Lead Opinion

Eustis, 0. J.

( Dunbau, J., concurring.) This appeal is taken by the State of Louisiana and the State of Maryland from judgments of the Court of the Eifth District of New Orleans. The judgment from which the State of Louisiana has appealed,'is general in favor of the defendants, for the reason that the State of Louisiana is not entitled to take, under the will of the late John McDonogh, the half of his estate, in the place and stead of the City of New Orleans.

The judgment from which the State of Maryland has appealed, dismisses the petition of intervention filed by that State, for the reasons given for the decision of the Court, as between the State of Louisiana and the defendants. The State of Maryland claimed the legacy in favor of the City of Baltimore, on the same grounds that the State of Louisiana claimed that in favor of the City of New Orleans, and in its petition of intervention prayed for a citation against the City of Baltimore, to answer and plead to their petition through Thomas J. Durant, J2sq., the Attorney appointed to represent'the absent heirs in the mortuary proceedings. The citation and petition having been served on him accordingly, he filed an exception that ho had no authority to represent the City of Baltimore by virtue of his appointment of Attorney of absent heirs, and was not bound to answer the petition, and on this he prayed the judgment of the Court. The exception thus taken was, after argument of counsel, sustained by the Court, and the said Attorney of absent heirs dismissed from the suit.

The City of Baltimore is not in Court under these proceedings through the medium of the Attorney of absent heirs. I find no appearance entered for this party, nor any authority to make the City a party to this suit.

The dismissal of the petition of intervention, there being no antagonist interest represented on the record, was a just consequence of' the decision on the exception. According to my judgment, neither the State of Maryland nor the City of Baltimore is in Court, and we have no power to adjudicate upon the rights of either.

The grounds of this opinion may or may not be applicable to the legacy in favor of the Colonization Society. That institution is not a party to this suit. I am not advised that the State would undertake to defeat this legacy, alone and separated from the residuary bequest to the City of New Orleans, and I desire to be considered as expressing no opinion whatever in relation to it. The subject has not been fully treated in argument, and ought not to be acted upon except under the most deliberate examination.

The construction of the will, in relation to the titles created by it, is exclusively a question of law. Erom a very considerate perusal of it, from a scrutiny of every part of it, and in viewing its character as a whole, I have been able to come to no other conclusion than that contended for by the counsel for the defendants, viz: that it conveys the title or ownership of the property embraced by the legacies to the residuary legatees—the Cities of New Orleans and of Baltimore. The words of the will on this subject are :

“ I give, will and bequeath all the rest, residue and remainder of my estate, real and personal, present and future, as well that which is now mine as that which may be acquired by me hereafter, at any time previous to my death, and of which I may die possessed, of whatsoever nature it may be, and wheresoever situate, subject to the payment of the several annuities or sums of money hereafter directed and set forth, which said annuities or sums of money are to be paid by the devisees of this, my general estate, out of the rents of the said *246estate, unto the Mayor, Aldermen and inhabitants of New Orleans, and the Mayor, Aldermen and inhabitants of Baltimore, my native City, in the State of Maryland, and their successors, in equal proportions of one-half to each of the said Cities of New Orleans and Baltimore, forever, to and for the several interests and purposes hereinafter mentioned, declared and set forth, concerning the same, especially for the establishment and support of free schools, &c.”

There is some confusion in the will, which is confined to the administration, however, and in no respect affects the title created in the residuary legatees. The other parts of the will contain the same words used in the portion just cited —“ willed and bequeathed ”—and the title of the cities is used in no other sense throughout the whole instrument.

The prohibitions of the will seem to be in affirmance of the titles of the legatees. The prohibition to alienate, to compromise, the annuities, the charges on the legacies, the penalty, the provision for the lapse, in my judgment all concur, and none of them conflict with the hypothesis of the title being vested in the legatees.

Municipal corporations are expressly authorized to receive legacies by the Louisiana Code; their capacity in this respect is recognized by Article 423, and by the whole course of legislation on this subject.

My conclusion is, therefore, in favor of the position of the counsel for the defendants, that the City of New Orleans is a residuary legatee under an universal title.

This legacy clearly belongs to a class known to the civil law from the foundation of Christianity, by the name of legacies to pious uses. They are an element in the polity of municipal administrations in all countries which have preserved the features and jurisprudence of Roman civilization.

Legacies to pious uses are those which are destined to some work of piety, or object of charity, and have their motive independent of the consideration which the merit of the legatees might procure to them. In this motive consists the distinction between these and ordinary legacies. Domat, lib. 4, tit. 2, section 6, §2.

The term pious uses includes not only the encouragement and support of pious and charitable institutions, but those in aid of education and the advancement of science and the arts. Makelday on the Roman law, § 145.

They are viewed with special favor by the law: ils sont consideres comme prvoil'egies dans Vesprit des lois, and with double favor on account of their motives for sacred usages and their advantage to the public weal. Domat loc. cit.

The great consideration which the law attaches to these legacies, controls tribunals in the interpretation of them, and has secured for their support a doctrine of approximation which is coeval with their existence.

That without a positive prohibition municipal corporations in Louisiana should be incapacitated from receiving legacies for the public purposes of health, education and charity, seems to me repugnant to all sound ideas of policy, and to the reason of the law.

What legacies could they be expected to receive except for some public or humane object ? Who would give a city a legacy, to be absorbed by its debts or appropriated to common expenses? Certainly, so far as the conscience of the public is concerned, a legacy of money to a city, without any designation, would be held to have been given for some object of charity or beneficence.

*247I think there are Articles in the Code which exclude the conclusion as to the incapacity of the City of New Orleans to take legacies of this kind.

The Article 1530 provides that donations for the benefit of a hospital of the poor of a community, or of establishments of public utility, shall be accepted by the administrators of such communities or establishments.

Provision is made by this Article to give effect to donations for the poor made by living persons—inter vivos—because in donations of this kind the donor is not bound, and the donation is without effect until the act of donation is signed and accepted by a party competent to receive the donation. The Article relates to the form of the act, and provides for its acceptance and the completion of the donation, and is not its legality pro-supposed ? Is it not predicated upon the legality of this mode of property for pious uses? Such appears to me to be the obvious intendment of the Article. There is not the slightest ground for any distinction as to the legality of the holding or ownership by donation—inter vivos and mortis cama—that is, that the property could be acquired by one donation and not by the other.

Nor does the law make any distinction between a legacy to the poor of a city and a legacy to a city for the poor. In both cases it is a legacy to pious uses, and the city is the recipient. Domat lib. 4, tit. 2, sec. 2, § 13 ; id. sec. 6, §1 et seq.

The article 1543 provides that when the donation is made to minors, to persons under interdiction, or to public establishments, the registry shall be made at the instance of curators, tutors or administrators.

The Article 607 provides that the usufruct granted to corporations, congregations and other companies which are deemed perpetual, lasts only thirty years. If these corporations, congregations and companies are suppressed, abolished, or terminate in any other manner, the usufruct ceases and becomes united with the ownership.

The legislation concerning the powers of the City of New Orleans, I think is in the same sense.

Doubts having existed as to the power of the City to hold property out of its limits, the corporation was declared capable.of holding or possessing real estate without its limits, and of acquiring, retaining or possessing by donation or legacy any property, real or personal, whether situate within or without the limits of the City. Act of 1840, p. 50. Digest of Statutes, 144, § 150.

I have no doubt of the legality of the testamentary disposition under consideration. 1 think it would follow as a necessary consequence from the definition, origin and nature of legacies to pious uses that those in favor of the Cities are of that sort; those in favor of the States, in the contingency provided, are of the same character. The difference is that in the former the mode of administration is regulated by the will; in the latter it is left to the wisdom and discretion of the legislative power.

