Fink v. Fink

| La. | Apr 15, 1857

Lead Opinion

Buchanan, J.

John Bamid Finio, of New Orleans, died, leaving a will which has been admitted to probate and execution. This will, dated the 7th November, 1855, contains the following clause:

“ It is my wish and desire, and I do hereby declare the same to be my will, that after the payment of my just debts, and the several legacies heroin above mentioned, that the proceeds of the whole of my estate, property, rights, effects and credits be applied to the erection and maintenance and support of a suitable asylum in this city, to be used solely as an asylum for Protestant widows and orphans, to be called “ Pink’s Asylum,” and I do hereby request and authorize my friend Biedericlo Bullerdiedlo, after my decease, to name and appoint three worthy and responsible persons as trustees, to carry out my said intentions respecting the aforesaid asylum.”

The plaintiffs, nearest of kin and heirs at law of the testator, pray that the above recited clause of the will be declared null and void, for the following-reasons :

1st. Because there was no person in being capable of receiving said bequest at the time of the testator’s decease.

2d. Because it creates a perpetuity, which no individual is authorized to do in a case like the present.

3d. Because of the uncertainty and vagueness of the bequest, and the omission of the testator to provide for the mode and manner in which his intentions, whatever they may have been, were to be carried into effect.

4th. Because such testamentary dispositions are in direct opposition to the policy of the law, and could not, in a case like the present, he carried into execution, without making, as far as this disposition is concerned, an entire new will for the testator.

5th. Because the said disposition does not in reality dispose of or transfer the property therein designated to any person or persons ; and, as far as the said property is concerned, the testator must he considered to have died intestate.

In considering these objections we will he spared much labor by carefully examining who is the real devisee or legatee under this clause of Fink's will.

Note the expressions — “I will that the proceeds of my estate be applied, (after the payment of debts and of particular legacies,) to the erection and maintenance and support of an asylum in this city, to be used solely as an asylum for Protestant widows and orphans, to be called Eink’s Asylum.”

What is the object of the testator’s bounty ? Not the building to be erected; but the widows and orphans, for whom that building is to be a refuge and a home.

Again, what Protestant widows and orphans are intended ? The answer is equally clear. Protestant widows and orphans in this city; that is to say, in the city of New Orleans, where the will was made : for it is in this city, says the will, that the asylum is to he erected for Protestant widows and orphans.

The difficulty in this case has arisen principally from Mr. Fink's having-given a name to the asylum thus proposed to be built and maintained with the proceeds of his estate. But there are no words of devise to the asylum of that name. In this respect, the present case differs from that of Alexander Milne's will, reported in 17 La., 46" court="La." date_filed="1841-01-15" href="https://app.midpage.ai/document/milnes-heirs-v-milnes-executors-7160496?utm_source=webapp" opinion_id="7160496">17 La. Rep., 46, the doctrine of which case has been so much questioned by the counsel of plaintiffs. Milne declared in his will, his intention that an asylum for destitute orphan hoys, and another asylum for destitute orphan girls, should be established at Milneburg, in the parish of Orleans, under the name, &c., and that his executors should cause the same to be incorporated — and to the said contemplated institutions he game and bequeathed, &c., and instituted for his universal heirs and legatees the saAd institutions, &c.

We do not feel ourselves called upon to pronounce any opinion upon the correctness of the ruling of our predecessors in relation to Milne's will, containing dispositions so evidently distinguishable from those now under consideration. The only particular in which there is an apparent resemblance, is in the injunction of Fink to his executor to appoint trustees to canry out his intentions respecting the aforesaid asylum. But the language by no means implies, necessarily, what is expressed in terms unequivocal in the will of Milne, namely: that the executor or the trustees, or both together, should take measures for the incorporation of the “ Fink’s Asylum.” On the contrary, it appears to us entirely probable that the design of Fink was that his executor should nominate trustees, in whom should vest the superintendence of the erection of the asylum, and the administration of the charity, without any other or further authority than what they would derive from the appointment of the executor under the will.

Had the testator gone so far as to name those trustees himself, and to vest his estate in them for the objects and purposes expressed, the will would have been void under Article 1507 of the Louisiana Code. The case of Franklin’s Succession, in 7th Annual Reports, would then have been directly in point. On the other hand, the design of the testator may have been that the trustees, so to be appointed by his executor, should merely advise and aid in all means sanctioned by law for the accomplishment of the testator’s intention of founding an asylum for Protestant widows and orphans in the city of New Orleans. And were we compelled to give an interpretation of this clause of the will, in reference to the object of the proposed appointment of trustees, we would undoubtedly feel bound to understand this disposition in a sense in which it could have effect, if possible, rather than one in which it could have none. C. C. 1706. But no interpretation of this disposition is necessary. On its face, it is a delegation by the testator to a third person of the choice of administrators of a portion of the estate; and as such, by Article 1566 of the Code, is amere nullity, and, under Article 1506, must be considered as not written.

Viewing, then, the Protestant widows and orphans in the city of New Orleans as the true residuary legatees of John D. Finis, we are dispensed from any remark upon the first ground of plaintiffs, to wit, that there was no person in being at the time of the testator’s death, capable of receiving said bequest.

The second ground of objection is, that the will creates a perpetuity; which, say the plaintiffs, no individual is authorized to do in a case like the present.

It is not perceived by us that this will creates a perpetuity, in any other sense than every institution of heir by testament creates a perpetuity. The death of the testator invests the instituted heir with all rights to the same extent as they were possessed by the deceased. O. C. 934, 937. And this is alike the case, whether the instituted heir be a natural person or a mere legal entity, or a class of destitute or afflicted persons, objects of the testator’s charity.

The third, fourth and fifth grounds of objection to Finis's will, may be considered together. They present, in different aspects, the uncertainty of the objects of the testator’s benevolence, as objections to the validity of his will.

