Putnam, 90 Me. 431, 37 Atl. 661, 38 L. R. A. 349, and De Camp v. Dobbins, 29 N. J. Eq. 41, holding where property is left to charitable institute in excess of capital allowed by law, legislature may later amend law. Approved in Literary Fund v. Dawsons, 1 Rob. (Va.) 418, holding devise to unincorporated society fails for omission to provide in will for subsequent corporation.

Executory devises are not to be governed by rules of law ap plicable to common-law conveyances; the only question is whether contingencies are to happen in reasonable time or not, p. 117.

Cited approvingly in Miller v. Chittenden, 2 Iowa, 376, reviewing cases and sustaining grant to trustees to hold for charitable use without naming specific beneficiary.

Wills. Courts will seek and enforce any general intent of testator consistent with rules of law; and if testator has prescribed modes of carrying it into effect which law does not permit, court must give effect to general intention although the mode fail, p. 117. Cited and principle affirmed and applied as follows: Jackson v. Phillips, 14 Allen, 556, where devise was to trustees to create public sentiment against slavery, to act without bonds, held trust valid but waiver of bonds void; Den v. McMurtrie, 15 N. J. L. 280, gathering and enforcing apparent intent from unintelligible devise of lands; Moore v. Lyons, 25 Wend. 124, holding in devise of remainder to B and C, or survivor, survivor at time of testator's death was intended; Shotwell v. Mott, 2 Sandf. Ch. 59, holding devises to poor of certain town and to certain society are not void for uncertainty; Pell v. Mercer, 14 R. I. 430, holding where will directs purchase of certain bonds, clause does not fail because such bonds cannot be had; Literary Fund v. Dawsons, 1 Rob. (Va.) 421, 423, holding where devise depends on legislative action, testator intended it to act in reasonable time; Literary Fund v. Dawsons, 1 Rɔb. (Va.) 427, holding where will provides trustees shall apply for statute, intent is complied with if act is passed without application; Dunlop v. Harrison, 14 Gratt. 257, 260, collecting cases and holding illegal provision for holding slaves in trust for free negroes does not defeat alternative that slaves be sold for their use. Approved in Lepage v. McNamara, 5 Iowa, 145, holding where devise is void for uncertainty court cannot give effect to will by modelling new provisions; Virginia v. Levy, 23 Gratt. 40, holding gift of land for benefit of children of United States navy warrant officers void for uncertainty; Magill v. Brown, 16 Fed. Cas. 433.

Trusts. Whenever a person, by will, gives property and points out the object, the property, and the way in which it shall go, a trust is created, unless he shows clearly that his expressed desire shall be controlled by the trustee, p. 119.

Cited with approval and applied in Johnson v. Mayne, 4 Iowa, 195, reviewing cases and holding property left to church incapable of tak

ing legal title, is charged with trust in favor of church; Moore v. Moore, 4 Dana, 357, 29 Am. Dec. 420, holding equity will enforce devise directing sale of estate and application of proceeds to education of poor orphans of county; Wade v. American Col. Soc., 7 Smedes & M. 695, 45 Am. Dec. 328, holding will providing for transportation of slaves imposes a trust which equity will enforce; McIntire v. Zanesville, etc., Co., 9 Ohio, 288, 34 Am. Dec. 438, holding devise of land for benefit of poor of Zanesville, upon death of daughter without Issue, creates valid trust; In re John's Will, 30 Or. 531, 47 Pac. 353, 36 L. R. A. 254, holding where devise in trust for charity does not provide for conveyance to trustees, it is still charged with trust, and equity will remedy omission; Bell Co. v. Alexander, 22 Tex. 362, 73 Am. Dec. 274, holding devise of land to county for benefit of school children vests title in county in trust. Cited but without particular application in White v. Keller, 68 Fed. 802, 30 U. S. App. 275, holding that devise of land in Mississippi should be controlled by law of that State.

Repeal of statute.- Where act is passed incorporating certain persons to enable them to take and manage property according to terms of a will, such act is repeal pro tanto of statute prohibiting devise to corporation, p. 119.

Cited with approval in San Antonio v. Odin, 15 Tex. 545, holding where Texan congress declared lands to belong to bishop in trust for congregations, such declaration may be construed as legislative grant.

