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

.fdei ecmmisss, which are forbidden by Law. and
the existence Of which stamps the whole bequest
with nullity.
The prokbitory law of Louisians, upon which
the objection 10 founded, 10 contained in article
1907 OF Civil Codes and the distinctive character of
testamentsry disposition prohibited by that article
IL, "thet the heir or legatee should be thereby
charged TO preserve for, and mot or as incor-
Iectly printed in the slish Next Of our codel re-
turn thing TO third person" Now, 90 far from
having this distinctive character. it seems to me
that The will under consideration Is remarkable
for the contrary tendency. II Is the immutability
OF the destination Of this property which is the
prominent feature. So far from the estate of the
testator being obliged to be and returned
TO third person, It is contemplated by the test
tina! It shall remain eternally in the hands of his
iec to say. that the will contemplates ira asfer,
from year TO year, OF the estate, from one sc. OF
commissioners to another. For these com mission
srs are 10 be appointed every year by the heir.
They will be his agent, and accountable to him.
With what propriety. therefore, can either the
heir or commissioners aud agents named under
the will be said to be charged to preserve the pro-
perry Tor The ultimate enjoyment or benefit of a
third person Neither, IN my opinion, do those
clauses of the will which require the commission
ers to pay over portion Of the rents annually,
up TO certain total amount, TO certain corpora
tions, constitute substitution, or fdei comniissa
within the puryiew Of the prohbtory statute under
consideration. The testament describes or men,
lions nothing Ito use the language of article
l,5OO, which the legatee 10 obliged to preserve
for, and return TO the Society for the Relief OF
Destitute Orphan Boys, for example. The thing
bequeathtd was the estate. The estate yields
fruits. The disposition in favor of the Orphan
Asylum, the Colonization Society, &c, are an
nuiiies TO be taken from those fruits, so long
as the thing bequeathed remains in the hands Of
the legatee, or until the aggregate of the yearly
payments to each annuitant shall have reached a
certain sum- This is evidently such naked trust
as the Supreme Court long ago decided was legal !;
(Mathe IIVAudAia 9th N y Marina
Rep p. 3O3,) decision which has been quoted
with appreciation on various occasions. See Hen
derson's Ex'sr Rost and al 9th Annual Rep II
is true, that these annuties will be prodlgiously
curailed in duration, in all probability; but that
suit will flow from another cause. I he continue
ton OF the annuiues in question, depends upon the
continuation Of the undivided ownership OF the two
legaiees. The testaior intended that that undvid-
ed ownership should be eternal. Indeed, he has
formally prohibited any partition between the insti-
tuttd hers. But that prohibition is contrary to
article Civil Code, and must he disregarded
II is, however, my duy, by article FOG of Code, to
construe the Will in such a manner as to give
fleet to the intentions of the testater far as the
same can be done without violating the law. The
clause Of the will, by which the universal legatees
arc Prohibited from ever making partuon, cannot
have airy effect whatever. But the clauses by
which the legatees are ordered TO pay over annu-
ally, 10 certain persons or bodies corporate, per
cen'age of the rents and fruits OF the estate, until
the same shall have reached hundreds of thou
sands or millions, of dollars are construed by me
ss prohibition of partition Of his estate, between
his two heir, for limited time-for that space of
time, in a word, which would be required to
n:soe at bar, which fixes that time, in
the Gaze Of the most favored annuitant, at
two hundred aud ten years. The calculation may
be erroneous, but one thing is certain-that term
is assigned for the payment OF annues and for the
consequent indispensable duration OF the undvid
ed ownership CT the two cities. Another fact
seems equally ceItain-ihat the term i'll question
case .or the application Of the 223 article of the
Civil Code and, accordingly, decide that the be-
quest OF The annuties nquestion, is legal and bind
ing for so long time as the two cities sh al remain
no partition can take place between them, until
five years shall have elapsed from the opening of
his succession.
Fourth ground That the deyises to the cities of
New Orleans and B fillmore are made upon i'm
possible conditions and are contrary to public poll
cy. The grouT seems repetition OF those already
examined. BY article ], 5O6 Of Code, conditions
impossible, illegal and immoral in last will, are
considered as not written. All CONNIE mt 1tors on
article 900 Of the French code (from which our
ticle 900 was taken rvbatmq) agree that the
word "condiiions' ia that article, includes
charges, clauses, precePts, as well "a conditions,
strictly speaking. Such conditions, clauses, or
charges, do not lnvadate the bequest, but are
themselves iavalidated, says Gregorio Lopes, 10
his gloss Of Sd law Of 4h title OF the 9th Partidas,
which is Identical with cur article 1906 Indeed,
book 2S,h, title I'd, par. IS.
Filth ground That the bequest to the Mayor,
Aldermen and inhs btants of New Orleans, is a be-
guest made 10 persons or corporations having no
capacity TO receive.
The bequest in thscase is to the mayor, Alder
men and inhabitants OF New Orleans" The city of
New Orleans was Incorporated IN 1907 by the name
and Style of The Mayor, Aldermen and inhaoi-
name, as contained in the charter, is slightly differ
tnt from that in the will but lind that the Le-
gsla,ure has also given the same slight variation
OF style 10 this corporation, in the act OF March
20, ISIS, at pages 1902 and l03 OF Billiard and
Curry Digest.
But il is commended in argument for plaintiff, that
the corporation created by act OF 1895 had ceased
10 exist, by the dyisoa OF the city into three mum
dated ls3S. ! think this argument is founded in
error. The 2ls section Of act of March :, 1896,
dividing the city, expressly keeps alive the old
10Th March, $50, gives this CAPACITY Of acquiring
by donation Morris Cdusa. (See Billiard and Cur
rvs Digest, page l3o, section IVY But II is argued
that the law in question declares that property
acquired shall be administered by the sinking
fund, and its revenues applied to the payment OF
the debts OF the municipality THIS legislative
enactment does not IN my opinion, render the cor
poraton incapable Of receiving the legacy In the
present instance, with the obligation of conforming
10 the intentions Of The testator provided such ia,
tentions be not contrary TO law for the statute
in question must be viewed as laying down gene
raj rules for the administration and application OF
bequetts 10 the corporation, and not as thwarting
the legal and benevolent intentions Of those who
should make such requests
As 10 the general right Of corporations 10 receive
such requests, see article i2i OF Code. And al
though doubt might have existed under the terms
OF act Of ls05, section 1s Of the right OF the city
Of New Orleans 10 hold property out OF Its corporate
limits, Jet that doubt received legislative solution
ten years before the succession OF McDonogh was
opened See act Of 1910, already quoted. And by
article 1i5e Of Civil Code, sufficient IL the
pacity TO receive donation exist at the date Of the
opening Of the succession, although IL did not exist
at the time the will was made. Ia the present in
stance, the will was made twelve years before the
death Of the testator; and the record shows that
he possessed large estate wthou,as well as within,
the corporate limits Of New Orleans.
Being Of opinion, for the reasons above given,
that the devise OF John McDonogh TO the Mayor,
Aldermen, and inhabitants 81 New Orleans, OF the
undivided half OF his estate, subject 10 the payment
Of certain legacies and snnuites, Is good in law,
and that said devise and bequest have not lapsed,
that, consequently, the State OF Louisiana Is not