Article 1536 of the Code sanctions a donation to the poor of a community. And note that the word community in this Article means a municipal corporation. The word in the French text is commune, which has that signification. The Article is copied, word for word, from Article 937 of the Code Napoleon. Although Article 1536 is found under the head of donations inter vinos, its dispositions have been interpreted by this court in the case of the Succession of Joseph COlaude Mary, 2 Rob. 438" court="La." date_filed="1842-06-15" href="https://app.midpage.ai/document/succession-of-mary-7207354?utm_source=webapp" opinion_id="7207354">2 Rob. 438, to be applicable to donations mortis causa.

Among the legacies contained in the will of Many, was one of five thousand dollars “to the Orphans of the First Municipality and the decision of the court was “that, under Article 1536 of the Civil Code, the city council of the First Municipality will be competent to claim and receive the legacy, and regulate its distribution among the intended objects of the testator’s munificence to be found within the limits of the First Municipality.” Surely the words “Protestant widows and orphans” used in Finis's will, in connection with other words which, as we have said, indicate with certainty his meaning to be “Protestant widows and orphans in the city of New Orleans,” are words as definite and precise as the words used in Many's will, “ orphans of the First Municipality.” This general form of expression is sanctioned by the law quoted.

Neither does it appear to us that the qualification “Protestant” of the nouns-substantive, “ widows and orphans,” is so vague, as to vitiate this bequest. It will be for the administrators of this charity to determine what widows and what orphans came under the denomination of “Protestant.”

The cases of the Philadelphia Baptist Association v. Hart, in 4 Wheaton; of Inglis v. Trustees of Sailors' Snug Harbor, 3 Peters, and Vidal v. Girard's Executors, 2 Howard, have been much discussed in argument.

• There is much curious learning in those cases on the subject of the jurisdiction the Courts of Chancery oyer charities and testamentary trusts, very little of which has any application in Louisiana. The point which those decisions of the Supreme Court of the United States were used to elucidate, the validity of a devise to a corporation, not in essee at the time of the opening of the succession of the testator, we have deemed unnecessary to consider herein, as we regard the devise in Fink's will as a ,devise to “ the Protestant widows and orphans in New Orleans” and not to the “ Pink’s Asylum.” To the same point, we have been referred to the law 62 of the title de heredibus instit/uendis of the Roman Digest (book 28, title 5) and the commentaries of two standard German authorities, Mackeldey and Miihlenbruch, upon that law; also to the writings of the French jurists Coin-Dolisle, Troplong and others, commenting the 910th Article of the Code Napoleon, an Article which is not copied in our Code.

Did our subject require it, we would be pleased to review the doctrines of these authorities, all of the first rank in three different systems of jurisprudence. We have perused them with care, and with much edification, and may-remark en passant that the doctrine pf the Supreme Court of the United States^ in the cases of the Philadelphia Baptist Association and of the Sailors’ Snug Harbor, seems very like that of the Supremo Court of Louisiana in the cases of Hilnds and of Franklin's wills. The distinction of bequests per verba de presentí and bequests per verba de futuro, so strongly drawn by both those courts, and which constituted the point of difference between the cases of the Baptist Association and the Sailors’ Snug Harbor, decided by the one, and those of Hilne and of Franklin, decided by the other, was no less decisive of the interpretation of the wills of Staedel and of Blum, as reported by Miihlenbruch, cases which, says that learned commentator, attracted the attention of all Germany. Gliick’s Illustration of the Pandects, continued by Miihlenbruch, vol. 40, pages 89 to 10S.

Yet this distinction seems entirely unknown to the French jurists, perhaps because our Article 1460, which recognizes it, is not found in the French Code. An approach was made to the recognition of this distinction, and of the rule of the Roman law, “hceres esto, cum capero potuerit," in a decision of the Court of Cassation in March, 1854, commented by Troplong, 2d Donations et Testamens, p. 198 etseq., but it seems very questionable whether that decision is regarded as law in France.

A corporation has been formed, by the title of the “Fink’s Asylum,” under the Act of 14th March, 1855, “for the organization of corporations for literary, scientific, religious and charitable purposes," and has intervened herein, claiming- to be the devisee under the clause of the will in question; and as such, to be entitled to take the residue of the estate, after the payment of the debts and particular legacies. The remarks already made by us are decisive of the intervention. The chai'ity created by this will, in our opinion, is legally to be administered only by the city corporation of New Orleans.

It is, therefore, adjudged and decreed, that the judgment of the District Court, so far as regards the plaintiffs, be reversed; that there be judgment against plaintiffs, declaring the will of John Devoid FinTc to be legal and valid; that, as to the intervenor, the Fink’s Asylum, the judgment be affirmed dismissing said intervention; that the costs of the lower court be borne by plaintiffs, except those of the intervention, which are to be paid by the intervenor; and that the costs of appeal be paid jointly by the plaintiffs and the intervenor.

George Eustis, Robert Preaux and P. E. Donford, for a re-hearing:

Neither in the written nor in the oral discussions which have taken place, upon the universal disposition contained in Finis's will, was it suggested that the heir, instituted by that disposition, was in esse at the death of the testator.

If, then, we press with more than usual earnestness our demand for a reargument of this cause, our apology must be found in the fact that the decision of the court conveyed to us the first intimation that there existed in the disputed clause, the elements of a present devise to persons capable of taking when the succession was opened.

In the following views, which we have hurriedly thrown together, we shall endeavor to establish, that the disposition will not bear the interpretation placed upon it by the court; and that even if it did, it would be inoperative to defeat the title of the legal heirs. In the limited time allowed for the preparation of applications like the present, a careful and well considered treatment of the subject is hardly practicable.

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Dissenting Opinion

Spofford, J.,

dissenting. Conceding that the doctrine of the case of the Succession of Mevry, 4 Rob. 438" court="La." date_filed="1843-05-15" href="https://app.midpage.ai/document/new-orleans-gas-light--banking-co-v-currell-7207739?utm_source=webapp" opinion_id="7207739">4 Rob. 438, is correct, that case does not appear to me to sustain the application of the doctrine made in this.

