travention of the policy of the State, as established by its constitution and laws.

The will requires that the benefit of the schools shall be confined to the poor, as a class. The constitution and laws of Louisiana require that free schools shall be established and kept under the supervision of public officers, where all white children alike, the rich and poor, may be educated by the same teachers, and on terms of equality.

Free schools confined to the poor alone give 398*] rise to distinction of classes in the community, are anti-republican in tendency, and conflict with the policy of the State. (Constitution of La., arts. 133, 134; Acts of Legislature of La., 1841, Digest, p. 239; Acts of Legislature of La., 1847, Digest Laws of La., 228 et seq.) And free schools in which poor white and colored children are to be received indiscriminately, and placed on an equality, would be in tolerable in states where slavery is recognized as a legal institution.

IX. If it be held that the City of New Orleans can take the trust estate bequeathed to it, the executors must be ordered to account to complainants for the half which is devised to the City of Baltimore.

The trust in favor of that city is to be there executed under the laws of Maryland. By that law the trust in question is void. It can not be there executed, because the object is not definite.

"Whenever the word 'poor' or 'poorest' has been used as a term of description in a devise or bequest, it has been held to be insufficient for uncertainty.' (Dashiell v. The AttorneyGeneral, Harr. & Johns., 399.)

The devise to the school farm in McDonogh's will is for the express and sole purpose of establishing a school farm on an extensive scale for the destitute and the poorest of the poor male children, &c." (Record, p. 18.) And "for rescuing from vice and ignominy millions upon millions of the destitute youth, &c." (Page 22.) The general devise is "for the establishment and support of free schools wherein the poor, and the poor only, of both sexes, of all classes and castes of color, shall have admittance, free of expense." (Page 14.) Schools for the poorer classes, for whom these institutions are alone intended" (Page 27), where every poor child and youth, of every color, may receive a common English education." (Page 29.)

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Such trusts are incapable of execution, according to the concurrent decisions of the highest courts of Maryland. (Trippe v. Frazier, 4 Harr. & Johns., 446; Dashiell v. Attorney General, 5 Id., 398; Dashiell v. Attorney-General, 6 Id., 1; Tolson v. Tolson, 10 Gill & Johns., 159; Meade et al. v. Beale & Latmer, Executors of Ford, decided by Chief Justice Taney, in U. S. C. C., November Term, 1850.)

These decisions are in strict pursuance of those of the English courts, in cases quite as strongly appealing to good feeling as any of those termed charitable. (Ram on Legal Judgment, ch. 19, sec. 2, in 9th vol. Law Library, and cases there cited.)

And this court has more than once determined 399*] "that the *common law of each state must be ascertained by its general policy, the usages sanctioned by its courts, and its statutes; and there is no object of judicial ac

tion which requires the exercise of this discrimination more than the administration of charities." (Wheeler v. Smith, 9 How.. 78; Baptist Association v. Hart, 4 Wheat., 27; Inglis v. Sailors' Snug Harbor, 3 Pet., 112: Vidal v. Girard's Executors, 2 How., 129.)

And if the trust is incapable of execution in Maryland, though valid in Louisiana, the property falls to the legal heirs. (Hawley v. James, 7 Paige, Ch., 213; S. C., 5 Paige, Ch., 323, 441; S. C., 16 Wend., 61.)

So in England it has been held that where a trust was created in personal property abroad, to be invested in lands in England, contrary to the policy of her mortmain_laws, the devise is void. (Åttorney-General v. Mills, 3 Russell, 328.)

The right of Baltimore to accept such a trust is a question of personal capacity, to be governed by the law of the domicil, according to principles of law universally admitted. (Story's Conflict, secs. 51, 65, 446.)

X. The residuary devises to the states of Louisiana and Maryland are the same in their nature and character as those to the cities of New Orleans and Baltimore. They are trusts 'That the Legislatures of those States, respectively, may carry my intentions, as expressed in this my last will and testament, into effect, as far and in the manner which will appear to them most proper" (p. 29); and this trust is fol lowed by the reiteration of his purpose in the strongest terms he could discover: "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, to form a fund in real estate, which shall never be alienated, but be held and remain forever sacred to it alone."

The qualification in the devise to the states merely gives a discretionary power as to the mode of execution of the purpose; it enables them to dispense with such of the machinery of administration of the trust as they might find cumbersome or ill adapted to the object in view, but it is subordinate to the chief illegal conditions of the scheme, and does not admit of its fractional observance. It gives a latitude as to the administration and machinery of the purposes subject to the proviso that these purposes are to be observed, viz.: 1st, the education of the poor of the two cities in preference to all others; and 2d, that this be done by the revenues of a fund formed of inalienable real estate. (Morrice v. Bishop of Durham, 9 Ves., 399; Briggs v. Penny, 8 Eng. Law and Eq.. 234, 235; Morrice v. Bishop of Durham, 10 Ves., 521; Story's Eq. Juris, secs. 979, a. b.; Wheeler v. Smith, 9 How., 55; Adams' Eq., 134, Am. ed.)

