votes," etc. It can hardly be claimed that section 11 of the act of 1790 and which was incorporated in the act of 1797 was in any sense contemporaneous legislation expounding the true meaning of the debated constitutional clause, when it is considered that the Legislature, by omitting the words "clear stitution after the words "proclamation money" must have deliberately designed, regardless of the constitutional provision, to give to those married women the right to vote who, though worth fifty pounds proclamation money, could not, by reason of their marital relation under the then existing state of the law relating to married women, have a clear estate therein. It is very likely, as has been urged by counsel for the relator, that, after the passage of the acts of 1790 and 1797, some women availed themselves of the privilege to vote, but, after all, it was nothing more than a privilege emanat. ing from a legislative act, which a subsequent Legislature had a right to repeal, and later did repeal. stitution, in order to prevent a chaotic condition in the government of this state, to keep alive and in full force the laws which were in force at the time of the adoption of the Constitution, in so far as they were consistent with the new form of government which had been created and which were not altered by the Constitution. The twenty-estate in the same," contained in the Confirst paragraph of the Constitution of 1776 reads: "That all the laws of this province, contained in the edition lately published by Mr. Allinson, shall be and remain in full force, until altered by the Legislature of this colony (such only excepted as are incompatible with this charter) and shall be, according as heretofore, regarded in all respects by all civil officers, and others, the good people of this province." We have been dealing with the law as it was prior to and stood at the time of the adoption of the Constitution of 1776, in order to ascertain the true purport and meaning of the paragraph therein relating to the class of inhabitants who shall exercise the right to vote. The first pronouncement of the Legislature upon that subject and which may be regarded as a contemporaneous exposition by the Legislature of the meaning of the mooted clause of the Constitution because it was the very first legislative act passed concerning the subject in this state after the colonies had achieved their independence is the act of 1783. Wilson's Laws, p. 346. The seventh section of this act, on page 348, is in exactly the same language as that of the constitutional provision, with the exception that there is added thereto the following: "Except such as may be hereinafter excluded for offenses committed against the state." The eighth section provides: "That if any person's vote shall be objected against, it shall not be received until he shall have taken the oath of abjuration and allegiance prescribed by an act entitled, 'An act for the security of the government of New Jersey, passed the nineteenth day of September, 1776,' etc." As had been said, it is manifest that the constitutional clause does not in express terms exclude women from voting, yet it is to be inferred from a fair reading of it, and from the state of the law as it was before its adoption, and the construction given it by the act of 1783, that the right to vote was conferred only on the male inhabitants. It was evidently due to the failure of the clause of the Constitution to limit the right to vote in express terms to male inhabitants that gave rise to the uncertainty which existed in the public mind even after the passage of the acts of 1790 and 1797 as to whether women were entitled to vote. The history of subsequent legislation reveals that the legislative construction given to the constitutional provision by section 11 was challenged, and not generally acquiesced in. In 1807 the Legislature passed an act entitled, "An act to regulate the election of members of the legislative council and General Assem ed at Trenton the twenty-second day of February, one thousand seven hundred and ninety seven," the preamble of which recites as follows: [3] Not until 1790, 14 years after the adop-bly, sheriffs and coroners in this state; passtion of the Constitution, do we find any material change in this constitutional provision. See Blauvelt's Laws (Ed. 1790) p. 672, § 11; and Paterson's Laws 1797, pp. 230, 231, §§ 9, 11. The material changes of the constitutional provision are to be found in the eleventh section, which substitutes "all free inhabitants" for "all inhabitants," and omits the words "clear estate in the same" after the words "proclamation money" as contained in the original, and has added to it the following proviso: “And no person shall be entitled to vote in any other township or precinct, than that in which he or she doth actually reside at the time of the election," -and the ninth section, which recites "that every voter shall openly, and in full view, deliver his or her ballot (which shall be a single written ticket), containing the names of the person or persons for whom he or she 83 A.