New Orleans daily crescent. [volume] ([New Orleans, La.]) 1851-1866, 1852-01-29

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\, Beauty and wealth won't win your way,
Though they yare attired in plumage gay;
Something to charm you ell must know, ~.
Apart from fine feathers and outward show i,
A talent. a grace. gift of mind,
. Or else poor beauty isleft behind!
While the small birds sing in their true worts
:" Tis not fine feathers make fine birds"
The Estate of John McDonogh.
Attorney General Isaac johnson has submit
ted to Governor Walker the following report on
the progress of the suit of the State against the
executors of the will of the late John McDonogh
His E1celency Cor. .Joseph Waiker: -0 -i.O
SPIN accordance with my promise and your Excel
lencys request submit the following of the suit
of the State of Louisiana The Executors Of the late
John McDonogh .
shortly after the will the deceased was admitted to
probate to wit the 2sh of October 1850 my attention
called to the provisions 1t contained favor of the
state Of Louisiana Owing to the large amount of pro-
pery involved and the real supposed difficulty of the
legal questions growing out Of the extraordinary charac
ter of the will i felt justified in calling to my assistance
as associate counsel Messrs, VIM A. Elmore, w w King
and Miles Taylor
After a careful examination of the provisions of the
will the conclusion that the egacies in favor of the
cities Of NewOrleans and Baltimore null void
that the States of Louisiana and Maryland were en-
titled to the property in conformity to law and the clearly
expressed intentions OF the testator. .Uy-
With these views Of the will deemed it my imperative
duty under the act of 1850 well under previous acts
Gf the Legislature regulating the office of Attorney
General to institute proceedings in behalf of the State Of
accordingly commenced and conservative measure.
the property was sequeered in the hands Of the Sheriff
If the Parish of Orleans. - l -4it-
The State of Maryland neryened and Joined the State
of Louisiana in the suit and the could be
prepared tried in the District Court and the jud
ment adverse to the States.
From this decision appealed as did also the State Of
Maryland and the is pending in the Supreme
Court If it be deemed advisable the trial be forced
some time in the ensuing spring. 7.
As the is Of great Importance to the State
br1ef Of its nature and of the questions con
neeted with it, probably be expected from For
thorough exposition of the points and principles of the
beg leave to refer Exceency to the printed
arguments Of counsel for the States copies of which
herewith transmitted will, however without trespass
ng hope give you brief sketch of the prominent fea
lures of the controversy.
The legaces to the cities attacked mainly upon two
grounds:
account of the perpetuities created by them and
from commerce of the property of the
| cesson forever.
2 because the egacies made persons and corpo
| rations having no capacity to accept them
If the first ground be well taken it is confidently be-
eycd that the legacies reprobated both by law and
public policy and consequently are absolutely null In
that they had any effect except vest the
property in the States Immediately upon the death of the
| testator.
II second position be well TAKEN is equally clear
appears under law that the legacies fall
C. c. 47S for it is positive rule of law that constitute
valid legacy the legatee must be in existence death
the testator and possess the capacity to accept G. G.
l459 Even therefore if the cities of NewOrleans and
Baltimore the undsputed beneficiary egatees under
The will it is believed they have not the capacity in viz.
tue of their present charters to accept the egaces.
But is evident the testator intended those
poratons be benefited by his will on the contrary HI
smphatcally forbids one dollar OF his money going int
| he Golfers Of the cities.
The testator intended that the various charitable iust
utions named in his will should be his benecaries
provided those institutions could be founded he do
ired. and administered according to his directions
his state of things he wished the cities to superv
sors of those institutions and of his property. But
hose institutions could not be founded desired
nstered as directed on account Of legal obstacles
those opposed by public policy then it is very clear tina
he testator did not wish the cities to have any thing
10 with his property and wlled it Internationally to t
States Now is not pretended that the principal lego
of the real benefcares, under the will in exist
nee or have the capacity to accept and such
xstence cannot take because the bequests them
connected and interviewer with the others that the,
| can not take unless the others can. ..
