34 Tenn. 305 | Tenn. | 1854
delivered the opinion of the court:
The matters submitted to the judgment of the court, in this case, arise out of the last will of Isaac Eranklin •deceased, and' various ácts of his executors, devisees and heirs and distributees, after his death and before the exhibition of the bill of the complainants, as well as adjudications of courts in the States of Tennessee and Louisiana.
William Franklin, the other executor in the will, has never qualified or acted as executor.
The testator at his death left estates in the States of Tennessee and Louisiana, Mississippi, and Texas. His-property in Tennessee consisted principally of the Fair-view plantation in Sumner county, and the slaves and other personal property thereon.
In Louisiana, he had several plantations, stocked with slaves and other property, employed in agriculture. His estate in Texas consisted exclusively of lands, and in Mississippi principally of ohoses in action.
The testator by his will, among other things, devised and bequeathed as follows:
First. All my just debts are to be punctually and speedily paid, and the legacies, usufructs and bequests
II Item. To my dearly beloved wife, Adelicia Hays, daughter of Oliver B. and Sarah C. Hays, of Davidson county, State of Tennessee, I give and bequeath all the property of whatever kind or nature, together with the increase of the same, which has been or may hereafter be given to or inherited by her from her said father, Oliver B. Hays, to her and heirs forever. I also give and bequeath to my said wife my household and kitchen furniture, of every sort and kind, on my estate in Sumner county, State of Tennessee, known as my Eairview plantation, with the stock of liquors, groceries and provisions which may be on hand on that estate or plantation at the time of my decease, to be used and disposed of as she may think proper.
And I further give, devise and bequeath to my said wife out of the revenues of my plantations in Louisiana and Tennessee, and the dividends of my bank stocks and other interests coming to me, such sum or sums of money annually, as may be found necessary to support her and my child or children by my marriage with my said wife, in the best style, and also to educate my said child or children in such manner as she may deem proper, during and for the full term of the time that she shall remain my widow. It is my wish and desire that during the widowhood of my said wife, that she and my said child or children shall remain and reside upon my Eairview plantation in the county of Sumner, and State of Tennessee aforesaid. And for that purpose I hereby give her and them the use and profit
And in lieu of the use of said estate and said annual revenues, in the case of the second marriage of my said wife, either before my said child or children shall become of age or marry, or after my said children shall become of age or marry, I give to my executors in trust, for the seperate use and maintenance of my wife and any children she may have by a second marriage, the sum of one hundred thousand dollars, to be paid as follows, to wit: the sum of twenty thousand dollars within the year of the second marriage, and the residue in ten equal annual instalments thereafter; or at her election, the sum of six thousand dollars annually, during her life, in lieu of the payment of said one hundred thousand dollars. And said sum of six thousand dollars annually to my said wife during her said life, or the payment of said one hundred thousand dollars, shall be
Ill Item. To my daughter Victoria, the only child born of my marriage with- my said wife np to the present time, and all such other of my children as may hereafter be born of said marriage, and the heirs of their bodies, I give and bequeath the following portion of my estate, to wit: in case there should be no other child born of said marriage except my said daughter Victoria, then I give and bequeath to her and her heirs, the undivided one third part of all my estate, real and personal, movable and immovable, rights, and credits, situated, lying and being within the State of Louisiana; in case of another child born of said marriage, then I give and bequeath to my said daughter Victoria and the other child of said marriage and their heirs, the undivided one half of all of said property and estate in Louisiana, to ’ be divided by them when they become of age or marry, share and share alike in equal portions, and in case of two or more children born of said marriage, beside my said daughter Victoria, then I give and bequeath to my said daughter Victoria, and my said other children to be born of said marriage and their heirs, the undivided two thirds part of all my said property and estate in Louisiana, to be divided by them, when the youngest of my said children shall become of age or marry, share and share alike in equal portions.
And it is my desire and wish that my said children shall aid and assist my executors and trustees in carrying into full effect the intentions manifested by me in this will, and particularly the establishment of the sem
IV Item. It is my wish and desire, after my death, aud I so order and direct, that the whole of my estate, wherever situated, be placed in the hands of my executors, hereinafter named, and for that purpose grant them and the survivors of them, the seisin of aR the property of my estate, and authorize them or the survivors of them to take possession of the whole of my said estate after my death, to be held and possessed by them for the following purposes, to wit:
First. Eor the payment as speedily as possible of all my just debts.
