The whole amount of these decisions is, that in cases arising upon contract, where the Supreme Court, in the absence of any state decision settling the construction of a provision in 386*] the *State constitution, in reference to the validity of the contract, had decided in favor of its validity, they would not reverse that decision, on the ground of an adjudication of the question contrariwise, by a state court, if that adjudication was made subsequently, not only to the first decision by the federal court, but subsequently to the very contract in issue, between parties who were, by the Federal Constitution, entitled to an adjudication on that contract, by the federal courts.

If it had been a case involving questions of title to real property, or the construction of local laws, irrespective of contract, the court would, no doubt, have been governed by Green v. Neal,6 Pet.,291, and have overruled its former decision in Groves v. Slaughter. (See Nesmith v. Sheldon, 7 How.. 813.)

To say nothing, however, of the distinction taken by the court in this case of Rowan v. Runnels, it is very clear that the decision is altogether inapplicable to the case of the heirs at law and the executors of McDonogh.

In this case, the question depends on a will of real and personal property, as to which there has been no decision of the Supreme Court; and in wills this court adopts the local law_bearing on the case. (7 How., 813, 814, 504; Patterson v. Gaines, How.; Vidal v. Girard, 2 How., 128; Wheeler v. Smith, 9, How. 55.)

The validity of the will is to be determined by a true construction of the written and unwritten law of Louisiana; and the tribunal of the last resort in that State has decided in favor of its validity. "Undoubtedly," said the Chief Justice, in Rowan v. Runnels, "this court will always feel itself bound to respect the decisions of the state courts; and from the time they are made, will regard them as conclusive, in all cases, upon the construction of their own constitution and laws. But we ought not to give them a retroactive effect. and allow them to render invalid contracts entered into with citizens of other states, which, in the judgment of this court, were wrongfully made.

These decisions, therefore, of the Supreme Court of the United States, denying the binding effect of subsequent state decisions, so as to retroact on antecedent contracts, are fully war ranted by the spirit, if not the letter, of that clause in the Federal Constitution which prohibit the States from passing "any law impairing the obligation of contracts.'

For, if the sovereignty of the States is not competent to legislate away the obligation of contracts lawfully entered into at the time, it should equally follow that the state courts can not construe away the obligation of antecedent contracts, which the Constitution meant to pro tect from every department of the state governments, and to place under the protecting ægis of the federal judiciary.

387*] *But when we come to consider the effect of a decision by the state tribunals upon their local laws involving any matter not im pairing the obligation of a contract, the case is one of a very different character. It must, in

itative decisions of this court, that if the validity of a Louisiana will is to be tested by the laws of that State, the exposition of those laws, by her highest judicial tribunal, must be equally regarded as part of the local law of the State, and as such, binding on the federal courts, whether it be established by a single decision, or by a series of decisions, and whether it involve title to real estate or personalty.

Baltimore and Susquehanna Railroad Company v. Nesbit, 10 How., 401, recognizes the principle that this court can in no case revise or annual retrospective state legislation, unless it violates some clause of the Federal Constitution, or is in conflict with the laws of the United States.

Has this court any greater jurisdiction over the State judiciary, in expounding their own laws, than it would have over the Legislature which makes them?

But it may be objected that the true reason why this court did not regard as conclusive a subsequent state decision in the cases of Groves v. Slaughter and Rowan v. Runnels, and Sims v. Hundley, is not that they were cases of contracts, but, because such subsequent decisions would deprive citizens of other states of the practical enjoyment of the privilege of suing in the federal courts on titles already vested in them, and to sustain this position, a paragraph will be cited from the opinion of the Chief Justice in Rowan v. Runnels, 5 How., 139.

But we respectfully submit that the state courts cannot be deprived of their legitimate function, of expounding authoritatively and conclusively the meaning of their own state laws, merely because, at the time of such exposition, there were parties in esse who had a right to sue, or who had sued in the federal courts upon titles already vested in them by virtue of the state laws.

It would be monstrous if the federal courts, obtaining jurisdiction ratione personarum alone, were to exercise that jurisdiction for the single purpose of prostrating and annulling all expositions of the state laws by the state courts, which had been made after the right had attached to sue in the federal courts.

It is not to be presumed that the state tribunal has so decided from a motive to oppress or prejudice the plaintiffs in the federal courts; and in the absence of such a presumption, the federal courts are as much bound in a case where their jurisdiction is acquired alone by the character of the parties, to respect the local *law, as expounded by local tribunals, [*388 "pendente lite," or "post litem motam," as if it had been declared before the right attached to sue in the federal courts. We submit, with deference, that it is not a principle of "comity" only which gives force to the local decisions; but it is because state decisions, whenever made upon state laws, form part of those laws, and as such, are the governing rule of the United States courts in every case dependent on state laws, except in the solitary instance of state decisions retroacting on antecedent contracts, and this principle appears to have been adopted by this court, on full and deliberate consideration, in the case of Green v. Neal, 6 Pet., 298.

