McDonogh, a citizen of Louisiana, made a will in which, after
bequeathing certain legacies not involved in the present
controversy, he gave, willed, and bequeathed all the rest, residue,
and remainder of his property to the corporations of the Cities of
New Orleans and Baltimore forever, one-half to each, for the
education of the poor in those cities.
The estate was to be converted into real property and managed by
six agents, three to be appointed by each city.
No alienation of this general estate was ever to take place,
under penalty of forfeiture, when the States of Maryland and
Louisiana were to become his residuary devisees for the purpose of
educating the poor of those states.
Although there is a complexity in the plan by which the testator
proposed to effect his purpose, yet his intention is clear to make
the cities his legatees, and his directions about the agency are
merely subsidiary to the general objects of his will, and whether
legal and practicable or otherwise, can exert no influence over the
question of its validity.
The City of New Orleans, being a corporation established by law,
has a right to receive a legacy for the purpose of exercising the
powers which have been granted to it, and amongst these powers and
duties is that of establishing public schools for gratuitous
education.
The civil and English law upon this point compared
The dispositions of the property in this will are not
"substitutions, or
fidei commissa," which are forbidden by
the Louisiana code.
The meaning of those terms explained and defined.
The testator was authorized to define the use and destination of
his legacy.
The conditions annexed to this legacy, the prohibition to
alienate or to divide the estate, or to separate in its management
the interest of the cities or their care and control, or to deviate
from the testator's scheme, do not invalidate the bequest, because
the Louisiana Code provides that
"in all dispositions
inter vivos and
mortis
causa, impossible conditions, those which are contrary to the
laws or to morals are reputed not written."
The difference between the civil and common law upon this point
examined.
The City of Baltimore is entitled and empowered to receive this
legacy under the laws of Maryland, and the laws of Louisiana do not
forbid it. The article in the code of the latter state, which says
that "Donations may be made in favor of a stranger when the laws of
his country do not prohibit similar dispositions in favor of a
citizen of this state," does not most probably apply to the
citizens or corporations of the states of the Union. Moreover, the
laws of Maryland do not prohibit similar dispositions in favor of a
citizen of Louisiana.
The destination of the legacy to public uses in the City of
Baltimore, does not affect the valid operation of the bequest in
Louisiana.
The Cities of New Orleans and Baltimore, having the annuities
charged upon their legacies, would be benefited by the invalidity
of these legacies. Upon the question of their validity this Court
expresses no opinion. But the parties to this suit,
viz.,
the heirs at law, could not claim them.
In case of the failure of the devise to the cities, the
limitation over to the States of Maryland and Louisiana would have
been operative.
The bill was filed by the appellees, as the heirs at law of John
McDonogh, to set aside his will.
The will itself is too long to be inserted in this report of the
case; it would, of itself, occupy more than thirty printed pages.
The reporter adopts the following statement of it, made out by
Page 56 U. S. 368
the following French jurists, whose opinion was requested upon
the whole case,
viz.: Coin-Delisle, Advocate, late of the
Council of the Order of Advocates of Paris; Delangle, late
Bastonier of the Order of Advocates of Paris; Giraud, LL.D., a
member of the national Institute; Duranton, Pere, Advocate,
Professor in the Law Faculty of Paris; Marcade, Advocate, late
Advocate in the Court of Cassation.
Statement of the facts of the case
John McDonogh, a native of Baltimore, an inhabitant of
McDonoghville, State of Louisiana, made his olographic will at
McDonoghville aforesaid, on the 29th of December, 1838, according
to the forms prescribed by the local law.
No question is raised about the form of the instrument; nor
could it be otherwise. The Civil Code of Louisiana gives every man
the right of making an olographic will. Such a will, in Louisiana,
as in France, is one written by the testator himself; and, in order
to be valid, it must be entirely written, dated, and signed by the
testator's own hand. (Art. 1581.) This kind of will is subject to
no other form, and may be made anywhere, even out of the state.
(Same art.) These are the same rules as those contained in arts.
970 and 999 of the French Civil Code.
John McDonogh died in October, 1850. His will was proved in due
form of law.
This will has been printed at New Orleans, at full length, with
the testator's instructions appended, under the title of "The last
Will and Testament of John McDonogh, late of McDonoghville, State
of Louisiana; also his Memoranda of Instructions to his Executors
&c." We do not mean to give it here
in extenso,
deeming a synopsis of it quite sufficient for our purpose.
The testator, after having called on the holy name of God,
commences by declaring that he was never married, and that he has
no heirs living, either in the ascending or the descending line. So
that, according to the laws of the state, his power of willing away
his property was unlimited. Civil Code of Louisiana, 1483.
He orders that immediately after his death, an inventory shall
be made of his property by a notary public, assisted by two or more
persons, whom his executors shall appoint, the same to be done on
oath.
First comes a devise to the children of his sister Jane, the
widow of Mr. Hamet, of Baltimore, of land which he purchased on the
29th of February, 1819, of one John Payne in Baltimore
county. This lot, containing ten acres, more or less, together
with the improvements, goes to his nephews aforesaid, a life estate
in the same being, however, reserved to their mother.
Page 56 U. S. 369
He also bequeaths to his said sister, widow Hamet, six thousand
dollars, recommending to her so to place the capital as to make the
interest support her in her old age.
He then bequeaths their freedom to certain slaves, fixes a
fifteen years' term of service to be performed by certain others on
his plantations, and orders the remainder of his black people to be
sent to Liberia by the American Colonization Society.
And now, in language expressive of piety towards God, and
charity towards mankind, the testator after having made these
deductions for his sister, Mrs. Hamet, for the children of his
sister, and for the freedom of a certain number of slaves goes on
to lay down what may be called emphatically his will.
He gives, wills and bequeaths all the rest, residue, and
remainder of his estate, real and personal, present and future, as
well that which is now his, as that which may be acquired by him
hereafter, at any time previous to his death, and of which he may
die possessed, of whatsoever nature it may be, and wheresoever
situate, unto the Mayor, Aldermen and Inhabitants of New Orleans,
his adopted city, and the Mayor, Aldermen and Inhabitants of
Baltimore, his native city, and their successors forever, in equal
proportions of one-half to each of the said Cities of New Orleans
and Baltimore.
He wills, at the same time, that the entire mass of property
thus bequeathed and devised shall remain charged with several
annuities or sums of money, to be paid by the devisees of his
general estate out of the rents of said estate.
He adds that the legacies to the two cities are for certain
purposes of public utility, and especially for the establishment
and support of free schools in said cities and their respective
suburbs, including the Town of McDonogh, as a suburb of New
Orleans, wherein the poor, and the poor only, of both sexes, of all
classes and castes of color, shall have admittance, free of
expense, for the purpose of being instructed in the knowledge of
the Lord, and in reading, writing, arithmetic, history, geography,
and singing &c.
This is the principal object of the testator's bounty, as
appears by the words which usher in the general devise:
"And for the more general diffusion of knowledge, and consequent
wellbeing of mankind, convinced as I am that I can make no
disposition of these worldly goods which the Most High has been
pleased so bountifully to place under my stewardship that will be
so pleasing to him as that by which the poor will be instructed in
wisdom and led into the path of virtue and happiness, I give,"
&c.
For the execution of his will, and with the unequivocal intent
of increasing his real estate after his death, the testator
appoints
Page 56 U. S. 370
executors, to whom he gives the seisin of all his personal
estate, corporeal and incorporeal, and clothes them with the most
extensive powers, without the interference of judicial or
extrajudicial authority.