There, the bequest was of a specific sum of money directly “to the orphans of the First Municipality.” The only question was, who did the testator intend should administer the charity. He having preserved a complete silence in this respect, the court properly determined that the Council of the First Municipality should control the distribution of the fund rather than the “New Orleans Catholic Association for the relief of Male Orphans,” a corporation which the testator did not appear to have had in mind, and which must necessarily have restricted his bounty, which was intended to be disbursed without reference to religion or sex.

I do not understand that in the case alluded to there was any controversy as to the validity of the bequest; the question was, who should administer it.

Here, there was not a bequest by Finh “to the Protestant widows and orphans of New Orleans.” It seems to me a forced construction to say that because the erection of a building in New Orleans was contemplated, therefore the testator intended to confine his bounty to widows and orphans of New Orleans alone. Yet it is only upon this hypothesis, if at all, that the city would be authorized to accept it in their name, under Article 1536 of the Code.

But the testator has emphatically shown that he did not intend the city authorities to have anything to do with the administration of this charity. He has defined, or attempted to define, quite another power to control this matter. He has authorized a particular individual to name and appoint trustees to take and supervise the execution of a trust. How can we disregard the expression of his will and substitute another will for it ?

If the trustees cannot take, it seems to me that there is no one to take the donation, and it falls to the heirs at law. The city of New Orleans makes no claim.

That the trustees cannot take seems to be conceded. And I do not perceive that the Mil/ne case, far as it goes, goes so far as to sustain the pretensions of the association, organized under the general law of corporations, and intervening in this cause.

I think the judgment should be affirmed.

“The Protestant widows and orphans in the city of New Orleans” are, in judgment of the court, the residuary legatees of John D. Fink. We assume the court to intend that they take as a class, and not ut sincjuli or as individuals ; and further, that the beneficiaries of this disposition are not such Protestant widows and orphans only as happen to be alive when the testator died, but every person in all future time who shall come within the description of the class designated. It is because such a class existed at the time Fink died that we understand the court to have rejected the first ground of the plaintiff's action, to wit: that there was no person or being at the time of the testator’s death, capable of receiving the bequest.

The point of inquiry, then, is whether a class of persons, simply as a class, is á legal entity, capable of enjoying civil rights, and as such of being instituted testamentary heirs.

Our law recognizes but two descriptions of persons, the natural or physical, and the legal or juridical.

The juridical person is the creature of the law, and except in the solitary instance of partnership associations, which form persons distinct from the persons composing them, no power exists in private individuals to call a juridical person into being. Thus, no number of individuals can, by aggregating themselves together, or by being placed under particular classifications, assume to themselves, or be endowed, save by the exercise of the sovereign power, with a capacity — a personality separate from that of the several members out of which the body is formed. Such associations or classes have no legal existence. They are not the subjects of civil rights; they cannot become the debtors of civil obligations; they cannot give or receive, sue or be sued.

No one would speak of the lawyers, the doctors or the mechanics of a city, or of the Catholics, Presbyterians or Jews, or of any other incorporated class of persons as legal entities, or as possessing any capacities distinct from those of the individuals composing the class. What is there in the class of persons designated in Fink’s will as the “Protestant widows and orphans in New Orleans” to take them out of this catagory ? As a class they do not constitute a juridical person; as individuals forming the class, they are, it is true, natural persons capable of receiving. But if the will referred to them as individuals, it would embrace only such of them as were in existence at the testator’s death, a limitation clearly not intended by the testator; and even with regard to these, the disposition would be null, as in favor of uncertain persons. Besides, if the clause were so limited, there would remain an important interest in the legal heirs unaffected by the disposition, and which would become available on the demise of the last liver included in the class. The “Protestant widows and orphans in New Orleans,” then, not being a juridical person, cannot, as a class, be the instituted heir of Fink, and the error of the court in so determining them to be is, with all due deference, the more apparent from the impossibility of carrying out to its legal consequences this idea of the capacity of the class in question. For, if the instituted heirs be capable of receiving, why is not the succession simply delivered over to them? Why are they placed in a state of quasi pupilage, and the city of New Orleans oppointed their guardian ?

It is said the “Protestant widows and orphans,” and not the asylum, are the legatees, because the former are the undoubted objects of the testator’s bounty, and must, consequently, be presumed to have been intended as his legatees. But it by no means follows that the party to be ultimately benefited by the testamentary disposition is the actual legatee. In the species of legacies known as modal, in all cases of legacies with a destination, it constantly happens that the legatee named has no real interest in the bequest, but that the same enures to the advantage of some person or class who may be moreover incapable of taking directly. Indeed, if the expression can be properly used in the connection, the beneficiary of such dispositions may even be an inanimate object. Instances of this character occur more frequently under the French law, where fidei commissa are permitted, but they are not unfrequent under our own system. In Fisk's will, a house was bequeathed to the city for the purpose of establishing a library; in MeDonogh’s, a large property was devised, also to the city, for educational purposes. Sums are constantly left to the Charity Hospital and other incorporated institutions, the benefit of which accrues to the sick, the aged and the needy; of the like character are the cases put by the commentators, of legacies left to an acadcny'' to found a prize, or to provide for the support of a favorite cat or dog, or to erect a monument to a celebrated personage, &c. No one could say, in the instances cited, that the students who are provided with a library, or the uneducated to whom gratuitous instruction is proffered, or the literary man to whom the prize is awarded, or the domestic animal, or the monument, is the legatee, though clearly in each case the object and the exclusive object of the testator’s bounty. There is no war-rant, therefore, for saying that the “Protestant widows and orphans in New Orleans” are the legatees of Fink, simply because they, as a class, are to reap the benefit of the devise. ,

Savigny has elaborated the idea of the juridical person at much length and with great clearness. His observations with respect to pious foundations, similar to the one sought to be established by Fink, merit consideration, as showing how carefully, even under the influence of a system so favorable to institutions of this description, the distinction between the foundation and the person to be benefited, was preserved, and also (how emphatically the necessity of the intervention of the sovereign power is recognized, in order to endow these institutions with the requisite capacity. We quote from the French translation of his treatise on Roman Law, vol. 2, p 268: “Aussitót qu’un établissement de ce genre a le earactére do personne juridique, il doit étre traite comme un individu, et e’est ce qu’ont fait les empereurs chrétiens. Ainsi done, un hópital, etc., est propriétaire au méme titre qu’une personne naturelle ou une corporation, et les auteurs se trompent quand ils attribuent ce genre de propriété á l’Etat, á uno ville ou á une ég'lise.”

