#### A. A. Nettles, Escheator, *vs.*Joseph T. Cummings. Joseph T. Cummings, et al., *vs.*A. A. Nettles, Escheator, et al.

A Society was incorporated in 1853, “-with power to possess and bold” escheated property within the County of Claremont, to a certain amount. The estate of one S. became liable to escheat, and in 1856, while proceedings were pending, in the name of the State escheator, for an account against the administrator of S., and to have his land escheated, an Act was passed vesting all the right, title and claim of the State in the estate of S., in certain- persons, with a proviso reserving to the Society “ any right in and to the estate of S. heretofore *vested*in said” Society by any Act, *&c.:*— Held, that the Society was entitled to be paid the amount of their claim, from the estate of S. and that the grantees under the Act of 1856, could only claim any balance that might remain.

A society having the right under its charter to escheated property, does not forfeit or waive its right because it proceeds through the State escheator, and not through an escheator appointed by itself under the Act of 1805.

The Legislature may by Act grant future escheats.

An Act conferring upon a Society “ power to possess and hold” escheated property, to a certain amount, is not void for uncertainty, and will be enforced against a subsequent grantee of the State, who takes a particular escheated estate, subject to any light to the same which the Act may have *vested*in the Society.

BEFORE JOHNSTON, OH., AT SUMTER, JUNE, 1857.

The circuit decree, from which the case will be sufficiently understood, is as follows:

JohhstoN, Ch. These causes were taken up together for trial. *,*

In 1837,(a) the trustees and members of the Sumterville *441Academical Society were constituted a body corporate “ with power to possess and hold, subject to former grants, escheated property within the County of Claremont, to an amount not exceeding ten thousand dollars.”

In 1858, (a) the charter of incorporation was renewed and extended for the term of fourteen years, by the name of the Sumterville Academical Society, "with power to possess and hold, subject to former grants, property heretofore or hereafter escheated, or liable to escheat, within the County of Claremont, to an amount not exceeding fifteen thousand dollars, and with all the other powers heretofore conferred upon it.”

The 3d Sec. of Act of 1856, (b) “ to *vest*the *title of the State*in certain escheated property in sundry persons,” enacts “ that all the right, title and claim which the State may have in and to the estate real and personal, whereof Josiah H. Smoot, late of Sumter District, deceased, was the owner at the time of his death, be *vested*in Josiah T. Cummings, Ann M., wife of William A. Young, Susan, wife of John McSween, Joanna, wife of Peter A. Brunson, and Elizabeth, wife of Robert R. Cannon, to them, their heirs, executors and administrators forever: Provided, that nothing in this clause contained shall be construed to divest the Sumterville Academical Society of any right in and to the estate real and personal of the said Josiah H. Smoot, heretofore *vested*in said corporation, by any Act or Acts of the G-eneral Assembly.”

Amos A. Nettles, the plaintiff in the first stated cause, was escheator for the District of Sumter, and on the 15th March, 1856, filed his bill against Joseph T. Cummings, the administrator of Josiah H. Smoot, charging the death of said Smoot in the month of June, 1852, leaving no persons who could claim as his distributees, and required the said administrator to account to him as such escheator for the personal estate' of *442the intestate, which, went into his hands, and the rent of the lands received by him.

■Cummings answered the bill; admitting the death, his administration; no distributees entitled; and his willingness to account, but prayed that the judgment of the Court might be suspended to allow the children of his mother with whom Smoot had intermarried, and whom Smoot survived, to obtain the action of the Legislature on their petition to vest the right and title of his estate in them.

On 15th April, 1857, the second bill was filed by the plaintiffs therein named, against Fettles, escheator, the Sum-terville Academical Society, and William A. Young and wife, setting out their claim under the Act of 1856, to the estate of Smoot; denying the right of the Society to any part of it, and claiming that the proceedings already taken by the escheator may be decreed to enure’ to their benefit.

This bill is answered by the escheator, averring that his action taken against the property and administrator of Smoot, was at the instance of and for the benefit of the said Society. The Society answering, deny the claim of the plaintiffs and claim the property for themselves.

It is not perceived by the Court how the claim of the Society can be effected by non-exercise of the privilege of appointing its own escheator under the Act of 1805. *(a)***This in no way violated any obligation it has come under to the State, by reason of any power or right conferred upon it, and there is nothing to prevent its acting through the public escheator, which in this instance the company did.