As relates to his real estate, such as it will be found to be at
his death, which estate he has just devised to the Cities of New
Orleans and Baltimore, he expressly forbids the Mayor, Aldermen and
Inhabitants of each of the cities, and their successors, ever to
alienate or sell any part thereof; but the cities shall let the
lots improved with houses, to good tenants, by the month or year;
they shall let the unimproved lots in New Orleans, its suburbs,
Town of McDonogh, or elsewhere, for a term not to exceed
twenty-five years at anyone time, the rent payable monthly or
quarterly, and to revert back, at the end of said time, with all
the improvements thereon, free of cost, to the lessors; and, as to
the lands, wherever situate, in the different parishes of the
state, the cities shall lease them in small tracts for a term not
to exceed one to ten years, revertible back with their
improvements, to be re-leased for a shorter time and at higher
rates.
As concerns his personal estate, which, as we have seen in the
general bequest above also belongs to the Cities of New Orleans and
Baltimore, the testator instructs his testamentary executors to
invest his personal estate of all kinds, as well as the amount of
all debts owing to him, as fast as they are received, together with
the interest and increase, in real estate of a particular
description, to-wit: lots of ground, improved and unimproved, lying
in the City or suburbs of New Orleans, and to hand over said real
estate, with the title deeds, to the commissioners and agents of
his general estate, so that by said means the whole of his estate,
real and personal, shall become a permanent fund on interest, as it
were,
viz., a fund in real estate affording rents, no part
of which fund shall ever be touched, divided, sold, or alienated,
but shall forever remain together as one estate, termed in his will
"the general estate," and be managed, as hereinafter directed. The
net amount of the revenues collected annually shall be divided
equally, half and half, between the two Cities of New Orleans and
Baltimore, by the commissioners and agents of the general estate,
after paying the several annuities and sums of money hereinafter
provided for, and applied forever to the purposes for which it is
intended.
The testator, dividing into eight equal portions the revenues of
his estate, thus made up of the immovables left at his decease, and
of those which shall be acquired by his executors, with the aid of
his personalty and the interest accruing on his
Page 56 U. S. 371
credits, gives and bequeaths the first eighth part of the net
yearly revenue of the whole, during forty years, to the American
Colonization Society for colonizing the free people of color of the
United States, but the society shall not receive or demand, in any
one year, a larger sum than $25,000.
He gives and bequeaths the second eighth part of the net yearly
revenue of the whole to the Mayor, Aldermen, and Inhabitants of the
City of New Orleans until said eighth part of the net yearly
revenue of rents shall amount to the full and entire sum of
$600,000, and that for the express and sole purpose of establishing
an asylum for the poor of both sexes, and of all ages and castes of
color.
He gives and bequeaths the third eighth part of the net yearly
revenue of the whole to the Society for the Relief of Destitute
Orphan Boys of New Orleans, for the express and sole purpose of its
being invested in real estate, until the annuity shall amount to
the full sum of $400,000, exclusive of the interest which may have
accrued on it.
He gives and bequeaths the fourth eighth part of the net yearly
revenue of the entire estate to the Mayor, Aldermen, and
Inhabitants of the City of Baltimore for the express and sole
purpose of establishing a School Farm, on an extensive scale, for
the destitute male children of Baltimore, of every town and village
of Maryland, and of the great maritime cities of the United States,
until the said eighth part shall amount to the sum of
$3,000,000.
There now remains the revenue of one-half or four eighths of the
revenue of what the testator styles his general estate. The two
Cities of New Orleans and Baltimore being the principal legatees,
it is obvious that they are entitled to the four eighths not
bequeathed by a particular title; consequently, it is laid down
that until such time as these four annuities, bequeathed under a
particular title, shall have been paid off and expire, the Cities
of New Orleans and Baltimore shall receive, for the establishment
and support of said free schools, one-half only of the net yearly
revenue of rents of the general estate, and no more.
Moreover, the total amount to be received by each of the
legatees of one eighth of the revenue, until the respective sums of
$25,000, $600,000, $400,000, or $3,000,000 are realized, shows that
one of the annuities is to determine before the others are paid
off. The testator therefore orders that as soon as any one of the
annuities shall be filled and paid off, the proportions of the net
yearly revenue of rents of the general estate, which were payable
under the extinct annuity, shall go and be payable to the annuity,
bequeathed to the City of Baltimore, for
Page 56 U. S. 372
the establishment of a School Farm, so that the $3,000,000 may
be made up in as short a space of time as possible. It will not be
till the full and entire discharge of the annuities that the two
cities will divide between them the net yearly revenue of rents of
the general estate.
We will now turn our attention to the means and devices adopted
by the testator to improve the condition of his particular
legatees.
He forbids the alienation of the real estate which he leaves at
his death to the two cities, and points out how the houses shall be
let for short terms, the unimproved lots let for twenty-five years,
at most, so as to be revertible, together with all improvements, to
the mass of his estate, and the lands leased out so as to bring in
returns more and more ample.
He also orders his testamentary executors to invest his
personalty in houses and building lots in New Orleans and its
suburbs.
He has not ordered anything of the kind for the $25,000 of the
Colonization Society (first eighth). The sum is a small one, and
can be paid off in a short time.
But as respects the Society for the Relief of Destitute Orphans
(third eighth), he gives this third eighth part of the revenues to
be first deposited in one or more of the banks in New Orleans which
allow interest on deposits, and then, always with the approbation
of the Mayor, Aldermen, and Inhabitants of New Orleans, who shall
become parties to the deeds, the said society shall invest the
money, as good purchases offer, in houses and lots lying in New
Orleans and its suburbs, so that such real estate, once acquired,
shall be inalienable, and shall forever be retained and held by it
and remain its property in order that the revenue of the said real
estate may be sufficient for the support of the institution.
With respect to the particular legacy bequeathed to the City of
New Orleans for the purpose of establishing an Asylum for the Poor
(second eighth), he orders that, annually or semiannually, the
amount of the fractions of eighths be invested, as the
commissioners receive it, in bank stocks, or other good securities
on landed estate, on interest, so that the capital of $3,000,000,
may be thereby augmented up to the time when the last of the
annuity shall be received from the general estate; that, after this
period (or even earlier, if a favorable opportunity occur),
one-third of the whole (not more) be invested in the purchase of
landed estate, in the erection of buildings, and the furnishing of
necessary articles, and the remainder, or two-thirds at least,
invested in the purchase of such houses and building lots in New
Orleans and its suburbs, as will probably
Page 56 U. S. 373
greatly augment in value which real estate, when purchased,
shall never be alienated, but a permanent revenue derived therefrom
for the support of the institution.
Again, as regards the particular legacy bequeathed to the City
of Baltimore for a School Farm (fourth eighth), which legacy is to
reach the amount of $3,000,000, to be taken out of the eighth
charged therewith, and out of the other three eighths as soon as
the other three legacies are finally paid off, the fund must be
increased as it is received, by investing the moneys in bank stocks
or other good securities on landed estate on interest, and this
capital, with its increase, shall be invested, for one sixth part
at the utmost, in the purchase of such land, animals, and
agricultural implements as the institution shall need, and the
other five-sixths invested in the purchase of houses and building
lots situated in the City, suburbs, and vicinage of Baltimore, or
of tracts of land in its immediate neighborhood,
viz.,
such lots or lands to be all purchased under fee simple titles as
will probably greatly augment in value. And in this instance too,
the real estate, when purchased, is never to be sold or alienated,
but is to remain forever the property of the institution, to the
end that a permanent revenue may be derived therefrom.