In sec. 89, p. 274, he treats of the maimer in which the juridical person is created. The appositeness of his views to the present case is so striking that, though the extract is longer than we would wish, we cannot refrain from quoting a portion of his observations: “Indépendamment de la raison politique, la nécossité du consentomcnt de l’Etat, pom- la formation d’une personne juridique, trouve sa source dans la nature memo du droit. L’liommo, par le seul fait de son apparition corporelle, proclame son titre á la capacitó du Droit, principe auquel l’osclavage faísaít chez les Romains une large exception, et dont Implication- est bien autrement générale parmi nous. A ce signe visible, chaqué homme, chaqué juge, saitles droits qu’il doit reconnaítre, les droits qu’il doit protéger. Quand la capacité actuelle de l’homme est étendue fictivement á un étre ideal, ce signe visible manque, et la volonté de Vcmtorité suprime peut seule y suppléer en créant des sujets artificiéis du Droit: abandonner cette faculté aux volontés individuelles, ce serait infailliblement jeter sur l’état du dz-oit une grande incez-titude, sans pai-ler des abus que pourraient entraíner des volontés frauduleuses. A cette raison décisive, prise dans la nature méme du Droit, se joignent des eonsidérations politiques et d’économie politique. On recommit que dos corporations peuvent ofífir des dangers, maís L'extention illimitée des fondations n’est pas toujours désirable ou indiferente. Si l’on faisait une riche fondation pour la pi-opagation de livi-es ou de doctrines dangereuses pour l’Etat, pour la morale ou la religion, l’Etat devrait-il souffrir? Les fondations méme de pure bienfaisance ne doivent pas nonplus étre entiérement abandonnóes aux volontés individuelles. Si dans une ville, par exemple, ou les établissements en faveur des pauvres seraient bien org-anisés et pourvus de revenus suffisants, un testateur riche par une charité mal ezitendue, instituait des aumónes qui viendi-aient déranger les bons résultats de la charité publique, l’Etat n’aurait aucun motif de donner á cette fondation plus de consistance, en lui conférant les droits de personne juridique. Ici, indépendamment du cai-actére de la fondation, il s’agit encore d’éviter une accumulation exagérée be Mens en main-morte. Ce genre d’abus peut exister méme pour les fondations autorisées par l’Etat; mais il n’y aurait aucun moyen d’y remédier, si les pai-ticuliei-s pouvaient toujours créer de nouvelles fondations.” P. 278.

To us the intention of Fink to create one of these juridical persons appears so clear, that the difficulty which rests upon our minds is to imagine a form of disposition in which that intention could have been made more manifest than it is in the expressions he has used.

He directs that the residue of Ms property after the payment of his debts, and some particular legacies, shall be “applied” — to what? — “to the erection and maintenance and suppoi-t of a suitable asylum, in this city, to be used solely as an asylum for Protestant widows and orphans.” The widows and orphans are not mentioned in the disposing part of the clause, but only in connection with the destination or use to which this foundation or asylum may bo devoted, and that his main object should bo made more distinctly to appear ho invests the creature, the juridical person he sought to bring into being, with his name, and directs it shall be termed “ Fink’s Asylum.” In addition to this, the executor is to appoint three trustees who are to carry out the intentions of the testator, respecting the aforesaid asylum. These trustees are, 1st, to build the asylum in a suitable manner; 2d, to adopt a mode of administration for its government; 3d, to name it according to the directions of the will, “Fink’s Asylum,” and then deliver it over to the administrators. It is after all this is done and completed, that the asylum is to be used as an asylum for Protestant widows and orphans; but it is the asylum which must be erected and styled; such is the positive and unequivocal will of the testator, expressed in a clear and unambiguous manner, and the only mandate of the trustees is, to carry out and realize these intentions.

It is true that Article 1706 O. 0., provides that a disposition must be understood in the sense in which it can have effect, rather than that in which it can have none. But this Article furnishes the rule of interpretation for obscure or ambiguous dispositions, and has no application to the clauses of Fislc’s will, the meaning of which appears to us to be free from reasonable doubt. The true principle to be applied in this case, is that enunciated in the preceding Article (1705), which requires that the intention of the testator shouldbo sought in the proper signification of the terms of the testament. “ Quum in verbis nulla cmibiguitas est, non debet admitU voluntatis qucestio

But a branch of this case remains to be considered, the importance of which cannot well be over estimated.

The capacity of the city to administer and carry into effect this bequest, or, what is the same thing, to take and execute it, was not argued at bar, and the undersigned venture to submit their views, in relation to it, to the consideration of the court, now for the first time.

It can do no harm; it will afford an opportunity to the court to reexamine the important doctrine which is the basis of their opinion, should they deem fit so to do, and the undersigned will have discharged their duties to their destitute clients.

The propositions which they, with great deference will submit to the court, with the confidence that if either be sustainable, an opportunity will be offered for a further investigation of the subject, are:

1st. That the city has no legal capacity to administer or take this bequest.

2d. That under its present organization, it has no means or power to carry it into effect.

3d. That the charge and responsibilities of this administration cannot be imposed on the tax payers, there being no law to authorize it.