The counsel for the appellees made the following points:

I. The first point to be settled is the true meaning of the will. This depends altogether on the signification of the language used by the testator, and on no peculiarity of local law. The rules of interpretation laid down by the Civil Code of Louisiana (Acts of 1705 et seq.), correspond with those which guide judges in the courts of common law. All aim, alike, at discerning the intentions of the testator; and as McDonogh has used the English language in expressing those intentions, a reference to local jurisprudence is entirely useless, and this court has accordingly held, that it does not follow the construction of a state court on a will or deed, as it does on the construction of a statute. (Lane v. Vick, 3 How., 464, 476; Russell v. Southard, 12 Id., 139.)

We maintain the will of the testator to be a scheme devised by him for perpetuating his succession, under the name of his "general estate"; that the title to his property was in tended by him to remain in his succession; that, under the cover of a bequest to the cities and states, he intended to shield his property from alienation; that the cities and states were not intended, under any circumstances, to be his beneficiaries; and that, if any title whatever, under the terms of the will, was bequeathed to the cities or states, it was a mere legal title as trustees, unaccompanied by any beneficial in

terest.

In support of this position, we rely on the plain language of the instrument itself. It is true that the testator says that he "gives, wills and bequeathes all the rest, residue and remainder of his estate to the two cities"; but this clause begins by stating, that he makes the bequests for the more general diffusion of knowledge," &c., and closes by stating that the bequest is "to and for the several interests and purposes hereinafter mentioned, declared, and set forth concerning the same," which purposes he immediately proceeds to specify. 389*] *By the analysis of the will, as already set forth, it will be seen that, after this introductory clause containing the devise, he provides,

1st. That his whole property, real and personal," is to be converted into one mass, entitled his "general estate."

2d. That the seisin and possession of this "general estate" is to be vested in commissioners and agents, with perpetual succession, and the meaning of the word "seisin' is abundantly shown by the Civil Code, 934-936, 1600, 1602, 1609, 1617, 1652, 1653; 2 Bl. Com., 311, marginal paging; Fowler et al. v. Boyd, 15 L. R., 562.

3d. That these commissioners are to obtain an act incorporating the "general estate."

4th. That they are to have the sole and exclusive management and control of the "general estate."

5th. That "no part of said general estate, or revenues from rents arising from said general estate, shall go into the hands of the corporations of said cities, but that they, the said corporations, shall forever have a supervision over

it."

6th. The testator further provides (p. 25) that "copies of the accounts of the general estate fund

shall be delivered to the city councils of the City of New Orleans, who shall visit the books, examine and audit the accounts, and keep up and support a general supervision over the general estate, its accounts, funds, management and real estate, as also over the free schools," &c.

7th. After providing for the establishment of free schools to educate the poor, the testator says (p. 30), for this purpose, and this only, my desire being that one dollar shall never be expended to any other purpose, I destine the whole of my general estate.'

In view of these provisions, so clearly and emphatically detailed, it is impossible to discover any of the elements which constitute title or ownership of property in the cities. The mind is at a loss to conceive what interest in an estate can appertain to parties who are never to have it in possession, never to receive one dollar of its revenues, never to alienate it and never, even, to manage, administer or control it. It is evident that all that is bequeathed to the cities is the power of appointing the officers of this imaginary entity, this corporation that the testator intended to create, under the name of his "general estate," coupled with functions which are precisely those attributed by law to the visitors of corporations (see 1 Black., 401); and it is worthy of remark, that with this visitatorial agency Baltimore has nothing to do, beyond receiving annually certified copies of *the accounts of the general estate, and [*390 "publishing them in two of the newspapers of the city." (Record, p. 25.)

If there could be a doubt, under the terms of the will itself, that the testator's intention was to vest the title to his property, not in the cities, but in the general estate, that doubt would vanish on the simple perusal of his own commentary on his will, as contained in the memoranda before referred to. In them he styles the general estate "an institution of vast im portance to the State and the world" (p. 35). He speaks of the property as "belonging to the general estate" (p. 36). He prays the city councils of New Orleans to exempt from taxation "the real estate belonging to said general estate" (p. 36). He declares at pp. 40 and 41, that he has selected land for investment, that “it may yield an annual revenue for the purposes to which it is destined forever;" and expresses the hope that "its rents will amount to some millions of dollars annually," and that it will become in time "a huge mountain of wealth." At p. 43, he speaks of two thousand lots "be longing to this estate, and which will be and remain the property of this estate at my death;" and finally, at p. 55, he concludes that “ the great object I have in view, as may plainly be seen, is the gradual augmentation in value of the real estate which will belong to, and be owned by, the general estate for centuries to come."