We will now examine the measures taken by the testator to
prevent the cities from giving the moneys a different destination
from that prescribed by the testator.
Not content with appointing testamentary executors, McDonogh,
wishing to debar the city corporations from the handling of moneys,
has ordered that there be commissioners of his estate, having a
principal and central office in the City of New Orleans, where all
the muniments and papers relating to his affairs may be kept, as
well for the Asylum for the Poor, for the investment of the moneys
due to the Orphan Relief Society, for the School Farm of Baltimore,
as for the management of the general estate, or fund for the
education of the poor. These commissioners are to have the sole
management of the general estate, the leasing and renting of its
lands and houses, the cultivating of its estates, the collecting of
its rents, the paying of the annuities bequeathed as above, and are
to do all acts necessary to its full and perfect management.
These commissioners cannot be members of the city councils; but
they shall be appointed by the City Councils of New Orleans, as
regards the Asylum for the Poor; by the mayor and city councils, as
respects the School Farm at Baltimore, with the style of Directors;
by the respective City Councils of New Orleans and Baltimore, as to
the management of the fund for the education of the poor.
Page 56 U. S. 374
New appointments shall be made annually, on a day fixed by the
will.
The city councils shall have a supervision over their
operations; and to them the commissioners are liable for the
performance of all their duties, and must annually render an
account of their administration.
Besides these commissioners, each city shall have agents on the
spot to represent its commissioners; and these agents shall also be
appointed by the mayors and city councils.
And, after the payment of the annuities, the respective
commissioners, or the agents representing them, shall receive one
moiety of the net revenue of the year, to be disposed of
conformably to the will.
As for the purchases to be made, before the full payment of the
annuities by the commissioners of the Asylum for the Poor, they
must be approved by the Mayor and city Councils of New Orleans. The
same rule is laid down for the purchases to be made by the
Directors of the School Farm. They must be approved by the Mayor
and City Council of Baltimore.
The testator recommends to the commissioners of the Asylum for
the Poor to apply to the Legislature of the State of Louisiana for
an act of incorporation, subject always, however, to the conditions
provided for in the will. He has also recommended, in the same
language and under the same conditions, to the Directors of the
Farm School, to apply, for the same purpose, to the Legislature of
the State of Maryland. He recurs to the same idea, using the same
phraseology, and with the intent, no doubt, that his general estate
should become a juridical person, he also recommends to the
commissioners to sue out an act of incorporation for said general
estate, always subject to the conditions laid down in the will.
We omit a variety of minute regulations concerning the
publication of the annual accounts, the building and locality of
schoolhouses and residences for teachers, the school organization,
the immense lands for the Poor Asylum, together with the high-flown
disquisitions in which the testator indulges. All this matter
appears to be foreign to the controversy. The whole may be reduced
to these few words:
"The cities are the devisees, but the administration of the
property devised shall be carried on forever by commissioners
appointed by the cities, and accountable to them, and it shall be
the duty of said commissioners to hand over the moneys to the new
public institutions which the testator orders to be created."
The testator goes on to say:
"No compromise shall ever take place between the Mayor,
Aldermen, and Inhabitants of
Page 56 U. S. 375
Baltimore and those of New Orleans or their successors in
relation to their respective rights to my general estate."
"Neither party shall receive from the other by agreement a
certain sum of money annually or otherwise for its respective
proportions. Neither party shall sell its respective rights under
this will to the general estate, to the other or to others, but
said general estate shall forever remain and be managed as I have
pointed out, ordered, and directed."
"And should the Mayor and Aldermen of New Orleans and the Mayor
and Aldermen of Baltimore combine together and knowingly and
willfully violate any of the conditions hereinbefore and
hereinafter directed for the management of the general estate and
the application of the revenue arising therefrom, then I give and
bequeath the rest, residue, remainder, and accumulations of my said
general estate, subject always, however, to the payment of the
aforementioned annuities, to the States of Louisiana and Maryland
in equal proportions, to each of said states, of half and half, for
the purpose of educating the poor of said states under such a
general system of education as their respective legislatures shall
establish by law (always understood and provided, however, that the
real estate thus destined by me for said purpose of education shall
never be sold or alienated, but shall be kept and managed as they,
the said legislatures of said states, shall establish by law as a
fund yielding rents forever; the rents only of which general estate
shall be taken and expended for said purpose of educating the poor
of said respective states, and for no other). And it is furthermore
my wish and desire, and I hereby will, that in case there should be
a lapse of both the legacies to the Cities of New Orleans and
Baltimore, or either of them, wholly or in part, by refusal to
accept, or any other cause or means whatsoever, then, both or
either of said legacies, wholly or partially lapsed, shall inure,
as far as it relates to New Orleans, to the State of Louisiana,
and, as far as it relates to Baltimore, to the State of Maryland,
that the legislatures of those states respectively may carry out my
intentions as set forth in this my will as far and in the manner
which will appear to them most proper."
In October, 1852, the judge of the district court, sitting as a
circuit judge, passed the following decree,
viz.:
"That all that part of the olographic will of John McDonogh
beginning at the second paragraph with the words 'It is my will and
I direct my executors, hereinafter named, immediately after my
death, to correspond,' &c., on the second page, numbered as the
sixth page of the printed copy of the will on file, and ending with
the words 'or other ways, and held and owned by said corporations'
on the 33d page of the said printed copy
Page 56 U. S. 376
of said will, being all and every portion of said will relative
to the City of New Orleans, the City of Baltimore, the State of
Louisiana, and the State of Maryland, the 'general estate,' the
Colonization Society, a projected asylum in New Orleans, the
Society for the relief of Destitute Orphan Boys, a projected school
farm in Maryland, free public schools in New Orleans and Baltimore,
and the appointment of various boards of commissioners, agents,
directors &c., and for the investment and accumulation of the
estate, be, and all said provisions are, declared illegal, null,
and of no force and effect whatever, and that as to all the estate
of said deceased, except such as is disposed of in the first
paragraph of said will, the deceased died intestate, and his estate
fell, by his death, to his heirs at law. That complainants are
heirs at law of the deceased John McDonogh, in the following
proportions, to-wit: Maria Louisa Ord, wife of Pacificus Ord, Laura
J. Welsh, Thomas Welsh, Frank E. Welsh, and William P. Welsh,
minors, represented by their guardian, William F. Murdoch, are
heirs of twelve seventieths (12/70ths), one-half of said portion
being for the said Maria Louisa, and the other half being equally
divided between said minors. Anne Cole, Mary Murdoch, wife of
William F. Mordoch, Eliza Hayne, wife of George Hayne, George F.