The administration of property, devoted to pious uses by a legacy, through the instrumentality of overseers, commissioners or a quasi corporation, makes no difference as to the title; both, in fact, are legacies to pious uses, and not unlike the Girard legacy, maintained by this Court in 2d Annual Reports, 898. Girard heirs v. New Orleans.

The obj ections to the validity of these bequests may be reduced to three heads, which I will now proceed to consider separately, and in the order they are presented.

*248It is said they are void, because of the uncertainty of the recipients of the charity; because the estate created is a trust or fidei commissum, and therefore prohibited, and because the conditions of the bequest being impossible, and against public policy, the contingency provided for by the will has occurred, and the intention of the testator must be carried into effect, and that intention will be entirely defeated unless the States are to take the legacies as provided by the will.

I. Prom what has preceded it is plain that under the civil law it is no objection to the validity of a legacy to pious uses, that it is for the benefit of the poor even without any designation of locality. There is no principle better settled than that such legacies are valid. I met with a case in the course of my examination of this subject in which a will was maintained in which a testator instituted the poor his heirs. Indeed, the very generality complained of is an illustration of Christian charity; and uncertainty of individual object at the time of the gift is its characteristic and element.

In the language of the Partidas, “ when the testator declares I institute for my heirs the poor of such a city or town, or I order that my estate shall be given to the poor for the good of my soul, as doubts may arise who the poor are, we will explain ourselves in this respect. And we say that it ought to be given and distributed among the poor in the hospitals of the city or town designated by the testator, and especially to those who are afflicted with such infirmities as to be unable to leave the hospitals to seek for alms, as the maimed, the lame, the blind, the foundlings, who are reared there, and the aged, or those who are affected with such infirmities as to prevent them from walking and going out of the hospitals, as they are more in want of assistance than those who can ask for alms. And if the testator had not designated the city or town, to the poor of which he intended to give his estate, then it shall be divided among the poor of the place where he makes his will.” Partidas 6, 3, 20. By the general beneficence to the poor, without distinction—istis feaundior pietas est—the greater the merit in the donor, as the charity is the more comprehensive and catholic.

So the bequest of a sum of money “ to the orphans of the First Municipality of Few Orleans,” was recovered by the Council of that Municipality under the Article 1536. 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 of this State. Succession of Mary, 2d Robinson’s Reports, 438.

II. Before considering the second objection to the validity of these legacies, because they create trust estates or fidei eommissa, a few observations seem to be required as to the decision rendered by this Court on the will of the late Isaac Pranklin.

I do not think that what was decided or said in that case has any application to this. I so expressly stated in the separate opinion which I delivered in that case. I undertook to give my reasons for deciding that the prohibition in the Code of substitutions and fidei eommissa intended trust estates. I showed that these words trusts and fidei eommissa were used as of the same sense by Kent and BlaeJcstone, and that the Supreme Courts of the United States, and of this State, had both held the prohibition of fidei eommissa to include trusts. That they are not the same thing every one knows. The English trust estate had no place in the Roman law, and its resemblance to the fidei commissum is remote. *249But that in the common language of jurisprudence the word trust is used to express the fldei commissum is most certain. Gibbon so uses it. Dr. Gooper, an accomplished jurist and scholar, so uses it in'his translation of the Institutes. Dr. Browne, in his treatise on the civil law, so uses it,, and it is used in that sense in Wood’s Institutes.

But whether the trust estate was or was not included in the prohibition is a matter of no moment in the present case. We have always held the trust estate to be an impossible estate, that the two cotemporaneously existing estates had no place in our laws, and that we could recognize no right of property in real estate, no tenure, no holding, no title, in relation to it, which the Code did not recognize.

Franklin gave by his will a legacy of a large portion of his lands and slaves in Louisiana to his brothers, residing in Sumner county, in the State of Tennessee, in trust, for the foundation and support of a seminary of education in that county. The title thus attempted to he created in the’property was held to have no effect as a conveyance of it. The testator undertook to establish a trust estate in the technical sense of the English law. Tho title, was held to be impossible between the parties, and to be prohibited by law.

Judge Preston thought the legacy was one to pious uses, and that the title created by the will was therefore valid. He supported his views by a very elaborate argument, but they were not concurred in by a majority of the Court.

Legacies for pious uses, I considered, 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; that in their objects they were local and limited to the jurisdiction of the State, being for the support and education of the poor, and for purposes which fall within the circle of the duties of government; that the Articles of the Code recognized legacies to pious uses for these objects, and none others, and that there was no warrant of law for a title in real estate in trust in Louisiana to be held for the exclusive benefit of a foreign corporation. I thought that this diversion and holding of property from private uses and ownership, with all the privileges and favor tho law can bestow, was exclusively in the interest of tho public weaL The privileges and favor with which these legacies are maintained and carried into effect —the doctrine of ey pres would all be inapplicable when attempted to be applied for the benefit of persons beyond our jurisdiction—the reason of all these would fail in such an application, it being the obligation of every State to provide for the wants of its own inhabitants in this respect.

But the answer to this second objection is, that if the residuary legacies do create trusts or fldei commissa, they are, with numerous other testamentary trusts necessary in the execution of a will, saved from the general prohibition by the provisions of tho Code itself. It is to ho observed that I use the words trusts and fidei commissa in their most general sense. Vide §33, tit. 2,16 and IT.

III. It is urged that the testator never intended the Cities to take his property, unless his directions were to be observed, and if the Cities could not and did not carry into effect his directions, in that event his will was that his property should go to the States.

I believe I am only following in the uniform current of opinion in the civil law writers, and in tho decisions of the Court of Cassation, in treating the directions contained in' this will, concerning the property and its administration, as *250modes, charges or conditions. There- is One mode or condition, and it is that on which the District Judge has decided the case, the utter impossibility of the compliance with which cannot be contested. It is that prohibiting the partition of the lands bequeathed to the Cities of New Orleans and Baltimore, and requiring their joint ownership to continue forever. The same may be said of the supervision and check which the testator attempts to organize of one corporation over the other, through the instrumentality of commissions. In these respects it is clearly impossible under our laws to carry into effect the intention of the testator. The condition is impossible, and there are others equally so in the will which it is not necessary particularly-to note.

Our inquiry is to be directed to the effect which the law gives to impossible conditions in testamentary dispositions. At the commencement of the inquiry we are met by this dilemma on the part of the defence. If the conditions, modes, or charges imposed on the legatees by the will are legal and possible, we will execute them; if they are not legal or possible, as the plaintiffs insist they are, then and in that case they form no part of the will. By the Article 1506 of the Code, every impossible condition, or condition contrary to the laws and 'to good morals, is reputed not written in a will, and the property remains to the legatees free from the incumbrance of the impossible condition, mode or charge.

This Article is not in the ordinary form of a prohibitive law. It is the first of the chapter which treats “ of dispositions reprobated by law in donations inter vivos and causa mortis.” The expression reprobated—reprouvées—by the law implies something even more than prohibition. The terms made use of are plain, general and comprehensive, excluding all exception, direct, positive and unambiguous, the whole tenor imperatively- establishing the law having for its object the exclusion of the possibility of the legal existence of this class of conditions in testaments.

Concede that to give effect to this Article is to defeat the intention of the testator, and by reading the will without the impossible or illegal condition, the intention of the testator is sacrificed. But if the law so ordains it that a rule established in the interest of order and sound policy, shall be the paramount consideration, in giving effect to the wills of men disposing of their property after their death, who can gainsay it ?

That this consequence of defeating the intention of the testator is recognized as following the same legislation on the same subject in the Code Napoleon, is abundantly shown. The authority of Merlin is conclusive on this point. Code Napoleon, 900. Merlin, Repertoire, verbo condition, sec. 2j §4.

The effect of this rule is to maintain the purpose and intention of the law, notwithstanding the intention of the testator, who has undertaken to regulate his property after his death, in a manner which the law reprobates and declares its ministers shall not execute.

