#### *George Brown*vs. *The Chesterville Academy Society and others.*

The 10th section of an Act of the 18th December, 1818, incorporated the C. A. Society for 21 years, and the 11th section vested in the corporation escheated property to a certain extent: a clause in an Act of 1846 enacts, “ that the Act passed on the 18th December, 1818, incorporating the C. A. Society, be revived and continue in force for the period of 14 *years*— Held, that by the Act of 1846, both the 10th and 11th sections of the Act of 1818 were revived.

An Act of tire Legislature vested in a corporation “ all such property as hath heretofore, or may hereafter *acme*to the State,” in Chester district, which by the Act to regulate escheats “ hath escheated to the *State*— Held, that the corporation were entitled to property which escheated after the passing of the Act.

*Before*Dargan, Ch. *at Chester, June, 1850.*

This case will be understood from the circuit decree, which is as follows.

Dargan, Ch. James M. Egger was a person of illegitimate birth. He was possessed of a personal estate. He died in 1842, intestate. There being no person who could claim as his next of kin, his estate escheated or reverted. The administration of the intestate’s estate has been granted to William Kirkpatrick, who is a defendant. There are two parties claiming this estate as escheated property, by virtue of grants from the State, namely — the Chesterville Academy Society and the complainant. The Chesterville Academy Society was incorporated in 1818, (8 Stat. 296-7). And the same Act by which the Society was incorporated, provides,' “ that all such property as hath heretofore, or may hereafter accrue to the State in said district of Chester, on account of property which by an Act entitled *“An*Act to appoint Escheators and regulate escheats,” *hath escheat-ed*to the State, — provided, the same do not amount to more than three thousand dollars, shall be, and the same is hereby vested in the said corporation, for the use of the Chesterville Academy, and the said corporation is hereby vested with all the powers necessary for receiving said property, and for dis*363posing of the same for the benefit of the said Academy: *Provided,*nevertheless, that such escheats shall not affect any citizen or friendly alien, but that in all cases such citizen or friendly alien, shall have liberty to plead the statute of limitations in all proceedings under the existing laws regulating escheats, in like manner as the said statute may now be pleaded in actions between citizens of this State.” The charter was to continue of force for twenty-one years. It therefore expired in December, 1839. In 1846, in the general corporation Act of that session, it was enacted *“*that the Act passed on the 18th day of December, 1818, incorporating the Chesterville Academy Society, be revived and continue in force for the period of fourteen years.” (11 Stat. 397). By an Act of 1847, (11 Stat. 438) all the right, title and interest of the State, in and to the estate of James M. Egger, late of Chester district, in the hands of William Kirkpatrick, administrator of the said Egger, was declared to be vested in George Brown, and his heirs forever. Prom these various Legislative Acts, arise the conflicting claims of these parties.

In some of the Acts granting escheated property to educational institutions, the State has reserved a power of otherwise disposing of the property, in case any strong equitable claim should be presented. And it has been argued that such must be the construction of the grant in this case, under the proviso, *“*that such escheats shall not affect any citizen or friendly alien.” I am of a different opinion — I think that the proviso was to enable citizens and friendly aliens to plead the statute of limitations.It was intended to obviate the maxim, *“nullum tempus oecurrit regiP*It evidently means this and nothing more. This maxim had been incorporated in the Act to regulate escheats, except as to lands claimed under grants or actual possession for five years prior to the 4th of July, 1776. (7 Sect. Act 1787, 5 Stat. 48).

It will scarcely be doubted that on the expiration of the first charter of the Chesterville Academy Society, in 1839, all its rights under the grants of escheated property ceased. And it is equally clear, that if the Society has any rights of that kind, it must be under the revival of the charter in 1846. That Act *364simply revived the old charter for 14 years. It is silent as to any grant of escheated property.

We -will recur to the charter of 1818. The Act incorporating the Society is found in the general incorporation Act of that year. The 10th section of that Act (8 Stat. 296) enacts, “ that the members of the Chesterville Academy Society, and those persons -who may hereafter become members thereof, be and the same are hereby declared a body politic and corporate, in deed and in law, by the name and style of the Chesterville Academy Society.” That is the Act of incorporation. What follows in the 11th section is a grant to the corporation thus created, of escheated estates in Chester district, under certain conditions, but is no part of the Act of incorporation. The Society was a perfect corporation without it. Then follows the Act of 1846, which enacts, *“*that the Act passed on the 18th day of December, 1818, incorporating the Chesterville Academy Society, be revived and continue of force for the period of fourteen years.” What is here revived ? In the judgment of this Court, it is that part of the general incorporation Act of 1818, *incorporating the Society,*and not that part of it which grants escheated property.