Second. The placing my said wife in possession of all the property and its increase, which had been given to or inherited by her from her father, Oliver B. Hays, together with my household and kitchen furniture on my Eairview estate, in Tennessee, with the liquors, groceries and provisions on that estate, which may be on hand at the time of my decease.
Third. To pay such annual sums of money to my wife, during her widowhood, out of the revenues of my plantation in Louisiana, the dividends of bank stock, and interest on debts due, &c., as she may deem necessary for the support of herself and my children, and their education in the best style of the country where ehe resides, leaving to her the exclusive direction of the education of my children, and the expenditure of such annual allowance during said widowhood as she may think proper.
Fourth. The placing of my wife and children in full
Fifth. And in case of the second marriage of my said wife (in lieu of the sum of money she may consider necessary for the support of herself and his (my) children, and their education, annually during her-widowhood, and the use of the property of the estate in Sumner county, State of Tennessee) to give her the sum of one hundred thousand dollars, in trust for the separate use and maintenance of her and any children she may have by such second or any subsequent marriage, to be paid, twenty thousand dollars in cash’ within the year of marriage, and the residue in ten equal annual in-stalments thereafter, or at her election the sum of six thousand dollars annually, during her life, the payment of either..to be in foil for her rights of dower, or any other - rights that she may have on my estate.
Sixth. In case of the second or subsequent marriages, of my said wife, to receive again into their possession all the property of my said estate, in Fairview, in Sumner county, State of Tennessee, and the same to keep and possess, and the revenues thereof, for the purposes hereinafter named and particularly specified, which they are strictly to carry out, and as guardians, in that ease of my children, to educate them and support
Seventh. For the purpose of increasing and improving my lands and plantations and estates, and particularly the lands and plantations in the State of Louisiana; to cultivate on the three plantations already opened in Louisiana, corn and cotton, and such other crops, as may be found profitable, adding to the Loehlomond plantation twenty additional hands; to the Killarney plantation twenty additional hands; and to open three new plantations on said lands in Louisiana, two of sixty hands and the other thirty hands; which are also to be cultivated in com and cotton,, and such other crops as may be found profitable, until my aforesaid children shall all of them arrive at the full age of majority or marry, when my said executors shall deliver up said plantations, lands, slaves, movable property and their increase, together with such other slaves, inmovables and movables, with their increase, as may have been added to said lands and plantations in Louisiana, to my said children or their heirs, and the trustees hereafter named, for the purpose of division between my said children and my said trustees, and to carry out the intentions of this my will, the particulars of said improvements, purchases of hands or slaves, and the trusts hereafter to be particularly mentioned.
Eighth. The placing of the slaves Brutus, Fanny his wife, Marcus, Georgiana and any other house servants, not belonging to the Louisiana plantation, on the
Ninth. The payment of the legacies hereinafter mentioned, and
Tenth. The building of a tomb and family vault, 'hereinafter mentioned, on my said plantation in Sumner county, Tennessee.