The Article 1705 of the Code, which provides that in the interpretation of acts of last will the intention of the testator must principally be endeavored to be ascertained, is in its very terms a rule of interpretation of wills valid in all the requisites and forms of law, and having no radical defect as conveyances of property, and is clearly subordinate to the prohibition of the Article 1506, standing under the significant head-of “ dispositions reprobated by law.” In my judgment, the intention of the testator might, with the same propriety, be invoked in the interpretation of a will not having the requisite number of witnesses, or deficient in some necessary form, as in aid of the dispositions of this *251will in favor of the States. It is equally'clear to my mind that the impossible or illegal condition cannot be read for the purpose of ascertaining the intention of the testator in order to give it effect. The law, in saying it shall be reputed as not written, has said it shall not be read for any purpose except for that of utter exclusion from the testament

The right of a man to dispose of his property ’after his death is derived exclusively from the law, and if the law says, that in certain cases, from motives of policy, the vain conceits of testators—inepta voluntatis—shall be- held not written, in the administration of justice by its ministers how can this command be disobeyed ?

I find no reason for disobeying it, in the opinion of learned jurists, who are of opinion that such an Article ought not to have boon introduced into a Code. It has been, after the most mature deliberation, introduced into the Napoleon Code, and adopted in ours. ■ I think I see great and, comprehensive foresight in thus exterminating triviality from jurisprudence, and putting an end to the endless controversies which it engenders. The principle of the rule has its foundation in a very high consideration of law as a science, which ought not to be conversant with anything impossible, nor be applied to any thing illegal or immoral, except for purposes of prevention or punishment. Its ministers ought not to be employed in seeking to carry into effect the whims and fancies of dying men, in which society has no interest, useless in themselves and utterly beneath its dignity as a system of enlightened reason and policy.

The history of this subject is given correctly in the printed argument of the learned counsel for the defendant, and in the m'emoire prepared by several of the most eminent jurists of France.

It is shown that the same principle with regard to the impossible or illegal condition prevailed in the Roman law, in the ancient jurisprudence of France, and under the law of Spain. As a general rulé it was adopted and still prevails in the English law. But there were a number of exceptions established by the civilians to the operation of the principle, which gave rise to subtle, difficult and intricate questions. Vide Swinburne on Testaments, part 4, section 6, and the works referred to by this author.

The Article 900 of the Napoleon Code, which corresponds with our Article 1506, was adopted without any discussion in the deliberations which preceded the formation of that Code. Its object unquestionably was to cut off, as far as possible, all exceptions to the general rule, to extinguish all controversy about useless things, to free the science of the law from all communion with that which involved no matter of right, and which it was the public interest to suppress.

So vast and comprehensive is this science that even to this rule there was a necessity for certain exceptions to meet the exigencies of other principles established by the Code. These few cases are all expressly provided for, which fact re-asserts the paramount authority of the rule in all other cases.

The general idea of property under the Roman law, and under our system, is that of simple, uniform and absolute dominion. The subordinate exceptions of use, usufruct and servitudes are abundantly sufficient to meet all the wants of civilization, and there is no warrant of law, no reason of policy, for the introduction of any other.

In conclusion, I think the dilemma presented by the defendants stands unremoved and unanswered. If the conditions of the will are lawful and possible, *252the legatees avow themselves ready to fulfill them; if they are neither one nor f , , ’ J the other, the law holds them to be not written.

My opinion is that the judgment of the District Court ought to be affirmed. It is considered by the Court for the reasons given in writing in the opinions of the Judges, that the judgment appealed from be affirmed, and on the intervention of the State of Maryland, it is considered by the Court for the reasons given in the opinion of the Chief Justice, that the judgment appealed from be affirmed, without prejudice, the State of Maryland paying costs in both Courts.

Concurrence Opinion

Rost, J.

I concur in opinion with the Chief Justice, that the claim of the State of Maryland cannot, in the present state of the record, be acted upon, and that the judgment, dismissing the petition of intervention filed in its b e-half, should be affirmed. I have nothing to add to the reasons adduced by him.

The main difficulty in arriving at correct conclusions upon an instrument so obscure and perplexing as the will under consideration, is to ascertain which rules of interpretation are applicable to the apparently conflicting dispositions it contains: and at the threshold of that inquiry it is proper to premise that the rules of interpretation, found in the Code, belong to the doctrinal part of the law; that their enactment by the Legislature is not restrictive of the rules for the interpretation of contracts and testaments found in the body of the Civil law: that all alike are advices given to the Judge, landmarks they might be called, taking effect to the cases to which they apply, not so much ratione imperii as imperio rationis, and that while it is his duty not to lose sight of any of them, he must in every case exercise his discretion in applying them, ever bearing in mind that the least circumstance is at times sufficient to prevent their application. Simml ae in aligno vitiata esi, perdit officium suwm. Leg. 1 ff. de reg. jw.

The true meaning of those rules and their relative force and effect, present sofne of the most embarrassing questions in jurisprudence, and the correct application of each to the class of cases for which it was intended, is an unerring-test of judicial ability. 6 Toullier, No. 333.

Before examining the respective claims of the parties to this litigation who are properly before us, it is well to ascertain whether there is in the heirs at law of the deceased an outstanding title to his succession. Eor if, upon examination, such a title should be ascertained to exist, a decision in favor of either party would be vain and useless.

The heirs at law of the testator are not before us. They have elected to exercise their legal rights in the Federal Courts, where their claim to the suc■cossion of their relative is now pending. Their counsel in that suit, who were also of counsel in the case of Aelclen v. Franldin’s ex’ors, alluded to by the Chief Justice in his opinion, submitted to us, as part of their argument,' the brief prepared by them. In that brief the following statements are found:

“ McDonogh looked upon his legal heirs as his enemies, because the law assigns them as the successors of his wealth.”

“ The Counsel for the defence labors with a bonhomie worthy of all commendation, to show that the testator meant to exclude, at all events, his heirs at law. The pains taken to prove this are superfluous ; it is admitted, without hesitation, the testator certainly intended to exclude his heirs at law for ever, and they do not claim one cent under the will, or the intention of the testator; he *253had the right to disinherit them if he devoted his property to some legal purpose, but if he has devoted his property to illegal purposes, his will is void, and the estate falls to them by the legal order of succession. They claim not under the will, but against it.

“ They do not seek to show that they, whom the testator has so ruthlessly disinherited, were in any possible event to be the objects of his beneficence.”

This is all true and manifestly results from the bequest by the testator of a mere pittance to his favorite sister and her children; from his omission to provide for his other numerous relatives, and especially from his declaration that if he had children, he would bequeath a very small amount to them merely sufficient to excite them to habits of industry and frugality, and no more; thus intimating that he would violate the law which secures to children a Ugitime in their father’s estate. But I am unable to perceive how, upon legal grounds, his admitted insensibility to the ties of kindred can benefit relatives claiming his succession. It necessarily makes against them,- and is one of those circumstances calculated to prevent the application of rules of interpretation which they might perhaps invoke if he had abundantly provided for them, and it could be inferred from the will that, under certain contingencies, he preferred them to the States of Louisiana and Maryland. It is to such a case that the rules “ in testamentis, plenius volúntales testantium interpretcmtur,” and “optimum ergo esse, Pedius ait, nonpropriam verborum signifloationem scrutari, seel in primis quid testator demonst/rcvre vohierit,” particularly apply. D. 50, 17, 12; D. 33, 7, 18.

The intention of the testator to exclude his heirs at law, at all events, being admitted, the conclusion is inevitable that if the cities could not take the legacies or violated the conditions which the testator had the right to impose, he intended to vest his succession in the States of Louisiana and Maryland. And if, in the language of Judge Story, the lawful intention of the testator is the polestar to guide Courts in the exposition of his will, or if, as Goin-Delisle graphically expresses it, it is the trail which the Judge should follow in all its turns and windings, it must be the rule of our decision, unless this case comes under some arbitrary law which controls the will of the testator.

