The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-03-03

sure t0Ougn lnGlCtcQ DdrDer TOT perjury. 30, YOU
will perceive, the church has its troubles, well
as has heather world.
We had another execution here the other day,
in the hanging OF person convicted under the
name of John Thomas, for the murder OF dis
charged soldier, named Stephens. There was no
question of his guilt although he continued to
strt his innocence to the last moment, and swung
of protesting the Catholic faith This man, before
but Smart, and that he was q native of Morris.
town, New Jersey, where his aged mother re-
sides. He said he served his time at the coach
making business, at Newark; afterward went to
sea lived some years in Mexico before the war
served in the American army during the war, and
then came to this city He fine looking
young man, about twenty seven years of age, but
had become dissipated after his return from Mexico.
tie died stoically, but hard, the rope having been
badly adjusted.
Our criminal court is now in session, and has
plenty Of work before 1t, the last Grand Jury
having returned l6l indictments. ARGUS.
Important Decision In the HIcDonogh Will
THE STATES OF MARYLAND AND LOUISIANA DENIED
THEIR REQUESTS.
From the New Orleans Crescent, Feb. 10
The following is the decision of Judge Bachan-
en-, in the cause of the State of Louisiana rs. the
Executors of John McDonogh:-
The late John McDonogh, bv his will, proved in
this court on the 2Sth Oct 1850, constituted the
corporations of New Orleans and Baltimore HIS le-
gatees, by universal title, each for one half of his
estate.
The will further decaves, that shoa!d the said
two corporations combine together, aud wllfrlly
violate the conditions prescribed by tesator for the
menag ment OF his succession, and the directions
given BY him for the management OF its revenues.
the States of louisiana and Maryland shall, In
such event. Ike the estate as legatees by universal
title, in the place of said two corporations OF New
Orleans and Baltimore And further. il is declared
to be the wish ard desire and the will Of the tesla
tor that in case there should be lapse of both the
Lon tot he OH e Neu nd n ,fimnre
either Of them, wholly in part, by refusal to
accept, or by any other cause or means whatsoever
then both, or either of said legacies, wholly or par
tally so spsed, shall inure, far relates 10
the city of New Orleans, TO the State OF louisiana
and so far il relates to the city of Baltimore, to
the : ate OF Marylan that the legislatures of
States may carry the testator's Intentions, as
expressed in bis testament into effect as far, and
in the manner which shall appear to them most
proper
Executors were named in the will, who have
qualified the Mayor of New Orleans, as well as
the councils Of the three municipalities OF New
Orleans, have sgnied the acceptaton OF the sue
cession Il John McDonogh, in behalf Of the corpo-
ration OF New Orleans.
by the petition filed in III case, the state OF
Louisiana claims to be entitled, under the will, to
the moiety of the succession of John McDonogh,
in the place Of the corporation Of New Orleans, on
the aroufd that the legacy 10 that corporation was
lapsed, by reason OF Its being ilegal-in other
words that the bsQuest is void for ilegality, and,
con sequently, that the conditional devise 20 the
State becomes Immediately operative and alb.
solute.
The negalities charged by the state are as fol-
l. That the testator has prohibited forever, the
alienation of his real estate, and nae directed
continued re-iRyestment OF its revenues in other
real estate which shall likewise be forever inalien
able. 2. That the title vested by the will in the
cities of New Orleans and Baltimore, is not title
OF ownership 3. That the device or iegacies TO
the cities OF New Orleans and Baltimore are substi-
t.ah ID hu
the laws Of Louisiana. 4. That SAID legacies are
made upon impossible conditions, and are contrary
TO public policy. S, That said leRacies are made
to persons and corporations having no capacity to
The State of Maryland has interviewed in this
suit, by counsel, and has urged all the grounds OF
nulty, OF the several legacies and requests in the
will contained, which are urged by the State Of
Louisiana. She claims the b alf OF the succession
Of John McDonoRh.
The city of Baltimore is not before me, and can
not be reached by the process OF this court. My
decision in the issues presented will therefore, not
affect the interest OF that city in the matters in
troversy | now proceed 10 take up The several
grounds Of nullity OF the beques to the city Of New
Orleans, in the order in which they are presented
First ground. That the testator has prohibited
forever the alienation Of his real estate, devised to
the ssid city.
The prohibition to ALLEVIATE, as alleged, i. found
in the will, in three places, Cages 2, y, and 80 OF
the printed copy, very distinctly expressed
Such prohibition in an act Of last will, has been
declared illegal by our Supreme Court, IN the case
o! III, nterson's Hers rs. Executors OF Henderson,
reported In 9th Annual, ?. III. The language OF
Judge Slidell, who pronounced the opinion OF the
court, 4 as follows -" IL IL would be illegal for
tesaior TO leave his property TO any person, or set
Of persons, with the charge 10 preserve 1t, and 10
transfer IL at their death TO some person designated
forftOri, it 10 unlawful to tie 1t up in the handsof
thslexecutors end COMM ssioners forever" And,
although the Supreme Court was divided on The
Que ston whether the provisions OF Hendersons
will amounted to perpetual prohibition TO ALLEVIATE
Gone judge being OF contrary opinion), yet the
doctrine Of the unlawfuness Of such Prohibition
in distinctly admitted in the dissenting opinion read
on that occasion.
Admitting, however, the prohibition to ALLEVIATE
TO be unlawful, (and the existence Of such prohi-
biuon in NcDonogh's will u indubitaoie,D yet that
illepaty does not carry with II the destruction OF
the bequesi The Illegal clause is merely consi-
dered not written according TO Article 500 Of the
Civil Code. (Sec l2lh Rob Rep, p. 64e)
Second ground = That the title vested by the
"a stator in the cities OF New Orleans and Balti-
laws of this State. The testator uses the follow
ing words Of devise, in relation to those cor
poratons (page : of the will, printed cepD:-,
:" give, will, and bequeath all the real residue and
remainder of my estate, real and personal, present
and future, as well that which may be acquired by
me hereafter, at any time previous 10 my death,
ard Of which may die possessed, etc THIS is
bequest Of the ownership OF the property-oi such
And II is perfectly consistent with such title,
under our law, that the property should, underline
hands OF the devisee, be encountered, as expressed
in the clause OF the will lmme dately following the
pa ,ssRe just quoted, " subject TO the payment OF
The several annuities sums OF money hereinafter
directed and set forth which said anuties or
Gums Of money are to be paid by the devsees OF this
my general estate, out OF the rents OF SAID estate
(See Civil Code Article ls3 paragraphs Sd and 4h)
In so far as the ground under consideration APP
ples 10 the very peculiar system OF mnstration,
and the complicated machinery OF checks and
balances, which the testator contrlved (see pages
n, % q, 25 &C. and 300 for the purpose Of carry
ing out until the end Of time, his peculiar views, u
is very clear 10 my mnd that the Article BOO OF
the Civil Code must again have It's application in
favor OF the defendants. Indeed, the whole basis
OF this fabric, constructed with such labor by the
testator, is that idea Of nalienabity which we
have just declared To be legal impossibhty; Ac-
cording 10 my view Of the law, tesator has no
right 10 sppoint guardians to his heirs, unless those
heirs be minors; and In that case even, the guar