Dickson v. United States
1878 Mass. LEXIS 63
Mass.
1878
Check Treatment
Gray, C. J.

The single question in this case is whether the residuary devise and bequest to the United States of America is valid; and upon this question, after full examination of the authorities cited in the learned argument for the heirs at law and next of kin, we can have no doubt.

The introductory clause of this devise and bequest merely expresses the motive of the testator, and in no way defines or limits the purposes to which the property may be applied by the dey • isee.

In England, bequests for the benefit of the country, or for the payment of the national debt, have always been held valid. Newland v. Attorney General, 3 Meriv. 684. Nightingale v. Goulburn, 5 Hare, 484, and 2 Phillips, 594. Ashton v. Langdale, 15 Jur. 868. While Massachusetts was an English colony, that eminent common lawyer, Serjeant Maynard, gave an opinion that a bequest “ to the public use of the country of New England ” was a good bequest. 1 Hutchinson’s Hist. Mass. (2d ed.) 101, note.

The property or money, when received by the United States, must doubtless be applied to public purposes authorized by the *314Constitution and laws. But the right to receive money or property, voluntarily contributed, is not a separate power, but a capacity belonging to the United States as a body politic and incident to the right of sovereignty, and to which may be applied the words used by eminent judges in speaking of the implied capacity of the United States to enter into contracts.

Chief Justice Marshall said, “ The United States is a government, and, consequently, a body politic and corporate, capable of attaining the objects for which it was created, by the means which are necessary for their attainment. This great corporation was ordained and established by the American people, and endowed by them with great powers for important purposes. Its powers are unquestionably limited; but, while within those limits, it is a perfect government as any other, having all the faculties and properties belonging to a government, with a per feet right to use them freely, in order to accomplish the objects of its institution. It will certainly require no argument to prove that one of the means- by which some of these objects are to be accomplished is contract; the government, therefore, is capable of contracting, and its contracts may be made in the name of the United States.” United States v. Maurice, 2 Brock. 96, 109.

So Mr. Justice Story, delivering the judgment of the Supreme Court upon the question “ whether the United States have, in their political capacity, a right to enter into a contract, or to take a bond, in cases not previously provided for by some law,” said, “ Upon full consideration of this subject, we are of opinion that the United States have such a capacity to enter into contracts. It is, in our opinion, an incident to the general right of sovereignty; and the United States, being a body politic, may, within the sphere of the constitutional powers confided to it, and through the instrumentality of the proper department to which those powers are confided, enter into contracts not prohibited by law, and appropriate to the just exercise of those powers.” “ To adopt a different principle would be to deny the ordinary rights of sovereignty, not merely to the general government, but even to the state governments, within the proper sphere of their own powers, unless brought into operation by express legislation. A doctrine, to such an extent, is not known to this court as ever having been sanctioned by any judicial tribunal.” United States v. Tingey, 5 Pet. 114, 128.

*315In later cases, these views have been repeatedly affirmed, and held to cover the taking of security for debts to the United States. United States v. Bradley, 10 Pet. 343, 359. United States v. Linn, 15 Pet. 290, 311. Neilson v. Lagow, 12 How. 98, 107, 108. United States v. Hodson, 10 Wall. 395, 407, 408. Upon the same principle, the power to take property by the right of eminent domain for the public use has been declared by the Supreme Court to exist in the United States, not by virtue of any express grant in the Constitution, but as an inherent attribute of sovereignty. Kohl v. United States, 91 U. S. 367.

In Cotton v. United States, 11 How. 229, 231, Mr. Justice Grier said, “ Every sovereign state is of necessity a body politic, or artificial person, and as such capable of making contracts and holding property, both real and personal.” The Smithsonian Institution at Washington was created by the bequest of an Englishman, established by a decree of Lord Langdale as Master of the Rolls, and accepted by act of Congress. President of United States v. Drummond, cited in Whicker v. Hume, 7 H. L. Cas. 124, 155. U. S. Sts. July 1, 1836; August 10, 1846. To hold that the supreme government of the country, vested by the Constitution with the power to levy and collect taxes and duties to pay the debts and provide for the common defence and general welfare of the United States, and to borrow money on the credit of the United States, and capable of making contracts and of accepting security for debts, and, in case of necessity, of taking private property by the right of eminent domain, has no capacity to receive a voluntary devise or bequest, is a conclusion that nothing short of an express statute or a binding judicial decision could justify us in adopting.

The decision in United States v. Fox, 94 U. S. 315, affirming S. C. 52 N. Y. 530, by which it was held that a devise by a citizen of New York of real estate in New York to the government of the United States was void, proceeded upon the ground that the law of New York allowed real estate to be devised only to natural persons and to corporations established by the Legislature of that state. That decision has no application to this case. The statutes of this Commonwealth, where the testator had his domicil, and part of his real estate lay, make no restriction as to who may be devisees or legatees; and there is no evidence *316before us that any such restriction is made by the law of Iowa, where the rest of the real estate is situated. Gen. Sts. c. 92, §§ 1, 2. Jackson v. Phillips, 14 Allen, 539, 552, 589, 591. Fellows v. Miner, 119 Mass. 541. Lorings v. Marsh, 6 Wall. 337, 355. Quid v. Washington Hospital, 95 U. S. 303.

We have had some hesitation in expressing an opinion upon the validity of this devise so far as it affects rents of real estate, with which executors ordinarily have no concern, and derived in part from lands situated in another state. But as it appears that the executors, acting for the benefit of the estate and by the consent of all parties in interest, have managed and received the rents of the lands there as well as of the lands here, they are obliged, under the laws of this Commonwealth, to account in its courts for all the rents so received. Gen. Sts. c. 98, § 8. Brooks v. Jackson, ante, 307. The sum received by them for such rents being subject to our jurisdiction, we cannot avoid the duty of expressing an opinion on the validity of the whole devise upon which the right to such rents depends.

Decree affirmed.