Considering, imprimis, what the testator intended, it is too clear for argument that if the bequest to the cities did not take effect, or become forfeited by the violation on their part of lawful conditions, the States were to take it without conditions, as the next best thing he could do to insure the preservation of his fortune, and the application of it in his name to charitable uses.

It is said that the legal meaning of the word lapse does not cover a case of this kind, and that cases of lapsed legacies should not be extended by implication. The intention of the testator, and the sense in which he used the word lapse, being manifest, under the rules already cited, and the additional one, “m conditionibus testamentorum voluntatem potius quam verba eonsidera/ri oportet,” that sense should be preferred though not* the most correct and usual. D. b. 35 ; C. 1, b. 101 ; Ooin-Delisle, Donations et Testamens, page —.

If the will simply provided that the lapsed legacies shall enure to the States, it may be that the States could receive, under that disposition, only the title or interest first bestowed on the cities, and that in that case the thing bequeathed would not be altered in its nature or extent in passing from the first legatee to the second; but it will not be denied that the testator might have added that the legacies, so lapsed, should enure to the benefit of the States, free from some *254or all of the conditions imposed upon the first legatees. This I conceive he has done by requesting the Legislatures of those States to carry his intentions into effect as far and in the manner which will appear to them the most proper. No one reading the will can fail to see that when he says, “ If the legacy to the Cities lapses, it shall inure to the benefit of the States.” He means “the property composing it shall inure to the benefit of the States ; ” and it would he strange if Courts of Justice could not reach that meaning.

It is true that in the construction of wills Courts of Justice ought not to depart, without necessity, from the proper sense of the words used. That necessity seldom occurs in cases of single dispositions, unconnected with others the will may contain ; but when the several dispositions in the will are constituent parts of one scheme, each must receive the sense which results from the entire instrument, and the rule relied on has, in that case, reference, not to the terms used in any one disposition, hut to the entire contents of the will. In such a case, “ if there is a just reason to believe that the testator has used terms in a sense different from that sanctioned by usage, they must be taken in the sense in which it is believed he understood them.” 6 Toullier, No. 312 ; D, 1. 24, de réb. dub.

“ The intention of the testator must prevail over the grammatical meaning of the words which he has used, provided that his intention is ascertained, by dispositions contained and words used in the will, and it is manifest that he had another object and another thought than that which the terms used in a particular disposition would otherwise convey.” 1 Nouveau Eurgole, Nos. 507, 508 ; D. 1. 7, § 2, in fine de supelleetile leg.

Under the authority cited from the Roman Digest, the interpretation should he more plenary in wills than in contracts; by which I understand that when the sense of a particular disposition resulting from the entire instrument has been ascertained, Courts may go further in cases of testaments than in cases of contracts, in disregarding the grammatical meaning of the terms used, so far indeed, as to supply words omitted, which may be done whenever the obvious meaning, and other parts of the will, restore those words naturally. Coin-Delisle, p. 447, No. 9 ; D. 1. 07, § 9, ff. de legat, 2d 1. 10 ; C. de fid. 1. 1, § ff. de liwred. insí. 1. 1; C. de Test.

The lapsed legacies, that is, the property composing them, was to inure to the States unconditionally, and the mode of 'execution of the will was left to the discretion of the Legislature. This disposition created precisely the title which the city of New Orleans claims under art. 1506 of the Code, and the answer of Hodestinus, cited in argument, D. 6, 33. Such a disposition would unquestionably he valid if that in favor of the cities was not, and the claims of the heirs at law may safely be left out of view.

The disposition in favor of the city of New Orleans may be viewed as a bequest for pious uses—and the first question to be examined is, whether the holding of property for pious uses by this city is a tenure recognized by the law of Louisiana.

It is urged that the tenure, under which the city claims, is a technical trust of the English law, similar in all respects to those set aside by this Court, in the cases of Harper v. Stansbrough and Acklin v. Franklin's executors ; that if it is not such a tenure, it is at least a tenure invented by the testator, without warrant of law to sustain it, and therefore void. It is further urged, that the disposition is otherwise void for the want of capacity in the city to take, and-*255by reason of the uncertainty oí the beneficiaries and of their non-existence at ‘ . „ , „ „ . the time of the opening of the succession.

Overlooking the inherent powers of Municipal Corporations, I thought, after the argument, that these grounds wore tenable ; but further consultation with my brethren, and a reference to authorities, to which, until lately, I had no access, have satisfied me that I was in error, and that under our system of jurisprudence, the capacity of the city of New Orleans to take and administer this charity is substantially the same as that claimed in this suit for the State of Louisiana.

The Oity was the original element of the Roman world; its organization was so complete, and so well adapted to the wants of civilized man, that after all other institutions perished, in the fall of the empire, the municipalities not only remained, but acquired additional importance, and through them the civilization of Rome impressed itself upon the institutions of its conquerors.

In no part of Europe, during the middle ages, was the importance of municipalities so great as in the country from which the civil law has descended to us. The fueros of the cities of Spain were constitutions rather than charters ; they exercised under them most of the powers of sovereignty, and it is with truth that Gregorio Lopez says: Villa et castra sunt nomina que in se continent jurisdictionem, lionorem et disti’ictum et etiam jus patronatos. No. 3,1. 9, t. 4, p. 5.

It is in accordance with the spirit of the legislation of that country that the successive constitutions of the State of Louisiana have made the city of New Orleans and its officers permanent functionaries of government, for all purposes of police and good order and for the punishment of minor crimes and offences, and that the Code has authorized it to accept donations made to the poor, and to take by will and by donations inter vimos.

It needs not the authority of Domat, at the present day, to prove that the police and good order of a city include the education of youth and the care of the poor within its limits. This is a truth which comes home to the bosoms of all men; deduced at first from the precepts of Christianity, it has become an elementary principle in the theory of our government. Domat, Des Qomm. p. 107.

If, for want of other means, the city taxed itself for those purposes, that -tax could not be diverted to other objects, or seized by the creditors of the city, Egerton v. Municipality No. 3, 1 Annual, 436. If a particular branch of the revenue was affected by law to that object, it would equally be free from seizure. But the revenues of a city are not all derived from taxation; the original act of incorporation of this city recognized that it had other means, and authorized the levying of taxes only to supply any deficiency in other branches of revenue. It being unquestionable that cities can hold property patrimonially, and that the property thus held may be applied by law to any object for which the city is bound to provide, what is there contrary to public policy or injurious to creditors in the enforcement of a condition appended to a bequest, and without which the bequest would not have been made, that the property giveh shall be applied to some of those objects and shall never be alienated? Nothing that I can see. The giving, on such a condition, is a reasonable liberty to bestow upon testators, and the bequest, by providing a fund which the city was otherwise bound to supply, enriches it, and increases its means to meet its obligations.

*256As already stated, the law establishes the capacity of this city to take by will.

It also recognizes donations in favor of the poor, such as were made in the will of Many, in 2d R. R. p. 440, and in that of Mr. Henderson, in 5th Annual, 441.

If the legacy, in this case, had been made directly to the poor and to the children of the poor, it would come within the letter of the law; the city would have taken charge of it, and administered it for the beneficiaries. I am satisfied, however, that this is not the only form such a disposition can assume, and that the bequest, as made, comes within the spirit and learning of our jurisprudence in the matter of charitable bequests.

“ On peut léguer á une ville ou une communauté, quelle qu’elle soit, eeclesiestique ou laique, et destiner le don á quelque usage licite et honnéte, comme pour des ouvrages publics, pour la nourriture des pauvres, ou pour d’autres oeuvres de pióte, ou du bien public. Et il faut considérer comme un legs fait á une ville ou autre communauté, ce qui serait legué á ceux qui la composent, comme aux habitans d’une telle ville ou autre lieu.” Domat, Lois Civ. b. 3, tit. 2, § 2, p. 465 ; Law 17, Du legs, 1. 1; 0. law, 122; D. law 2d, de reb. dub.; D. law 20, de reb. dub.

