delivered the opinion of the court.
Henry Webster, an alien, and subject of Great Britain, brought his writ of entry in the Circuit Court of the United States for the District of Maine, to recover possession of a parcel of land described in the count. He claims title under a will ■of Florentius Vassall. At the trial, the parties agreed on the following facts:
“ It is agreed, by the parties, that the following statement of facts is true, namely, that the demanded premises belonged to the proprietors of the Kennebec Purchase, and were by them duly granted аnd assigned to Florentius Vassall, one of the proprietors in fee, in the year 1756, being included in the grant recorded in the records of the proprietary.
“ That Florentius Vassall made his will September 20th, 1777, and died at London, 1778, seised of the lands in question, they then being unoccupied wild lands. The will was afterwards •duly proved in the Prerogative Court of Canterbury, September 14, 1778, a copy of which will, with its exemplifications, ’ has been duly filed and'recorded in the Probate Office for the county :of Kennebec; which will wаs offered in evidence, as copied, and makes a part of this case. (C.)
“ Richard Vassall, named in the will, died about 1795, leaving only one .child, Elizabeth Vassall,1 who married Sir Godfrey Webster, deceased,’ about the first day. of January, 1793, by whom she had issue, two sons, namely, Sir Godfrey Vassall Wtebster, who died ip the lifetime of said Elizabeth, without issue, and Henry Webster, the demandant. 1 Said Elizabeth, afterwards, namely, in January, 1796, waS legally divorced from her husband, the said Sir Godfrey Webster, and on the first day of July, 1797, she was legally joined in marriage with Richard Henry Fox, afterwards Lord Holland, by whom she had issue, one son, Henry Edward Fox, who is now living. All charges upon the land devised have been satisfied, and they are not now subject to apy life estate, estate for years, or outstanding terms, under the'will. Said Lord Holland died on the-1841; said Lady Holland died in' the fall, of the year 1845. The'persons named in said will as devisees in remainder, after the failure of -the issue of said Elizabeth, or their lineal descendants, are now living in England, as is the said. Henry Edward P'ox, son of said ’Elizаbeth; That said. Florentius Vassall, was, at the time of said grant, a resident in Boston, State of Massachu *497 setts; that he, on or before the year 1775, left his said residence, went to England, and never returned; and that neither he, nor any of the devisees named in said will, have ever resided within the limit's of the United States since that time. The premises demanded, being the matter in dispute, are of greater value than two thousand dollars.
“ The tenant, and those from whom he legally derives title xo said demanded premises, havе been in the quiet, undisturbed, open, notorious, and • exclusive possession and occupation of said premises for and during the term of fifty years next preceding the. commencement of this action, he and they claiming to hold the same adversely to any claim of said demandant, 'or any other person, as his and' their own property in fee-simple.”