-3 "Whereas doubts have been raised and great diversities in practice obtained throughout the state in regard to the admission of aliens, females, and persons of color, or ne groes to vote in elections, as also in regard to the mode of ascertaining the qualification of voters in respect to estate. And whereas it is highly necessary to the safety, quiet, good order and dignity of the state, to clear up the said doubts by an act of the representatives of the people, declaratory of the true sense and meaning of the Constitution, and to ensure its just execution in these particulars, according to the intent of the framers thereof; therefore: "Section 1. Be it enacted by the council and general assembly of this state, and it is [4] It is conceded that from the time of the passage of the act of 1807, up to the adoption of the Constitution of 1844, females did not claim any legal right to vote. The constitutionality of the act of 1807, which gave a settled meaning to the Constitution of 1776, relating to the exercise of the right of suffrage, went unchallenged, and so remained for more than a century. But even if it were admitted that under the Constitution of 1776 women were entitled to vote, and that subsequent legislation deprived them of that right, we are unable to perceive any foundation for the present application, since it appears that in 1844 the people of this state adopted a Constitution which limited the right of suffrage to male citizens that had attained the age of 21 years. brothers and sisters then living or their descendants per stirpes. They did not know that cedent inherited in different degrees, and would children by the first and second wives of a denot have agreed to sell at the price without such understanding. Upon being erroneously advised that E., because he was administrator, could not purchase directly, all of the children conveyed to another with the understanding that he should immediately convey to E. by a deed then prepared, who was merely to take it in trust to convey to E. and conveyed to him as contemplated; E. paying the entire consideration. Held, that the conveyance to the third person and his conveyance to E. did not change E.'s title from one of descent to one by purchase, so that, on E.'s death, it would descend in the same manner as though the conveyances had not been executed. [Ed. Note.-For other cases, see Descent and Distribution, Cent. Dig. § 50; Dec. Dig. § 12.*] 2. DESCENT AND DISTRIBUTION (§ 12*)—DESCENT OR PURCHASE. As a rule one who holding by descent conveys his title away holds by purchase and not descent upon a reconveyance to him. [Ed. Note.-For other cases, see Descent and Distribution, Cent. Dig. § 50; Dec. Dig. § 12.*] 3. COMMON LAW (§ 8*) - SOURCES-ENGLISH DECISIONS. A decision of the English High Court of Chancery, rendered in 1798, is not binding on the Maryland courts as authority. [Ed. Note.-For other cases, see Common Law, Cent. Dig. § 8; Dec. Dig. § 8.*] Appeal from Circuit Court, Frederick County, in Equity; Edward C. Peter and John C. Motter, Judges. order ratifying an auditor's account distributing a part of the proceeds of the sale of an estate, plaintiffs appeal. Affirmed. [5] The attack upon the legislative act of 1844, which called for the constitutional convention and excluded women from the right to vote for the delegates to that con- Action by Birdie J. Dudrow and another vention upon the ground that it is unconsti- | against James R. King and others. From an tutional, is a result of the fallacy of the position of counsel for the relator, in assuming that such an act could only be justified by constitutional authority; but this is not so. It required no constitutional authority. It was the exercise of the sovereign power of the people. It provided as a matter of course that the Constitution framed by the delegates should be submitted to the vote of the people. [6] The Constitution of 1844 was so submitted to the vote of the people. The Constitution, therefore, rests for its validity upon the public will, and, being adopted in that manner, is the fundamental law of the land until supplanted either by a new Constitution adopted as that was adopted or by amend ment in the manner therein provided. The rule to show cause will be discharged. (117 Md. 182) DUDROW et al. v. KING et al. (Court of Appeals of Maryland. Jan. 9, 1912.) 1. DESCENT AND DISTRIBUTION (§ 12*)-MAN NER OF TAKING-TAKING BY PURCHASE. Upon the death of E.'s father intestate, one-eighth of the estate descended to E., subject to dower, as one of eight children, some of whom, including E., were by a second wife, and E. became administrator. E. agreed with the widow and the other children to purchase their interest in the land under an understanding with them that he should not dispose of it, and that it would descend at his death to the Argued before BOYD, C. J., and BRISCOE, PEARCE, BURKE, THOMAS, PATTISON, and STOCKBRIDGE, JJ. Glenn H. Worthington, for appellants. Milton G. Urner, for appellees. PEARCE, J. This is an appeal from an order of the circuit court of Frederick county, ratifying an auditor's account distributing the sum of $1,045.10, part of the proceeds of sale of the real estate of Edmund Dorsey sole question presented is whether the disKing of Frederick county, deceased, and the whole blood alone or to the next of kin of tribution shall be to the next of kin of the both the whole and half blood. Singleton King died intestate in 1897 seised of a farm in Frederick county, Md., containing 155 acres, and leaving a widow, Caroline King, and eight children, his only heirs at law. Four of these children, Singleton L. King, James Harrison King, Mary Jane Browning, and William King were by the first wife of the deceased, and four, viz., Mrs. Manzella Bell, J. Beall King, E. Dorsey King, and Caroline C. Harris, were by the second wife. His widow, Caroline King, was his third wife, and had no children. The real estate in question, therefore, descended upon were thereupon made parties by order of the death of Singleton King to the above- court, upon petition of the purchaser, and named eight children, subject