Citizenship.- All persons born within the colonies of North America, whilst subject to crown of Great Britain, were naturalborn British subjects, p. 120.

Cited and relied upon in United States v. Wong Kim Ark, 169 U. S. 659, 42 L. 894, 18 S. Ct. 460, reviewing cases and holding Chinese, born in United States of alien parents having permanent residence here, are citizens of United States; McKay v. Campbell, 2 Saw. 122, F. C. 8,840, holding person born in Oregon of British parents during joint occupation is British subject.

Alienage. According to American rule, American ante-nati ceased to be British subjects from date of declaration of independence; according to English rule, from date of treaty of peace in 1783, p. 121.

Cited with approval and rule applied in United States v. Ritchie, 17 How. 540, 15 L. 240, and United States v. Lucero, 1 N. Mex. 455, holding declarations of civil equality by Mexican independent government invested Indians with privilege of citizenship; McKinney v. Saviego, 18 How. 238, 15 L. 367, holding person moving from Texas to Mexico prior to former's declaration of independence is an alien; State v. Adams, 45 Iowa, 101, 24 Am. Rep. 762, holding person remainVOL. III-3

ing in America after independence, acquires citizenship not lost by removal to Canada; Trimbles v. Harrison, 1 B. Mon. 143, 144, holding residence in Boston until long after peace is prima facie evidence of election to become American citizen; Kilpatrick v. Sisneros, 23 Tex. 126, holding persons removing from Texas shortly after independence did not forfeit citizenship. Approved in Boyd v. Thayer, 143 U. S. 163, 36 L. 110, 12 S. Ct. 382, holding Congress effected a collective naturalization of inhabitants upon admitting Nebraska into Union, Lynch v. Clarke, 1 Sandf. Ch. 680. Cited with approval in dissenting opinion, Dred Scott v. Sandford, 19 How. 577, 15 L. 772, majority holding that free negroes whose ancestors were slaves are not citizens of United States.

Alienage. The right to inherit depends upon the existing state of allegiance at time of descent cast, p. 121.

Alienage. The British rule is that American ante-nati by remaining in America after peace lost their character of British subjects; American rule is that by withdrawing from this country and adhering to British government they never acquired character of American citizens, p. 122.

Cited and followed in Orser v. Hoag, 3 Hill, 81, 82, 83, reviewing cases and holding A. and all his family who joined British forces and moved to Novia Scotia in 1782 were aliens. Cited generally in Shanks v. Dupont, 3 Pet. 245, 7 L. 667, holding removal of American woman with British husband to England in 1781, fixed her allegiance to British crown; United States v. One Hundred Barrels of Cement, 27 Fed. Cas. 294, holding citizens of rebellious States cannot sue in United States courts.

Allegiance. In all revolutions like ours, inhabitants must have right of election as to their allegiance; and a minor owes allegiance to the country chosen by his father subject to his dissent at majority, pp. 121, 122.

Cited and relied upon in Crane v. Reeder, 25 Mich. 307, holding person residing in Detroit after peace and not declaring intent to remain British, became American; McVeigh v. Bank, 26 Gratt. 844, holding indorser of note did not waive right to notice by joining Confederate army; Walker v. Beauchler, 27 Gratt. 523, holding where creditor sold debtor's land during war, debtor being in Confederate lines could redeem at conclusion of hostilities; Haymond v. Camden, 22 W. Va. 196, holding void a proceeding by northern creditor against Confederate debtor pending the civil war.

Denied in Calais v. Marshfield, 30 Me. 518, holding child residing in United States with father after peace and removing to Canada at majority was still American citizen.

Citizenship.- Persons in United States at time of declaration of Independence are presumed prima facie to have become citizens of

United States, but evidence is admissible to show their election was exercised otherwise, p. 123.

Cited with approval in Tobin v. Walkinshaw, McAll. 189, 190, F. C. 14,070, holding testimony is admissible to rebut presumption that citizen of Mexico remaining in California after cession is American citizen.

Citizenship. A minor taken from this country before treaty of peace and continuing to live in British dominion after majority without dissent from election thus made for him, is a British subject, pp. 123-124.