These facts, together with the will of Florentius-Vassal], made the case. By this will the testator devised three plantations in Jamaica, and аll his lands in New England, (which included the demanded premises,) to Lord Falmouth, Lord Barr rington, and Mr. Charles Spooner, and their heirs, to the uses, upon the trusts, and for. the intents and purposes, and with and subject to the powers and provisos therein expressed. The will then proceeds to declare, in respect to all the lands in New England, as follows: To the use of my son, Richard Vassall, for and during his life, and from and after the determination of that estate by forfeiture, qr otherwise, during his life, to the use of the three trustees during the life of Richard Vassall, in trust to preserve the contingent uses and estates thereinafter mentioned, and for that purpose to make entries and bring actions as occasion shall require, but nevertheless to permit Richard Vassall to take the rents of the premises to his own use during his life. The testator then declares ■ the remainder, after the death of Richard, to be to the use of the son and sons of Richard, to be equally divided between them, share and share alike, as tenants in сommon, and not as joint tenants, and to the several and respective heirs male of the bodies of such sons, with cross remainders among them; and in default of such issue male of Richard, subject to a term of years, which it is agreed is not outstanding, to the use of Elizabeth Vassall, the daughtér of Richard, for her life, with remainder as before stated to the trustees for the life of Elizabeth to preserve contingent remainders, in case of forfeiture of her life estate; and then-follows .the provision under which the demandant claims title, which is therefore given in tne words of the will. “And from and-immediately after the decease of the said Elizabeth Vassall, to the one or all and every the son and sons of-the said Elizabeth Vassall, to be.heaotter to be divided between or amongst' such sons, if more tiian one, share and, share alike, and they to take *498 as tenants in common, and not as joint tenants, and thé severa and respective heirs male of the body and bodies of all anc every such son аnd sons issuing.” Then follow remainders to the other daughters of Richard, as tenants in common in tail general, with cross remainders; remainder to the daughters of Elizabeth Vassall, as tenants in common in tail general, with cross remainders, —- with successive remainders to George and Richard, and William Barrington, testator’s grandsons, for life; remainder to their sons, as tenants in common-in tail male; remainder to testdtor’s granddaughter, Louisa Barrington, for life, and her sons in common in tail male ; remainder to her daughters, as tenаnts in common in tail general; remainder to testator’s daughter, Elizabeth Barrington, for life ; remainder to -her other sons “ in tail male successively;” remainder to her future daughters, as tenants in common in tail; remainder to testator’s nephew May, for life ; remainder to his sons in common in tail male; remainder to his daughters in common in tail; remainder to the minister and wardens- of Westmoreland, &e.
These are the most material provisions of the will of these lands, and are sufficient to show its- general structure, -in refеrence to the questions which have been made concerning its legal effect.
The first of these question is, whether, by force of the will, the demandant took any, and if any, what legal estate in these lands on the decease of his mother, Elizabeth Vassall.
It is'insisted, by the tenant’s counsel, that the '.trustees took the legal estate in fee simple, and that the estates limited to Richard Vassall for life', and to the others, byway of remainder, were only equitable estates, and consequently the demandant cannot maintain this action.
But whether we look to the evident intent of the testator, or to the settled technical meaning of the language he has employed, we think it clearly appears that the life estate of Richard Vassall and the contingent remainders limited thereon were legal estates, and that the trustees did not hold the fee-simple under this will. The instrument was drawn in England, evidently by a skilful draughtsman, and is in .strict conformity with well-known precedents'. It employs technical' language with aсcuracy, and all the various provisions of the will, though numerous and complicated, compared with the usually, simple testamentary dispositions of property in this country, .are capable of' being clearly understood and fully executed. The. substance of the devises of these lands, may be stated to be: to tbe trustees and their heirs to the use of Richard for life, remainder, for his life in case of forfeiture, to the trustees to preserve contingent' remainders ; remainder to the sоns of Richard, if any, as tenants in common *499 in tail, with cross remainders; remainder to Richard’s daughter Elizabeth for life; remainder to trustees to preserve contingent remainders during her life; remainder to the sons of Elizabeth in tail, the demandant being the elder of her two sons.
A
devise to the trustees and their heirs to the uses mentioned, carries the legal estate to the
cestuis que
úse, unless the will has imposed on'the trustees-some duty, the performance of which requires the legal estate to be vested in them. And in that case they would take an estate exactly commensurate with the exigencies of their trust. Morrant in Gough, 7 B. & C. 206; Kenrick
v.
Lord Beauclerck, 3 B. & P. 178; 10 Bythewood on Con. 214; Jarm. on Wills, 198-9; Nielson
v.
Lagow,
The testator has not imposed on the trustees any duties, connected with these lands, which in any way interfere with the existence of legal estates in the different beneficiaries named in the will. On the "contrary, the sole duties to be performed by them, in reference to these lands, are to take the life' estates, in case of forfeiture, and hold thеm, so that the future remainder-men may not be -deprived of the legal estates limited fo them by way of contingent remainders, which require the preservation of the particular estates .to support them.