to the dower all appeared and answered said petition, setof the widow, Caroline King. Edmund Dor- | ting up their claim in their answers, and the sey King became the administrator of his fa- two nieces of the whole blood demurred to ther, and entered into an agreement with said answers. The sale was ratified and an his brothers and sisters and with Caroline auditor's account was stated distributing the King to purchase all their interest in said net proceeds equally between the two nieces real estate for the sum of $6,986.25, but be- of the whole blood, upon the theory that ing advised erroneously that he could not Edmund Dorsey King took title to the whole purchase directly from them, because he was tract by purchase. Exceptions were filed to the administrator of their father, he united this account by the nieces and nephews of with them in conveying said real estate by the half blood, which exceptions were susdeed dated January 8, 1898, to Wm. P. N. tained, and the said auditor's account was Lawson, with the understanding among all rejected, and the auditor was directed to said parties that said Lawson should imme- state another account distributing sevendiately convey the same to said Edmund eighths of the net proceeds to the two nieces Dorsey King by a deed then prepared, and of the whole blood, and one-eighth to the intended to be of even date with the deed to nieces and nephews of the whole and half said Lawson. This deed to Lawson was not blood. Upon this basis, the sum of $1,045.10 acknowledged by all the grantors until Janu- is distributed to the nieces and nephews of ary 27, 1898, as they resided in different the half blood, and to that distribution the places, but, when it was acknowledged by two nieces of the whole blood except, and all, Lawson, by deed dated February 2, 1898, their exceptions being overruled, and the auconveyed the property to Edmund Dorsey ditor's account being ratified, they have apKing, it being described in the deed to Law-pealed. son as the same which descended from Sin- Sections 3 and 4 of article 46 of the Code gleton King to his eight above-named chil- provide that where the estate descended to dren, subject to the dower of Caroline King, the intestate on the part of the father, if and being described in the deed from Lawson there be no child, or descendant, or father, as the same described in "a deed from Caro- | living, it shall descend to the brothers and line King and others of even date herewith, sisters of the intestate of the blood of the and intended to be recorded herewith, to the father and their descendants equally. Secsaid Wm. P. N. Lawson." The same con- tion 19 of article 46 provides that if the essideration was expressed in both deeds, viz., tate shall be vested in the intestate by pur$6,986.25, but Lawson did not pay the same chase, or shall descend to or vest in him nor any sum whatever to any of the grantors in any other manner than by descent on the in the deed to him, nor did he receive, nor part of the father or mother, and there be was he intended to receive, any beneficial no child or descendant of the intestate, then interest whatever in said real estate; but he the estate shall descend to the brothers and accepted said conveyance to him, in trust sisters of the intestate of the whole blood to convey the property to said Edmund Dor- and their descendants in equal degree equalsey King, in the manner and for the purposely. Section 26 provides that there shall be for which he did convey it, and Edmund no distinction between brothers and sisters Dorsey King concurrently with the delivery of the whole and half blood, all being deof both said deeds paid the entire purchase scendants of the same father, where the money to his stepmother and his brothers estate descended on the part of the father. and sisters. Edmund Dorsey King died in- [1] Upon the death of his father intestate, testate in 1910, leaving surviving him no Edmund Dorsey King took one-eighth of the child or descendant, no father or mother, land in question by descent from him, and brother or sister, but leaving two nieces, the only question for us is whether the efMabel S. King, a child of his deceased broth- fect of the two conveyances above mentioned er, J. Beall King, and Birdie J. Dudrow, a broke this descent and changed his title to child of his deceased sister Manzella Bell, as that one-eighth from a title by descent to the only descendants of his brothers and sis-one by purchase. The learned judges of the ters of the whole blood, and leaving also a number of nieces and nephews, descendants of his brothers and sisters of the half blood, all of whom are named in the proceedings. The real estate in question was sold under a decree of court by the trustee, appointed for that purpose for $15,530, and, the sale being reported, the purchaser filed exceptions thereto, because of the claim of the Lieces and nephews of the half blood to an interest in said real estate; they not having been made parties to the proceedings. They circuit court held that no change of title was effected, and we are of opinion their decision was correct. It is quite clear from the admitted facts in the case that there was no actual intention on the part of Edmund Dorsey King, by adopting the course of conveyancing used, to effect any change in the title which he took from his father to that one-eighth of the estate, and that no change could have been effected, if he had taken a conveyance, as he contemplated, from his brothers and sisters of their seven-eighths of the estate. The question could not have arisen but for the erroneous