The views taken must necessarily be cursory and imperfect, from the very short time allowed for their preparation, and for this, the indulgence of the court is asked.

In the third volume of the Annual Reports, the case of the Louisiana State Banh v. Orleans Navigation Company et al., is reported. In that case, the powers of municipal corporations under our laws were discussed and examined in the arguments of the learned counsel and in the opinion of the court. The case turned on the powers vested in the corporation of New Orleans, and the court held that they must be tested by our own codes, legislation and jurisprudence, and that it was useless to look elsewhere for their limitation or extension ; that by the Act of 1805 and various special delegations of authority, the idea of any other power being granted them, such as the police and the preservation of good order among the population require, is excluded by the very terms of the Legislature. The court accordingly decided that the corporation had no authority to loan its credit for the improvement of the navigation of the Bayou St John and of the commerce in that part of the city where the canal terminates. Loe. cit. p. 294 et seq.

It may, therefore, be assiimed, that the city of New Orleans is a corporation of limited powers, having only those powers expressly granted, or which are necessary to carry into effect the civil government of the same.

Can this corporation receive or execute administrations, trusts or fidei commissa created by donations inter vivos or mortis causa, ?

It can, provided the trust is authorized by law and not otherwise. What trusts is a municipal corporation authorized by law to receive or take ? Those trusts which have for their object some matter within the acknowledged powers of administration with which the municipal administration is invested, and none others.

The Article 1836 of the Code, does not purport to confer powers on municipal corporations; it merely provides for the mode in which donations to them may be accepted — that is those donations, the object of which being within the corporate powers, may be legally accepted and carried into effect. The objects mentioned, are those necessarily within the circle of municipal administration, the benefit of an hospital, the poor of a community — les pawores i'une commune or establishments of public utility.

It is obvious that publicity, generality, so to speak, universality is the predominant idea inseparable from all these objects, to the exclusion of portions of a separate class and denomination.

Is there anything in our jurisprudence which countervails or extends this doctrine ?

The court considers the city of New Orleans as having the capacity to administer this charity, and the opinion of the court requires that it be administered only by the city corporation of New Orleans.

What says the Code ?

A corporation cannot be administrator, guardian, or testamentary executor, nor fulfil any other office of perpetual trust. Art. 432.

There are certain matters in which municipal corporations can be administrators and exercise offices of personal trust, and those are matters over which they have control, by virtue of their powers of government, conferred on them by the State. Legacies having objects within that circle have been sustained and confided necessarily to municipal administration. Thus, in the case of Mm'ie cited by the court, the court authorized the corporation to take ami regulate the distribution of a legacy among the objects of the testator’s bounty, found within the limits of the municipality.

This legacy was sustained, as it seems, on account of its generality and exclusion of no class, under the Article 1836.

Note the manner and the grounds on which the doctrine laid down in the case of Jla/rie is affirmed by the Supreme Court in the McDonogh case, 8 An. Rep. 248.

So the bequest of a sum of money to the orphans of the Eirst Municipality of New Orleans, was recovered by the council of that Municipality. This was a. donation causa mortis, indefinite and comprehensive in its terms, making, no distinction among the beneficiaries either as to age, sex or religion,. and was maintained as valid by the Supreme Court.

What was the reason for which the court in that case concurred in the decision of their predecessors ? Is not the reason given ? Is it not the universality in the operation of the bequest ? No distinction as to religion. The object of the legacy being within the legitimate sphere of good government.

The opinion in the McDonogh case has in other parts a recognition of the same doctrine

The ffirai’d legacy, which was sustained in part, had for its sole object the health and general prosperity of the inhabitants of New Orleans, and the proceeds of the property bequeathed were to be applied to those purposes. Gvrard v. K 0., 2 An. 899.

There are sectarian charitable institutions in the State, but they all have their existence by special legislation, and it is believed that no secfcai'ian charity has ever been engrafted on a municipal corporation, nor has it any place in Louisiana-, except by a positive law to that effect. Oould a trust for the education of a particular class of Protestant or Catholic youths be engrafted on the city government, by reason of the general educational powers ? The question answers itself.

With these hasty remarks concerning our legislation and jurisprudence, the undersigned call the attention of the court to the administration of this bequest by the city.

Our first position being that the corporation of New Orleans has no capacity to take this bequest, in furtherence of this absence of capacity, no means have been provided by law for the administration or carrying into effect of it.

In providing for the poor, they are generally subdivided into classes. It would not be proper that they should be congregated in the same buildings. There are consequently separate establishments for the infirm, for orphans, widows, and perhaps for different sexes. There are several institutions under special laws of the state of this character.

The descendants of the ancient population of Louisiana, the French, Spanish and Italians, and their descendants, a large portion of the German, and more than half the Irish population, may be set down as Catholics, and consequently excluded from the benefit of this Christian bequest.

It is fair to assume that at least three-fifths of this aggregate population of New Orleans are Catholic. Out of every five widows needing this charity, and asking admittance to this asylum — this institution of public utililyy — three will have the door shut in their faces — and by whom ? The government of their own city. Why ? Because they are Catholics!

And who is to exercise this obnoxious, this odious power ? The Executive of the city. Whether the power be exercised in the first instance by warden or policeman, the power and the responsibility rests with .the Executive — the Mayor of the city.

The necessary consequences of this state of things in a purely popular government, without any conservative element, and constituted by frequent elections under the existing causes of the day, are obvious, and require no elucidation.

The introduction of a noxious element like this into a political municipal system, in its operation can be productive of nothing but difficulty, faction and disorder.

The legislation on the subject of the poor of New Orleans deals with that class as a general aggregation, without any limitation or exception. Vionet’s case, 4 An. Rep., 43. Statutes of 14th March, 1816, and 17th Feb. 1821.