Cole, Louisa Sheffey, wife of Hugh W. Sheffey, and the children of
Margaret Cole, the deceased wife of George P. Jenkins, namely,
George Jenkins, Mary McDonogh Jenkins, and Conway M. Jenkins,
minors, represented by their father George T. Jenkins, are heirs of
twelve seventieths of the estate. The said Anna, Mary, Eliza,
George F., and Louisa, each to take one sixth part of said portion,
and the remaining one sixth part thereof to be equally divided
between said minors. Sarah Day, wife of Nicholas Day, is heir of
twelve seventieths of the estate. Jane Beaver, wife of William
Beaver, Sarah Beaver, wife of Jacob Beaver, Robert H. Hammett,
Jesse Hammett, Anne Maria Snook, wife of Peter Snook, Eliza
Anderson, wife of Joseph C. Anderson, and the children of Margaret
Hammett, deceased, said children not being parties, are heirs of
twelve seventieths of the estate; the said Jane, Sarah, Robert,
Jesse, Ann, and Eliza, to take each a seventh part of said portion,
and the remaining seventh to be reserved for the children of said
Margaret, when they shall make themselves parties, and on due
proof. Rosalba P. Lynch, wife of Andrew H. Lynch, is heir of twelve
seventieths of the estate, the remaining ten seventieths to be
reserved for the heirs of the half-blood, when they shall make
themselves parties, and on due proof. That the said complainants
recover of the defendants' executors of the will of the deceased
all and singular the property, real and personal,
Page 56 U. S. 377
corporeal and incorporeal, composing the estate of the deceased,
and especially all and singular the property of the deceased, in
the several parishes of the State of Louisiana, mentioned or
comprised in the inventory of the succession, prepared by Thomas
Layton and Adolph Mazureau, notaries public, a copy of which is in
evidence, and that said complainants have execution and be put in
possession of the same in conformity with law and the rules of
court. That reference be made to the master in chancery for an
account of the administration of the said executors, from the death
of the deceased to the execution of this decree, and that said
executors account to the said master in the premises, and that said
master report to the court, and so much of the said bill as demands
said account and the recovery of any moneys in the hands of said
executors, is retained for further decree. That any other person or
persons, not now parties to the proceedings, claiming title to the
estate of the deceased, or any part thereof, be allowed to present
their claims respectively before this Court, to make due proofs
thereof, and to become parties to the proceedings for the due
establishment and adjudication thereof. That the costs of the
complainants and of the executors, be paid out of the succession of
said deceased, and the costs of the other parties defendant by
themselves respectively."
"Decree rendered 7th October, 1852."
"Signed 26th October, 1852."
"[SEAL] THEO. H. McCALEB,
United States Judge"
From this decree, the executors appealed to this Court.
Page 56 U. S. 400
MR. JUSTICE CAMPBELL delivered the opinion of the Court.
The appellees are the heirs at law of John McDonogh, a native of
the State of Maryland, who died at McDonogh, near New Orleans, in
the State of Louisiana, in 1850, leaving there a very large
succession. In 1839, the decedent executed, at New Orleans an
olographic will for the disposal of the estate he might have at his
death. This will is in a legal form, and has been admitted to
probate in the District Court of New Orleans. It contains two
particular legacies which are not contested, and a single legacy
under a universal title. In this bequest the testator declares
"that for the more general diffusion of knowledge, and consequent
wellbeing of mankind," and "being convinced that he could make no
disposition of those goods which the Most High had placed under his
stewardship, as by means of which the poor will be instructed in
wisdom and led into the path of holiness,"
"he gives, wills, and bequeaths all the rest, residue, and
remainder of his estate, real and personal, present and future, as
well that which was then his as that which he might acquire at any
time before his death, and of which he might die possessed, subject
to certain annuities, to the corporations of the Cities of New
Orleans and Baltimore forever, one-half to each, . . . to and for
the several intents and purposes thereafter declared."
The testator directs his executors to convert his personal
estate into real property, whereby
"the whole of his estate will become a permanent fund in real
estate, affording rents, no part of which shall ever be touched,
divided, sold, or alienated, but shall forever remain together as
one estate, and be managed"
as he shall order.
For the management of this estate, thus declared to be
inalienable, he directs the two cities each to select annually
three agents, whose duty it should be to receive seisin and
possession of the estate from his executors, immediately after his
death. They are "to lease or rent the lots," "cultivate the
plantations," "collect the rents," "pay the annuities," "invest the
moneys," and, "in fine, do all acts necessary to its full and
perfect management, according to the will;" the will of the
testator being
"that no part of the general estate, or revenue from rents
arising from said general estate, shall go into the hands of the
corporate authorities of the said cities, but that the said
authorities should have forever the supervision of it."
The testator designed the joint management of the agents of the
cities, and the joint supervision of their authorities over the
estate, to be perpetual. He forbids the cities to vary, by
agreement or by any compromise the relations he has established
between them in regard to it. They must make no sale of their
interests; no traffic with their powers of control; no
surrender,
Page 56 U. S. 401
for money or other consideration, of their supervisory care. But
should they combine to violate his scheme of management or
appropriation, their rights are declared forfeited and "the general
estate" is limited over to the States of Louisiana and Maryland,
"for the purpose of educating the poor of those states," "under
such a general system of education as their legislatures should
appoint." He further provides that should there be "a lapse of the
legacies from the failure of the legatees to accept, or any other
cause or means whatsoever," the shares should inure for the benefit
of the state or states in which the cities are situate;
"that the legislatures of those states respectively may carry
his intentions, as expressed and set forth in the will, into effect
as far and in the manner which will appear to them most
proper."
The testator having provided for the perpetuity of the McDonogh
estate, and the destination of its revenues, proceeds to develop a
minute and detailed scheme for its management, improvement, and the
expenditure of its income. He appropriates one eighth part of its
annual revenue for forty years for colonizing the free people of
color to the American Colonization Society, the sum not to exceed
$25,000 per annum; one eighth part for the erection, in New
Orleans, of an asylum for the poor of all ages, castes, and colors;
one eighth part to an incorporated society for the relief of orphan
boys in New Orleans; and one eighth part for the establishment of a
school farm in Maryland. The money appropriated to the asylum,
school farm, and orphan boys he requires to be invested as capital
in real estate, and the rents only to be subject to the uses of the
donees. The capital of the asylum and school farm is to be entirely
collected before any appropriation takes place for their use, and
for the one the capital is to be $3,000,000, and for the other
$600,000. The remaining four eighths of the income of the general
estate, for the present, and the whole, after the objects above
mentioned are fulfilled, are destined
"for the education of the poor without the cost of a cent to
them, in the Cities of New Orleans and Baltimore and their
respective suburbs in such a manner that every poor child and youth
of every color in those places may receive a common English
education -- based, however, be it particularly understood, on a
moral and religious one,"
the whole of the general estate "to form a fund in real estate
which shall never be sold or alienated, but be held and remain
forever sacred."
To carry his purposes into effect, he directs the selection of
boards of managers for the different establishments, and suggests
that acts of incorporation may become necessary to facilitate their
operations.
Page 56 U. S. 402
The appellees claim that, as to the property embraced in this
bequest to the cities, that John McDonogh died intestate.
Their argument is that although he makes in the commencement of
his will a formal gift to the cities; although the cities are
designated as his legatees in several clauses of the will, in
precise terms; although the property is described as property
"willed and bequeathed to the cities," that the testator has
sedulously contrived to withdraw from them the seisin and
possession of the whole estate, and has committed them to an
uncertain and fluctuating board, for the selection of which he has
provided; that the dominion and use of this property, insofar as he
has permitted either, has been confided to this board of managers,
but that this board is held servilely to a code of regulations he
has dictated, the aim of which is to hold the "McDonogh estate"
together in perpetuity; that by these restrictive regulations, the
donations to the cities have become nugatory and unavailing.