II. If, however, it should be held that the words of devise to the cities vest a title in them, and that these words cannot be controlled nor explained away by the subsequent declarations of the testator, nor by the limitations which he himself has placed on their meaning, the appellees maintain that the title so vested is the legal estate alone, unconnected with the beneficial interest; that the cities are mere trustees; and

placing in each of these chapters the special rules appropriated to its particular subject mat

ter.

which is deemed perpetual, the right is expressly limited to thirty years. (C. C., 607.)

It is too plain for argument, on examination of the context of the Code, that this article 1536 has not the remotest bearing on the article 1507, and has not any reference whatever to the same subject matter. So far from there being any exception in the Code authorizing corporations to become trustees, there is a positive prohibition pointed directly at corporations. (See La. Code, article 432.)

But there is another conclusive reason why the law can contain no exception in favor of the cities. The prohibition of trust estates in Louisiana is not alone a legal, it is also a constitutional prohibition. (Constitution of 1812, art. 4, sec. 11; Constitution of 1845, article 120; Opinion of Chief Justice Eustis, in the Franklin case.)

To construe article 1536 as conferring a power on cities to take estates in trust, is to violate the principle that when a capacity is granted by law to a corporation, the clause conferring it is to be construed subordinately to the general law, and not as giving powers beyond those conferred on individuals. (McCartee v. Orphan Asylum, 9 Cow., 437, 507; Jackson v. Hartwell, 8 Johns., 425.)

This clause, if it confers the power supposed, must be subjected to the most rigid construction, and can never be made to comprehend such a trust as McDonogh has devised. In New York, from motives of public policy similar to those prevailing in Louisiana, the creation of trusts has been greatly restricted by statute. (2 Rev. Stat., p. 136.)

394*] *The strictness with which this policy is enforced by her courts, and the rigor with which trusts contravening its spirit are annulled, may be seen in the cases of Jarvis v. Babcock, 5 Barb., 139; McSorley v. Wilson, 4 Sandf. Ch., 523.

V. The will of John McDonogh violates the law of Louisiana in separating the usufruct from the naked property of his estate forever. The nature of these two titles is explained in articles 479, 486 and 525 et seq. The law authorizes the separation of the usufruct from the ownership for one life only. (Civil Code, 601, 1509.)

But where the usufructuary is a corporation

But this is a mere rule of construction, subject to be controlled by the testator's expression of a contrary intention. The language of the will, as already set forth, expresses so clearly the intention of the testator not to give the property itself, but to place the title forever in abeyance, and to preserve the property as "his general estate," that comment on it is unecessary.

The language used by the present Chief Justice of Louisiana, with reference to the will of Henderson, is equally applicable to that now under discussion: There is not a word in the will that takes the ownership out of his succession; but that, if carried into effect, it takes it out of commerce, is indisputable." He expressly orders, "it is to remain forever as a part of my succession." The executors might lease, but they could not sell. (Henderson v. Rost, 5 Annual, 458.)

VI. The will of McDonogh is in direct violation of the law of Louisiana, which prohibits perpetuities, and the placing of property out of commerce. (Marthurin v. Livaudais, 5 Martins, N. S., 302; Cole v. Cole, 7 Martins, N. S., 416; Arnauld v. Tarbe, 4 La., 502; Heirs of Henderson v. Rost, 5 Annual, 458; Franklin case above cited.)

And so strong is the determination of the Legislature to prevent property from being withdrawn from commerce, that it has expressly abrogated the former civil law, and the special article of the Code of 1808, which prohibited the alienation of things holy, sacred and religious. (Code of 1808, pp. 95 and 96; 1 Strahan's Domat, secs. 129, 1435; Civil Code, 447.) The will also violates the provision of the law which prohibits the testator from ordering *that property shall never be di [*395 vided. (C. C., arts. 1222, 1223.)

And, although under the terms of the law, such a prohibition is considered as not made, yet where the property is not given in ownership to the devisee, and the prohibition is inserted, with a view to carry out an entire scheme, created by the will, and which must fail if the prohibition be not in force, then to allow the partition of the property between the devisees for their own use, becomes not an interpretation of the will, but a perversion of the whole design of the testator, and the making of a new will for him. (Henderson v. Rost, above cited; see, also, Hawley v. James, 16 Wend., 144, 180.)

This consideration also disposes of the question raised specially in behalf of the Orphan Asylum. The annuity is inseparably connected with the trust, and must fall with it; there is no possibility of upholding it when the trust on which it depends is overthrown. It is to be paid from rents and profits which will never accrue. (Coster v. Lorillard, 14 Wend., 265; same case, 5 Paige, Ch., 172; Hawley v. James, 16 Wend., 180.)