Eleventh. And the placing of my trustees, hereinafter mentioned, in full possession, at the times designated, of all my property situated in the States of Tennessee and Mississippi, or any other common law States, where trust estates can be created, and one-third, one-half or two-thirds of all of my movable and immvea-ble property, effects and credits, as the case may be, by the birth of children, of my estate in Louisiana, together with all my bank stock and effects and credits, to be laid out in the establishment of a seminary or academy, on my said plantation in Sumner county, State of Tennessee, as will be particularly designated and mentioned in this will. And my executors are particularly directed to lay out the balance of the revenues of my Louisiana plantations, my Tennessee plantations, the dividends of my bank stock and interest on debts due me, over and above the annual expenditures which they have been heretofore directed to make in this will, from time to time, in the purchase of good, effective, young and healthy slaves, to be placed on my said lands and plantations, as they may be wanted. And in particular, to place twenty additional hands on my Lochlomond plantation, situated in the parish of West Feliciana and State of Louisiana, with such additional horses, mules, teams, plows, gearing, farming
VII Item. After the aforesaid improvements are made on my said plantations in the parish of West Feliciana and State of Louisiana, it is my desire that my said executors, or my said childen, (if they should have become of age, or marry, and placed in possession of their shares of my said property in Louisiana,) should pay, or cause to be paid, out of all of the revenues of those plantations, the portions of my said children, and my trustees hereinafter mentioned, each their resjíective pro rata proportions of the following legacies, to wit: 1. To Isaac Franklin Purvis, the son of my sister Margaret Franklin and her husband Allen Purvis, deceased, late of Sumner county, State of Tennessee, the sum of five thousand dollars. 2. To Isaac Franklin Wood, the son of my sister Jane Franklin, the wife of John Wood, of the State of Missouri, the sum of five thousand dollars. 3. To Isaac Franklin Cantrell, the son of my niece, Mary Franklin, the late wife of Zeb-ulon Cantrell, of Sumner county aforesaid, two thousand dollars. 4. To Isaac Franklin Greene, the son of James Greene, of Sumner county aforesaid, .one thousand dollars. And 5. To my brothers James and William Franklin, of Sumner county aforesaid, each the sum of five thousand dollars.
VIII Item. I give. and bequeath all my property, real and personal, of whatever kind or nature, that is situated in the States of Tennessee and Mississippi, or any other common law State, where trust estates can be created, together with my bank stocks and effects and
And after the death of my aforesaid brothers, it is my will and desire, that the aforesaid trust be continued and pass over forever, in the heirs of my said brothers, to pass the estate, and that the magistrates of the county court of said county of Sumner and State of Tennessee, and their successors in office, be thereafter the perpetual superintendents of the aforesaid seminary, to see that my intentions be folly carried into effect.”
The widow, from the death of the testator, occupied and enjoyed the Fairview plantation and property under the will, to the 27th January, 1848, when she sold her interest in this property, under the 2d item of the will,,
In a suit between the complainants and the widow, ■and the heir of the testator, in the supreme court of the State of Louisiana, in which the validity of the devise to the complainants as trustees, under the 8th item ,of the will was in question, it was decided by that ■court, that so much of the will, as undertook to devise real estate or immovables, as designated by the law of Louisiana, was void and inoperative, and they coustrued the will as if said disposition had not been made or written in it.
The exeeutors had the possession of the Louisiana estates and revenues from the death of the testator to the 21st of March, 1851, when they, in the execution ■of an order made by the district Court of the 7th judicial district in the State of Louisiana, in a litigation then pending in that court, delivered to the defendant, Mrs. Acklen, in her own right, and to - her as tutrix, and her husband as co-tutor of the defendant, Emma, the entire property of the testator in the State of Lou
The executors have passed their Louisiana accounts, and the same have been allowed by the tribunals there, and their administration in that State has closed in the manner indicated.
The executors, upon a final settlement with the county court of Sumner, of their Tennessee administration, &c., were found to be in advance on the 10th day of August, 1853, as follows: the defendant, O. B. Hays, in the sum of two thousand and five .dollars and thirteen cents, and the defendant, John Armfield, in the sum of thirty-nine thousand and fifty-nine dollars and forty cents. These balances are admitted by complainants to be correct, and are the results of advances made by the executors to the complainants as trustees under the 8th item of the will, under the belief that .the will was valid, and with the intention of both parties, to put the seminary contemplated by the will into operation, in advance of the time provided in the will. This appears to have been- the understanding of Mrs. Aciden, when she sold her interest in the Eairview ■property; and all parties then contemplated that that .property should not return to the executors on the marriage of the widow, but should remain with the trustees, as it had done.
The first and most prominent question to be determined is, as to the validity of the devises and bequests
The arguments presented on both sides have been marked by ability and learning, .and it must be admitted, that there is a conflict between some of the decisions of the courts referred to in the briefs. Such a conflict, however, is to be expected, upon a question involving State policy to some extent, rather than a mere right exclusively, especially where the decisions in England are referred to, as well as the decisions of the different States of this Union.