There is another view of the case which strikes me with considerable force. The language of the 11th section is peculiar. What is the extent of the grant ? It is, “ all such property as hath heretofore, or may hereafter accrue to the State in said district of Chester,” which, by the escheat' laws, “ hath escheated to the State, provided,” &c. It gives ' the property “ which hath heretofore or may hereafter accrue,” but not that which hath or may hereafter escheat. When the Act speaks of property accruing, the provision is both prospective and retrospective. When it speaks of property escheating, it seems only to grant that which hath escheated. The clause might read thus:— All the property that has or may accrue to the State on account of property which has escheated, is vested, cfcc. Whence these studied distinctions of language ? It may be that the Legislature intended to limit the grant to property which had already escheated, and to which the State had an inchoate right; but *365which would not accrue to the State, or become perfect and vested until after office found. The language is so different from that employed in other grants of escheated property for similar purposes, that I am inclined to think there is a meaning in the apparently studied form of language, in which the grant is expressed. In all the other Acts of this kind, which I have examined, the language is simple, and the property that has escheated or may escheat is granted.

It is ordered and decreed, that the defendant, Kirkpatrick, account for, and pay over to the complainant, the estate of the said James M. Egger. It is also ordered and decreed, that the costs be paid out of the funds of the estate of the said intestate.

The Chesterville Academy Society appealed, on the following grounds.

1. Because the Act of 1846, reviving the Act of 1818, incorporating said society, revived the whole of the latter Act, and not a part thereof; and the decree deciding that it was only revived in part, is erroneous, and ought to be reversed.

2. Because it was manifestly the intention of the Act of 1818, 'that said society should receive all property which had escheat-ed, and all property which might escheat after the passing of said Act, until said society had realized the sum of three thousand dollars; and the decree of the Chancellor is, therefore, erroneous in deciding that it was property only which had escheated anterior to the passing of said Act that vested in said Society.

*Gregg McAlilly,*for appellants.

*Williams,*contra.

Johnston, Ch.,

delivered the opinion of the Court.

The 10th section of the general corporation Act of 1818,(a) incorporates the Chesterville Academy Society for twenty-one years; and the 11th vests in them escheated property to the extent of $3,000.

A clause in the general corporation Act of 1846,(b) enacts *366“ that *the Act,*passed on the 18th day of December, 1818, incorporating the Ohesterville Academy Society, be revived, and continue of force for the period of fourteen years.”

It has been contended, that without a revival of not only the 10th but the 11th sections, the right granted to the Society in the escheated property, was lost to them.

I do not mean to assert that this position is erroneous, — because the point has not been argued. But, in my opinion, it is far from clear. By the expiration of their corporate existence, — by the efflux of their charter, the society certainly lost their corporate capacity; and so were disabled as a corporation from enforcing a remedy against persons who might interfere with then-property or rights. But is it true, that upon the cessation of their charter, all the property and rights of a corporation became lost to them *1*May it not be that they are rather suspended, for want of capacity to assert them : and that they are re-instated by the mere revival of the corporation ? Does not the revivor prevent a breach of continuity in the charter.

But the investigation of this point is unnecessary, because, in my opinion, the reviving statute applies not only to the 10th but to the 11th clause of the Act of 1818.

If the words of the statute of 1846 are to be applied according to their literal meaning, neither the 10th nor the 11th clause is revived. That statute professes to revive an Act of a particular date by the title of an Act incorporating the Ohesterville Academy Society. But no such Act exists, or ever existed. The only Act of that date, relating to corporations is an Act for incorporating sundry societies. Of these the Ohesterville Academy Society is one. *We*must therefore apply the words of the reviving statute to that Act. But we have no more right to restrict the phraseology of the reviving Act to the 10th clause of it than to apply it to every clause in it. Indeed, a literal construction would compel us to say that the whole Act was revived ; and every society mentioned in it re-incorporated.

This, however, was clearly not the intention of the Legislature, and we are therefore forbidden to adopt a literal construe*367tion. The Act, of 1846, was manifestly intended to apply to only so much of that of 1818 as related to the Chesterville Academy Society. But having arrived at this conclusion only hy means of a free construction ; are we warranted in re-adopting a narrow construction, for the purpose of limiting the revivor to the clause by which the society was given a corporate character, leaving out another clause by which further privileges were conferred upon it? I think not. Both the clauses in question are to he considered as clauses relating to the incorporation of the society; and are both revived.

Upon the other view suggested in the decree, I am equally clear. The words relating to vesting escheated property are clearly not employed with a studied reference to grammatical rules. “ Hath escheated” has not reference to time preceding the enactment, but is used loosely in reference to the accrual of the right, intended to be vested in the corporation.

It is ordered that an account be taken of the value of escheat-ed property already received by the Chesterville Academy Society ; and, if found to be less than they were entitled to receive under their charter, that John L. Harris, administrator *de bonis non*of James M. Egger, and Reubin Cassels, administrator of William Kirkpatrick, former administrator of said Egger, do account for the assets of said Egger’s estate, and, according to the amount thereof chargeable to them, respectively, in a due course of administration, apply said assets towards making Up the amount of escheated property to which said Society (taking into computation what it may have already received) is by its charter entitled.

The costs to be paid as directed by the Chancellor’s decree now under view.

Dunkin, Dargan and Waedlaw, CC. concurred.

*Decree*modified.

(a)

8 Stat. 296-7.

(b)

11 Stat. 397.