Under the last head, concerning the responsibility imposed on the city of New Orleans, by this administration, let us suppose a case. Let us suppose the case of a Treasurer putting the amount of this bequest in his -breeches pocket, under the hope of a triumphant acquittal by a verdict of his peers ; who is responsible for this defalcation, and bound to make it good ? Who but the corporators of New Orleans, three-fifths of whose poor were excluded from the charity?

After the decision, first quoted, of the Navigation Company case, it would be quite out of place to refer as authority to any other jurisprudence than our own on this subject.

It is certain that many municipal corporations could be seized of property in trust for charitable purposes in several of the United States and in England. Angelí & Ames on Corporations, No. 166. In England the necessity of keeping these trust funds separate from the municipal treasury, has been enforced by an Act of Parliament in the year 1836, by which the appointment of separate trustees is ordered,'thus getting out of the difficulty into which the judgment of the court will necessarily involve the city. But in this act there is no attempt to shield the corporations for past misconduct in the management of trust funds. An account has been decreed to be taken in one case for two hundred years back. Grant on Corporations, 514.

It is assumed that the heirs of the testator or, perhaps, the beneficiaries, through the State or persons named in the will, would have a remedy against the city fer a misapplication or negligent loss of the charitable funds. Angelí & Ames on Corp. sects. 694, 695.

If this view of the subject be correct, the responsibility of this administration is a matter of serious import, and it is asked, with all respect, where is the law attaching it to the city government ?

It may not be out of place to state that the control which the government in France has over all bequests of this kind, provides the meaiis in all cases of preventing the consequences which, without a salutary supervision, must result from the indiscriminate receipt of donations of this kind.

The government alone can authorize the execution of testamentary dispositions of this kind.

This power was intended as a check upon the inconsiderate zeal or caprice of testators which would deprive their relations of their succession. The government is the judge of the motive of the testator; it can order the acceptance of the bequest, or refuse it, or what frequently happens, authorize its acceptance on the condition of its reduction to a limit fixed by itself. In establishing; the limits, it takes into consideration the fortune left by the testator to his heirs independent of the bequest, the condition and the number of these heirs, the wants of the establishment in favor of which the bequest is made, and its conclusions are the result of the consideration of all these circumstances. Code Napoleon, 910; 8 Duranton, p. 81, sec. 200.

Has the court considered that the city is bound to take upon itself this administration, and cannot repudiate it ? Or that a discretion may be exercised in this respect by the municipal government ?

Either of these views strongly implies the necessity of some legal authority in order to sustain it, and hoth concur iti ^sustaining the argument which we have the honor td submit in support of our propositions.

Moreover the property cannot be adjudicated to the city, it not being a party to this suit. See the case of Musgrove et al. v. Ghureh of St. Louis, 10 An. p. 431, 432 and 433.

G. & G E Schmidt, on the same side :

The importance of the principles involved in this cause, and the interest of the heirs whom we represent, impose upon us the duty respectfully to request the reconsideration of the opinion already delivered adverse to the claims of our clients.

In fulfilling this professional obligation we trust we shall be pardoned, if we examine the doctrines of the court with that freedom and independence which our duties require, without, however, losing sight of the respect due to the members of the highest tribunal of the State, whose exalted station and acknowledged impartiality entitle their opinions, even when erroneous, to be treated with great deference.

We are persuaded that inasmuch as the doctrines upon which the opinion of the majority of the court is predicated were not presented, nor even suggested by the counsel of the executor, and could, consequently, not have been foreseen by us, that the court will be disposed attentively to examino such arguments as we may be able to adduce to show that the rules adopted in deciding the cause are not applicable to the present controversy.

The will of the late John D. Fink appropriates the residue of his estate, after the payment of his debts and certain legacies, “ to the weation and maintenance and support of a suitable asylum, in this city, to be used solely as an asylum for ProlesUmt widows mul orphans, to be called ‘ Links Asylum.’ ” And the testator further adds, “ and I do hereby request and authorize my friend, Diederich Bullm'dieck, after my decease, to name and appoint three worthy and responsible persons as trustees, to carry out my said intentions respecting the aforesaid asylum.”

The above disposition being the one in relation to which this controversy arose, its interpretation and construction were to be determined by the court, in case any doubt arose as to its meaning.

The intention of the testator, according to the admitted rules governing the construction of wills, was to be the guide of the court in determining the import of this testamentary disposition. This appears to be conceded; and we have no doubt it will also be admitted that this intention must be'collected from the language used in the will itself, for such is the express provision of the Code, Art 1705. See, also, Theall v. Theall et als., 7 La. 230. But the intention of Fink appears to us so plain, that it is impossible for any person, be he learned or illiterate, to misunderstand it, since he evidently desired to create an institution in New Orleans devoted exclusively to the maintenance and support of Protestant widows and orphans.

We cheerfully admit that in order to arrive at a correct conclusion in relation to the construction of the will, it-became necessary in the first place to ascertain who is the real devisee, or legatee, and we are not disposed to deny that “ the object of the testator’s bounty” was not the building to be erected, but the Protestant widows and orphans for whom this building was to serve as a refuge. But while admitting- the truth of these two propositions, we think we can demonstrate that the inference deduced from them is entirely erroneous. The proposition of the court, if reduced to a syllogism, would read thus: “Every person who is the object of the bounty of a testator becomes thereby his devisee or legatee. The Protestant orphans and widows were, in this instance, the objects of his bounty. Ergo, they are his devisees or legatees.”

The fallacy of this reasoning consists in the major term, which assumes as true, that every one who is the object of the bounty of a testator, thereby becomes a devisee or a legatee, which though often true, is not so in this partícula/)’ instance.

In legal parlance a devisee is one to whom a testator bequeathes real estate, a legatee, one to whom he gives goods or chattels. Both devisees and legatees are recognized juridical persons, whose legal existence gives them rights which they can enforce in a court of justice. They may demand and enforce the delivery of the devise or legacy from the executor of the will, and if his functions have ceased, from the heirs. But inasmuch as it is evident that no Protestant widows nor orphans would have the right to compel either the executor, or any one else charged with the execution of this portion of Finis's will, to deliver to them any part of the residuary bequest or its revenues, they are clearly neither devisees nor legatees.