When wills are brought before the courts to be executed, the general rule is, “that the intention of the testator, to be collected from the whole will, is to govern, provided it be not unlawful or inconsistent with the rules of law,” 4 Kent’s Com., 534-5.
This rule is based upon all the reasons favoring the power to make wills, and results from the intrinsic nature of that mode of disposition.
The intention of Isaac Eranklin, to be .collected from his whole will, in reference to the devises and bequests in hand, admits of neither doubt or cavil. Although he lived near five years after he made his will, he made no alterations in it. He evidently, before he made his will, had reflected much, both as to the bounty, and as to the machinery he would put in play to give it effect. He felt that he was able, without intrenching upon the just- claims of his family, to bestow a bounty sufficient to do much good, and it may be to perpetuate his name, and he made a princely donation, and not content with the donation and the designation of the beneficiaries, he presents, in the foil-
It is the duty of the court to give full effect to these clearly expressed intentions of the testator, if not unlawful, or inconsistent with the rules of the law, as to the property of the testator within its jurisdiction.
Several grounds of objection to the validity of the provisions of the will in question have been taken in the argument presented on behalf of the defendants, Mrs. Acklen and Emma Franklin.
It is urged, that the provisions under consideration, can be sustained, if at all, only upon the ground that they are devises to charitable uses. And of this opinion is the court. It is evident that the testator did not intend a simple gift to his own and his brothers’ and sisters’ descendants, or to the poor children of Sumner county. The benefit given, as well as the plan of the testator demonstrate this, and show that the design of the testator was to create a charity.
It is urged, that if testamentary gifts to charitable uses, can be supported by the laws of this State, the attempted gift by the testator was invalid on some or all of the following grounds : That the gift was made to his seminary, which had no real existence, was a phantom of his -brain, and therefore incapable of taking; that if the seminary was not the donee, by thé intention of the testator, the descendants of the testator and
If there were no laws on the subject of charities, in the sense we are considering them, doubtless there would be opponents to the passage of a statute authorizing gifts to charitable uses, on the ground of the abuses to which every system of charities is liable; abuses consisting partly in the administration of them, and in Christian countries, resulting from a misapprehension of the will of the' Creator, as to what constitutes meritorious Christian conduct.
But it cannot be disguised, so long as charity, in its popular sense, shall be a duty, temporary, limited and fleeting as it is, that when it assumes the form of permanence and extensive diffusion, it will receive the public favor. Indeed there is no civilized country, perhaps, where the State has not availed itself, in some form, of the aid of the donations of the benevolent, in the exercise of the proper charities of the government, and has through its executive or judiciary, taken charge of their administration. These considerations, however, as well as the condition of the country, on the one
In adopting in this State many of the laws of England, have we adopted the doctrines of the chancery court of that country, in respect to charities?- and to what extent?
Portions of the doctrines of the chancery court in England, on the subject of charities, have .been adopted in this country, and in this State. The cases are so well considered and so numerous, that no court, regarding precedents, can doubt that gifts to charitable uses may be sustained. Vidal vs. Girard, 2 Howard, 56-127. 15 Howard Rep., 367. 14 Pickering, 240. 7 Vermont Rep., 241. 12 Conn., 113. 7 Paige Ch. Rep., 241. 1 Hawks, 96. 2 Iredell Oh. Rep., 9 and 210. 9 Porter’s Rep., 527. Dickson vs. Montgomery, 1 Swan, 348.
The cases cited, (and many more, cases in this country, might be added to the list) show that the sustaining of gifts to charitable uses by our courts of equity, is placed upon too firm a basis to be changed but by the interposition of the legislature. Upon the jurisdiction of the courts of chancery in this State, the cases of Green vs. Allen, 5 Humph. Oakley vs. Long, 10 Humph., 254, and Dickson vs. Montgomery, 1 Swan, 361, have affirmatively settled, that such jurisdiction exists in the chancery court in this State, in cases where
This court is not disposed to disturb the decisions just referred to, and deems it unnecessary to trace the steps by which the court, in those cases, arrived at the conclusions to which it came.
