The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1851-02-18
Oecisl0n of Judge Buchanan


| O6c1SAOm OF OuUSe hucAamuAI
In tie Case of tie State of Louisiana VS.. The
4 Executors of JOHN McDonogA.
REASONS FOR JUDGMENT.
The lats John McDonogh by his WILL proved in this Cont
the 18th Oc 1885, constituted the Corporations Of New
Orleans and Baltimore his legatees by universal title. each
for one half of Lis estate.
The Will further declares that should the said Copo.
raons combine together and wlfuy violate the conditions
prescribed by Tesao for the management of his succession.
and the directions given by him for the management of Its
the States Of Louisiana and Maryland SHALL in such
event. take the estate egatees by universal te in the place
Of said two Corporations of New Orleans and Baltimore.
And further declared be the wish and desire and the
will of the Tsator that in there should be lapse
both the legaces to the cities Of New Orleans and Baltimore
either Of them wholly in part by refusal to accept
by other whatsoever. then both either
Of said legacies wholly partially apsed shall nue,
far % relates TO the city Of New Orleans to the State of
Lousana and far relates TO the city of Baltimore,
to the State of Maryland that the Legislatures of those
States. the Testators Intentions expressed in
his Testament, into effect far and the which
| shall appear to them most proper.
Executors named in the WILL who have qualified
the Mayor of New Orleans, well the Councils of the
three Municipalities of New Orleans, have sgnied the &C.
ceptaon of the succession of John McDonogh behalf of
the Corporation Of New Orleans.
By the petition fled u this case the State of Louisiana
claims to be entitled under the Will the moety of the sue.
cesson of John McOonogh the place of the Corporations
Of New Orleans, the ground that the legacy that Cor
WORDS that the bequest void for iegay and consequently
that the conditional devise to the State becomes Immediately
operative and absolute.
The iegaties charged by the State are US follows:
That the Tesator has prohibited forever the alienation
oil his real estate, and has directed continued reinvement
Of revenues in other real estate, which shall likewise be
forever inalenabe g. That the tile by the will in
the cities Of New Orleans and Baltimore title of own
ershp g. That the devise legaces the cities OF New
Orleans and Baltimore substuons and dei eomissa
which forbidden by the laws of Louisiana That said
egacies are made upon impossible conditions and
rary to public policy. 5. That said legaces made to
persons and CORPORATIONS having capacity receive them
The state OF Maryland has interviewed in this suit by
sell and has urged all the grounds of nuly of the several
egaces and bequess in the will contained which urged
by the State of Louisiana She claims the the success
sion of John McDonogh.
The City of Baltimore not before me- and cannot be
reached by the Of this My decision in the
Issues presented will therefore affect the interest of that
city in the matters in controversy now proceed take up
the several grounds of nuy of the beQues to the city of
New Orleans in the order in which they presented by the
petition.
LIST Ground That the Testaor has prohibited forcper the
alienation Of his real estate. devised the said city,
The prohibition to ALLEVIATE. alleged found in the viii
three places pagess and 30 of the printed copy very
distinctly expressed.
Such prohibition act of last will has been declared
illegal by Supreme Court the of Henderson Heirs
U.s. Executors of Henderson, reported 9th Annual D. AL
The language of Judge Sde who pronounced the opinion
Of the court, is follows: If would be illegal for Tes
tator to leave his property to OF persons
with the charge to preserve It, and to it their death
to some person Designated crtior, is unlawful to tie it
up in the Executors and Commissioners forever
And although the Supreme Court divided on the oues
ton whether the provisions of Henderson, will amounted to
perpetual prohibition ALLEVIATE. Zone judge being of
contrary opnion) yet the doctrine of the awuness of such
prohibition is distinctly admitted in the dissenting opinion
read on that occasion.