Whether the trustees took and held any legal estate in either of the plantations in Jamaica, it is not necessary to determine. It was arguéd that .they did, because they have some duties to perform concerning two of them, and that the testator employs the same language in dеvising these two plantations to the trustees, as he does in devising the lands in New England. But it by no means follows that the same words devising to trustees two parcels of' land, must necessarily vest the legal estates in both parcels in the trustees, because they take a legal estate in one of those parcels. They may take a. legal estate in one, because subsequent parts of the will require them to do -acts in reference to it, which can be done only by the holder of the legal estate, and then the law assigns to them such an estate as the' due execution of their trust demands; while at the same time, by force of the statute of uses, or of wills, the other land, as to which no duties are required-'of the trustees* goes to the cestuis que use..
So far as this will operates on the lands in New England, there-is nothing, to prevent the usual and settled operation of ,a devise to uses, which is, to vest the legal estate in the cestuis que use;. and it is placed beyond all doubt that it was not intended the trustees should hold the fee, because there are express limitations of life estates to them to preserve contingent remainders, which would be wholly-inoperative if they took the *500 fee, and is sufficient of itself to control any doubtful intent, according to Doe v. Hicks, 7 T. R. 433; Curtis v. Price, 12 Ves. 100.
Oar conclusion is that the legal estates in the New England lands, were'to go to the beneficiaries named in the will.
It is further urged by the tenant’s counsel, that the legal effect of the devise to Elizabeth Vassall for life, remainder to her sons, as tenants in common, share and share alike, and-to the heirs, of their bodies, gave an estate tail to Elizabeth Vassall, under the rule in Shelly’s case, whiih was in force in Massachusetts, within whose limits these lands lay at the time this will took effect. There is no doubt this rule made part of the law of Massachusetts until the 8th of March, 1792, when it was abolished by statute, so far as it respeets wills. Bowers
v.
Porter,
Here the life estate is limited to Elizabeth Vassall, and the remainder to her sons as tenants in common, share and share alike, and the heirs of their bodies. The fee tail is not limited to the heirs in tail of the first taker. The heir in tail was this .demandant; and the remainder is not limited to him, but to him' and his brother, as tenants in common. It is not a question, thereforе, whether the same persons shall .take by descent or purchase, which alone is the matter determined by the rule in Shelly’s case; for the two sons could not take an estate tail from their mother as tenants in common. They must take as purchasers, or not take-at all; and there is no rule of law which forbids such a devise, nor can the rule in Shelly’s case be applied to it. On the contrary, it is well settled that a limitation by way of remainder to the sons of the first taker, as tenants in common, manifеsts the intent of the testator that the ancestor should not take an estate in fee or in tail, and that, the sons may and do take as purchasers; Doe v. Burnsall, 6 T. R. 30; Burnsall v. Davy, 1 B. & P. 215; Gilman v. Elvy, 4 East, 313, Doe v. Collins, 4 T. R. 294; 4 Greenl. Cruise, 389.
Our opinion is, that upon the decease of his mother, this demandant took, as a purchaser, an estate tail in one moiety of these lands, as a tenant in common with his brother.
It was objected that the devise to him was upon the condition chaj; as soon as he should come into the actual possession of the lands devised, hе should take and use the surname of Vas
*501
sail; but it is enough to.say that he'does not appear'to have yet come into such actual possession, and that if this condition subsequent were broken, only the person to whom the lands are devised over can by an entra take advantage of it.. Taylor
v.
Mason,
Under the Revised Statutes of -Maine, c. 145, § 13, the demandant may recover according to his title, provided he has a right of entry; and this raises the only remaining question, whether he has such a right, or whether it is barred by an act of the Legislature of Maine, passed on the-eleventh day of August,-1848, which is as follows:
.An act, in addition to the one hundred and forty-seventh chapter of the Revised Statutes.