This conclusion was adopted by the circuit court, whose decree
is under revisal, and has been sustained in the argument at the bar
of this Court with great power and ability.
We may remark of the will of the testator that it indicates his
imagination to have become greatly disturbed by a long and earnest
contemplation of plans which he says "had actuated and filled his
soul from early boyhood with a desire to acquire a fortune, and
which then occupied his whole soul, desires, and affections." In
the effort to accomplish these cherished hopes, he has overstepped
the limits which the laws have imposed upon the powers of
ownership, overlooked the practical difficulties which surround the
execution of complex arrangements for the administration of
property, greatly exaggerated the value of his estate, and unfolded
plans far beyond its resources to effect, and has forgotten that
false calculations, mismanagement, or unfaithfulness might occur to
postpone or prevent their attainment. Holding and declaring a firm
faith in the interposition of Providence to render his enterprise
successful, he apparently abandons himself, without apprehension or
misgiving, to the contemplation of the "McDonogh estate," as
existing through all time, without any waste or alienation, but
improving and enlarging, "extending the blessings of education to
the poor through every city, town, and hamlet" of the state where
he was born, and the state in which he had lived and was to die;
"rescuing from ignorance and idleness, vice and ignominy, millions
upon millions of the destitute youth of the cities," and "serving
to bind communities and states in the bonds of brotherly love and
affection forever."
The exaggeration which is apparent in the scheme he projects
Page 56 U. S. 403
and the ideas he expresses concerning it afford the ground of
the argument for the appellees. It is, however, unfair to look to
the parts of the will which relate to the disorders which reign in
society, or to his aspirations to furnish a relief for these
"during all time," or to the prophetic visions awakened by the
exalted and exciting ideas which dictated the conditions of the
will, for the rule of its interpretation. We must look to the
conveyances he has made in the instrument, the objects they are
fitted to accomplish, and the agencies, if any, to be employed, and
endeavor to frame these into a consistent and harmonious plan,
accordant with his leading and controlling intentions. In reference
to his controlling purpose there can be no mistake. He says, "that
the first, principal, and chief object" in his view is "the
education of the poor" of the two cities. With equal emphasis and
precision he has disclaimed the desire of building the fortunes of
his natural relations. He says,
"That even to his children, if he had them, as he has not, and a
fortune to leave behind him, he would, besides a virtuous
education, to effect which nothing should be spared, bequeath to
each but a very small amount, merely to excite them to habits of
industry and frugality, and no more."
His ruling purpose had no connection with the poor of any one
generation. His desire was to establish a foundation to exist for
all time -- a perpetuity.
He knew that to attain this purpose, a succession of persons,
animated with a corresponding aim, must be obtained, and that the
legal capacities of voluntary associations, even if he could hope
to find such to enter into his plans, were wholly unfitted for his
design; nor did he hope to effectually combine such persons by any
power or prayer of his own. Hence, he selected as his devisees
bodies corporate, endowed with the faculties of acquiring and
holding property, having determinate ends and abiding agencies to
be employed in accomplishing them. These were all requisite for the
full attainment of the purposes he has declared.
He excludes, it is true, the municipal authorities from the
particular management of the estate, or the application of its
revenues.
But the municipal officers are not his legatees. They are
themselves but agents clothed with a temporary authority; nor do
the officers perform their executive duties except by the
interposition of agents subordinate to their control and subject to
their supervision. Had the testator confined himself to an
unconditional donation of the general estate to the cities for the
use of public schools, it would scarcely have fallen under the
personal management of the corporate authorities. They would
Page 56 U. S. 404
probably have appointed boards or agencies, to whom powers, more
or less general would have been confided and over whose conduct
their supervision would have been more or less particular and
exact. The knowledge of this probably induced the testator to
describe the board which his experience and observation had marked
as the most efficient and responsible. He defines their number, the
manner of their appointment, the form of their accounts, the modes
of their business, and urgently exacts that the great, and to his
eyes sacred, interests of his charity should not be blended with
the vulgar and debauching concerns of daily corporate management.
These directions must be regarded as subsidiary to the general
objects of his will, and whether legal and practicable or
otherwise, can exert no influence over the question of its
validity. Nor do we esteem the facts, that he has given his estate
a name, regards it as a distinct entity, and couples with it
language denoting perpetuity, important as evidence that the cities
are not his legatees. A gift to a municipal corporation tends to
create a perpetuity. Property thus held ceases to be the subject of
donation or of devise, of transfer by bankruptcy, or in the order
of succession. The property of such a corporation is rarely the
subject of sale, and practically it is out of commerce. McDonogh
supposed that he could prohibit any alienation or division. We do
not perceive, therefore, why he should have sought an incorporation
of the general estate; nor do we understand that this forms a
prominent portion of his scheme.
The will, through every part, discloses that the cities are the
particular objects of his interest and the poor of the cities of
his providence and bounty. His will designates the cities by their
corporate name as his legatees in definite and legal language. His
plan of administration is to be executed through agents, selected
by their corporate authorities, and to the end of conveying to the
poor of the cities perpetually the fruits of his property. We
should violate authoritative rules of legal interpretation were we
to disinherit the cities under these circumstances and to
substitute for them "an ideal being" called the "general estate,"
having no legal capacity, nor juridical character, and whose
recognition, therefore, could have no result but to overturn the
will of the testator. C.C. 1706; 1 Spence, Eq.J. 529, 530; 5 Ann.
557.
Having thus determined that the legacy is to the cities by a
universal title, and, having extracted from the will the leading
and controlling intention of the testator, the next inquiry is
whether a legacy given for such objects is valid.
The Roman jurisprudence, upon which that of Louisiana is
founded, seems originally to have denied to cities a capacity
to
Page 56 U. S. 405
inherit, or even to take by donation or legacy. They were
treated as composed of uncertain persons, who could not perform the
acts of volition and personalty involved in the acceptance of a
succession. The disability was removed by the Emperor Adrian in
regard to donations and legacies, and soon legacies
ad ornatum
civitatis and
ad honorem civitatis became frequent.
Legacies for the relief of the poor, aged, and helpless and for the
education of children were ranked of the latter class. This
capacity was enlarged by the Christian emperors, and after the time
of Justinian there was no impediment. Donations for charitable uses
were then favored, and this favorable legislation was diffused over
Europe by the canon law so that it became the common law of
Christendom. When the power of the clergy began to arouse the
jealousy of the temporal authority, and it became a policy to check
their influence and wealth -- they being, for the most part, the
managers of property thus appropriated -- limitations upon the
capacity of donors to make such gifts, were first imposed. These
commenced in England in the time of Henry III, but the learned
authors of the history of the corporations of that realm affirm
that cities were not included in them -- "perhaps upon the ground,
that the grants were for the public good," and although "the same
effect was produced by the grant in perpetuity to the inhabitants,"
"the same practical inconvenience did not arise for it, nor was it
at the time considered a mortmain." Mereweth. & Steph.
Hist.Corp. 489, 702.
A century later, there were a direct inhibition upon grants to
cities, boroughs, and others which have a perpetual commonalty, and
others "which have offices perpetual," and therefore "be as
perpetual as people of religion." The English statutes of mortmain
forfeit to the King or superior lord the estates granted, which
right is to be exerted by entry -- a license therefore from the
King severs the forfeiture. The legal history of the Continent on
this subject does not materially vary from that of England. The
same alternations of favor, encouragement, jealousy, restraint, and
prohibition, are discernible. The Code Napoleon, maintaining the
spirit of the ordinances of the monarchy, in 1731, 1749, 1762,
provides
"That donations, during life or by will, for the benefit of
hospitals of the poor of a commune, or of establishments of public
utility, shall not take effect except so far as they shall be
authorized by an ordinance of the government."