Looking to the various Acts under which these parties respectively claim, the Court must give to them a construction consistent with the plain intention of the Legislature; and not permit the solution of questions to depend on merely technical distinctions.

*443The Act invests the Society with power to possess and hold, subject to former grants, property escheated or liable to be escheated. It is in effect a concession of the rights of the State to the Society which is substituted in its place, to enjoy the proceeds of such property after the right of the State is established through the forms provided by. law.

The very grant under which the plaintiffs in the second case claim this property, notifies them of the Act of the General Assembly, under which the Society prefers its rights, and provides that their claim shall be subsidiary to it, and with this express (not intimation, but) condition, they aver a *right to take,*not what may be left of Smoot’s estate after the Society receives its portion, if it is worth so much, but the whole.

The Court cannot give such a construction to the Act referred to.

It is ordered, therefore, that so much of the bill of the plaintiffs Cummings, et al., as seeks to enjoin the said es-cheator from proceedings to escheat the plantation of said intestate, and claims a partition thereof among said plaintiffs and the defendant Ann M. Young, or that they may be adjudged entitled to said proceedings, and that said escheator may be restrained from compelling an account from the said Joseph H. be dismissed.

It is further ordered that the said Joseph H. Cummings, administrator as aforesaid, account before Mr. Thomas B. Eraser, special referee by the Court appointed for these causes, for his actings and doings as such administrator, and for the rents of any real estate of said intestate by him rented or used.

It is also, further ordered, in the event that the estate of the said J. H. Smoot is found, after the payment of all debts and liabilities charged upon it, to be worth no more than the sum of fifteen thousand dollars, that the same be held by the said A. A. Fettles, escheator, for the benefit of the said Sum-terville Academical Society; if found to be. worth more, the surplus after said fifteen thousand dollars to said Society, shall *444be held for the benefit of the plaintiffs in the second canse with said defendant Ann M. Young, share and share alike. Let the costs be paid ont of the estate of Smoot.

Joseph T. Cummings, and his sisters, with their husbands, appealed, and now moved this Court for a decree in conformity with the prayer of their bill, on the grounds:

1. Because the said Joseph T., and his sisters, are entitled, under the Act of 1856, to the whole estate, real and personal, of Josiah H. Smoot, deceased; no right to said estate having ever *vested*in the Sumterville Academical Society, under the Acts constituting the charter of said society; and his Honor erred, it is respectfully submitted, when he construed the proviso to the Act of 1856, as if the word *vested*were not in it.

2. Because the grant to the Sumterville Academical Society gives *no vested right*to any particular piece of property; that, at most, it confers a mere power to possess and hold escheated property to a certain amount, and that, until possession taken, under the power, the grant is incomplete and revocable, and was, in fact, revoked, so far as it relates to Smoot’s estate, by the Act of 1856.

3. Because the grant to the Sumterville Academical Society is void for uncertainty.

4. Because, the grantee of the State must move in its own name, or in the name of its own escheator, in order to vest in' said grantee the subject matter of the grant, and if said grantee stands by, advises and consents to proceedings on the part of the escheator, appointed by the State, such proceedings enure alone to the benefit of the State.

*4455. Because, the grantee of the State cannot, by law, make the escheator of the State the trustee of said grantee. The State escheator can only move in behalf of the State; in this case, therefore, the grantee (the Sumterville Academical Society) is barred, or is precluded, or has waived its power to possess and hold Smoot’s estate by its own acts.

6. Because, the grant to the Sumterville Academical Society is void, at least to the extent of the value of property heretofore escheated or liable to escheat within Claremont county, lost to the State or its grantee, by the *laches*of said grantee, and proof on this subject should have been heard by the circuit Chancellor.

7. Because, the *proviso*(or saving clause) is *itself void,*if it should be construed as by the circuit decree, to be repugnant to the grant actually made in the *first part*of the third clause of the Act of 1856.

8. Because, testimony, as to the amount of property acquired by Smoot upon his intermarriage with Mrs. Cummings, and the value of the estate left by him, was competent in aid of the construction of the Act of 1856, contended for by the plaintiffs, and his Honor erred in excluding such testimony as irrelevant.