advice given him that he could not acquire any title by direct purchase from them. It may be observed here that the demurrer of the appellants to the answer of the appellees admits the averments of the eighth and ninth paragraphs of the answer, that "it was understood between Edmund Dorsey King and his brothers and sisters that he should not dispose of said farm," and "that, on his death, it would descend by inheritance to all of his said brothers and sisters, if living, and if not, then to their descendants per stirpes, as they did not know there was any difference in law as to the right of inheritance between the children of the first wife and those of the second wife. * * And that they would not have agreed to sell him their interests in said farm at the valuation of $45 per acre, being $20 less per acre than the land was worth, if it had not been for their understanding that he was not to dispose of said farm, and that it would come back to them or their descendants on his death." This consideration could not, of course, defeat an intention to break the course of descent by an apt conveyance, nor could it control the operation of a conveyance, the clear legal effect of which was to break the descent, although not so intended, but it is an element of this case not to be disregarded in the light of all the cases upon the subject. [2] The general rule is that if one who is in by descent conveys his interest away, and it be conveyed back to him, he holds thereafter by purchase, and not by descent. The rule is stated thus in 1 Coke upon Littleton, 12b: "If a man be seised of lands as heire of the part of his mother, and maketh a feoffment in fee, and taketh back an estate to him and his heires, this is a new purchase, and if he dyeth without issue, the heires of the part of the father shall first inherite." The authorities, ancient and modern, agree that this is the general rule. But in a note by Mr. Hargrave to the above text of Coke it is said: "But here Lord Coke must be understood to speak of two distinct conveyances in fee; the first passing the use as well as the possession to the feoffee, and so completely divesting the feoffor of all interest in the land; and the second regranting the estate to him. For, if in the first feoffment the use had been expressly limited to the feoffor and his heirs, or if there was no declaration of uses, and the feoffment was not on such a consideration as to raise an use in the feoffee, and consequently the use resulted to the feoffor, in either case he is in of his ancient use, and not by purchase." It is upon the doctrine of this note of Mr. Hargrave that the court below was satisfied to rest its decision. That doctrine, however, is supported by law writers of high plication. 2 Greenleaf's Cruise on Real Property, tit. "Descent," pp. 338, 341, states the law in almost the exact words of Mr. Hargrave's note, to which he refers on page 338, and on page 341 cites Godbold v. Freestone, 3 Lev. 406, in support of the rule. He states that case as follows: "A person seised of lands by descent ex parte materna made a feoffment of them to uses, to the use of himself for life, remainder to his wife for life, remainder to the heirs of his body on his wife begotten, remainder to his own right heirs. Adjudged that upon the death of the husband without issue the remainder descended to the heirs of the feoffor ex parte materna, because the ancient fee remained in him." And he adds on page 341: "Where a fine was levied or a common recovery suffered, if the use was not altered, the mode of descent was not changed." In a more modern work, Broom and Hadley's Commentaries, top page 660, the same doctrine is stated thus: "If one seised ex parte materna made a feoffment in fee so as to part with the estate absolutely, and then took a reconveyance, the descent was broken, but, if he made a conveyance for the purpose of creating particular estates and limited the ultimate fee to himself, this was held to be the same estate he had before, and it descended to the heir ex parte materna. The estate which is taken back must be in reality a new estate, and not merely a part of the old estate, unless it comes within the statute of 3 & 4 William IV, c. 106, § 1, enacted in 1833"-which changed the rule previously stated, but which is, of course, not in force in Maryland. The great case of Cave v. Holford, 3 Vesey, 650, is the most interesting discussion of the principles here involved which we have examined. In that case the opinions of Justices Rooke, Heath, and Buller given in the Court of Common Pleas controlled the decision, while Chief Justice Eyre dissented, and the opinions of each of these justices are reported in full, the editor of the Reports referring to it as a case involving deep research of authority. [3] The judgment of the Court of Common Pleas was affirmed by the High Court of Chancery, but that decision, having been rendered in 1798, is not binding upon us as authority, and we are free to consider it with that deference which is due to all the cases of the higher courts of England. In this spirit we have examined that case, and in our judgment the conclusion of Chief Justice Eyre rests upon principles more in accord with justice, and with an enlightened view of the application of legal principles, and more in consonance with the views of the courts of this country upon this question. The form in which the question was there presented was whether the conveyance by a testator of property devised by his will erty, upon the ground that after-acquired question about à revocation." The principroperty could not