As to the devise under consideration being a charity, it is insisted that as the .statute of 43 Eliz. ch. 4, is not in force here, it cannot be looked to, to ascertain what a charity is. This objection is answered in the opinion of Greene, J., in the case of Dickson vs. Montgomery. But this court by no means desires to be understood as intending to say, that donations to promote education in this country, are charities, because the statute of Elizabeth, referred to, enumerates as general charitable uses, gifts for the maintenance of schools of learning, free schools and scholars of universities, and for the education and preferment of orphans. Charity is defined to be a general public use. Ambler, 651. Ro use or purpose is more general, public or important in a republic, than education; and no subject, in these States, has been looked upon with more favor by the legislatures and courts.
It is the opinion of this court, that the maintenance of universities, colleges, academies and common schools, and other lawful educational institutions, is a charitable use, without reference to the wealth or poverty of those who may take benefit therefrom; and that gifts for such maintenance will be sustained, if good in
The institution of a school for the education of the sons of gentlemen, is not, in popular language, a charity, but in the view of the statute, 43 Eliz., ch. 4, all schools for learning are so to be considered. Attorney General vs. Earl of Lonsdale, 1 Sim. Rep., 109.
Upon the point that this was a gift to an ideal being, the academy or seminary which had no existence, it is manifest that the design of the testator was not to make the institution his devisee or donee; the institution was one of the means by which his gift for the advancement of learning, is to be carried into effect.
By the will, the testator appoints his brothers, James Franklin and William Franklin, trustees for the charity, and prescribes their duties. It is scarcely necessary to say, that these persons are capable of taking as de-visees in the language of Judge Turley. The will proceeds in these words: “And after the death of my aforesaid brothers, it is my will and desire, that the aforesaid trusts be continued and pass over forever in the heirs of my said brothers, to pass the estate, and that the magistrates of the county court of said county of Sumner, and State of Tennessee, and their successors in office, be hereafter perpetual superintendents of the aforesaid seminary, to see that my intentions be fully carried into effect.”
The intention of the testator, in the portion of his will just recited, is obvious. Upon the death of his
Objections are taken, in argument, to the beneficiaries of the charity.
We will first notice those beneficiaries, designated as the poor cJiilclren of Sumner county. It is contended, that this designation of beneficiaries would be indefinite and uncertain, and would not constitute a good charity, but for the appointment of trustees. But the appointment of the trustees, with the powers conferred on them in the will, removes the objection under examination.
The other beneficiaries are brought to our notice by the provision of the will, which directs that the donation is “to be laid out in building proper and suitable edifices, on my said Eairview plantation, in the county of Sumner and State of Tennessee, for an academy or seminary, the furnishing of the same with fixtures and furniture, and the employment and payment of such teachers and professors, male and female, as may be considered necessary by my said trustees, for the education, board and clothing of the children of
Much criticism has been expended on the clause of the will just recited. In the first place, the motives of the testator have been attacked — it is said that the ground-work of his donation was to perpetuate his name, and to build up an aristocracy in his family. A fair reading of the-paper will justify no such conclusions.
The association of the testator’s name with the donation, is not a weak vanity, nor is it inconsistent with modesty, in the manner in which it is done, and no one can suppose that the education of a class of persons, during the time of their pupilage, “in the best and most suitable and proper manner for American youths,” has any tendency to make an aristocracy of the class, or that such an education is not favored by the laws and policy of this State.
The testator’s main object was to provide for a good and substantial English education for his beneficiaries: he supposed however, that there were higher and more ornamental branches of learning, than a good and substantial English education, and made these branches a secondary object of the donation.
These provisions of the will mark the good sense and the sincerity of the testator, and interpose no obstacle to the validity of the gift.
It is urged, that the provision made in the clause under consideration, is a simple gift to the children of testator’s brothers and sisters, and, their descendants, as well as his own children and their descendants, and is not a charity, for the reason that there is no uncertainty as to the persons who should take benefit under it.
It certainly has been said, that “uncertainty of individual object is a characteristic of charity,” and it has been said that this “uncertainty is indispensible to all charities,” and “if any one has a right to claim by law, it ceases to be a charity.”.
It is true that uncertainty of individual object is generally characteristic of charity, and that if the beneficiary has a right to claim by law, it ceases to be a charity.