Domat places donations to a city for pious uses, and those for the erection of works of public utility, on the same footing, and the laws which he cites clearly establish the truth of that proposition. He further lays down the rule that, in either case, the destination affixed to the property by the testator, follows it in the possession of the legatee, who is, notwithstanding, vested with the title.

It is hardly necessary to say that a donation of land to the city, within its limits, for the purpose of erecting works of public utility, has ever been held valid and binding towards all persons, so far as the conditions it imposed were lawful. In 1785, Don Andres Almonaster built an hospital on a tract of land which he owned, and gave the land and building to the city, with the charge to keep it up for ever as an hospital for lepers, so that the public might have the benefit of it in perpetuity.

In the succession of time the disease of leprosy disappeared from the country. The house ceased to be used as an hospital, and was finally destroyed by fire. In 1833 the city passed an ordinance converting the land into a cemetery, the heir of the grantor then brought suit to recover it by reason of the breach of the condition attached to the bequest. We held that the legacy being for a pious use, could not be revoked by the inexecution of the condition—but we recognized at the same time the principle that the destination given to the property might have been enforced so long as there were lepers entitled to be admitted to the hospital. Pontalba v. The City of New Orleans, 3d Ann. 660.

Within a few years past, and after the repeal of the Spanish laws, Abijah Mslc gave to this city a house and lot, on condition that it should be applied to the keeping of a public library, and to be used for no other purpose.

The residuary legatee contested the validity of this bequest, on the ground that the will in which it was contained had been revoked by a posterior will; but neither in this case, iior in that of Pontalba, was it alleged in the pleading or contended in argument, that the dispositions attacked created a tenure of property unknown to the law. The judgment creditors of the city have seized in succession the taxes of the city, its perpetual rents, and its interest in the water *257works; but it has never entered their minds that they could seize this house as the property of the corporation, and disregard the destination affixed to it by the testator. The right of the city to acquire property under a testamentary disposition with a specific destination to some work of public utility, such as the erection of a court-house, a jail, an hospital, a public library or lecture room, &c., admits of no doubt, and, as shown by Domat, its right to take and hold property, upon the same tenure for pious uses, rests upon the same principle. It may be said that the city is not bound to make provision in all the cases provided by the testator; this may be true, but the public schools and the asylum for the poor, are certainly things which the city is bound to provide; and they alone would be sufficient to sustain the disposition.

The ground that the bequest is void for uncertainty and for the non-existence of the beneficiaries at the time of the opening of the succession, can hardly be considered serious in any forum governed by the rules of the Civil law.

“ Quocl pauperibus testamento vel eodieillis reUnquitur, non ut inaertis per sonis relictum evaniscat, sed omnibus modis, ratum firmumque consistat, ” is the rule on that subject in the Code of Justinian, which, so far as I am informed, has passed into the jurisprudence of all modern nations. An opinion of learned Counsel has been placed in our hands in support of the claim of the heirs at law of the testator, going to show that under the laws of Maryland bequests for the poor, or for their benefit, are void for uncertainty. It seems to have been so held by the Courts of that State, although it is probable that those decisions would not be followed, after the enabling- statute, passed in 1842, by the legislature of Maryland. However this may be, I adopt fully the opinion of the Supreme Court of the United States in the cause of Vidal v. the Gity of Philadelphia, that the law was otherwise in England before the statute of Elizabeth, and I am very sure that it is otherwise here. See 2 Howard, p. 107.

Although, says Bicard, the great interpreter of the Roman law, on this subject—although the poor and the captive do not'compose legal communities, and although they may pass for uncertain persons when not otherwise designated, nevertheless as their indigence has placed them under the protection of the public, whose duty it is to assist and sustain the weak, the laws have not only authorized donations and bequests to be made for their benefit collectively, but they have declared them the most favorable of all dispositions, and to avoid the inconvenience resulting from the uncertainty of the persons to whom the gift or legacy is to be distributed, it is customary to leave the distribution to the executors, or to the local authority. Ricard, Donations, p. 150.

I agree fully with the able counsel for the city of Philadelphia in the case of Vidal, that uncertainty seems to be of the essence of charitable bequests. Whenever the beneficiary is designated by name, he has a legal right which he can exercise, and his merit is alone to bo considered; the bequest ceases to have the peculiar 'merit of a charity.

But it is urged, and it has been argued at great length, that the will under consideration is one connected scheme ; that it should he construed so as to give to each portion of it the sense which results from the entire instrument, and that if this rule of interpretation be adopted, it must necessarily lead to one or the other of two conclusions—either the testator intended the general estate as the beneficiary, or he intended to create a trust in the sense of the English law, identical with that in Franlclin's case; it is further said that as the intention of the testator, when ascertained, is the law of the will, in either *258alternative the disposition fails, and what has been termed a translation nomine pomos, is a mere vulgar substitution in favor of the State, expressly authorized by article 1508 of the Code.

I believe that the enquiry as to the nature of the title intended and who was the beneficiary, may be gone into in the manner suggested by the plaintiffs’ counsel—and it is lawful to take into consideration for that purpose everything that is written in the will, whether legal and possible, or the reverse. It is to me a self-evident proposition—a proposition which I cannot demonstrate otherwise than by stating it—that for the purpose of ascertaining whether the title intended by MeDonogh is a conditional, or impossible title, all the conditions attached to it, whether legal or illegal, must be considered. In Franklin’s case the dispositive words of the bequest to the brothers of the testator, were the same as are made use of in this case. Franklin attached conditions to his bequests and provided that it should be in trust for the establishment of an institution of learning in the State of Tennessee. We took those conditions into consideration for the purpose of ascertaining what was the tenure intended, and being satisfied that it was a tenure unknown to our laws, we held that the disposition must fall, the nature of the conditions cannot affect the principle.

The very able jurisconsults, whose mémoire has been submitted to us, evidently take this view of the law, or they would not argue from the nature of the illegal conditions imposed, that the testator intended a title in full ownership in favor of the Cities. The counsel here go still further when they assume as one of their grounds of defence, that the right of ownership in favor of the city . results, not only from the express terms of the will, but also from the prohibitions to alienate, to compromise, and to attempt a partition of the property.

Art. 1506 does not reach that question, it applies only to illegal, immoral and impossible conditions attached to a title, otherwise valid.

But when all this is conceded and the different parts of the will are interpreted one by the other, they do not establish beyond all reasonable doubt the quality and quantity of the title intended and who was the beneficiary. The intention to give to the City for pious uses remains, at least, as probable as either of those suggested—in proof of this I deem it sufficient to state that each of the three judges who heard the argument, originally came to a different conclusion on this part of the case. The Chief Justice, after some hesitation, adopted the opinion, that the title intended was one to the cities in full ownership, with a destination to pious uses, which attached to the property. Mr. Justice Slidell thought, and still thinks, that the General Estate, for which the will provides, was intended as the beneficiary. I was under the impression that the holding intended was in the nature of a trust of the English law, and involved the legal and equitable titles which had caused the disposition in the will of FrcmMin to fail. My brethren have given at large the reasons of their respective opinions. I deem it unnecessary to state those upon which mine was predicated. The diversity of those opinions sufficiently shows that the question is not free from doubt, and the moment it is shown to be doubtful, the words used by the testator in the will are no longer to be construed and weighed; another rule of interpretation comes into play to solve the doubt.

If the disposition was in favor of the General Estate, it is gone.

If it establishes a legal and an equitable title in the technical sense of the English law, it is, in my opinion, equally gone.

*259If it vests in this City a title in full ownership, with a destination to charitable uses, for which the City would otherwise be bound to provide, it is lawful, and may be carried into effect. How is it then possible to evade or disregard the textual provision of article 1700 of the Code — that a testamentary disposition must be understood in the sense in which it can have effect, rather than that in which it can have none ?