In proof of this position, we refer to the decision in this very cause, by which the court declare that the the City of Now Orleans is the legatee; for it is evident that the city authorities alone, should the court adhere to its decision, will have the right to compel the exeutor to account and to deliver to them the residue of the estate of Finis, and that the widows and orphans must be contented to receive such portions of the revenues of the estate as the city may choose to give them in conformity with the regulations they may adopt for the administration of the charity. The city is consequently, by the decision in this cause, the real legatee or devisee, and it is a misnomer to apply such a term to the Protestant widows and orphans.

Having thus shown, as we think, conclusively, that the contemplated institution, to be called Pink’s Asylum, a private eleemosynary establishment to be organized and managed by trustees to be selected by Bullerdieels, was in contemplation of law the sole legatee, and as such changed by the will to carry into effect the intentions of the testator, it follows, as a necessary consequence, that the reasoning which has led to a different conclusion is incorrect.

But if the construction wo put upon the will, as above explained, be exact, it is admitted that the bequest is void; because the institution was not in existence at the time of the opening of the succession — and hence incapable of administering the charity. But if so, the legacy falls, and the property intended to be given to the asylum belongs rightfully to the heirs.

In the next place we respectfully insist that by no known rule of judicial construction, can the bequest of the late John D. Finis be considered as given to the city of New Orleans, to be by it administered for the benefit of Protestant widows and orphans.

The late Judge Martin, in deciding the case of Theall v. Theall et als., already quoted, says that, “ constructions and interpretations are not to be resorted to for the discovery of the testator’s intention, when he has used none but plain, unequivocal expressions. Candles are not to be lighted when the sun shines brightly.”

The doctrine thus forcibly expressed by this venerable jurist is not only in accordance with the express provisions of our Code, but in conformity to the rules of interpretation adopted in every system of jurisprudence. If, therefore, as we verily believe, the intention of the testator was so clearly expressed that it was impossible to misunderstand it, it left no room for interpretation. In this opinion we have been confirmed by the views taken by our learned adversaries, who considered the sole question involved in this cause as depending on the legal inquiry whether a corporation, created after the opening of the succession, was capable of administering the charity. It appears that oven they, who had examined the law applicable to the case in all its various aspects, never for a moment supposed that the city of New Orleans, which had preferred no claim, and to whom the testator certainly never intended to confide the administration of his charity, could have any pretension to bo the residuary legatee of the late John D. Finis.

The principles adopted by the court*in deciding this cause have excited the surprise of all parties, and as the plaintiffs, until the present moment, have had no opportunity of examing them, they hope the court will be disposed carefully to consider the reasons which appear to militate against its decision.

We do not believe, for the reasons already assigned, that there was any occasion to resort either to interpretation or construction of the will. But if there was, we are firmly convinced that the construction put upon it by the court cannot stand the test of a serious examination.

The construction of all written language must be either grammatical or logical. The former examines the meaning of the words employed and the sense in which they are used, as deduciblo from the grammatical construction of the sentences. The latter supplies, by the aid of right reasoning, the errors and omissions that may occur in the language for the purpose of rendering that clear and precise which appears to be confused or obscure. Grammatical construction construes words as used in their ordinary acceptation, and so docs logical construction. But the latter, which views the whole tenor of the language in connection with the subject it is intended to explain, is, by the writers of legal hermeneutics, divided into declarative, extensive and restrictive constructions, (Eschbach, Introd. généralc á l’étudc du droit, Paris ed. pp. 9 and 10 ; Lieber’s Legal and Political Hermeneutics, chs. 2 and 3.) Applying these rules to the construction of wills, which are always to be interpreted so as to give effect to the intention of the testator, the reasoning- which enables us to ascertain such intention must be declarative of the will; and the construction can neither be extensive, nor restrictive, without violating the intention. It appears to us that this rule has been departed from in the interpretation given by the court when it construes the declaration of the testator that the asylum is to be erected in Now Orleans, as equivalent to a positive injunction to confine his liberality to the Protestant widows and ■ orphans residing m New Orleans. The testator ordained that a suitable asylum should be erected in the city of New Orleans; that is, within the corporate limits of the city; but it does not therefore follow that all widows and orphans residing beyond those limits should be deprived of his bounty. Such a construction considers the building as the principal object the testator had in view, and the recipient of his beneficence as dependent on the location of the building. Such interpretation is evidently restrictive and much too narrow and illiberal, and it is moreover in conflict with the acknowledged objects of charities of this description.

In order to test the accuracy of this interpretation, let us suppose that the testator had said that “Pink’s Asylum ” should be erected “in a healthy location in or about New Orleans," would this imply that all widows and orphans, not residing in such location, must be excluded from the benefit of his bounty ? Yet by the rule of constuction adopted, such would have been the necessary-consequence. But as that would have frustrated the testator’s intentions, this rule of construction is inadmissible and must be discarded.

The legal definition of a charity is “ a gift to a general public use — which extends to the rich as well as the poor." (Grant on the law of Corporations, Phila. ed. p. 128, and the authorities there cited.) But it requires no argument to show that a charity, intended for a general public use, ought not to be limited to the exclusive use of a parish or a city.

In addition to these considerations, we have not the least doubt that it is not conformable to the intentions of the testator, who was a German Protestant, and who, no doubt, intended that the widows and orphan children of his countrymen, whether residing in New Orleans or in any other parish of the State, should be permitted to benefit by his liberality. The reasoning of the court on this subject appears to us to amount to this: “ Tlie testator ordered the asylum to be built in New Orleans, ergo, he intended it for the exclusive use of the Protestant widows and orphans residing in Now Orleans ; and upon this hypothesis it raises another presumption, to wit: that it was intended for the poor Protestant widows and orphans of New Orleans, and then leaving out the qualification of the word poor, deduces the inference that it was intended for the poor of New Orleans, and that the city is hence entitled to administer the charity.