Admitting, however, the prohibition ALLEVIATE TO be nm
lawful sand the existence Of such prohibition in MELON
oghs WIN indubtable) yet that legaty does carry
with the destruction OF the bequest The illegal clause
merely considered not oren according Article 1906
the Civil Code. Sec 18th Rob. Rep, p. $40. 1
I'd Ground. That the title vested by the Tesator in the
cities of New Orleans and Baltimore not an ownership as
recognized by the laws Of this State The Tesator the
following words of DEVISE in relation those corporations
tpage Of the Viii, printed copy,) 81 give. will and be-
queath all the real residue and remainder my estate real
and personal present and future, well that which NAV
be acquired by me hereafter at time previous to my
death, and OF which may die possessed etc. This ia
bequest of the ownership OF the propery-of such title
defined in Article $50 Of the Civil Code And perfectly
consistent with such te under law that the properv
houd under the hands of the devse be encountered as
'resed, in the clause of the viii Immediately following the
'assage Just quoted e. subject the of the several
annuies or sums OF money hereinafter directed and forth
which SAID annuies sums Of be paid by the
ievisees Of this general estae of the rents of said
astate See Civil Code Article 49, rsgraphs Sd and 4h
In SO FAR as the ground under consideration applies to the
very peculiar system of administration and the complicated
rived (see a a. 49, & 26 and 800 for the purpose
carrying out, ant1 the end of time, his peculiar views it ia
very clear 10 mind that the Article 1906 of the Civil Code
must again have its application favor of the defendants
Indeed the whole basis of this fabric constructed with such
labor by the Tesato that idea of naenabiy which we
have Just declared to be legal mpossibity. According to
my vIew OF the law Testator has right appoint guar
ians to his heirs unless those heirs be minors and in that
the guardianship terminate when the heirs
ttan the of majority. See Civil Code chapter of Tu.
orship by VIII.
OIL mi
nd Baltimore are suhstuons and dei eomissa which are
orbdden by law, and the existence of which stamps the
'hole bequest with nulity.
The prohbitory law of Louisiana upon which the obisc
on founded, contained in Article 1907 c. Code and
distinctive character of testamentory disposition pro-
lifted by that article is that the heir legatee should be
ersby charged to preserve for and (not orr incorrectly
tinted in the English text Of code) return thing to
lrd person. Now SO far from having this distinctive char
ter 1t seems to me that the Will under consideration
arkable for the contrary tendency 1t is the mmutabiy =
the destination OF this property, which is the prominent
,tue So far from the estate OF the Teator being obliged
be preserved and returned to third person, conem
tied by the Testator that it shall remain eternaiy the
nds Of his heir. And it this Of the
Meet TO say that the Win contempates transfer from yea
year, of the estate, from set of Commissioners
other For these Commissioners to be appointed
by the heir They will be his agent, and accountable
him. With what poprety therefore, either the heir
mmssioner and named under the Will be said
aged to the property for the ultimate oymen
of the Will which require the Commissioners pay
err portion Of the rents, annually. up to certain total
loun to certain corporations, constitute substitution
cOmnssd within the purvew of the pr0hbtory
der consideration The Testament describes mentions
ing Ito the language Of Article 1907 which the ega
obliged to for and return the Society for the
sf Of destitute orphan boys for example. Tine thing be-
eathed the estate The estate yields fruits The dis
son in favor of the Orphan Asylum the Colonization 60
y, etc. annues be taken from those fruits long
the thing bequeahed remains the hands of the egatse
until the aggregate Of the yearly each annu
at. shall have reached certain This evidently such
naked trust the Supreme Cour, long ago decided
gal (Mathewson Lvaudas 5th N. 8. Martins Rep
S3) decision which has been quoted with appreciation
various occasions See Henderson's Exs Rost and
9th Annual Rep. 1t is true that these annuies will be
odsiously cuaied in Duration in all probability but that
ult will flow from another The continuation of the
nutes in question: depends upon the continuation of the
divided ownership Of the legatees. The Testaor in
1ded that that undivided ownership should be eternal In
ed he has formally prohibited partition between the in
tued heirs But that prohibition contrary to Article 1922
Civil Code. and must be dsregarded. II s however, my
y by Article 706 Of C0deto construe the Will in such
amer az to give effect to the intentions Of the TesatO
as the be done without violating the law The
auss OF the WILL by which the universal egatees pro-
bited from making partition, cannot have effect
hatever But the clauses by which the egatees ordered
pay over annually TO certain bodies corporate.
per cenage of the and fruits of the estate. until the
me shall have reached hundreds of thousands millions
HAS are construed by prohibition of partition Of
estate, between his two heirs for limited time-or that
ace OF time, in word which would be required off
annuies calculation has been made at bar, which v
that tme in the of the most favored annutan at
70 hundred and ten The cacu laon may be
Is but thing certain that assigned for the
ymen Of annues and for the consequent indispensable
ration Of the undivided ownership Of the two cities
mother fact seems equally certain that the term question