See. 1. No real or mixed action for the recovery oí any lands in this Tstate shall be commenced or maintained against any person in possession of such lands, where such person, or those under whom he claims, have been ■ in actual possession for more than forty years; and 'claiming to hоld the same in his or their own right, and which possession shall have been adverse, open, peaceable, notorious, ahd exclusive.
Sec.. 2. This act shall take effect at the end of one day, from and after its approval by the governor.
This action was commenced on the fourteenth of April,' 1846, and, consequently, had been pending' upwards of two years, when the above act was passed. The inquiry is, what is its effect upon this action, and- the title of the demandant ? That •it was intended to. be retrospective, and to- bar a recovery in actions then pending, upon proof of such, seisin by the tenant as the act describes, is plainly indicated. Under the constitution of the State of Maine, can it so operate ? To determine this question, it is necessary to take into view the legal rights of the demandant“ and tenant, when this act was passed, and the change in those rights attempted by the act.
The dernandant, on the decease of his mother, in 1845, became constructively seised of- an • estate tail, and had a right of entry into these lands. The actual seisin of the tenant and those under whom he claims, though adverse to all persons having estates in possession under the will of Florentius Vassall, for a period óf time sufficient to bar their right of entry, did not become adverse as against the demandant, until he acquired an estate-in possession, by the decease of his mother; and, consequently, when he brought this action, he was lawfully entitled to one- moiety of the land, as .tenant in tail, having an estate of inheritance which he could convey by deed, and upon which, being disseised, he could maintain a writ of entry. In other words, *502 the land was his property, and, as such, he had a right to recover and hold it. Rev. Stat. c. 147, § 3.
Thé effect of the act is, to make the seisin of the .tenant, and of those under whom he claims* adverse as against.thé demand-ant, during the time he had no right of possession, and thus to deprive him of his right of entry, and destroy his estate in the •land. The actual opеration of this law upon the demandant’s title, would have been expressed in words, if it had been said in the statute that, whereas, up to that time an actual wrongful, seisin had been by law adverse only against those having estates ’in possession, and so, those coming’ in by way of remaindér, were.well entitled to theland, however long that actual ’wrongful seisin might have been continued; yet, thereafter, those who have come in by way ...of remainder, shall, not be deemed entitled to the land, because such аctual seisin shall be taken to be adverse as against them, and they, shall not be allowed to maintain an action for the recovery of the land to which they had lawful title when the action was brought. It is only by” giving this construction to the law, that it can.be made to operate at all, on the demandant’s title.. It requires a possession for forty years, “adverse, open, peaceable, notorious, and exclusive.” Adverse to whom ? Exclusive of whom ? If adverse to, and exclusive of, the demаndant, who came into the title by way of remainder, less than three years before the act was passed, then, according to the’ law of the State existing down to the passage .of the act, no aptual wrongful seisin could be adverse to him until he had an e,state in the land entitling him to its possession. But we cannot suppose this law meant to enact, merely, that forty years’ exclusive and actual seisin should bar an action by one having title to the possession during the' whole of that period, because, by the Revised Statutes, (c. 147, § 1,) twenty years yvas^ sufficient; and, therefore, we are forced to conclude, that the intention of the legislature was, to make an actual seisin, for forty years, sufficient to destroy a title which had become vested, by way of remainder, before the act was passed, and which'was a valid'title by the .then existing law.
Under the constitution of the State of Maine, as expounded by the - highest court of thar State, is it in the-power of the legislature to pаss a retrospective law, thus operating to destroy ati.estaté in lands ?
