The republic. [volume] (Washington [D.C.]) 1849-1853, 1852-10-23
Tbs MsDoaoeh Will C..s:.

Mary Murdoch ahd others, beirs at law OF John
McDonogh, against the executors of the deceased,
is reported at length in the New Orleans Delta of
me instant. The substance Of this opinion has
already been reported by telegraph; but 1t may be
interesting to readers generally to know some OF
the reasons on which the judge POUNDS his Jodg.
ment in favor Of the heirs:
BY his will the deceased declared that his real
estate shall be sold alienated He instructs
his executors to convert his personal effects into
real estate, aud to hand il over TO the commission
and agents Of his general estate" to be named
by the corpora ions OF New Orleans and Baltimore.
He gives and bequeaths to New Orleans annuity
OF one eighth part of the net yearly revenue for
establishing an asylum for the poor.
TO carry this into effect he asks for the appoint
ment of board of commissioners to have the man
agement of the institution, its funds, and every
thing in relation to it. He makes a oequest to Bal
timorc for establishing a school farm. He orders
equal division Of the remaining one hall Of the
reyenu of the general estate between two sets Of
commissioners to be appointed by the two cities.
These commissioners are required to devote the
received to the support OF public free
schools to be established. The commissioners are
to have perpetual succession. In case OF lapse he
bequeaths the property to the States Of Louisiana
md Maryland,
After reoapitulating these testamentary provi-
sions, Judge McCaleb says:
awe discover at glance two prominent charac-
tcristics in the will Of John McDonogh. The fret
ia an almost total indifference and insensibility 70
the sacred ties of kindred; the other is an ostenta-
tous display Of the most anxious soicitude for the
application of his long-hoarded wealth to the es-
adjustment of institutions designed for the benefit
of strangers 10 his blood. The first Is 81 gnally
exhibited in the pittance bequeathed to his widowed
sister and her ftherless children and in the decla
ra on contained in the will that ii he had children,
and fortune to leave behind him at his death, he
would give a very small amount to each--merely
enough to excite them to habits OF industry ana
frugality, and no more.
Ills soicitude for others lie the constant theme
of his singuarly verbose and minute directions to
those through whose agency the complicated ma
chnery he had devised for the execution of his
purposes was to be put in operation. The orphan
children of his deceased brothers and sisters, now
complainants before this tribunal have not, except
in the single instance alluded to, received even the
cold respect of passing glance, while language
seems to be too feeble to disclose the depth and
breadth Of his sollctude for the welfare of the or
phan poor Of every class and caste of color in the
cities who claim to be considered the universal be-
gatees of his accumulated millions.
'While find it difficult to comprehend these
discordant and unnatural elements in the charac-
ter of one who so often and SO solemnly lnvokes
the principles OF religion and morality indispen-
sable to the proper education Of the yonth Of the
country, it is perhaps unnecessary to notice them
further than to cay, that in my mind they ralse the
and philanthropy Of the testator which were the
fruitful themes Of the eloquent encomiums OF coun-
sci on the trial Of the cause
alt is apparent that of the prominent objects
of the testator in his last will and testament, was
deprive his heirs and nearest Of kin Of the vast
wealth of which. in the event Of his dying intes-
tate, they would be entitled in the legal order of
succession It ia equally certain that in default Of
heirs in the ascending and descending line he pos
sessed 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
manner to receive the sanction of the laws of the
land, questions which are now to be deter
mined"
The Judge then proceeds to discuss the legal eff
feet of the will very deliberately, reviewing the law
of uses and trusts at great length, and arriving at
the conclusion that
"It is impossible not to see ut glance in the
plan devised by McDonogh, in his will for the fu-
ture management of his general estate,' all the
features of regular trust estate, as known to the
equity jurisprudence of England, and other States
of this Union, that it is against the whole policy OF
opinion of the majority of the judges of the supreme
court OF Louisiana, delivered seriatim in the recent
of Franklin's succession arc conclusive upon
this subject"
The States of Louisiana and Maryland were not
made parties to the suit, and the Judge says
that
"No decree, therefore, which this court may
render, can conclude their rights. But as the
claim they asserted necessarily comes in conflict
with the rights Of the heirs, have bestowed upon
it the most attentive consideration. II, after such
consideration, were convinced that there were an
nding claim against the property superior TO
that Of the complainants, should feel myself
bound in candor SO to decide. have, however,
not been able to satisfy my mind that the States
have any higher or greater privileges under the
will than has been granted to the cities.
"There bequest of the property to the
cities And if there were, it was made in a form,
and under such restrictions. as to render 1t utterly
could be no lapse which will justify the claim on
the part of the States But if, for the cake of
gunent it be conceded that there has been lapse,
then it is clear that the States must come under
;ailv the OH iua mi
upon the cities. They must take the property with
those illegal restrictions which would render the
bequest void in the hands Of the States. as well az
in the hands Of the corporations Of the cities.
s'The States must become trustees for the pay
ment of the several annuites trustees of the gen
eral estate which is to remain forever inaenable;
and in that capacity they must distribute forever
the rents and revenues for the education Of the
poor They must assume and exercise the duties
which the will prescrbes in violation OF the settled
policy of Louisiana, declared by her juris-
prudence and express legslation; or they must
arbitrarily set aside the will, and through the
agency Of the Legislature distribute the bounty of
the testator it, in it's wisdom, may deem proper.
"But these compainonts cannot be thus arbltra-
clothed with the full ownership of the property
Immediately on the death of the testator, and the
void bequests in the will have never for moment
Invested them of their ghts as heirs at law and
nearest Of kim
"It appears from the evidence that the heirs ut
law Of the deceased consist OF the descendants OF
several brothers and sisters; all MS brothers ana
sisters having died before him, and five Of the full
blood and two Of the half blood having left iseue
stll surviving. The complainants are descend
ants Of the brothers and sisters of the full blood,
and comprise all of the descendants of the ful,
blood, except the children of Margaret. daughter
of Jane McDonogh, wife of Hammett. None OF
the descendants Of the half blood have appeared in
the cause. It will therefore, be necessary to pro-
vide by the decree for the coming in Of the other
parties, whose interest is thus shown by the evil
dence.
Gas all the heirs take by representation, the di-
vision among them must be by roots, as provided
by the code, arts. S94 and so9 The estate is to be
divided between the paterna and maternal lines,
the heirs of the full blood to take share in both
lines, and of the half blood in one line only.
"There will, therefore, be roots by which
the estate must be divided, and the proportion fall
ing the respective lines will be to each Of the
roots of the full blood (l2 70ths)
and to each OF the roo's Of the half blood, five
seventieths, Is 70hs,) and the decree will be en-
ter ed in accordance with these interests
The Data says that suspensve appeal will be
taken immeda tely, and that the Judge has fixed
the amount of the bond to be furnished at s l00 600
VALUE OF LIBRARY TO A POOR SruDENr.-One
of the most interesting incidents in the carly his
Tor th, IF ,ptr 10 tod