The premises upon which the whole of this reasoning- is predicated are, as we have shown, radically erroneous, and none of the deductions from the premises, even if these were correct, as they are not, is logical,

‘1st. Because it was not the intention*of the testator to limit his beneficence to the widows and orphans residing in New Orleans;

2d. Because charities of this kind, as we have also shown, are not necessarily intended for the exclusive benefit of the poor ; and

3d. Because the city carinot legally administer a charity of this kind.

We have already proved the first two of these propositions, and we shall examine the third more attentively hereafter; but before doing so we must bestow a passing notice on an observation of the court, to this effect, that “ there are no words of devise to the Asylum.” This remark was no doubt intended as an argument to show that the charitable institution whose creation was ordained, was not in reality the legatee. But if so, we can hardly believe it would be seriously insisted on. The word devise in its legal acceptation, means a bequest of real estate, but is here probably used as comprehending a bequest of both real and personal property. In whichever sense it be employed, the assertion that the testator has used no word of devise is equally erroneous. The testator declares: “It is my wish and desire, and I do hereby declare the same to be my will, that after the payment,” etc., “ the proceeds,” etc., “be applied to the erection," etc., “ of a suitable Asylum,” etc. Such a disposition would, at Common Law, where the rules of construction are incomparably more strict than with us, be a valid devise to the trustees of the Asylum, if in existence at the opening of the succession, both of real and personal estate. (Reed v. Reed, 9 Mass. 379; Anderson v. Grebel, 1 Ashm. 136.) Finio applies “the proceeds of the whole of his estate, property,” &c., and both the terms estate and property, whether used separately or in connection, are, according to innumerable decisions, both in our sister States and in England, declared to constitute a valid devise. (See Bacon’s Abridg. verbis Legacies and Devises, O. § 2, 3, etc.)

The words “ give and bequeath” are, technically, words of devise ; but they are not sacramental, especially in wills, where the intention of the testator is to be ascertained and carried into effect. If it were necessary to produce authorities on this subject, those already quoted amply sustain our position, and our own courts have uniformly acted on this principle.

We now resume our inquiry, as to the legal capacity of the city of New Orleans to administer the fund destined for the support of Finis's Asy lum, which capacity we believe does not exist. If the city possess this capacity, whence does it derive it? The franchises of the city all depend on its charter, and this emanates from the Legislature. The city, no matter how solemnly its existence has been recognized, can exorcise no power not delegated by the Legislature, except those which are inferentially granted for the purpose of carrying the delegated powers into effect. But as neither its charter, nor any other law that can be produced, authorizes it to act as trustee of a charitable institution like the one contemplated in the present case, we have the right to infer that the authority does not exist. It is, no doubt, true that if a bequest were made to the poor of the city of New Orleans, and no person were appointed to administer the trust, that the city would be charged with its administration; but this doctrine depends on principles radically different from those applicable to the present case. These principles were to a certain extent laid down and explained in the case of The State of Louisiana v. McDonogh's Fkcecutors, 8 An. p. 249, where it is said, that “legacies to pious uses were authorized by law for the purpose of procuring aid from individuals in supplying those wants which the State itself, or the communities into which it is divided, were bound to provide for, in the interest of society, and as a function of government.” The court further declares that the support and education of the poor was one of the objects contemplated, but this necessarily applies to such poor as the city was bound to support, even without the aid of charitable donations. In such cases, if the bequest was made to the poor of the city, it had a beneficial interest in the donation, and consequently, on general principles, -was entitled to the administration of the fund when the testator had omitted to appoint an administrator. The same principle is acted upon daily in the administration of estates in the Court of Probates, and is the one recognized and sanctioned in the case of the Succession of Mary (reported in 2 11., 438, and relied on by the court.) This principle is unquestionably eorroct, but it is radically different from that promulgated and acted on in-the present case ; for,

1st. The city of New Orleans is under no obligation to support Protestant widows and orphans, and hence, has no beneficial interest in the administration of property given for their support.

2d. Even if this bequest was, as the court supposes, limited to the Protestant widows and orphans of New Orleans, a supposition which we deem erroneous, yet as the Protestant religion, if any such exist, is neither that of the State of Louisiana, nor of the city of New Orleans, but limited to a sect, or sects, which have no recognized legal existence, it would be impossible for the corporate authorities properly to administer the fund.

3d. The will does not bestow any bounty on the poor, and it is only by assuming that it does so, in contradiction with the legal definition of the term cha/rii/y, which extends such donations to the rich as well as the poor, as already shown, that such a conclusion is arrived at.

4th. The appointment of the city as administrator of Fink's bequest is in direct opposition to the expressed intention of his will, wherein he delegates this power to trustees.

5th. There is no law authorizing the city to undertake the administration of this charity.

Eor these reasons, and for others, which, if we had time, might easily be assigned, it appears to us that the reasoning of the court, although exceedingly subtle and plausible, is based upon erroneous assumptions and has not the sanction of law for its support.

Under these circumstances, to deprive the plaintiffs, who are the hoirs-at-law of the testator, (and as such entitled to all the property of which he has not legally disposed,) of their lawful inheritance, and to give the same to a wealthy corporation would, it seems to us, be neither just nor equitable. The construction which the court has adopted in the interpretation of this will appeal's to be founded entirely on ingenious conjectures, which have induced it to adopt the principle of cypres which governs the English Courts of Chancery in their construction of charitable uses, but which, until the decision in the present case, has never been followed in any of the tribunals of the United States

The court has unquestionably the power to adhere to the decision already rendered,- even if erroneous, but we are confident that no pride of opinion or of consistency will induce it to adhere to a judgment, although publicly declared, if we have succeeded in convincing it that it is an erroneous application and exposition of the law.

Re-hearing refused.