astute in avoiding a construction which may be productive of much litigation and insecurity of titles."

In the case of Smith v. Black, 115 U. S. 308 [Bk. 29, L. ed. 398], the mere probability that a decision of the old circuit court as to the power of a trustee to sell through an agent had been followed as a rule of property, was persuasive with the supreme court against sanctioning a departure from it. How much stronger the present case, where we know that many titles rest upon the rule of property which is now assailed.

An important feature of the present case is that we are not sitting on appeal from an orphans' court decree of sale, in which case, even, we ought to hesitate to pronounce an opinion subversive of the past and settled rule of title; but we are called upon, in a collateral proceeding, to overthrow rights acquired over forty years ago, under a decree never reversed or even appealed from, but passed at a time when its legality was assumed in the prevailing construction of the law.

The language of the supreme court in Douglass v. Pike Co. 101 U. S. 677 [Bk. 25, L. ed. 968], is quite pertinent to such a case. It was an action on certain county bonds, issued and bought after their legality had been affirmed by the state court, but which subsequently the same court held to be illegal. The court says: "The true rule is to give a change of judicial construction, in respect to a statute, the same effect in its operation on contracts and existing contract rights that would be given to a legislative amendment; that is to say, make it prospective but not retroactive. After a statute has been settled by judicial construction, the construction becomes, so far as contract rights acquired under it are concerned, as much a part of the statute as the text itself; and a change of decision is, to all intents and purposes, the same in its effect on contracts as an amendment

of the law by means of a legislative enact- | shall be considered real estate," etc., etc. But ment."

Therefore, although they ordinarily followed the interpretation of its statute by the highest court of a State, they refused in that case to give it the effect of overthrowing a former rule of decision under which rights had been acquired.

If this District were a State, no doubt the supreme court would apply this rule by upholding our former construction of the statute as far as it affected the present case, however we might have changed our views of the law since.

And although in the exercise of its appellate power in this District, the supreme court would act upon its own judgment and not feel bound to follow ours, in the interpretation of our local statutes it can hardly be doubted that the sentiments above expressed would lead to the same results.

The next question is whether the Act of 1798, subchap. 12, § 10, is repealed by the Act of Congress of March 3, 1843, entitled, "An Act to Provide in Certain Cases for the Sale of the Real Estate of Infants within the District of Columbia."

There is no such repeal, unless by implication. Repeals by implication are not favored by the courts.

In the absence of any repealing clause, it is necessary to the implication of a repeal that the objects of the two statutes are the same. If they are not, both statutes will stand, though they refer to the same subject.

And it is further necessary to such repeal that there be a repugnancy between the statutes, or that one be plainly intended as a substitute for the other. U. S. v. Tynen, 11 Wall, 88 [78 U. S. bk. 20, L. ed. 153]; U. S. v. Claflin, 97 U. S. 546 [Bk. 24, L. ed. 1082].

this evidently means so much thereof as may remain in the shape of personalty because it was needless to say that of real estate; and that would apply to what was not reinvested in other real estate. It is not necessary to read it as of what remains after a part of the principal has been consumed. After directing that the proceeds might be reinvested in realty, this clause had, for its object, to impress the character of realty on all that might remain in the form of personalty for the benefit of the heir. It would be singular if a power to consume the principal was left to be inferred from a clause like this, which has manifestly a different object in view, and does not necessarily convey such implication.

Somewhat singular consequences would follow such a construction. Whether a ward's realty shall be sold for his maintenance and education must depend upon his needs in those respects. It is natural to expect that the court charged with the duty of determining that question should also have authority to decree the sale.

The Act of 1798 expressly directs the orphans' court to ascertain the amount to be annually expended in the maintenance and education of the orphan, and authorizes it to apply a part of the principal of the estate to those objects. If this authority, as to the sale of the real estate, is cut off by the Act of 1843, the power of the court to fix the allowance at anything beyond the personalty and the income is necessarily destroyed, because it is in the discretion of the equity court whether the realty shall be sold or not. The power would then have to be devolved on the equity court to determine the allowance of the ward. Could it have been intended to transfer to it this duty which is so exclusively appropriate to the orphans' court? The Act of 1843 provides for the sale of the Or could it have been intended to leave with the whole or any part of the infant's real estate, orphans' court the power to determine the ward's whenever it appears that the interest of the in- allowance for maintenance and education, befant manifestly requires it. The object, there-yond the income of the estate, and yet require fore, is to promote the infant's interest generally. When the sale is made the proceeds are to be rested and applied (i. e., invested and applied) in the purchase of other real property, or invested and applied in such other manner as the court may think best. And these proceeds, if the infant dies under age, are to be considered real estate, and pass, as such, to the person who would have been entitled if no such sale had been made.

The prominent object of the Act evidently is a change of investment for the infant's benefit. And another object seems to be to preserve the fund for his heir at law, in case of his death under age. As the infant could not make a valid devise, the property, then, upon his death under age, would necessarily descend to his heir. But a conversion of it into personalty would deprive the heir of it, but for the particular provision of the Act. There is no express authority to apply the proceeds otherwise than by vesting or investing them. They are to be vested and applied in a purchase of other realty, or in some other manner.

There is no authority to consume the principal. It is argued that such authority is implied by the words "so much thereof (i. e., of the proceeds of sale) as may remain at his death,

a separate and original, instead of an appellate and revisory proceeding, in the equity court, to give the orders of the former effect?

All this difficulty makes it very improbable that Congress intended to transfer the administration of the ward's property (in other words, the wardship of the infant) to the equity court, by the Act of 1843.

In the case of an exactly similar Act in Virginia, we have the authority of Rinker v. Streit, 33 Gratt. 637, that it conveys no authority to apply the principal of the ward's estate to his maintenance and education. If this be correct, as we are inclined to think it is, then the object contemplated by the Act of 1798 could not be attained under the Act of 1843; and the two Acts must be held to have entirely different objects, and to be entirely incompatible with each other; and, therefore, both must stand, according to the rule before stated.

But even if we can find, in the Act of 1843, an implied power to sell for the express purpose of applying the proceeds to the maintenance and education of the ward, under the general authority to vest and apply for his benefit, it would not follow that the Act is inconsistent with the Act of 1798, and therefore repeals it. It would only follow that while the orphans