Opinion of the Court.

the twenty-four settlers aforesaid, and the said Ensign Salazar, being appointed justice and all the foregoing provisions being verified, the granting document will be remitted to me to be legalized as required, the proper duplicates (testimonios) to be given the parties interested and then the original to be returned, to be duly deposited among the archives of this office." Eighteen months thereafter the so-called act of possession was executed on a verbal order of the governor. The alcalde recites:

"I proceeded with the distribution of the land to them, as appears from the quantities of land they received, noted in the list and certified by me, and into the possession of which I placed them, taking them by the hand and leading each settler over his own piece of land and placing him in possession in the name of the King, whom may may God preserve; and they ran joyfully over the land, plucking up weeds and casting stones and shouting aloud, 'Long live the King that protects and helps us!' with which they remain in possession, naming the town whose site I pointed out to them, San Joaquin del Rio de Chama, and with which I have executed the foregoing decree and all of which authenticated with two instrumental witnesses, designating to the settlers as boundaries on the north, the Ceballa valley; on the south, the Capulin; on the east, the boundaries of the Martinezes; and on the west, the Little White hill (cejita blanca), for their pastures and watering places, and with a view to the coming of other settlers and the increase of families and descendants."

The alcalde does not state that he delivered the possession to any one individual or to all these individuals in common, of a large tract of land, but possession to each individual of the land to which he was entitled and no more, and this was accompanied by a description of the outboundaries within which allotments could be made by the proper governmental officials to persons that might come in thereafter.

Reference is indeed made to the use of the lands within the outboundaries for pastures and watering places, but this did not put them out of the class of public lands, and, whatever equities might exist, no title was conveyed.

Opinion of the Court.

We have just held in United States v. Sandoval, ante, 278, that as to all unallotted lands within exterior boundaries where towns or communities were sought to be formed, as in this instance, the title remained in the government for such disposition as it might see proper to make.

Moreover, it is clear that the alcalde had no authority to give possession of 475,000 acres of land to these thirty-one petitioners, even if he could have done so if expressly authorized by direct order of the superior authorities, which is not pretended.

We entirely agree with the holding of the Court of Private Land Claims, as indicated by their decree, that the act of possession, the alcalde's report and the governor's decree, taken together, show that the only title which was passed on or intended to be passed on was to the various allotments which were actually made. Nor can we concur in the view that the result is affected by the proceedings had before the asesor general in 1832. Whatever the judicial authority of this officer, his action did not amount to an adjudication that those who were living on the grant, or who went there in 1806 or 1808, were the absolute and unconditional owners of 475,000 acres of land, and, indeed, he seems to have been of opinion, not only that the unallotted lands were subject to disposition by the government, but that the proper authority to make such disposition was the territorial deputation.

It is also said that Congress has repeatedly confirmed similar grants, but the fact that Congress may have thus disposed of the public lands, in its discretion, cannot operate to justify the Court of Private Land Claims in adjudication of a case not coming within the terms of the law of its creation.

The proceedings in the District Court of Rio Arriba County are nothing to the purpose, as the title of this property, under the treaty of Guadalupe Hidalgo and the act of Congress of July 22, 1854, c. 103, 10 Stat. 308, was sub judice. The claimants were then proceeding on their claim before the surveyor general, and Congress, under that act, and an attempt to enforce that title and have it adjudicated by the

Opinion of the Court.

local courts, comes within the decision in Astiazaran v. Santa Rita Land & Mining Co., 148 U. S. 80.

In that case it was said by Mr. Justice Gray, delivering the opinion of the court: "Undoubtedly, private rights of property within the ceded territory were not affected by the change of sovereignty and jurisdiction, and were entitled to protection, whether the party had the full and absolute ownership of the land, or merely an equitable interest therein, which required some further act of the government to vest in him a perfect title. But the duty of providing the mode of securing these rights, and of fulfilling the obligations imposed upon the United States by the treaties, belonged to the political department of the government; and Congress might either itself discharge that duty, or delegate it to the judicial department."

We have frequently reaffirmed the well-settled rule thus announced, and perceive no reason for reviewing it, although counsel suggests that we should do so as bearing on the jurisdiction of the territorial courts and in view of the so-called protocol signed by the commissioners of this country to Mexico, at the time of the exchange of the ratifications of the treaty of Guadalupe Hidalgo. A sufficient account of that diplomatic incident will be found in President Polk's message of February 8, 1849, Ex. Doc. H. Rep., Second Session, 30th Cong., vol. 5; and in Mr. Secretary Bayard's letter of November 24, 1886, 3 Whart. Int. Dig., (2d ed.,) Appx. § 131, p. 885. We did not feel called upon to discuss it in Astiazaran's case, nor do we now in disposing of the case in hand, under the act of March 3, 1891, on this record. Botiller v. Dominguez, 130 U. S. 238.