9. Because, if the construction put by the Court upon the Act of 1856, and the Acts constituting the charter of the Sumterville Academical Society, is correct, then said society should be charged the fall value of all property, (if there be any such) that has been lost to said Society by contract or by neglect to prosecute its rights, and having other sources to which it can resort in order to raise the sum claimed by it, should, upon familiar principles of equity, be compelled to resort to said sources; and the order of reference should *446be enlarged so as to require the referee to report what other escheated property has at any time been, or is now, liable to the claim of the said Society, and the value thereof.

*Spain,*for appellants, said, the question arises under the 6th section, Act of. Assembly, 1.837, (8 St. 456,) the 14th section, Act of Assembly, 1853, (12 St. 234,) and the 3rd section, Act of Assembly, 1856, (12 St. 578;) and is this —What right in and to *Smoot's estate vested*in the Sum-terville Academical Society, by any Act or Acts of the General Assembly ? The Society by the terms of its charter was merely clothed “ *with powei’ to possess and hold”*certain property not exceeding a specified money value. It was not *vested with title,*as in all other cases of grants of escheated property. The Act of 1805, (5 St. 507,) gives to corporations, “ full power and authority,” in relation to ceded property, to appoint their own escheators. This the Society did not, but *the State officer*began proceedings and an inquisition was returned as to the land of Smoot. The Legislature then ceded its title to the plaintiffs in *that specific estate.*The Society and the escheator say that proceedings were commenced at the instance of the Society, for their benefit. This was his imperative duty under the Act of Assembly, 1787, (5 St. 46, et seq.,) and for the benefit of the State treasury.

In this state of things was passed the Act of 1856, *vesting title*of the State to *Smoot's property*in the plaintiffs. This was a revocation of the *“power”*given the Society to “possess and hold" Smoot’s estate. Indeed, before the passage of the Act, the Society *waived*its power to possess and hold the Smoot property, standing by, as 'it did, and consenting to steps legally necessary to possession thereof, on part of the State.

But by Acts of 1837 and 1853, nothing *vested in*the Society *in Smoot's estate.*First as to the personalty. Both were *affirmative*Statutes, which, according to a legal maxim do not take away the Common Law.

*4472 Inst. 200 ; Bac. Ab., Statute (G~).

Now, at Common Law, *moveables*never escheated in the technical sense, and *upon the death intestate*of the owner, leaving no representative, the personal estate remained in England at the disposal of the crown. 4 Kent., note /, page 426. Bac. Ab. Prerog (B). Such, too, seems to be the notion in this State, if reference is had to the Act of 1787, the 8th section of which (5 St. 48,) provides for the reversion to the State of such personal estate as “ shall be found in the hands of an executor or administrator, being the property of any person heretofore deceased, or hereafter dying, .and leaving no person entitled to claim, according to the statute of distribution, *and without malting disposition of the same, the eseheator of the district where such chattels shall be found, or the Attorney General, on behalf of the State, shall*and may sue for and recover, either at law or in equity, and *pay the same into the treasury of the State? After*such payment into the treasury, the treasurer complying with certain formalities, “ *then*such personal estate shall become *vested in*and applied to the use of this State.”

Again, “ both at law and equity, the whole personal estate of the deceased *vests*in the executor or administrator.” 1 "Williams on Executors, 449.

Ex’ors., *Gregory*vs. Forrester, et ah, 1 McC. Ch. 318.

*Gill,*eseheator, vs. *Administrator*Douglass, 2 Bail. 387.

At Smoot’s death, therefore, “ leaving no person entitled to claim, according to the statute of distribution,” and without disposing by will of his personalty, the eseheator of Sumter finding Smoot’s chattels in the hands of his administrator, sued for them by bill in equity. This was done with the knowledge and at the instance of the Society. Eor whose benefit ? *“*In behalf of the State,” is the response of the statute. What right has the Court, contrary to the *expressed legislative will,*to pass an Act appropriating the fund to the Society, and away from the treasury, or the last grantor of *448the State, after its own officer had begun proceedings? The Act of 1856 *appropriated*that fund to plaintiffs, as the Legislature alone could do, under the constitution. The legal title was in the administrator, and the equitable in the State —this was assigned after its accrual to plaintiffs by Act, and they alone are entitled.