Cited with approval and applied in Jones v. McMasters, 20 How. 20, 15 L. 810, holding woman taken as a child from Texas to Mexico before independence of former, is prima facie an alien; Trimbles v. Harrison, 1 B. Mon. 146, holding minor, taken to England in 1798 and there married to Briton, dissents from parents' election to be American; Munro v. Merchant, 28 N. Y. 34, holding minor child living at New York during war and moving to Canada before peace to join British father is an alien; Hardy v. De Leon, 5 Tex. 237, holding infant child of person residing in Texas at time of independence is entitled to rights of citizen. Approved in Lynch v. Clarke, 1 Sandf. Ch. 682.

Citizenship. Allegiance may be dissolved by mutual consent of government and its citizens; government may release governed from allegiance, p. 125.

Approved and applied in White v. Burnley, 20 How. 250, 15 L. 890, holding recital in deed that grantor is citizen of Mexico does not establish alienage. Cited generally in Comitis v. Parkerson, 56 Fed. 558, 22 L. R. A. 150, and n., collecting cases.

Citizenship.-Person born in New York during British occupation of 1783, of royalist father, is born a British subject under protection of British government, and owing no allegiance to State of New York, p. 126.

Approved and applied in McKay v. Campbell, 2 Sawy. 128, F. C. 8,840, holding person born of British parents in Oregon during joint occupation, is not born under obedience to United States, and, therefore, not a citizen.

Statutes. In cases depending upon State statutes, and more especially those respecting title to real property, Federal courts apply the construction applied by the State courts in like cases, pp. 127, 130.

Cited and followed in Loring v. Marsh, 2 Cliff. 492, F. C. 8,515, sustaining devise to charitable uses in consonance with practice of State court; In re Wyllie, 2 Hughes, 459, F. C. 18,112, collecting cases and deciding case under State bankruptcy law according to decision of highest State court.

Wills. A right of entry to lands in adverse possession of anɔther is devisable under New York statute, p. 128.

In writ of right, tenant can, under mise joined, set up title out of himself and in third person; writ of right brings into controversy the mere right of the parties to the suit and tenant may show that the other's right is inferior to that set up against him, p. 133.

Cited and followed, Lyon's Heirs v. Mottuse, 19 Ala. 465, holding plaintiff having superior title may recover without proving disseizin of ancestor; see also valuable note, 50 Am. Dec. 175, classifying States where writ of right is in use.

Writ of right.- On mise joined on the mere right, demandant, under count for entire right, may recover less quantity than the entirety, pp. 134, 135.

Wills. Devise to chancellor of State of New York, the mayor and recorder, the president of chamber of commerce, etc., is not a devise to individuals but to the persons successively holding these offices, p. 146, per Story, J., dissenting.

Cited and approved, Magill v. Brown, 16 Fed. Cas. 423, holding 99 successors is not always indispensable to vest interest by grant in successor of sole corporation.

Retrospective statutes. State legislatures have no power to pass law divesting vested legal rights p. 154, per Story, J., dissenting. Cited with approval in note, 5 Am. Dec. 315.

Citizenship. Two things must concur to create citizenship first, birth within dominions of sovereign, and second, birth within protection or obedience of sovereign, p. 155, per Story, J., dissenting.

Cited and followed, Lynch v. Clarke, 1 Sandf. Ch. 670, holding person born in New York in 1819, of alien persons, during temporary visit, is citizen of United States; United States v. Wong Kim Ark, 169 U. S. 660, 682, 42 L. 895, 902, 18 S. Ct. 461, 470, holding Chinese child born in United States of alien parents having permanent residence here is citizen of United States. Approved in opinion of Hathaway, J., 44 Me. 523, appendix.

Citizenship. Children of enemies born in a place within dominions of another sovereign then occupied by them by conquest are still aliens, p. 156, per Story, J., dissenting.

Approved in United States v. Wong Kim. Ark, 169 U. S. 660, 42 L. 395, 18 S. Ct. 461.

Citizenship. Persons in United States at time of treaty of 1783, whether here or not at time of declaration of independence, are citizens of United States, p. 161, per Story, J., dissenting. Approved in opinion of Davis, J., 44 Me. 579, appendix.