The learned Savigny, writing for Germany, says:
"If modern legislation, for reasons of policy or political
economy, has restrained conveyances in mortmain, that those
restrictions formed no part of the common law."
The laws of Spain
Page 56 U. S. 406
contain no material change of the Roman and ecclesiastical laws
upon this subject. The reports of the Supreme Court of Louisiana in
which state these laws were long in force attest their favor to
such donations.
De Pontalba v. New Orleans, 3 Ann.
660.
This legislation of Europe was directed to check the wealth and
influence of juridical persons who had existed for centuries there,
some of whom had outlived the necessities which had led to their
organization and endowment. Political reasons entered largely into
the motives for this legislation -- reasons which never have
extended their influence to this continent, and, consequently it
has not been introduced into our systems of jurisprudence. 2 Kent's
Com. 282, 283;
Whicker v. Hame, 14 Beav. 509.
The precise result of the legislation is that corporations
there, with the capacity of acquiring property, must derive their
capacity from the sovereign authority, and the practice is, to
limit that general capacity within narrow limits, or to subject
each acquisition to the revisal of the sovereign. We have examined
the legislation of the European states, so as better to appreciate
that of Louisiana. No corporation can exist in Louisiana, have a
public character, appear in courts of justice, exercise rights as a
political body, except by legislative authority; and each may be
dissolved, when deemed necessary or convenient to the public
interest. Corporations created by law are permitted to possess an
estate, receive donations and legacies, make valid obligations and
contracts, and manage their own business. Civil Code, tit. 10, c.
1, 2, 3, art. 418,
et seq.
The privileges which thus belong to corporations legally
existing, have been granted to the inhabitants of New Orleans in
various legislative acts. The authorities of the city have,
besides, received powers of government extending to all subjects
affecting their order, tranquility, and improvement. It is agreed
that these powers are limited to the objects for which they are
granted, and cannot be employed for ends foreign to the
corporation. 1 Paige 214; 15 N.H. 317; 4 S. & S.C. 156; 3 Ann.
294.
But there can be no question as to the degree of appreciation in
which the subject of education is held in Louisiana. The
constitution of the state imposes upon the legislature the duty of
providing public schools for gratuitous education; and various acts
attest the zeal of that department in performing that public duty.
Among these, there is one which authorizes and requires the
corporate authorities of the City of New Orleans to establish them
in that city, and to enact ordinances for their organization,
government, and discipline; they are likewise
Page 56 U. S. 407
charged with the instruction, education, and reformation of
juvenile delinquents and vagrants. These acts are from a sovereign
authority, and endue the city with the powers of acquiring,
retaining, and disposing of property, without limitation as to
value, and assign to it, as one of its municipal functions, the
charge of popular education. No Parliamentary grant or royal
license in Great Britain -- no government ordinance in France --
could remove more effectually a disability, if one existed, or
create a capacity, if one were wanting, to the corporations of
those countries. Rev.Stat. La. 41, 111, 116, 117, 144, 239; 2 Rob.
244, 491.
We shall now examine the devise to the cities, in connection
with the various conditions annexed to it. The appellees insist it
is a disposition reprobated by law, for that it contains
"substitutions and
fidei commissa," which are prohibited
by article 1507 of the code, and which annul the donation in which
they are found.
We shall not inquire whether the prohibition extends to
donations in favor of corporations, and for objects of public
utility, though this seems to have been a question in France.
Lefeb. des Don. Pieuses 31, 33.
We shall limit the inquiry to the nature of the prohibited
estates, to determine whether they exist in this legacy. The terms
are of Roman origin, and were applied to modes of donation by will,
common during its empire, and from thence were transferred to the
derivative systems of law in use upon the continent of Europe. The
substitute was a person appointed by the testator to take the
inheritance, in case of the incapacity or refusal of the instituted
heir. A pater familias was authorized to make the will of his son
during his nonage, or lunacy, or other incapacity to perform the
act; and in the case of his death, under such circumstances, the
appointee took the succession. This was a mode of substitution.
The
fidei commissum originated in a prayer, petition,
or request, of a testator upon his instituted heir, to deliver the
inheritance, or some portion of it, to a designated person. Every
testament being originally a law of succession, proposed by the
testator, and consented to by the Roman people, the language of
legislation, that is, of mandate and authority, was essential to
its validity. Precatory words were insufficient to raise an
obligation upon the heir, or to vest property in the donee. This
was afterwards changed, and words of request then imposed a charge
upon the heir, to maintain the faith in which the testator had
confided. Afterwards, the distinctions between words of mandate and
of request became obsolete, and both were considered with reference
to their significance of the intentions of
Page 56 U. S. 408
the testator. The notion of a
fidei commissum thus
became limited, implying no more than an estate in possession,
encumbered with the charge to surrender it to another. This might
be pure and simple -- that is, the duty to surrender might be
immediate, or it might be on a condition, or after the expiration
of a term even extending to the life of the gravatus. The
substitute originally came in the place of another; the idea was
modified to include those who came after another under certain
circumstances.
The conjunction of the
fidei commissum with the
substitution would then become a natural mode of settlement of
property. The instituted heir might be charged to hold and enjoy
the succession for his life, and at his death that it should go to
another, his heir, and that heir might in turn become a gravatus,
for the benefit of another successor, and so from generation to
generation.
Such a substitution might be properly called a
"substitution
fidei commissaire," or an "oblique substitution." This mode of
limiting estates from degree to degree, and generation to
generation, was much employed on the continent of Europe, and
served to accumulate wealth in a few families at the expense of the
interests of the community. The vices of the system were freely
exposed by the political writers of the last century, and a general
antipathy awakened against it. Substitutions having this object
were prohibited during the revolution in France, and that
prohibition was continued in the Code Napoleon, whose authors have
exposed with masterly ability the evils which accompanied them.
Motifs et Dis. 375.
This prohibition was transferred to the code of Louisiana, with
the addition of the fidei commissa. These terms imply a disposition
of property through a succession of donees. The substitution of the
article 1507 of the code being an estate for life, to be followed
by a continuing estate in another by the appointment of the
testator.
The
fidei commissa of the Louisiana Code are estates of
a similar nature, implying a limitation over from one to another.