At best the grant to the Society was merely of power to “possess and hold” a *mere possibility*and was, therefore, void at common law. *Attorney Q-eneral*vs. Farmer, Raymond, 241.

A grant of goods which were not in existence, or which do not belong to the grantor at the time of executing the deed, is void, *unless*the grantor ratify the grant by some act done by him *with that view, after he has acquired the property. Lunn*vs. Thornton, 50 E. O. L. 379.

Other considerations on this head will suggest themselves as to the other head in reference to the land of the intestate —to which we now turn attention.

The King in England cannot grant lands *when they shall escheat.*“'It is *only a possibility,*and *therefore void,*and if the king grants land *when it shall*escheat, it is a *void*grant. If it shall be a good grant, it shall be of a freehold to commence *in*futuro, which the law permits not.” *Attorney Q-eneral*vs. *Farmer,*Ray. 241.

Grant by the crown of an estate, &c., forfeited, *before,*&c., *any inquisition is illegal.*Col. Leighton’s case, 2 Ver. 173. Now if the Court, per Cheves, J., in *Oity Council vs. Lange, (1*Mills, 456,) were right when they said, “We are of opinion that in all cases in this State, the relation of the State *is lihe that of the Icing*to his immediate tenants,” the law of England as quoted, is applicable on this point in all its bearings.

Other considerations then arise.

Keeping in view the “likeness.” As the grants of the king are to be construed most favorably for the king, so must the grants of the State be construed. Bac. Ab. Title Prerog (E). Hence grant of royal escheats “ shall not pass *449by general words.” (Id.) Such are the terms of grant to the Society — but not so in the grant to plaintiffs — to them the *gift*is made of a *specific*estate by name.

Again, the grant to the Society is void for “ incertainty.” Thus, Queen Elizabeth being seized of a great waste in the parish of Chipman, granted a moiety of a yard-land in the said waste to the mayor and aldermen of Ohipman, without *any certainty, name,*or *description,*and *afterwards*granted the said waste to H. It was adjudged, that the first grant *was void,*not only against the Queen, but against the second patentee, for “incertainty.” Id. In *StocMalds*case, 12 Rep. 86, an example is put, as thus, “ If the king hath one hundred acres of land in D.; and he grant to a man twenty acres of the land in D. without any description of them by the rent, occupation, or name, &c., this grant is void.” And so, in *Kelsey*vs. *Duch,*2 Ver. 684, it was held that if one possessed of a term of two thousand years in lands, grants them to A. without mentioning any term, such grant was void for uncertainty.

Failing in all this, “when the crown (or the State) is entitled, it has been questioned whether it is not necessary for an office to be found, in order *to vest*the property, *and at least the crown*(the State) *cannot, without such office, vest*any 'interest in a *third*person by grant or otherwise.” 1 Ohitty, Oren. Prac. 280. *Hayne*vs. *Bedfern,*12 East, 96. In *Evans*vs. *Evans,*(11 E. O. L. 595), “the case was of copyholder of landholder of the manor of the vicarage of Chew Magna and Lundry, convicted of larceny, sentenced to transportation, then capitally convicted of being again at large in England. Pardon before Lord did any act towards seizing the copy-hold. Per Abbott, 0. J. There is no doubt that the pardon by virtue of the 6 G. 4, 0. 25, restored the felon to his competency to hold land; but it has been properly urged that it could not *divest*an interest which had previously *been vested*in another. That introduces another question, whether after *450the forfeiture it *was necessary*that any thing should be done *by the Lord to vest*the estate in him. As at present advised, we think that *some step by the Lord was*necessary; but if upon further consideration we alter our opinion, we will mention the case again.” Per Reporter, “ The case was never mentioned again.”

In the case before the Court, the Society, pretending to be the grantee of the State of Smoot’s estate, took *no step,*authorized by law, but the *State*officer did, yet the estate is to gd to the former and not to the grantee of the estate, specifically granted by the Act of 1856. The second grant was specific, and *after*the State was properly and officially informed of the inquisition. No right of the Society was, therefore, divested, as to Smoot’s estate by the donation contained in the Act of 1856.