The question on any devise of the- kind is, whether the donation is a simple gift, or a gift to charitable uses ? And to dispose of this question, we have to look to the intention of the testator, his object and plan to effect it, the beneficiaries, the donation and its administration, and the interest or benefit the beneficiaries take. If we gather, that it is a simple gift, or one that the beneficiaries may assert at law, it is not a charity.
It is said that a motive of the testator, personal to the beneficiary, would vitiate a donation to a charita
If a devise, by a testator, for the education of the children, or the orphans, or poor born in his native city, should be good, as a charity, we cannot see why a devise, for the education of the children born of certain designated ancestors, should not b$ good as a charity. Yiewed philosophically, the uncertainty is the same.
In the opinion of the court, the devises and bequests of Isaac Franklin, to his brothers, William and James, as trustees, are good, and should be sustained as a charity, unless avoided by the constitution of Tennessee, prohibiting perpetuities.
Article 1, Section 22, declares that perpetuities and monopolies are contrary to the genius of a free State, and shall not be allowed.
This of course is the paramount law of the land.
But what is the perpetuity that is not to be allowed?
The Constitution neither defines, nor describes ¡Ü4 but assumes that what it is, is known. We'i'jaip d.efl$ then, to enquire into the commonoftaryi fQiiu&xpsropeA understanding of the term. ■-í'já[hd^*hWeJiW6|íai(é<}3tiq|j2:jB7Jítei!-rious definitions, deseifi^ti&fig^'taid tepíes^átatóon’^'iodfroa perpeM^'^xá^f ffelfridou^/^iMséljisénc^i'iwJii'c^, ijwáfh ^Te'W^^eálió^tFónáf^ardtlé'ffl&frlatftl ítfri mítóéadotlié) euqr&áq. rá- It i&>-Lfe8S31J tMi plp&íffegsfi í';eliá»M'-'fcpf ^incórpoTafioii^ ^düd^feeX'ánP fí&fpbtui^íjd'Abe’ca'as^Jiitíilasfs c&ri-‘c^r.0' %üt^hisLl#íi1ííd[ f5?év§) ifiJáéi/i'thMbéver^ ‘gfentuof Iáírd>JI'fey^;)th:éPrSthf^-ífíáai&,i^ve¿^iv/gfapt>xan^ntístetófet‘i ofopÍB$-
Again: It has been said, that |>roperty held by corporations with the right of perpetual succession in mortmain, is a perpetuity, as well as property held by corporations fis trustees for charitable uses. It must be noted, however, that when this is said, it is generally meant, that when property is so held, it is practically inalienable, though not really so, if the corporation or trustees were inclined to sell, or if the proper tribunals were appealed to, to effect the sale.
It is true'1 that the reason of the rule against perpe-tuities and the reason of the policy of the law, in this country, to destroy the entailment of estates and to pre-L vent property from falling into dead or unserviceable hands, is the same, viz: “To prevent property from being withdrawn from commerce and rendered inalienable.” Property may be held by a man himself and his heirs forever, without making the slightest approach to a perpetuity.
A perpetuity is defined (Lewis ou the Laws of Per-petuities, 164) to be — “a future limitation, whether ex-ecutory dr by way of remainder, and of real or personal property, which is not to vest until after the expiration of, 'or will not necessarily vest within the period fixed and prescribed by law for the- creation of future interests, and which is not destructible by the persons for the time entitled to the property, subject to the ■future/ limitation, except with the concurrence of the in
It is manifest that no settlement of property, not-made inalienable by the terms of the limitation is a perpetuity, however likely it may be, that it will never be abused.
It is of the essence of a perpetuity — that the property is incapable, beyond the period prescribed' by law,, of being sold freed from all limitations and trusts — by the use of all the means known to the law for effecting sales.
If the charity created by Isaac Eranldin shall be established, will the property given by him be in this' condition ?
There are no expressions in the will that render the property inalienable. See 8 Term E., 61. And unless-the trust itself implies that the property should be inalienable, it is alienable. It is conceded that an improvident or prejudicial alienation by the trustees, would be a breach of trust, for which the trustees would be held responsible, and in some instances the purchaser would be made trustee in invitum.