They are the
fidei commissa of the Spanish and French
laws, insofar as those estates are not tolerated by other articles
of the code. We shall not attempt to define them from an
examination of the code and the reports of the supreme court of
that state. It is not necessary for the decision of this case. We
are unable to perceive anything in the code to justify the
supposition that the English system of trusts, whether in its
limited signification as applied in conveyancing, or in its broad
and comprehensive import, as applied by the courts of chancery,
were with the purview of the authors of this code in framing
Page 56 U. S. 409
this prohibition. The terms "substitution"
"and fidei
commissa" are words foreign to the English law. They are
applied to no legal relation which exists in it, and describe
nothing which forms a part of it. The technical words, of "charged
to preserve and to render," in article 1507, which embrace so much
to a continental lawyer, only provoke inquires in the mind of one
accustomed to the language of the common law. The allusion to the
"Trebillianic portion" is to a right of which there has never been
a counterpart in the English system. The whole article refers
exclusively to things of a continental origin. The estates known as
"
fidei commissa" and "substitutions," insofar as regards
the order of persons and the duration of their interest, may be
created by devise in an English will. This can be done without the
interposition of trustees or with them. That is, legal estates or
equitable estates can be limited to embody those conditions of the
fidei commissa and substitution; but the separation of the same
estate into parts, legal and equitable, with separate courts in
which their respective qualities may be represented, is not of
continental origin. We may say of this as Sir William Grant says of
another doctrine of equity, "that in its causes, its objects, its
provisions, its qualifications, and its exceptions, it is a law
wholly English." We find nothing of the
fidei commissa or
substitution in the legacy to the cities. The mischiefs resulting
from conveyances in mortmain, and which led to restraints upon
them, also existed in the substitutions of the French law, and led
to their suppression. The remedies for the mischief, in consequence
of the difference of the persons, were essentially variant. In the
case of natural persons, the abrogation of the capacity to limit
property from successor to successor, and generation to generation,
removed the evil of perpetuities. But no statute against estates
tail, or of remainder, or reversion, operate upon a corporation.
The mischief results from the duration of the corporation and the
tenacity with which, from its nature, it holds to property. The fee
simple estate to a corporation is that which most effectually
promotes the creation of a perpetuity. The remedy in Europe in this
case was to restrict the number of corporations, and to reserve an
oversight of their acquisitions to the sovereign authority. This
precaution was taken, as we have seen, also in Louisiana. If she
has granted to her metropolis an unrestricted license to acquire
and to hold property, we must conclude there were sufficient
motives to justify the act.
Our next inquiry will be, whether the testator is authorized to
define the use and destination of his legacy. We have seen that
donations to the cities of the Roman empire followed immediately
upon the
senatus consultum which allowed them to
Page 56 U. S. 410
take, and that the destination of such donations to public uses
was declared. Domat says,
"One can bequeath or devise to a city or other corporation
whatsoever, ecclesiastical or lay, and appropriate the gift to some
lawful and honorable purpose, or for public works, for feeding the
poor, or for other objects of piety or benevolence."
Domat, Lois Civiles, b. 4, tit. 2, § 2.
The City of New Orleans holds its public squares, hospitals,
levees, cemeteries, and libraries by such dedications. This Court
says,
New Orleans v. United
States, 10 Pet. 662,
"That property may be dedicated to public use, is a well
established principle of the common law. It is founded in public
convenience, and has been sanctioned by the experience of ages.
Indeed, without such a principle, it would be difficult, if not
impracticable, for society, in a state of advanced civilization, to
enjoy those advantages which belong to its condition, and which are
essential to its accommodation."
The Supreme Court of Louisiana, in a number of cases, has
applied the principle contained in these citations with confidence.
DePontalba v. New Orleans, 3 An. 662;
Will of
Mary, 2 Rob. 440;
Duke of Rich. v. Mylne, 17 La. 312;
Maryland and Louisiana v. Roselius, MS.
The Code of Louisiana provides that donations made for the
benefit of an hospital, of the poor of the community, or of
establishments of public utility, shall be accepted by the
administrators of such establishments. C.C. 1536. It may be very
true this article relates merely to the formal manner by which
donations,
inter vivos, for such objects may be perfected;
but it will be observed that the requirement of the French Code of
a government license for the gift is dispensed with in the frame of
this article, and a strong implication arises from its terms in
favor of the validity of such gifts. An acceptance of such
donations in a will is unnecessary. Nor do we see any ground for
inferring a prohibition of donations by will, which are lawful,
inter vivos, in the absence of any prohibitive article in
the code. We are of the opinion, therefore, that the testator might
declare the uses to which he destined his legacy to the cities; and
the destination, being for purposes within the range of the powers
and duties of its public authorities, is valid.
We shall now examine the question, whether the conditions
annexed to this legacy, the prohibition to alienate or to divide
the estate, or to separate in its management the interest of the
cities, or their care and control, or to deviate from the
testator's scheme, invalidate the bequest.
The appellees contend that the performance of these conditions
is impossible; they are contrary to public policy; introduce
tenures at variance with the laws; and would result in mischief
Page 56 U. S. 411
to the state. That the conditions are of the essence of the
gift, and the will would not conform to the dispositions of the
testator, if they should be erased or disregarded. They insist that
the appellees take by virtue of the law, but the devisees claim
under a will. That, if they cannot exhibit a clear and valid devise
of the property, the legal right of the heir should not be
defeated. That this Court cannot, under the guise of judicial
construction, sanction an instrument from which the main
prescriptions of the testator are obliterated.
The argument on this point against the cities possesses great
logical force. It is admitted that illegal or immoral conditions
will vitiate a contract, C.C. 2026; but the code provides that, "in
all dispositions inter vivos and mortis causa, impossible
conditions, those which are contrary to the laws or to morals, are
reputed not written." The authorities cited establish that, under
the word "conditions," the various modes of appropriation, use, and
destination attached to this legacy are included. Merlin says,
"Conditions take different names according to their object; they
are called in turn charges, destinations, motives, designations,
terms. But although the conditions, charges, destinations &c.,
ought to be distinguished, nevertheless the word condition often
serves to express them all."
Merlin's Cond. § 2.
The signification of this article of the code becomes then an
important inquiry. It is found in the Digest of Justinian, and from
thence passed into the codes of France and Spain. Touil. 5, No.
255; 1 Escrich.Dic.leg. 565. It was copied from the Code Napoleon
into the Code of Louisiana. Savigny furnishes us with the history
of the law as found in the Pandects. One of the schools into which
the Roman jurisconsults was divided Proculeians placed the
construction of contracts and testaments, containing illegal or
impossible conditions, on the same principle, and insisted that the
whole disposition in each should be vitiated by them; another
Sabinians changed the rule with reference to the instrument, and,
while contracts were vitiated by the illegal or immoral conditions,
in wills the conditions only were pronounced nugatory. Justinian
adopted the opinion of the latter, which seems to have been
preferred in practice before, and his adoption has been regarded as
a legislative sanction of their rule in favor of testaments. Great
authorities in France oppose this doctrine, and in Prussia it
exists, but in a modified form, while it has been wholly rejected
in Austria. 5 Toul., No. 247; Saving.Rom.Law, § 122-1224.
The common law rule depends upon the fact, whether the
performance of the illegal, immoral, or impossible condition is
prescribed as precedent or subsequent to the vesting of the estate
of the devisee. In the former case, no estate exists till
Page 56 U. S. 412
the condition is performed, and no right can be claimed through
an illegal or immoral act. In the latter case, the estate remains,
because it cannot be defeated as a consequence of the fulfillment
of an illegal or immoral condition. This, however, applies only to
devises of real estate; for the ecclesiastical and chancery courts,
in regard to bequest of personalty, follow the rule of the civil
law, as above expressed. 1 Rop.Leg. 754-755; 7 Beav. 437; 1 Eden
140; 2 Spence, Eq.J. 229.
The conditions in the case before us, which impose restraints
upon alienation and partition, and exact a particular management
through agents of a specified description, are conditions
subsequent, and would not, by the rule of the common law, divest
the estate, if pronounced to be illegal or immoral.