Come now to cases in our own books. Oheves, J., in *City Council*vs. Lange, (1 Mills, 457,) says, “ It has been determined that *the State cannot grant*escheated lands, *until office found*under the Act, and very properly, for the object of the Act is to avoid any injustice to the citizen, and therefore the State *forbears to exercise the right which the common law casts upon it, until that right is*ascertained.” How? by office found. In that respect it is analogous to the English statutes, which are the subject of construction in *Sayne*vs. Bedfern, (12 East, 96).

And in *Bodden*vs. *Speignee,*(2 Brev. 821,) which was a case of *regrant*of land, the former owner dying with heirs, the Court held the grant *void,*saying, “ If it (the land) has fallen to the State by escheat for want of heirs, *the escheat law mustieper sued,*to enable the State to dispose of it legally.”

The deductions are obvious, the foregoing principles being admitted as legal. The plaintiffs are entitled, and the decree should go for them.

If the circuit decree goes on the ground of repugnancy or inconsistency of the proviso, or saving clause, with the *451purview of the Act of 1856, then the proviso ox saving clause is void. See as authorities: Bac. Ab. Stat. (J)., the case of *Alton Woods,*1 Eep. 47. 1 Kent. 463, as to case from Bitz-gibbon, (195). “ The Reporters,” 263. *Hilton*vs. *Granville,*48 E. 0. L. 730.

The Act of 1805, was *imperative.*The Society were bound to appoint their own eseheator. Having neglected so to do, as already argued they cannot now be heard in opposition to plaintiffs’ claims. The grant to them by Acts of 1837 and 1853, were clearly for the benefit of the public; in such cases words of permission are obligatory. *King*vs. *Mayor and Jurats of*Hastings, 16 E. 0. L. 23.

*Haynsworth, Moses,*contra,

relied upon the argument contained in the circuit decree. The Act of 1853, was an assignment of an interest — a grant *in presentí,,*which vested the right. It looked to the future, it is true, and necessarily so, because of the nature of the things granted. Though the subject was not *in*esse, yet the right to it, when it would come *in esse,*was vested. The meaning of the Act of 1856 is plain. It only gives to the plaintiffs such rights as remained in the State after the claims of the Society should be satisfied. They cited *Whightman*vs. *Laborde,*1 Sp. 525; *Brown*vs. *Ghesterville Academy Society,*3 Rich. Eq. 362; 5 Stat. 507.

*J. S. G.*Richardson, in reply.

He would discuss the questions involved in the appeal, under four heads.

1. That the charter of the Sumterville Academical Society contains no grant, but only a gift *in futuro,*or promise to give, without valuable consideration, coupled with a power to possess and hold, escheated property to a certain amount within the county of Claremont, and that, until possession taken or in some way acquired under the power, the gift is *452incomplete and. revocable, and was in fact revoked by the Act of 1856.

2. That regarding the charter as containing a contract, for valuable consideration, still it confers, before possession taken with permission of the State, no vested right to any particular escheated estate.

3. That if the charter be construed to contain a grant, then the grant is void for uncertainty.

4. That the word vested, used in the proviso to the Act of 1856, was used in its proper technical sense, and that the Act was intended to divest the Society of all right to Smoot’s estate, which had not'at the passage of the Act become vested, that is, fixed, determined.