Furthermore, it is conceded that these records were put in evidence only to show that petitioner had succeeded, in part at least, to the rights of the original grantees.

Decree affirmed.

Syllabus.

MAY v. MAY.

APPEAL FROM THE COURT OF APPEALS OF THE DISTRICT OF

COLUMBIA.

No. 269. Argued April 2, 5, 1897. Decided May 10, 1897.

The power of a court of equity to remove a trustee, and to substitute another in his place, is incidental to its paramount duty to see that trusts are properly executed; and may properly be exercised, whenever such a state of mutual ill-feeling, growing out of his behavior, exists between him and his cotrustee or the beneficiaries, that his continuance in office would be detrimental to the execution of the trust, even if for no other reason than that human infirmity would prevent them from working in harmony with him, and although charges of misconduct against him are either not made out, or are greatly exaggerated.

A testator devised all his estate to his wife and a son, in trust to pay to the wife one third of the income of the real estate for life, and one third of the personal property absolutely; to divide the income of the other two thirds of the estate, after paying his debts and cancelling existing mortgages, among his children and their issue; and in certain circumstances to sell or mortgage the real estate, if necessary; the two trustees to exercise jointly all the powers conferred, except that the son should manage the real estate, collect the rents thereof, pay the taxes and other expenses thereon, and render monthly accounts to the wife; and gave the other children, "for good and sufficient cause," and with the widow's concurrence, power "by their unanimous resolution " to remove him from his office of trustee, and to appoint another person in his stead. Held, that the other children, with the concurrence of the widow, had power to remove him, for what they determined to be good and sufficient cause, subject to the jurisdiction of a court of equity to restrain abuse of the power; and that his removal from the office of trustee terminated his authority to manage the real estate.

The filing of a bill by a trustee under a will to obtain the instructions of a court of equity in the execution of his trust does not suspend a power of removing him given to the beneficiaries by the will; but only subjects their action to the supervision and control of the court. Upon a bill in equity by a trustee for instructions in the execution of his trust, the court will not decide questions depending upon future events, and affecting the rights of parties not in being, and unnecessary to be decided for the present guidance of the trustee.

Under a will by which the testator devises and bequeathes all his estate in trust to pay to his widow one third of the net annual income of the real estate during her life, and one third of the personal property absolutely, and to divide the income of the estate, with the exception of her thirds,

Statement of the Case.

after paying his debts and cancelling existing mortgages, among his children, the widow is entitled to a third of the income of the real estate, deducting taxes, insurance and repairs, but without any deduction for interest on debts or mortgages.

THIS was an appeal from a decree of the Court of Appeals which affirmed a decree of the Supreme Court of the District of Columbia, removing the appellant from the office of trustee under the will and codicil of his father, Dr. John Frederick May, of Washington, in the District of Columbia, who died there May 1, 1891, leaving a widow, Sarah Maria May, and six children, William and Frederick and four daughters, all of age; a large estate, consisting mostly of real estate in the city of Washington; and a will and codicil, both of which were duly admitted to probate.

By the will, dated February 4, 1890, he devised and bequeathed all his estate, real and personal, to his wife, and her heirs and assigns, upon the following trusts: 1st. That she should receive one third of the net annual income of his real estate during her life, one third of his personal property absolutely, and the use for her life of his dwelling-house in Washington. 2d. That his estate should be kept intact and undivided while any of his children lived; and the rents and profits, with the exception of his wife's thirds, be applied to the payment of his debts, and especially to the cancelling of any incumbrance or mortgage existing at the time of his death; and, after full payment and cancellation of such debts and incumbrances, be equally divided among his children. 3d. That any part of the estate might be sold by the trustee, if manifestly for the benefit of his heirs, and the proceeds reinvested in real estate, or in mortgages of a particular kind; and that such parts of the estate, as should at the time of his death be subject to mortgages, might, upon the expiration of such mortgages, and if the trustee should be unable to pay or cancel them, be remortgaged. 4th. That, upon the death of any child leaving issue, its share of the rents and profits should go to its issue. The testator also gave his wife "the power to appoint a trustee to succeed her should she deem it best at any time to do so"; appointed her executrix of his will; and