28 U. S. 3 Pet.
377; 1 Sim.N.S. 464; 7 E.L. & Eq. 179; 2 J.C. Scott C.B. 883; 3
Zabriskie 117; 10 Ala. R. 702.
These conditions belong, too, to the class that are reprobated
as repugnant to the legal rights which the law attaches to
ownership. The common law pronounces such conditions void, in
consequence of that repugnancy, and the civil law treats them as
recommendations and counsel, not designed to control the will of
the donee. 1 Rop.Leg. 785; 4 Kent's Com. 130; Toul. 5, No. 51; U.S.
id., No. 405; Dalloz.Dic. tit. Cond. 96; 10 E.L. &
E.R. 23.
Our opinion upon the article of the code we have cited is that
it does not prescribe a rule of interpretation to aid the
understanding of the courts in finding the intention of the
testator, but that it is a peremptory enactment of the legislative
authority, applicable to the subject matter in all cases, without
reference to any declared or presumed intentions of the author of a
particular donation. The code treats such conditions in contracts
as the wrong of both the parties, and annuls the act. In the case
of the testament, while it refuses to allow the condition, it saves
to the innocent legatee the disposition in his favor. It may be
that this is done on the presumption that, independent of the
condition, the legatee is the favorite of the testator, or from a
consideration of the legatee alone. Savigny Rom.Law, § 122,
et
seq.
We have thus far treated the cities as occupying an equal
position, and have considered the case with reference to the City
of New Orleans alone.
The City of Baltimore is legally incorporated, and endowed with
the powers usually granted to populous and improving cities. The
general assembly of Maryland, in 1825, authorized the city to
establish public schools, and to collect taxes for their support,
and in 1842 it was empowered to receive in trust, and to control
for the purposes of the trusts, any property which
Page 56 U. S. 413
might be bestowed upon it by gift or will for any of its general
corporate purposes, or in and of the indigent and poor, or for the
general purposes of education or for charitable purposes of any
description whatsoever within its limits. The legal capacity of the
city, therefore, corresponds with that of the City of New Orleans.
Do the laws of Louisiana make a discrimination?
The code declares "that all persons may dispose of or receive by
donations,
inter vivos or
mortis causa except
such as the law declares expressly incapable." C.C. 1456. There is
no distinction between corporations and natural persons in the
power to receive by donation, nor do we find any discrimination
between domestic and foreign corporations, except perhaps in a
single article. "Donations may be made in favor of a stranger when
the laws of his country do not prohibit similar dispositions in
favor of a citizen of this state." C.C. 1477.
We greatly doubt whether this article applies to all the
citizens or corporations of the states of the Union. The
constitutional relations between the citizens of the different
states are those of equality, in reference to the subject of this
article. This Court, in the case of
Bank
of Augusta v. Earle, 13 Pet. 520, said,
"that by the law of comity among nations, a corporation created
by one sovereignty is permitted to make contracts in another, and
to sue in its courts; and that the same law of comity prevails
among the several sovereignties of the Union. This comity is
presumed from the silent acquiescence of the state. Whenever a
state sufficiently indicates that contracts which derive validity
from its comity are repugnant to its policy, or are considered as
injurious to its interests, the presumption in favor of its
adoption can no longer be made."
These principles were applied to a purchase of lands by the
corporation of one state in another.
Runyon v.
Coster, 14 Pet. 122.
The principles of these cases have been adopted in Louisiana. 4
Rob.La. 517; 17 La. 46, 312.
We know of no departure from these principles in Maryland, and
do not doubt that the corporations of Louisiana would take in the
same manner as those of Maryland in that state.
The question remains to be considered, whether the destination
of the legacy to public uses in the City of Baltimore affects the
valid operation of the bequest. All the property of a corporation
like Baltimore is held for public uses, and when the capacity is
conferred or acknowledged to it to hold property, its destination
to a public use is necessarily implied. Nor can we perceive why a
designation of the particular use, if within the general objects of
the corporation, can affect the result; nor is there
Page 56 U. S. 414
anything in the nature of the uses declared in this will which
can withdraw from the legacy a legal protection.
Neither do we concede that the uses, being in a degree foreign
to the State of Louisiana, impair the effect of the will. It is
well settled that where property is conveyed to a use which would
be protected, if to be executed at home, in the absence of a
prohibition, the conveyance would be valid if the execution were
ordered to take place abroad. This question was considered by Mr.
Justice Story in the opinion prepared by him for the case of the
Baptist Association v. Smith, published in 3 Pet. 486, 500
[not found].
He says,
"there is no statute of Virginia making such bequests void, and
therefore, if against her policy, it can only be because it would
be against the general policy of all states governed by the common
law."
He concludes: "there is no solid objection to the bequest,
founded upon the objects being foreign to the State of Virginia."
In the late case of
Whicker v. Hume, 14 Beav. 509, on
appeal, 16 Jury. 391, a bequest to trustees, to be appropriated in
their absolute and uncontrolled discretion "for the benefit and
advancement and propagation of learning in every part of the world
as far as circumstances will permit," was pronounced valid. We find
nothing in the Code of Louisiana indicating a spirit less
comprehensive or catholic; we shall not, therefore, infer the
existence of a restriction where none has been declared. We are of
the opinion, that the uses for which the testator has devised his
estate to the City of Baltimore, are approved alike in the
legislation of Louisiana and Maryland, and that the execution of
them may be enforced in their courts.
We have considered the legacy without a reference to the
annuities which the testator has charged upon it. It is only
necessary for us to determine a single question in regard to them.
Are the heirs at law interested in the question of their
legality?
The Civil Code (C.C. 1697) declares
"that legatees under a universal title, and legatees under a
particular title, benefit by the failure of those particular
legacies, which they are bound to discharge."
It will be seen that all the annuitants, having a distinct
character from the cities, have a claim upon them for their annual
allowance. Should these annuities be invalid this charge would be
removed, and the cities relieved. Such was the decision of the
Supreme Court of Louisiana,
Prevost v. Martel, 10 Rob.
512, and such the conclusion of the court of Cassation, in
Handier v. Tendon, the report of whose judgment is
appended to one of the briefs of the appellants.
Page 56 U. S. 415
The annuities created to establish an Asylum for the Poor and a
School Farm and of the validity of which grave doubts exist -- are
charges upon the legacy of the cities. If the directions of the
testator cannot be legally complied with, the charge will be
remitted without defeating the legacy. Sav.Roman Law § 120,
129.
We shall not express any decided opinion in reference to either
of the annuities, but leave the question of their validity to be
settled by the persons interested, or by the tribunals to whose
jurisdiction they appropriately belong.
We have considered it to be our duty to examine the several
questions which arise upon the record, so that the important
interests involved in them may be relieved from further
embarrassment and controversy. In our opinion, the failure of the
devise to the cities would not have benefited the appellees; for
that the limitation over to the states of Maryland and Louisiana
would have been operative in that event.
We close our opinion with expressing our acknowledgments for the
aid we have received from the able arguments at the bar, and the
profound discussions in the supreme court of Louisiana, with whose
judgment we have concurred.
The decree of the Circuit Court for the Eastern District of
Louisiana is reversed, and the cause remanded to that court, with
directions to dismiss the bill of the plaintiffs with costs.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Eastern
District of Louisiana, and was argued by counsel. On consideration
whereof, it is now here ordered, adjudged, and decreed by this
Court, that the decree 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 that court to dismiss the bill of the
complainants, with costs in that court.