When under all the different interpretations of which a testamentary disposition is susceptible, it is lawful and may be executed, the construction should rest upon the words and arguments used by-the testator. But where one interpretation will give effect to the will, and the other would not, the decision of the law supercedes the discretion of the Judge, and commands him to assume that the testator intended what is lawful. A striking example of the nature of this rule is afforded by the decisions of the Courts of Prance, before and since the prohibition of substitutions in that country. When substitutions were authorized, the words of advice or request, in which the substitutions were often made, were held equivalent to words of command, as lawful wishes and desires of testators always are. But since substitutions have been prohibited, charges of substitutions thus made are disregarded, and the disposition becomes pure and simple. Merlin thus explains why the words, “I request,” “I desire,” although sufficient to express the will of the testator when their object is lawful, cease to be so when the disposition intended is prohibited:

“ The reasons which might be adduced to attribute a binding force to the words, I request, I desire, are neutralized with us by the great principle drawn from the Roman law, that when there is doubt as to the sense of a disposition, the interpretation which tends to validate the act of which the disposition forms part, should be preferred to the interpretation which would avoid it. It is true that by thus interpreting the disposition, it is rendered illusory; but along side of the rule, that in cases of doubt the testator should be presumed to have written nothing useless, there is another which says, that in cases of doubt the testator is never presumed to have intended what the law forbids, and still less what would cause the failure of the principal disposition. In the conflict of those two rules, it is undoubtedly the first which must give way to the second.” Merlin, Rep. verbo sub. fid. § 8, No. 7. See also 5 Toullicr, No. 27; Grenier, Donations et Testaments, ob. pre. No. 10; Roland de Villargues, Des Subs. 175.

So in this case, we are bound to presume that the testator intended the disposition which he could lawfully make, to wit: a disposition in favor of the city of New. Orleans, with a destination of the property given to pious uses. Having come to this conclusion, it is clear that the disposition cannot be affected by the illegal conditions and charges, which the vanity and avarice of the testator prompted him to attach to it, and that they must be reputed not written, under article 1500 of the Code. I do not think, however, that all those conditions are illegal which have been assumed in argument to be so. I believe that the condition not to alienate, for instance, is as binding in a case like this as in the dispositions made by Almonaster and Msk, already referred to—-and that a city may, in such a case as this, be deprived of the jus abutendi over its property for an object of public utility, without its right of property being-affected thereby; the legislature having always the right to remedy the effects of the disposition whenever the alienation of the property given becomes of public advantage.

*260It was urged with great earnestness in argument, that the will in this case is not distinguishable from that of Mr. Henderson, acted upon in 5th Annual, so far as both establish a perpetuity—and that the decision avoiding the disposition in that case ought to govern the present. The obvious distinction between the two cases is, that Mr. Henderson had made no disposition of his property in favor of any one, but had simply provided that it should for ever form part of his succession and be administered by his executors and commissioners to be named after them, to the end of time. While the testator in this case has made a valid disposition of his property, and the perpetuity of the bequest is merely the consequence of the perpetual existence of the legatee. The General Estate does not form, as is erroneously supposed, the object of the disposition. The bequest embraces nothing more than the fortune left by the testator at his decease. The gradual increase of the General Estate, contemplated by the testator, was to be the result of the mode of administration he had prescribed, which is admitted on all hands to be illegal.

It may further be observed that as there was no disposition of the property in Mr. Henderson’s will, there could be no illegal or impossible conditions within the meaning of article 1506 of the Code. If the dispositions establishing the perpetuity, and providing for the erection of the town of Dunblane, had been reputed not written, the other dispositions, such as the building of a schoolhouse and a church in the projected town, should have been enforced, although manifestly a part of what the Court held to be an unlawful scheme, and inseparable from it. There being no interpretation under which the main disposition could be sustained, the subordinate dispositions necessarily fell with it.

I have not noticed the objection—why is it not permitted to give to one under any condition, and to make a second disposition in favor of another in case those conditions turn out to be illegal or impossible ? because, as well observed in argument, the alternative in favor of the second legatee would be but a continuation of the illegal or impossible conditions which the law reputes not written, and it would be giving effect to a violation of the law, if a third person was permitted to profit by the refusal of the first legatee to violate it. No difference can be made on principle between cases where there is a second legatee and those in which there is not—the legal rights of the first beneficiary are the same in both.

I am of opinion that the judgment should be affirmed.

Dissenting Opinion

Slidell, J.,

(dissenting.) This controversy involves the interpretation of the testament of one who, after a long career of industry and avarice, died the possessor of a great estate. Leading a life of isolation, his heart appears to have become insensible to natural affection, and his mind morbid on the single subject by which it was engrossed. Hence, it is not surprising that he should have left at his death a Will, which, with the exception of a small legacy, excludes his kindred from any participation in his enormous fortune, and strives to carry out after his death the process of accumulation which he had so successfully prosecuted. His imagination, heated by solitary musing, saw through a long distant future the result of his cherished schemes, “ in a huge mountain of wealth,” with which he designed to found magnificent corporations, as imperishable monuments of Ms wealth and philanthropy.

*261The questions presented for our solution are, whether the scheme so elaborately prepared by the testator is valid in law, and if it be not, what other disposition consistent with his wishes is to be made of his estate.

For the proper consideration of these questions, it is necessary to arrive at a distinct appreciation of the substance of his will, which is sufficiently manifest, although its style is verbose, and its details minute and complicated.

After a few special legacies of insignificant amount, the will proceeds to give the residue of his estate, real and personal, to the cities of Baltimore and New Orleans, not absolutely, but as he expresses it, “ To-and for the several intents and purposes hereinafter mentioned, declared and set forth concerning the same, and especially for the ’establishment and support of free schools in said cities and their respective suburbs, (including the town of McDonogh,) wherein the the poor, and the poor only, of both sexes, of all classes and castes of color, shall have admittance, free of expense, for the purpose of being instructed in the knowledge of the Lord, and in reading, writing, arithmetic, geography, &c.” Had the will stopped here, or contained no subsequent provisions in a conflicting sense, it might be held to be a devise of the ownership to the cities for the purposes contemplated. But the proprietary right thus nominally given is afterwards, in substance, withheld, for he subsequently declares that his executors must invest his personal property in real, and that his intention is that the whole of his estate, real and personal, ( except his slaves and the special legacies to his sister and her children,) is to be “a permanent fund on interest, as it were, to wit: a fund in real estate, affording rents, no part of which fund (of the principal,) shall ever be touched, divided, sold or alienated, but shall forever remain together as one estate, termed, in this my last will and testament, as ‘My General Estate,’ or ‘The General Estate,’ and be managed as I herein direct.” Again, when he comes to prescribe this management, he uses the fol- ■ lowing language : “ I hereby declare that my intention is not that any part of said general estate, or revenue from rents, arising from said general estate, shall go into the hands of the corporation of said city; but that they, the said corporations, shall have forever a supervision over-it.” He accordingly directs that the cities shall each annually appoint, until the end of time, three agents or commissioners, who shall have the sole and exclusive management of said general estate, the leasing of all the lands and houses, the cultivation of all the estates, the gathering of the crops, the collection of rents, and the doing all acts necessary to its full and perfect management. He confers upon the commissioners the seizin and .possession of all the real estate from tho day of their nomination. He directs his executors, after they have fulfilled their functions, to place all books of account and papers, &e., in the hands of these commissioners. They are to take an office in New Orleans, employ a secretary, and keep regular books, accounts, &c. They are to render accounts annually to the city of New Orleans, which are to be audited by a committee. They are to apply the revenues of the general estate as follows :

First—One-eighth of said revenues to the American Colonization Society, for the term of forty years from his decease, to be paid over from year to year.