The trustees of a charity may sell the property in the proper and bona fide execution of the trust — and the court of chancery may decree the sale. Attorney General vs. Warren, 2 Swanston’s R., 291. Griffin vs. Graham, 1 Hawks’ R., 96. 7 Paige’s R., 82-3. Hill on Trustees, 463, and authorities cited. Shelford on Mortmain, 677, et segr., and authorities cited.
At common law, charitable uses are exempted from the rules against perpetuities. Lewis on Perpetuities,
The devise in that case was to the poor of Beaufort county, upon the condition that the lands should never be sold, but leased not exceeding seven years, &c.
The court is, therefore, of opinion that the devises .and bequests of the testator to Ms brothers, are valid.
Upon the balances due to the executors of Isaac Franklin upon their Tennessee administration, as showxr in the record, there can be but little difficulty. It appears that the entire Louisiana estates have been taken from their hands, and that their accounts, as executors, have been passed and allowed by the courts in that State. It does not appear that there is any balance in their hands derived under the administration in Louisiana. If' the amounts admitted to be due to the executors had arisen from an ordinary execution of the will, after the delivery of the Tennessee assets to the trustee as legatee, it would be but a common exercise of the jurisdiction of a court of chancery to compel the trustee as legatee to refund a sufficiency of the assets to discharge the demand. The record, however, shows,
As to the mode by which Mrs. Aciden shall be paid the balance of the one hundred thousand dollars, owing to her by reason of her election of it, after her marriage with Col. Acklen in lieu of the annuity, under the will of Isaac Franklin, there is some difficulty. The arguments of counsel have been mainly directed to the other points in the cause, and but faint views if any have been presented to the court on this branch of it.
The difficulties suggested would probably disappear upon a clearer view of the laws of Louisiana, by the writer of this opinion. It is certainly a general ,jple, that a will, valid in the country of the testator’s domi-cil, passes his personal estate, wherever located. Story on the Conflict of Laws, 464, 465, 467, 46,8. Louisiana Code, Art. 1589,
It has been decided by the supreme court of Louisiana, that the devises' in the will of immovable property, situate in that State, to the charitable use, are void, and that the will shall be construed as if such devises and bequests had not been written in the will. This decision by no means impairs any of the other gifts or charges made in the will, upon the testator’s immovable property situated in the State of Louisiana, which the testator was competent to make by the laws of that State.
It appears, Louisiana Code, Articles 1480, 1481, 1482, that Isaac Franklin at his death, by his will could only dispose of one-third of his property in Louisiana. His children, as forced heirs, took two-thirds as their legitime.
Any disposal of property whether inter vivos or ccmsa mortis, exceeding the quantum of which the person may legally dispose, to the prejudice of the forced heirs is not null, but only reducible to that quantum. Code, Article 1489.
If the disposition made by donation ocmsa mortis, be of an usufruct or of an annuity, the value of which exceeds the disposable portion, the forced heirs have the option, either to execute the disposition or to abandon to the donee the ownership of such portion of the estate, as the donor had a right to dispose of.
In Louisiana, the heir, as soon as the succession shall be opened, has the right to renounce or accept it.
Tbe same rule applies with some qualifications as to tbe payment of legacies. Code, Art. 1618 et seq., and see Article 1623. If tbe testamentary executor bas not tbe seisin of tbe estate, or bis functions have 'expired, tbe legatees must apply to tbe beirs for tbe payment of tbe legacies.
It appears that tbe beirs of Isaac EranMin baye possession or seisin of tbe entire succession including the disposable portion, as well tbe legitime and movable as immovable property, and that tbe testamentary executors have no seisin of tbe succession, and that tbeir functions have expired. It is concluded that tbe defendants, Mrs. Aciden and Emma Eranklin, are bound for tbe payment of all valid and unpaid charges on tbe Louisiana property under said will.
Tbe court is of opinion that tbe equities of tbe parties to this suit ought to be adjusted, and that this court bas jiu'isdiction to mate such adjustment in this cause.
In order to enable tbe court to adjust these equities intelligently, proper enquiries and accounts will be made and taken, and reported upon, reserving all questions of law arising.
A decree will be entered in conformity with this ■opinion.