Weekly national intelligencer. [volume] (Washington [D.C.]) 1841-1869, 1852-10-23
THE MoDoNoGH WILL CASE.

opinion has already been reported but may be inte
resting to readers generally to know of the
which the Judge Pounds his judgment in favor Of the
heirs.
BY his will the deceased declared that his real estate
shall never be sold alienated He nstructs his
tors convert his personal effects into real estate and
to hand to the commissioners and agents of his
general estate TO be named by the corporations of New
Orleans and Baltimore He gives and bequeaths New
Orleans annuity of oneeighth part of the nett yearly
revenue for establishing asylum for the poor.
To carry this into effect he asks for the appointment
of Board OF Commissioners to have the management of
the institution its funds, and every thing in relation to
it, He makes bequest to Baltimore for establishing
school farm He orders equal division Of the remain
ing of the Of the general estate between
two of commissioners be appointed by cities
These commissioners required to devote the sums
received to the support of public free schools to be
established The commissioners are to have perpetual
succession In Of lapse, he bequeaths the property
to the States of Louisiana and Maryland.
After recaptulating these testamentary provisions
Judge McCALEB says
We discover at glance two prominent characteristics
in the will of John McDonogh. The first is almost
total Indifference and nsensibilty the sacred ties of
kindred the other is ostenatous display Of the most
anxious solciude for the application Of his
wealth to the establishment of institutions designed for
the benefit of strangers to his blood The first is
sgnay exhibited in the pttance bequeathed to his widow
ed sister and her faheress children and in the decara
ton contained in the viii that if he had children, and
fortune leave behind him at his DEATH he would give
very small amount to eachmerey enough to excite them
| to habits of industry and frugality, and no more,
" His soctude for others is the constant theme of his
nguarly verbose and minute directions those through
whose agency the complicated machinery he had devised
for the execution OF his purposes was to be put In opera
ton The orphan children of his deceased brothers and
sisters compliments before this tribunal have not
except in the single instance alluded to- received
the cold respect of passing glance while language seems
to be too feeble to disclose the depth and breadth OF his
soctue for the welfare Of the orphan poor every class
andc of in be
ed the universal legatees Of his accumulated millions
" While find it difficult to comprehend these discor
dant and unnatural elements in the character Of who
often and soemnly nyokes the principles of religion
and morality indispensable to the proper education Of
the youth of the country it is perhaps unnecessary
ce them further than say that in my mind they raise
the strongest doubts of the commences Of that charity
and philanthropy of the testator which the fruitful
themes of the eloquent encomiums of counsel the trial
| of the cause.
cit is apparent that of the prominent objects of
the tesator in his last will and testament deprive
his heirs and nearest of kin Of the vast wealth to which,
in the event of his dying ntestae they would be entitled
in the legal order of succession. 1t is equally certain
that in default of heirs in the ascending and descending
line he possessed perfect right in law to deprive them
of the inheritance, and to bestow it upon strangers
Whether he has accomplished his design in the first place.
and exercised his right in the other, in to
ceve the sanction of the laws of the land questions
| which to be determined"
The Judge then proceeds discuss the legal effect of
the viii very deliberately reviewing the law of and
great length and arriving the conclusion that
" 1t is impossible at glance in the plan de-
vised by McDonogh in his will for the future
of his general estate all the features of irregular trust
estate, known to the equity Jurisprudence of England
and other States of this Unon that It's against the whole
policy of law is well settled to admit doubt The
opinion Of the majority of the Judges of the Supreme
Court of louisiana delivered seraa in the recent
of Frankns succession conclusive upon this subject
The States of Louisiana and Maryland were not made
| rtiae IN Tho s,it nj tba Ind hot
"No decree, therefore, which this Court may render
conclude their rights But the claim they assert
ed necessarily in conflict with the rights of the
heirs, have bestowed upon it the most attentive
sderaon III, after such consideration were convinced
that there outstanding claim against the property
superior that of the compliments should feel myself
bound in candor decide. have, however not been
able to satisfy my mind that the States have any higher
greater privileges under the will than have grant
\ ed to the cities"
There bequest Of the property the cities
and if there were, it made in FORM and under such
restrictions 10 render ii utterly null and void If there
legacy there could be lapse which viii justify
the claim the part Of the States But if for the sake
Of argument be conceded that there has been lapse
then il is clear that the States must under ubsan-
tally the same obligations imposed upon the cities.
They must take the property with those illegal restrc-
tons which would render the beques void in the hands
of the States well in the hands of the corporations
| of the cities.
The States must become trustees for the payment of
the several annuites; trustees of the general estate
which is to remain forever naenable and in that capa-
city they distribute forever the and
for the education Of the poor They must and
exercise the duties which the will prescrbes in violation
of the settled policy of Louisiana declared by her u
risprudence and express legislation; they must arb
rary set aside the will and through the agency of the
Legislature distribute the bounty of the estator it in
its wisdom may deem proper.
But these compliments cannot be thus arbitrarily de-
prved Of their vested rights They became clothed with
the full ownership of the property Immediately the
death Of the estator and the void requests in the will
have for Invested them Of their rights as
heirs at law and nearest Of kin.
at appears from the evidence that the heirs at law Of
the deceased consist of the descendants Of several brothers
and sisters all his brothers and sisters having died be-
fore him. and FIVE Of the full blood and Of the half
blood having left issue still surviving The compliments
descendants Of the brothers and sisters Of the full
blood and comprise all Of the descendants Of the full
blood except the children Margaret daughter Of Jane
McDonogh wife of Hammett None Of the descendants
of the half blood have appeared in the 1t WILL
therefore, be necessary to provide by the decree for the
coming in of the other parties whose interest is thus
shown by the evidence.
GAS all the heirs take by representation the division
among them must be by roots provided by the Code
arts 1874 and 909 The estate is to be divided between
the paterns and maternal lines the heirs Of the full blood
to take share in both lines and Of the half blood in
line only
There WILL therefore be roots by which the es
tate must be divided and the proportion falling to the
respective lines win be each Of the roots of the full
blood and each Of the roots Of the
half blood fveseyenteths and the decree will be entered
in accordance with these interests
The Delta says that suspensve appeal viii be taken
Immediately and that the Judge has fixed the amount Of
the bond to be furnished at 100000.
7 A w I. nrnN ~