*Mr. Justice Campbell delivered the [*400 opinion of the court:

The appellees are the heirs at law of John McDonogh, a native of the State of Maryland, who died at McDonogh, near New Orleans, in the State of Louisiana, in 1850, leaving there a very large succession. In 1839, the decedent executed, at New Orleans, an olographic will for the disposal of the estate he might have at his death. This will is in a legal form, and has been admitted to probate in the District Court of New Orleans. It contains two par

ticular legacies which are not contested, and a single legacy under a universal title. In this bequest the testator declares. "that for the more general diffusion of knowledge, and consequent well-being of mankind," and "being convinced that he could make no disposition of those goods which the Most High had placed under his stewardship, as by means of which the poor will be instructed in wisdom and led into the path of holiness," he gives, wills and bequeaths all the rest, residue and remainder of his estate, real and personal, present and future, as well that which was then his as that which he might acquire at any time before his death, and of which he might die possessed (subject to certain annuities). to the corporations of the cities of New Orleans and Baltimore forever, one half to each," "to and for the several intents and purposes thereafter declared." The testator directs his executors to convert his personal estate into real property, whereby "the whole of his estate will become a permanent fund in real estate, affording rents, no part of which shall ever be touched, divided, sold or alienated, but shall forever remain together as one estate, and be managed" as he shall order.

For the management of this estate, thus declared to be inalienable, he directs the two cities each to select, annually, three agents, whose duty it should be to receive seisin and possession of the estate from his executors, immediately after his death. They are "to lease or rent the lots," "cultivate the plantations," "collect the rents,' pay the annuities," "invest the moneys," and, in fine, do all acts necessary to its full and perfect management, according to the will;" the will of the testator being "that no part of the general estate, or revenue from rents arising from said general estate, shall go into the hands of the corporate authorities of the said cities, but that the said authorities should have forever the supervision of it."

The testator designed the joint management of the agents of the cities, and the joint supervision of their authorities over the estate, to be perpetual. He forbids the cities to vary, by agreement, or by any compromise, the relations he has established between them in regard to it. They must make no sale of their interests; no traffic with their powers of control; no sur401*] render, *for money or other consider ation, of their supervisory care. But should they combine to violate his scheme of management or appropriation, their rights are declared forfeited, and "the general estate" is limited over to the States of Louisiana and Maryland, "for the purpose of educating the poor of those States,' "under such a general system of education as their Legislatures should appoint." He further provides, that should there be "a lapse of the legacies from the failure of the legatees to accept, or any other cause or means whatsoever," the shares should inure for the benefit of the State or States in which the cities are situate; "that the Legislatures of those States respectively may carry his intentions, as expressed and set forth in the will, into effect, as far and in the manner which will appear to them most proper." The testator having provided for the perpetuity of the McDonogh estate, and the des

tination of its revenues, proceeds to develop a minute and detailed scheme for its management, improvement, and the expenditure of its income. He appropriates one eighth part of its annual revenue for forty years, for colonizing the free people of color, to the American Colonization Society, the sum not to exceed $25,000 per annum; one eighth part for the erection, in New Orleans, of an asylum for the poor of all ages, castes and colors; one eighth part to an incorporated society for the relief of orphan boys in New Orleans; and one eighth part for the establishment of a school farm in Maryland. The money appropriated to the asylum, sohool farm, and orphan boys. he requires to be invested as capital in real estate, and the rents only to be subject to the uses of the donees. The capital of the asylum and school farm is to be entirely collected before any appropriation takes place for their use; and for the one the capital is to be $3,000,000, and for the other $600,000. The remaining four eighths of the income of the general estate, for the present, and the whole, after the objects above mentioned are fulfilled, are destined "for the education of the poor, without the cost of a cent to them, in the cities of New Orleans and Baltimore, and their respective suburbs, in such a manner that every poor child and youth, of every color, in those places, may receive a common English education-based, however, be it particularly understood, on a moral and religious one;" the whole of the general estate "to form a fund in real estate which shall never be sold or alienated, but be held and remain forever sacred."

To carry his purposes into effect, he directs the selection of boards of managers for the different establishments, and suggests that acts of incorporation may become necessary to facilitate their operations.

*The appellees claim that, as to the [*402 property embraced in this bequest to the cities, that John McDonogh died intestate.