1. The Acts constituting the charter of the Society, create it “with power to possess and hold” escheated property “to an amount not exceeding fifteen thousand dollars.” Not a single word indicating an intention to vest title in the Society, by the mere terms of the charter itself, is to be found in it. The terms, give, grant, bargain, sell, release, confirm, alien, assign, transfer, set over, vest the right, title or estate in, some of which are to be found in every grant, are none of them here. The only words are “ with power to possess and hold.” These are not words of immediate gift — of a gift *in presentí.*They look to the future. The gift is inchoate — something is to be done to make it complete — and that is, the Society is to take possession — it must execute the power. The Legislature may, it is true, grant a possibility or an expectancy, though such grant is contrary to common law; but it will hardly be presumed that the Legislature intended to make such a grant in the absence of express and clear words to that effect. The presumption should be that *453the Legislature intended to conform to the rules of the common law. Construe the Act according to its terms, that is, as a gift *in*futuro, with power to take possession, and the consistency of the law is preserved. There was clearly no consideration; for a promise to give money to build a school house is no more binding in law than any other promise. Then was it revocable before possession taken ? Clearly it was. Suppose a father were to write to his son: *“*Co to my plantation and take possession, of ten negroes, such as you may choose, and hold them for your own use;” would there not be a *locus penitentice, f*Might not the father revoke the gift before possession taken ? Might he not at any rate revoke it so far as to prevent the son from taking possession of a particular family of negroes which he wished to reserve to himself, or give to another ? And is not that the case here ? “If the gift does not take effect by delivery of immediate possession, it is then not properly a gift but a contract, and this a man cannot be compelled to perform but upon good and sufficient consideration,” 2 Bl. Com. 441; 2 Kent, 488. “ There is no case in which a party has been compelled to perfect a gift, which in the mode of making it he has left imperfect. There is a locus *pcenitentice*as long as it is incomplete. * * * To make a complete gift there must not only be a clear intention, but that intention must be executed and carried into effect;” *Ootteen*vs. Missing, 1 Mad. Rep. 395. The obligee voluntarily gave the obligor an order on his agent to deliver to him the bond. This was intended as a gift. The order was presented by the obligor, but the agent refused to deliver the bond, and after the death of the obligee delivered it to his administrator who brought suit against the *obligor:*— Held, that the gift was incomplete and could be revoked, and that the taking possession by the administrator and suing upon the bond amounted to a revocation. *Picott*vs. *Sanderson,*1 Dev. 309. So we say here. The gift was incomplete — it was *in fieri*— no possession had been taken *454•when the Act of 1856 was passed — no right had then vested in the Society, and that Act was a revocation of the gift, so far as it might he held to relate to Smoot’s estate. This case is stronger than any to he found in the books, and stronger than the illustration of the gift to a son which has been put in the argument, for here the gift was not only by the terms used clearly *in*futuro, but was, *ex*necessitate, *in*futuro, from the very nature of the rights given — rights not *in esse*— mere possibilities. But again, there is no gift of property — that is, of lands, goods and chattels. The words are, “property to the amount of” (not to the value of) “ fifteen thousand dollars.” The use of the word ‘ amount,’ instead of value, shows plainly the intent. The gift was intended to be not of the property itself, but of the proceeds — money'arising from the sale. If the charter were paraphrased so as to express its true meaning it would read thus, “ when an amount, not exceeding fifteen thousand dollars shall be raised from es-cheated property, &c., the Society shall be entitled to receive the same, &c.” This is the true meaning of the Act, and the Society itself so construed it, else why did it apply to the escheator to proceed under the Act in relation to escheats ; and if this be the true meaning, is it not-too clear for argument that the title remained in the State. Two cases have been referred to ; *Brown*vs. *The Ghesterville Academy Society,*and *Whightman*vs. *Laborde,*as conclusive of this. It is énough to say that no question presented in this case was considered or adjudged in either of those, and that in both those cases the Societies claimed under words of immediate and direct gift, plainly and clearly expressed.

■ 2. Suppose the case to stand upon the footing of contract for valuable consideration, still the charter confers no right to any particular estate. In that view it is a contract that the Society shall have power to possess and hold escheated property to a certain amount. Let the word ' amount’ be *455construed value, still the Society lias no right to take Smoot’s estate without the consent of the State. A. binds himself to sell to B. real estate of the value of fifteen thousand dollars lying in Claremont. B. cannot lay his hands on this or that parcel of land, and say I will take it at so much. That is clear, and it is well settled that even a bill will not lie to enforce such a contract. Story Eq. § 1249. A. upon his marriage covenanted to settle lands upon his wife of the value of sixty pounds per *annum:*— Held, that no lands were specially bound, and that the wife could only come in as a creditor; *Fremoult*vs. Dedire, 1 P. Wms. 429. The remedy of the Society is to petition the Legislature for the proceeds of Smoot’s estate when sold, and if the Legislature has given the estate to others (as it has done) then the Society may have a moral right (that is, upon the assumption that it claims under contract for valuable consideration) to have the “ amount” of the estate paid from other sources.