They are intended by the testator to be corporations with perpetual succession, he has so declared in his will, and he has attempted to organize them as what he calls "institutions." The power of creating corporations is a sovereign power, which no individual can usurp. In Louisiana the Legislature itself could not incorporate the institutions provided for by this will. (Constitution of 1845, arts. 123, 124.)

These articles prohibit the creation of any corporations by special charter, except political and municipal corporations, and provide that no corporation thereafter to be created, "shall ever endure for a longer period than twentyfive years."

The Legislature, by Act of 30th April, 1847, in obedience to these articles, passed a general law for the organization of such corporations as McDonogh desires to establish by his will, restricting their possession of property to a value of $300,000. (Digest La. Stat., p. 181.)

The whole scheme of McDonogh's will is in direct violation of the policy of Louisiana, as established by the constitution and this law, and is null and void for this reason.

Before the adoption of these articles of the Constitution, when the Legislature granted special Acts of Incorporation to religious and charitable societies, its policy was equally 396*] marked *by restricting their possession of property and right to receive donations within narrow limits, and confining their duration to a term of years. (Bullard and Curry's Digest, p. 343, Nos. 214, 221, p. 353, No. 241, p. 354, No. 248; First Congregational Church v. Henderson, 4 Rob., 215, where it appears that the church was prohibited from receiving from any single person by donation or legacy more than $1,000.)

It has long ago been held by this court, that a legacy to an association, not incorporated, could not be taken by it as a society, nor by the individuals who composed the association at the death of the testator. (Baptist Association v. Hart, 4 Wheat., 1.) And the law of England on this point is well settled. (Grant on Corporations, 115, 572.)

The statute law of Louisiana is in conform ity with these principles, and requires, for the validity of a legacy, two conditions: 1st. The existence of the legatee at the death of the testator. 2d. The capacity of the legatee to receive at the time, if the legacy be absolute; or if conditional, the capacity at the time of the fulfillment of the condition. (Civil Code, 1459, 1460, 1469.)

These provisions of the civil law are established with great clearness by the highest authorities. (5 Toullier, 99, Nos. 91, 92; Pothier Donations Testamentaires. p. 361; Pothier, Obligations, Nos. 203, 208, 222; 2 Strahan's Domat, 3518, 3038; 3 Marcade, 430; 5 Zacha ria, 23; 8 Duranton, No. 221; Coin Delisle, 96, No. 4.)

It is true that in one case in Louisiana the court held a legacy valid to corporations not in existence. (Milne's Heirs v. Milne's Executors, 17 La., 46.)

But that case stands alone in the reports, and on the very face of the decision is self-contradictory. It is not the law of the land.

But even admitting its correctness, it was decided on the express ground that the corporations had been created by Act of the Legislature, immediately after the decease of the testator, and where this action of the Legislature has been refused, it has since been held that the devise must fail. (Heirs of Henderson v. Rost, 5 Annual, 458, opinion of Preston, J.)

Now, in the case before the court, not only has the Legislature of Louisiana no constitutional power to create the corporations in question, *but both the States of Louisiana [*397 and Maryland have declared their disapproval of the scheme of the will and denounced it as null and void, and contrary to public policy. (Record, pp. 67, 129; Act of Legislature of Louisiana, 12th March, 1852, p. 132; Resolution at Legislature of Louisiana, 12th March, 1852, p. 136.)

The corporations contemplated by McDonough are therefore not only without present existence, but without any probability of future existence, and the property conveyed to them must of necessity fall to the heirs at law.

A case infinitely stronger in favor of the validity of a devise, was decided by the Supreme Court of the Hanseatic cities in favor of the heirs at law. It was the case of a legacy to the City of Frankfort, of a sum of money destined to the establishment of a museum of painting, for the direction and administration of which a society was to be created according to law, and as soon as it was incorporated, the society was to become the owner of the legacy, on condition of applying it to the use prescribed by the testator.

The

The decision of the court was, that the city could not keep the legacy without violating the intention of the testator; and that the society could not take it, because it had no legal existence at the date of the testator's death. legacy was therefore annulled in favor of the legal heirs. (Roshirt, Ueber den Standelschen Erbfolge, 1828; Muhlenbruck, Beurtheilung des Stadelschen Beerbungsfalles.)

And if the dispositions of McDonogh's will be indeed as we maintain in favor of corporations not yet in existence, and therefore incapable of taking, the Code of Louisiana provides that they shall be null, notwithstanding the interposition of the names of the cities, which is a mere device of the testator to shield them from the law.

"Every disposition in favor of a person incapable of receiving shall be null, whether disguised under the form of an onerous contract or made under the name of a person interposed." (C. C., 1478.)