1t has however been supposed that these incapacite
Of the nominal egatees towit the cities of NewOrlean
and Baltimore and of the real beneficiary lcgaees to
| Wit the various charitable institutions contemplated
might be removed and remedied by legislation But 4
appears to me there if not nsuperabe OBJ
econs to any legislation intending to remedy the fata
efects of the will to legalze that which is illegal
is well settled maxim. in our Jurisprudence that th
title to property is never in abeyance
That Immediately upon the death of testator hi
property vests somewhere If the whole of his will be volt
The property vests in the legal heirs If there be va
resduary legacy and special legacy be void the speca
legacy vests the residnary egatee Upon the death
Mr. McDonogh his property was either vested in TIL
cities and charitable institutions in the States unde
he residuary clause in their favor or in his legal heirs
Any legislation having for its object the dvesture
tights already vested would be in violation both of tb
Federal and SatsConstitution The State may dvest b.
lproperty against her will but she cannot impair til
lights of other parties The rights of all parties wer
fixed ut the moment of McDonogh's death If the egac
the cities void then it is not in the power Of tb
Legislature to mpa validity to it. fthe legacies to th
cities and charitable institutions void at the death
the estator because it attempted to create perpetuits
by illegal substittions and dei commssd subsequep
legislation render it valid If the legacy is void bt
the egatee did not exist is incapable of accept
ing thesame consequence must follow If the property
consequence of the nty of the legacy to the citit
and charitable institutions vested contend it did
Ihp tQt ma i11ipp h1tnn
Feat by legislation the necessary legal effect of obection
which existed to the legacy at the death of the tesato
These principles appear too plain for controversy BIT
pursue the inquiry further let it be conceded that tn
State by some species of acto legislation rel
Ter the legaces to the cities valid then the questo
rses whether not it be expedien to interfere for t
| purpose.
take it for granted, your Exceency perceives the
without legislation to create the necessary capac
es to accept the legacy to the cities and charitable il
,titutions must fall in which event the State must
tanly the property Such legislation the pal
# the State would supply the adversary with power
defeat her rights and be inconsistent and rrec0nciab
with the operation of her to the propert
suppose however after such legislation shall have bee
adopted the court should still decide that the legacies
he cities and charitable institutions were void; viii
would be the consequence? The is evident. Il
property would go the legal heirs of McDonogh Th
would he the necessary result of this species of
alton is the decided opinion of my associate counsel
But suppose this danger entirely obviated, and that Il
Legislature takes the subject up with the view of beso
ng the city of New0fleans the requisite capacity
accept the legacy Is it not apparent that such funct
loes not pertain to the political municipal powers
The city, In its nature il is essentially the function of
private special Corporation and the Constitution fc
bids the Incorporation by the Legislature of special &c
ooratons That clause of Constitution will thereto
become entirely nugatory if the powers and rights of
riul Corporations be superadded to our .MunciI
Corporations
This constitutional objection to the comforting of
n proposed capacity to to be insuperabe.
ppes with the greater force to the incorporation of
charitable institutions intended to be founded by the t
taor and if it be done in instance it may
Id another, until at length banking privileges may
: confirmed all Municipal Corporations The Constit
tion declares that Corporations hereafter
b be created shall endure for longer term than
tyve yearsexcept those which political muncipa
The charitable institutions theincorporation of which
I, will intends to besof perpetual duration To inc
porate them for twenty years if it Constitutio
,r in allegiance, and in all probability renew with increa
- violence the litigation in relation to it.
: But if the capacity could be given to the city
or accept for whom and in what should she
She cannot accept for the charitable institutions beca
they are not AID. under the Constitution,
)n in existence and to empower the city to accept for
self would be in direct opposition to the tesators expr
declarations law to this effect instead Of facilitating
nd execton of the testamentary dispositions of McDono
would in fact destroy them and to all intents and
poses create and substitute will in virtue of VIII
city could take the property in absolute ownership
spite of the positive prohibitions and the most chcris
desires of the testator. .,. 7 ..-l .r .. 81.
In the event. however. that all obstacles oconferr
the proposed capacity to accept removed the v
serious question still remains Is 1t expedient and "
for the State topursue that course 1t is question exc
= siyey of legislative discretion. ~ d. 81 sl5 .