Their argument is, that although he makes in the coinmencement of his will a formal gift to the cities; although the cities are designated as his legatees in several clauses of the will, in precise terms; although the property is described as property "willed and bequeathed to the cities," that the testator has sedulously contrived to withdraw from them the seisin and possession of the whole estate, and has committed them to an uncertain and fluctu ating board, for the selection of which he has provided; that the dominion and use of this property, in so far as he has permitted either, has been confided to this board of managers, but that this board is held servilely to a code of regulations he has dictated, the aim of which is to hold the "McDonogh estate" together in perpetuity: that by these restrictive regulations the donations to the cities have become nugatory and unavailing.

This conclusion was adopted by the Circuit Court, whose decree is under revisal, and has been sustained in the argument at the bar of this court with great power and ability.

We may remark of the will of the testator, that it indicates his imagination to have become greatly disturbed by a long and earnest contemplation of plans which he says “had actuated and filled his soul from early boyhood

Having thus determined that the legacy is to the cities by a universal title, and having extracted from the will the leading and controlling intention of the testator, the next inquiry is, whether a legacy given for such objects is valid.

The Roman jurisprudence, upon which that of Louisiana is founded, seems originally to have 405*] denied to cities a capacity to *inherit, or even to take by donation or legacy. They were treated as composed of uncertain persons, who could not perform the acts of volition and personalty involved in the acceptance of a succession. The disability was removed by the Emperor of Adrian in regard to donations and leg acies, and soon legacies ad ornatum civitatis and ad honorem civitatis became frequent. Legacies for the relief of the poor, aged and help less, and for the education of children, were ranked of the latter class. This capacity was enlarged by the Christian emperors, and after the time of Justinian there was no impediment. Donations for charitable uses were then favored; and this favorable legislation was diffused over Europe by the canon law, so that it became the common law of Christendom. When the power of the clergy began to arouse the jealousy of the temporal authority, and it became a policy to check their influence and wealth-they being, for the most part, the managers of property thus appropriated-limitations, upon the capacity of donors to make such gifts, were first imposed. These commenced in England in the time of Henry III.; but the learned authors of the history of the corporations of that realm affirm that cities were not included in them "perhaps upon the ground that the grants were for the public good;" and although "the same effect was produced by the grant in perpetuity to the inhabitants," "the same practical inconvenience did not arise for it, nor was it at the time considered a mortmain." (Mereweth. & Steph. Hist. Corp., 489, 702.)

Supreme Court of Louisiana (in which State these laws were long in force) attest their favor to such donations. (De Pontalba v. New Orleans, 3 Ann., 660.)

This legislation of Europe was directed to check the wealth and influence of juridical persons who had existed for centuries there, some of whom had outlived the necessities which had led to their organization and endowment. Political reasons entered largely into the motives for this legislation-reasons which never have extended their influence to this continent, and consequently, it has not been introduced into our systems of jurisprudence. (2 Kent's Com., 282, 283; Whicker v. Hume, 14 Beav., 509.)

The precise result of the legislation is, that corporations there, with the capacity of acquiring property, must derive their capacity from the sovereign authority, and the practice is, to limit that general capacity within narrow limits, or to subject each acquisition to the revisal of the sovereign. We have examined the legislation of the European states, so as better to appreciate that of Louisiana. No corporation can exist in Louisiana, have a public character, appear in courts of justice, exercise rights as a political body, except by legislative authority; and each may be dissolved, when deemed necessary or convenient to the public interest. Corporations created by law are permitted to possess an estate, receive donations and legacies, make valid obligations and contracts, and manage their own business. (Civil Code, tit. 10, ch. 1, 2, 3, art. 418, et. seq.)

The privileges which thus belong to corporations legally existing, have been granted to the inhabitants of New Orleans in various legislative Acts. The authorities of the city have, besides, received powers of government extending to all subjects affecting their order, tranquillity and improvement. It is agreed, that these powers are limited to the objects for which they are granted, and cannot be employed for ends foreign to the corporation. (1 Paige, 214; 15 N. H., 317; 4 S. & S., C., 156; 3 Ann., 294.)

The learned Savigny, writing for Germany, says: "If modern legislation, for reasons of policy or political economy, have restrained conveyances in mortmain, that those restrictions formed no part of the common law." 406*] The laws of Spain *contain no material change to the Roman and ecclesiastical laws upon this subject. The Reports of the

and assign to it, as one of its municipal functions, the charge of popular education. No parliamentary grant or royal license in Great Britain-no government ordinance in Francecould remove more effectually a disability, if one existed, or create a capacity, if one were wanting, to the corporations of those countries. (Rev. Stat. La., 41, 111, 116, 117, 144, 239; 2 Rob., 244, 491.)