Second—One-eighth part to the Mayor, Aldermen and inhabitants of New Orleans, for the sole purpose of establishing an Asylum for the Poor, until the sums paid should amount to the gross sum of $600,000. This annuity is to be paid to other commisioners, not mo^p than seven in number, to be appointed by /the municipal councils of New Orleans. They are required annually to invest *262it in good securities,, for the purpose of accumulation, until the full payment of the sum of $600,000. After which, one-third of the accumulated fund is to he invested in the purchase of land for the Asylum, and the erection and furnishing of suitable buildings, and the residue to be invested in real estate, to become thenceforth inalienable, and its revenues to be applied to the support of the Asylum.

Third—One-eighth part of the revenues of the general estate to be appropriated to the benefit of the Society for the Relief of Destitute Orphan Boys, until the sum paid should amount to $400,000. The fund to be deposited in bank by the commissioners, on interest, and as it accumulates to be invested in the purchase of real estate by said Society, which real estate is to be inalienable.

Fourth—One-eighth of said revenues to the City of Baltimore for the pux’pose of establishing a School Earm in Maryland, until the sum so paid shall amount to three millions of dollars. Eor the more rapid accumulation of this sum the will directs that so soon as the preceding legacies should be satisfied, the three-eighths bequeathed to them should be added to the school farm fund. The fund is to be x'eceived and managed by Dix’ectors, who are to be annually elected by the Mayor and Council of Baltimore, and to be subject to their supervision. The Directors are to invest the moneys thus received on interest, so as to augment its amount by the accumulation of interest to the largest possible sum, up to the time when the last payment of the three millions shall be received by them, when they are to invest a portion, not exceeding one-sixth, in land, buildings, fux’niture, implements, &c., for the School Earm, and the residue in real estate, which, when purchased, is never to be alienated, but its revenues applied to the support of the School Earm.

Fifth—The remaining one-half of the revenues of the general estate, to be divided equally between two other sets of commissioners, one to be appointed by the Councils of New Orleans, the other by the Council of Baltimore. These commissioners are required to devote the sums so received by themrespectively to the suppoi't of public free schools, to be established in the two cities, and under their supervision. After the annuities created for the use of the Societies, the Asylum and the School Earm are satisfied, then the whole revenues of the general estate are to be paid over annually by the commissioners of the general estate to the commissioners of public free schools, in equal shares, and to be devoted to the support of such schools.

In various parts of his will, the testator suggests the incoi’poi’ation of the several funds and institutions which he desired to create, accompanied by minute instructions respecting the mode of leasing his lots and lands, and administering the general estate.

He seems to have contemplated an ideal being, the General Estate as the true recipient of all his property, to be held for the purposes of the will. He recommends to the commissioners of the General Estate to sue out an act of incorporation of it, and in his instructions he observes, “ the great object I have in view ( as may be plainly seen,) is the gradual augmentation in value of the real estate, WHICH WILL BELONG TO AND BE OWNED BY THE GENERAL ESTATE EOR CENTURIES TO COME.”

The will also contains the following clause, which, from its vital importance in the decision of this case, it is proper to insert verbatim:

“No compromise shall ever take place between the Mayor, Aldermen and inhabitants of .the City of Baltimore, in the State of Maryland, and the Mayor, *263Aldermen and inhabitants of the Oity of New Orleans, in the State of Louisiana, and their successors, in relation to their respective rights in said general estate; nor shall one party receive from the other party, by agreement, a certain sum of money annually, or otherways, for their respective proportions in said general estate, nor shall either party sell their respective rights, under this will, in the said general estate, to one another, or to others; but said general estate shall forever remain and be managed, as I have herein pointed out, ordered and directed. And should the Mayor and Aldermen of the Oity of Baltimore, in the State of Maryland, and the Mayor and Aldermen of the Oity of New Orleans, in the State of Louisiana, or their successors in office, combine together, and knowingly and willfully violate any of the conditions hereinbefore and hereinafter directed, for the management of the general estate, and the application of the revenue arising therefrom, then, and in that event, I give and bequeath the rest, residue, remainder and accumulations of my said general estate, ( subject always, however, to the payment of the aforementioned annuities,) to the States of Louisiana and of Maryland, in equal proportions to each of said States, of half and half, for the purpose of educating the poor of said States, under such a general system of education as their respective Legislatures shall establish by law. (Always understood and provided, however, that the real estate thus destined by me for said purpose of education, shall never be sold or alienated, but shall be kept and managed as they, the said Legislatures of said States, shall establish by law, as a fund yielding rents forever, the rents only of which general estate shall be taken and expended for said purpose of educating the poor of said respective States, and for no other.) And it is furthermore my wish and desire, and I hereby will, that in case there should be a lapse of both the legacies to the cities of New Orleans, in the State of Louisiana, and Baltimore, in the State of Maryland, or either of them, wholly or in part, by refusal to accept, or any other cause or means whatsoever, then both or either of said legacies, wholly or partially so lapsed, shall inure, as far as it relates to the Oity of New Orleans, to the State of Louisiana, and as far as it relates to the Oity of Baltimore, to the State of Maryland, that the Legislatures of those States respectively may carry my intentions, as expressed and sot forth in this, my last will and testament, into effect, as far, and in the manner which will appear to them most proper.”

When the provisions of this will are considered as a whole, it appears to me impossible to regard the Cities of New Orleans and Baltimore as invested by it with any title known to our laws. It is asserted by the counsel for the defendants that the Cities are, in legal contemplation, the owners of the property devised. But I am unable to conceive, under our system, an ownership stripped forever of the right of possession, use, administration and disposal. Such an estate has no warrant in our Code, nor precedence in our jurisprudence.

The law, from wise motives, permits men to exercise a last act of volition over their estate, by disposing of its ownership. But when they exercise this just privilege, they must exercise it under the law. They have no right to invent new tenures of property. I think there is much wisdom in what was said by .the Chief Justice in Harper v. Stanbi'ough: “ The modifications of the right of property under our laws are few and easily understood, and answer all the purposes of reasonable use. . It is incumbent on the Courts to maintain them in their simplicity.”

*264The defendants seek to escape this difficulty by first assuming that the testator intended to confer the ownership upon the Cities, and then contending that those subsequent provisions which regard the possession, administration and disposing power, are to be considered as conditions illegal, or contrary to public policy, and consequently as not written; and so, they, argue, the bequest to the two Cities must be reduced to a pure and simple legacy, or to a legacy modified only by the conditions found compatible with public policy and the laws.

In assuming that the right of ownership in favor of the Cities results from the express terms of the will, the counsel for the defendants appear to me to err. The language is. not, I give and bequeath to the Cities, but, I give and bequeath to the Cities to and for the several intents and purposes hereinafter mentioned. Those intents and- purposes are fully expressed in subsequent clauses of the will; being thus referred to, they must be considered as embodied in the devising clause, and clearly qualify and limit it. The argument, therefore, starts from erroneous premises, when it assumes that there was a devise to the Cities of the ownership.

No one can peruse the will without a clear conviction that MeDonoglh was unwilling to trust the city governments, and believed that to invest them with the dominion of an owner, would jeopardize the security of the estate, and the success of the scheme which he had dévised. No one was more familiar than the testator with the history of our city government, and the disastrous financial results of its administration. Hence it is that he entrusts the possession and administration to other hands, forbids the city ever to sell a single item of property, and prohibits the passage of a single dollar into their hands. The intention of the testator to withhold from the cities the ownership of his estate, in any sense of that term known to our law, seems to me to admit of no doubt. It is interwoven with the whole theory of the will, and speaks unmistakeably through its. entire context.

The truth is, that the real legatee intended and preferred by McDonogh, was the ideal being which he designates as his General Estate. The cities were intended to be the mere supervisors of the perpetual trust which he desired to create, and which, in its turn, was to be the source of the other trusts contemplated in the will.

