1. By a statute of New York, a devise of lands in that state can
only be made to natural persona and to such corporations as are
created under the laws of the state and are authorized to take by
devise. A devise, therefore, of lands in that state to the
government of the United States is void.
2. The several states of the Union possess the power to regulate
the tenure of real property within their respective limits, the
modes of its acquisition and transfer, the rules of its descent,
and the extent to which a testamentary disposition of it may be
exercised by its owners.
In February, 1870, Charles Fox, of the City of New York, died
possessed of certain personal and real property situated in the
State of New York. By his last will and testament, he devised and
bequeathed the whole property, after the payment of his debts, to
the government of the United States for the purpose of assisting to
discharge the debt created by the war of the Rebellion. By the
government of the United States, the body politic, the nation known
as the United States was meant. Upon the petition of the District
Attorney of the United States, the will was presented for probate
before the Surrogate of the City and County of New York. The infant
heirs of the deceased contested the will. The surrogate decreed
that the will was inoperative and void as a devise of real estate;
that the United States could not lawfully take and hold the real
estate as devisee under the will, in trust or otherwise, and that
it descended to the heirs-at-law. He at the same time decided that
the will was valid and operative as to the personal estate of the
testator, and that the United States was the sole legatee, and
accordingly admitted the testament to probate as a will of personal
estate only. On appeal from the surrogate, this decree was affirmed
by the supreme court, and afterwards by the Court of Appeals of the
state. The case was then brought here.
Page 94 U. S. 320
MR. JUSTICE FIELD, after stating the case, delivered the opinion
of the Court.
The sole question for our consideration in this case is the
validity of a devise to the United States of real estate situated
in the State of New York. The question is to be determined by the
laws of that state. It is not pretended that the United States may
not acquire and hold real property in the state whenever such
property is needed for the use of the government in the execution
of any of its powers, as for instance when needed for arsenals,
fortifications, lighthouses, customhouses, courthouses, barracks,
hospitals, or for any other of the many public purposes for which
such property is used. And when the property cannot be acquired by
voluntary arrangement with its owners, it may be taken against
their will by the United States in the exercise of their power of
eminent domain upon making just compensation -- a power which can
be exercised in their own courts, and would always be resorted to
if, through caprice of individuals or the hostility of the state
legislature or other cause, harassing conditions were attached to
the acquisition of the required property in any other way.
Kohl
v. United States, 91 U. S. 367.
The power of the state to regulate the tenure of real property
within her limits, and the modes of its acquisition and transfer,
and the rules of its descent, and the extent to which a
testamentary disposition of it may be exercised by its owners is
undoubted. It is an established principle of law, everywhere
recognized, arising from the necessity of the case, that the
disposition of immovable property, whether by deed, descent, or any
other mode, is exclusively subject to the government within whose
jurisdiction the property is situated.
McCormick v.
Sullivant, 10 Wheat. 202. The power of the state in
this respect follows from her sovereignty within her limits, as to
all matters over which jurisdiction has not been expressly or by
necessary implication transferred to the federal government. The
title and modes of disposition of real property within the state,
whether
inter vivos or testamentary, are not matters
placed
Page 94 U. S. 321
under the control of federal authority. Such control would be
foreign to the purposes for which the federal government was
created, and would seriously embarrass the landed interests of the
state.
Statutes of wills, as is justly observed by the Court of
Appeals, are enabling acts, and prior to the statute of 32 Hen.
VIII there was no general power at common law to devise lands. The
power was opposed to the feudal policy of holding lands inalienable
without the consent of the lord. The English Statute of Wills
became a part of the law of New York upon the adoption of her
Constitution in 1777, and, with some modifications in its language,
remains so at this day. Every person must therefore devise his
lands in that state within the limitations of the statute or he
cannot devise them at all. His power is bounded by its conditions.
That statute provides that a devise of lands may be made
"to any person capable by law of holding real estate, but no
devise to a corporation shall be valid unless such corporation be
expressly authorized by its charter or by statute to take by
devise."
The term "person" as here used applies to natural persons and
also to artificial persons -- bodies politic, deriving their
existence and powers from legislation -- but cannot be so extended
as to include within its meaning the Federal government. It would
require an express definition to that effect to give it a sense
thus extended. And the term "corporation" in the statute applies
only to such corporations as are created under the laws of the
state. It was so held by the Court of Appeals in
White v.
Howard, 46 N.Y. 164, 165, and its construction of the statute
is conclusive upon us. A devise to the United States of real
property situated in that state is therefore void.
Decree affirmed.