3. It is'said that the charter contains a grant. If so, it is void for uncertainty. Most of the authorities on this point have been already cited. The principle seems to be, that public grants are to be construed strictly, in favor of the grantor “because most grants proceeding from the application of the subject, they ought to know what they ask; and if that do not appear, nothing shall pass from the king by reason of the incertainty.” Bac. Abr. Prerogative (E) 3. In *Stoclcdalds*ease the grant was of “ such *debts,*&c., being of record” in certain Courts, *“ as shall amount to the sum of a thousand pounds."*This was held “void for the incertainty, for by the grant no debt in certain may pass.” The principle would seem to be even more strongly applicable to public grants in this country than it is to royal grants in England, for there the king is the owner of the thing granted, while with us a public grant is always made by some power vicariously exercised.

*4564. It seems clear from the context of the Act, and would be most manifest if the evidence as to the value of Smoot’s estate had been received on circuit, that the word *vested*in the proviso to the Act of 1856, was used in its proper, technical sense, that is fixed in, determined, secured to with certainty. Smoot’s estate is not worth more than ten thousand dollars, and if the Legislature was informed of that fact, and it is hardly to be presumed that it was left in ignorance of it, then the word vested must have been used in its strict, technical sense. 'Will it be presumed that the Legislature made a grant, knowing at the time that nothing could pass to the grantees ? Should it not rather be presumed that the Legislature intended to deal fairly with the parties and not deliberately to deceive them by using words in some out-of-the-way and jesuitical sense — no one knows what. The reason that the proviso was inserted is obvious. It might appear upon judicial inquiry that the Society liad taken possession, and thus had become invested with the right. It was this right that the Legislature declined to interfere with. Any supposed right which the charter alone conferred was intended to be taken away. That is the true construction of the Act.

(a)

**8 Stat. 456.

(a)

**12 Slat. 234.

(b)

12 Stat. 578.

(a)

5 Stat. 507.

The opinion of the Court was delivered by

Johnston, Ch.

The Court has considered this appeal, and is of opinion that the decree should be affirmed.

Manifestly there is nothing in the ground that the Sumter-ville Society, instead of appointing its own escheator, proceeded through the agency of the State officer. The power to appoint was a privilege merely, and not a condition. Besides, it may be affirmed that the Society’s selection of the State officer was an appointment of him as its own officer to the duties they required him to perform. And were all these considerations waived, yet as the State makes no claim, *457the contest between the claimants before the Court, may well be decided without reference to the agency through which the property is to be escheated.

The force of the argument is not perceived: — that such an interest as the Act of the Legislature professed to confer on the Society cannot pass by grant, being future, contingent and uncertain as to the subjects out of which it is to arise, and therefore the Act vests nothing in the Society, until possession taken.

Let it be conceded, that the incidents of a grant, by prerogative, are all truly stated in these objections; does it follow that it is incompetent for the Legislature, by statute, which is, of itself the law, to dispose of any part of the State’s property upon what terms it pleases, provided there be no breach of the constitution ?

It is not necessary to inquire whether the interest conferred upon the Society was technically of a vested character, or whether, if it was not, it was competent for the Legislature to take it away, by giving the whole property to another. The Legislature has not attempted to exercise such a power if it possesses it. What it has done was to confer its own interests upon third persons, subject to whatever rights it had already conferred upon the Society. The word *vested,*employed in respect to the rights of the Society, is plainly used in a popular sense, as is manifest from the whole clause taken together; as well that part of it relating to the distri-butees of Mrs. Smoot, as that which relates to the Society.

As to the objection that the Society by neglecting to enforce its rights in former cases of escheated property has •forfeited its rights to the extent of the property thus lost; is there any thing in the statutes compelling it to take its remedy out of the first property which presented itself? Is not the authority plainly conferred, to take the remedy out of whatever escheated property it might select, provided it should not raise more than the amount limited in the Acts ?

*458In modification of the order made, occasion is taken under the ninth ground of appeal, (with the assent of appellee’s counsel) to order that the special referee inquire whether the Society has already received the amount warranted by statute, (leaving it undetermined until the report comes in whether it is entitled to both the sums of ten thousand dollars and fifteen thousand dollars, or only the latter;) or what amount it has received, and what it is still entitled to receive. In all other respects the appeal is dismissed.

Dunkin', Dargan and Wardla-w, 00., concurred.

*Appeal dismissed.*