pass by the will. The ples thus announced are not without support conveyances which were there held to oper- by analogy in our own decisions. In Lynn ate as a revocation of the will were of lease v. Gephart, 27 Md. 563, where the question and release, and Chief Justice Eyre said: before the court was as to changing the "Let the operation of this conveyance be quality of property from real to personal by what it may, the testator died seised of that a deed of trust, our predecessors said: "The estate which he had at the time he executed inclination of courts of equity upon this the will; * and that I may be clear- branch of jurisprudence is not generally to ly understood, when I say the same estate, I change the quality of property, unless there do not mean the identity of the land, but is some clear intention or act by which a the quality of estate and interest in that definite character either as money or land land. I mean to argue that he died seised has been unequivocally fixed upon it throughof the old use, to which the new estate, out." right, title, and possession (to use the words of the statute) that was for a moment in the trustees, under the conveyance, had united itself, not as a new estate, right, title, and possession, but according to the quality, manner, form, and condition of that old use, for those are the words of the statute. Here I take my ground. The in * tent of the parties in this deed and the whole substantial effect (be its formal operation what it may) was simply to secure a jointure of £1,400, and the estate, subject to that, was not intended to be altered or in any manner affected; and, as far as the form of the conveyance purports to alter the nature and quality of the estate, it goes beyond the object of the conveyance. Courts of justice not only do not incline to allow the form of the conveyance to go beyond the intention, but will be ready to adopt all expedients to prevent it and to contine the operation of every conveyance to the special purpose"-citing for this purpose Lord Hardwicke in Parsons v. Freeman, Atkyns Report. Referring to Tichner v. Tichner, the Chief Justice said: "They, the judges, wisely determined the purpose of conveyance was everything, the form nothing; * * * and upon that authority, supported by that of Lord Hardwicke in Parsons v. Freeman, I am of opinion that the authorities will be better supported by declaring that this conveyance is not a revocation than by the contrary determination." It is significant, moreover, that in the opinion of Mr. Justice Rooke he observes "you must distinguish between an intention to have the land as a new purchase, and an intention to revoke the will"-thus intimating a distinction between the case of a mere conveyance and reconveyance to accomplish some collateral purpose and a case involving also the question of the revocation of a will as to the special property under consideration as a result of a conveyance and reconveyance after the execution of the will. And in the opinion of Mr. Justice Buller in the same case he refers to Godboldt v. Freeman, 3 Levinz, 406, and Abbott v. Burton, 2 Salk, 590, in both of which the estate taken back was held to be of the old use, and therefore to go to the heir ex parte materna, and he says: "In these last two cases there was no The views expressed by Chief Justice Eyre above are in exact accord with the language of Judge Robinson in Rawlings v. Lowndes, 34 Md. 643, where he said: "At common law the widow was entitled to dower in the lands and tenements by which the husband was seised as of an estate of inheritance during the coverture. If, however, the seisin was merely instantaneous, intended as a means of accomplishing some ulterior purpose in regard to the estate, the husband being, as it were, a conduit, through which the estate passed, without any intention to clothe him with a beneficial interest, the widow would not be entitled to dower, as for instance a conveyance to a trustee to reconvey, or as put in the old books, a levy by way of a fine, the conusee rendering back by the same fine, the lands and tenements to the conusor. The husband in such cases holds the bare legal title without any beneficial interest. 2 Crabb's Real Prop. 61; Washburn's Real Prop. 176; Coke, Litt. is said to be "the established law in Mary31b." And in Glenn v. Clark, 53 Md. 606, this land." The cases of Freeman v. Allen, 17 Ohio St. 527, and Carter v. Day, 59 Ohio St. 96, 51 N. E. 967, 69 Am. St. Rep. 757, both cases for partition of land of which the ancestor died seised, support the conclusion reached in this case by the circuit court, and the case of Helfinger v. Wolff, 11 Ohio Dec. (Reprint) 906, which is not a case for partition, will be found especially instructive. That case is fully and clearly reasoned, and the conclusion reached by the court is thus expressed: "Where one owning both the legal and equitable estates by descent parts by her own act momentarily with the mere technical legal title, retaining the entire beneficial interest which standing alone would have descended as ancestral, thus creating a mere dry trust, which is held to her unqualified use, the immediate reacquirement of the naked title does not break the descent and constitute her a new source of title, for she conveyed the title for her own use." This case has been argued for the appellants with great zeal and very ably, and their argument is sustained by the decision in Holme v. Shinn, 62 N. J. Eq. 1, 49 Atl. 151, in an elaborate opinion by the Chancellor, and also by the case of Nesbitt v. Trindle, 64 Ind. 185, but we are not able to adopt |