Wfe think this case not distinguishable from the case .of the Proprietors of the Kennebec Purchase, v. Laboree et al. 2 Greenl. Rep. 275. That was a writ of -entry to recover a tract of land. The. principal question was, whether an act of the legislature concerning disseisin, was valid in its retrospective operation. Prior to the passage of this act an entry under a *503 deed, duly registered, which described a trаct of land by rhetes and-bounds, and actual possession of a .part of that tract, operated, by the law of Maine, as a disseisin of the true owner of the whole tract described in the deed.. But- an entry, without such a deed, gave seisin, as again ét the owner, only of so much of the land as was actually occupied; and this occupation was required to be equivalent to what'is figuratively described in the common law as pedis possessio; that is, open, notorious, and exclusive, such as at once to give notice to all, of the nature and extent of the possession and claim," and show the exercise of the exclusive dominion over the land, and the appropriation of it to the use and benefit of the possessor. This being the state. of the law w.hen the action was brought, a law was passed, one section of which was in these words:
“ Be it further enacted; that, iu any writ or action which has" been, or may hereafter be brought, for the recovery of any lands, &c., it shall not be necessary for limiting the demandant and bar-' ring his right of. recovery, that the premises defended shall have-been surrounded by fences, or rendered inaccessible by other ob-. structions; but it shall be sufficient if the possession, occupancy, and improvement thereof, by the defendant, or those under whom he claims, shall have been open, notorious, and exclusive, comporting with the ordinary managements of similar estates in the possession and occupancy of those who have title thereunto, or satisfactorily indicative of such exercise of ownérship as is usual in the .imprcvement of a farm by its owner; and no part of the premises demanded and defended shall be excluded from the operation of the aforesaid limitation, because, such part may be woodland or without cultivation.”-
The Supreme Court of Maine held, chat so far as this, act attempted to change the law of disseisin in respect to titles ex-isting when.it was passed, the act was inoperаtive and void, because in conflict with the constitution of that State. The opinion of the court, delivered by Mellen, Chief Justice, contains an elaborate arid searching analysis of the subject, and it is evident, that learned court considered it with all the care, demanded by a question of so much delicacy and importance, and brought to its adjudication sound principles of constitutional jurisprudence The principles of this decision have been “recognized in subsequent cаses, (Oriental Bank
v.
Freeze, 18 MainRep. 109; Austin
v.
Stevens,
According to this decision, .the act now in question is inoperative, as respects this action, and the demandant’s title, on, which it is founded. For, unless by a retrospective operation it subjects his title to the government of a new law of disseisin, which, in effect, transfers his property to thе tenant, it can have no operation; and whether such an effect can be produced, by an act of the Legislature of Maine, under the constitution of that State, was the precise question adjudicated by the Supreme Court in the case referred to, which adjudication we understand to contain amestablished principle in the fundamental law of that State.
The thirty-fourth'section of the Judiciary Act, (1 Statute at Large, 92,) as well as the rule sf general jurisprudence, as to the оperation of the
lex loci
upon titles to land, requires us to determine this case according to the law of the State of Maine. In ascertaining what that law is, this court looks to the decisions of- the -highest court of that State; and where the question turps upon the construction to be given to the constitution of the State, and we find a construction made by the highest State Court very soon after the constitution was formed, acquiesced- in by the people of the State for nearly thirty years, and xepeatedly confirmed by subsequent judicial decisions of that court, we cannot hesitate to adopt it, and apply it to this case, to which, in-our judgment, it is justly applicable. Such has been the uniform course of this court. McKeen v. Delancy’s Lessee, 5 Cr. 22; Polk’s Lessee
v.
Wenda
ll, 9
Cr.
87;
Gardner
v.
Collins,
In conformity with these principles, we are constrained- to. *505 hold the law now in question to be inoperative upon the demand-ant’s title, and consequently, that he is not barred by it from maintaining this action.
The judgment of the Circuit Court must be reversed, and a venire de novo awarded.
Order.
This cause came on to be heard on the transcript of the re» cord from the Circuit Court of the United States for the District of Maine,- and was argued by counsel. On consideration whereof, it is now here ordered and adjudged, by this court, that, the judgment of the said Circuit Court in this cause, be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to award a venire facias de novo.