But while on the one hand the title proposed to be vested in the cities is unknown to our laws, on the other, the ideal being which the will contemplates has no legal existence, and is consequently incapable of taking.

And here it is proper to observe that the aid which the testator expected from legislation is now manifestly hopeless. The States of Louisiana and Maryland have both spoken through their proper organs, and by ratifying upon their statute books the institution of the present suit, have clearly disapproved the scheme of future incorporations contemplated by the will. See Statute of Louisiana, March 12, 1852, and Statute of Maryland, January, 1852.

Moreover, the purposes which the testator desired to accomplish through this ideal being, are in part manifestly unlawful. It was his ambition to effect a huge accumulation by a protracted system of investment and re-investment. Not only was any sale of the real estate existing at the time of his death forbidden, but his personal property was ordered to be invested in real estate, interest was to be accumulated on interest, leases were tobe so effected that the improvements were to fall into the estate at the end of the terms; in short, the* *265fortune of the testator, so administered as if possible to increase it more and more during a long distant future. That such a scheme is inconsistent with public policy, no one will deny. It would withdraw large masses of property from commerce; it would put the administration of a great landed estate into the hands of agents having no personal interest in its well-being; it would be a check upon improvement wherever these lots and lands are situate, and in fact become a huge nuisance, whose evils would be aggravated from year to year. No unbiassed mind will regret the defeat of projects so unreasonable and pernicious.

Yet these evils are so interwoven with the scheme devised by the testator, that an attempt to purify it of them would involve a destruction of the scheme itself, which the testator desired should be accomplished in it its entirety, declaring a violation of any of his conditions by the cities a cause of forfeiture.

But if the system thus elaborately planned by the testator, and by which, through the instrumentality of mere nominal devisees, he sought to create an ideal being as the recipient of his estate, the engine of a vast accumulation, and the founder in a far-off future of magnificent charities, must fail, because it creates a tenure of property unknown to our laws, because it exceeds the power granted by law to testators, and because it would violate public policy, what other disposition is to be made of his estate ?

This question is fully answered by the testator himself. It is to go, not to his natural heirs, whom by the clearest implication he intended under all circumstances to exclude, but to the States of Louisiana and Maryland, as absolute owners, leaving it to them to employ his fortune in the accomplishment of his philanthropic intentions, “ as far and in the manner which will appear to them most proper.”

Unquestionably the testator’s preference was for the extraordinary scheme which he had so elaborately prepared, and over which he had no doubt brooded for years with a morbid delight. He desired it to be carried out in its entirety, and forbade the cities to violate omy of its conditions.- But still an apprehension existed in his mind that the scheine might fail; and from “ whatsoever cause ” this failure might arise, by “ whatsoever means ” it might come to pass, his desire was that there should then be recipients of his fortune, who, by virtue of their sovereign power, could accomplish the substantial execution of such of his wishes as they might consider lawful, and to whose discretion and fidelity he was willing to leave that execution. The great object of the testator was the education of the poor. “ I can make no disposition of those worldly goods which the Most High has been pleased so bountifully to place under my stewardship, that will be so pleasing to Him as that by means of which the poor will be instructed in wisdom, and led into the path of virtue and holiness.”

That paramount object, with other wishes of the testator, so far as they may be deemed practicable and politic, the States can, and no doubt would, in good faith, and with a just discretion, endeavor to accomplish, and thus the charitable object of the testator would be disappointed only as to the preferred mode of its fulfillment, an alternative of his own choice being adopted.

The above opinion necessarily involves the proposition that the natural hern of the testator have no right to his succession beyond the specific legacies left to a portion of them. For we could not render a decree in favor of the plaintiffs in this action as owners of the succession, if a valid title were outstanding in others. The heirs have thought proper to appear in another forum; avoiding *266the State tribunal in which the succession of the testator was opened. Still, although they are not before us, and our decree may not be technically binding upon them, I deem it my duty briefly to notice the grounds upon which I understand their claims to be predicated.

In considering the controversy between the Cities and the States, I was controlled by what I believed to be the intention of the testator, as gathered from a reasonable interpetration of the entire will. The same course of investigation seems to me decisive of the pretensions of the heirs.

The intention of the testator to cut off his natural heirs, beyond the specific legacies left to them, seems to me irresistibly manifest from the whole scope and purport of his will, and is peculiarly deducible from the scantiness of the legacy left to his sister and her children, and his declaration, “had I children (which I have not,) and a fortune to leave behind me at my death, I would bequpath (after a virtuous education, to effect which nothing should be spared,) a very small amount to each, merely sufficient to excite them to habits of industry and frugality, and no moi’e.” And again, that other declaration: “ The first, principal and chief object I have at heart, (the object which has actuated and filled my soul from early boyhood with a desire to acquire a fortune,) is the education of the poor (without the cost of a cent to them,) in the Cities of New Orleans and Baltimore, and their respective suburbs, in such a manner that every poor child, and youth of every color, in those places, may receive a common English education, (based however, be it particularly understood, on a moral and religious one, that is, the pupils shall, on particular days, be instructed in morality and religion, and school shall be opened and closed daily with prayer.) And in time, when the general estate will yield the necessary funds, ( for in time its revenue will be very large,) over and above what will be necessary to the education of the poor of those two cities and their respective suburbs, it is my desire, and I request that the blessing of education may be extended to the poor throughout every town, village and hamlet in the respective States of Louisiana and Maryland, and, was it possible, through the whole of the United States of America. Eor this purpose, and this only, my desire being that one dollar shall never be expended to any other purpose, I destine the whole of my general estate (excepting only my black people, the legacy bequeathed the children of my sister Jane, and that to herself,) to form a fund in real estate which shall never be sold or alienated, but be held and remain forever sacred to it alone.”

In the face of these declarations, and of the entire scope and purpose of the will, it would be monstrous to say that McDonogh did not intend to exclude, at all events, his heirs at law. Indeed, the counsel for the heirs expressly concede that point in their printed argument, a copy of which was submitted to this Court in the recent case of Fra/nldin's heirs. “The testator,” they acknowledge, “ certainly intended to exclude his heirs at law forever, and they do not claim one cent under the will or the intention of the testator.”

Their hopes rest upon the proposition “ that the testator did not dispose of the title and ownership of his estate. He attempted to build up magnificent trusts and charities out of the future revenues, but he kept the ownership for himself. As to the ownership, he died intestate, and it passed to his heirs at law.”

I have carefully considered the ingenious argument by which counsel have endeavored to support this startling proposition, but it has brought no favorable *267convictions to my mind. It is narrow and technical. It asks from an unprofessional mind the nice accuracy of an expert conveyancer. This is contrary to the received theory of the interpretation of wills. The law is indulgent to testators who are regarded as inopes consilii. It exempts the phraseology of wills from technical restraint, and obeys the clear intention of the testator, however informal the language in which it may be announced. If that intention be even obscured by conflicting expressions, it seeks the intention rather in a rational and consistent, than an irrational and inconsistent purpose. Of two modes of construction, it prefers that which will prevent a total intestacy. Such is the spirit of our Code, and the teaching of the commentators.

Approaching the interpretation of the will in this spirit, looking to the language used in the devise to the States with reference to the surrounding provisions, and the general scope and purpose of the will, which is the work of an unprofessional mind, I have, from the first, experienced little difficulty in appreciating the intention and meaning of the testator.

By the lapse of the legacies to the cities, I am clearly of opinion that he meant their failure to take effect from any cause whatever.

By the expression, “ said legacies wholly or partially so lapsed shall enure,” &c., he evidently meant the property embraced in those legacies.

To say that under the clause in question he simply intended to place the States in the stead of the Cities—their actions fettered by the same restrictions —their title qualified and limited by the same anomalous provisions as to possession, use and management—is to obliterate from that clause its closing words, which commit to the States respectively a dominion controlled only by their own discretion.

[The judgment of the Court will be found at page 252.]