dissenting. Isaac Franklin was known in Louisiana upwards of twenty years ago, as a dealer in slaves. He amassed a very large fortune. He then became a most extensive planter, in West Feliciana. He also had a large farm in Tennessee, and lands in the States of Mississippi and Texas.
In July, 1839, he married Adelicia Hayes, in Nashville, by which marriage he had three children, who survived him. He died on the — day of April, 1846, in the parish of West Feliciana, where his succession was opened. His will, dated the 24th day of May, 1841, was duly proved, his executors were qualified, and inventories made of his property. Shortly after his death, two of his children also died. Inventories were made of their respective interests in his succession, and also of the community of acquets which existed between him and his surviving widow.
Mrs. Franklin, on the 12th of Dec., 1846, by an act before a notary public, for considerations expressed in her late husband’s will, renounced the community of acquets in these words: “ She does, by these presents, accept the said will, and consents to be bound by the same, with all its conditions, and does hereby renounce, relinquish and abandon all rights of community dower, by the courtesy or otherwise, by the laws of Louisiana, Tennessee, or other States, where the property of said Franklin may be situated, that she may be entitled to according to the laws of said several States.”
The deceased, by his will, made some particular legacies. He made ample provision for the support of his widow, and gave her a hundred thousand dollars, or an annuity of six thousand dollars, during her life, as she might choose, in case of her second marriage, for the support of herself and children of such marriage. After these particular legacies, he divided two-thirds of his estate to his children, and the remaining third to establish a seminary of learning in Sumner county in the State of Tennessee.
In May, 1849, Mrs. Franklin married Col. Joseph A. S. Acklen. In January, 1850, she, authorized by her husband, declared, before a notary, that she elected to take, under the will of her late husband, one hundred thousand dol*422Jars, with six per cent per annum interest, in full of all her rights of dower, or aQy otjlel. rjg]jts, which she had upon the succesion of her late husband.
In December, 1847, the state of Tennessee incorporated the literary institution founded by Franklin, in Sumner county, under the name of “ Isaac Franklin Institute,” and gave it full powers to receive and administer the bequest for the purposes prescribed by the will.
Out of these leading facts, ramified into much detail, a great deal of intricate legislation has arisen between the parties interested. However, but four main questions have been submitted for our consideration, and have been argued with great ability.
1. Whether Isaac Franklin, at the date of his marriage, and at that of his death, or at any intervening time, resided in Louisiana; and, consequently, whether a community of property existed between him and his wife, and what effect his residence in Louisiana produces on the devises of personal property left by him at his decease.
2. Whether Mrs. Aciden is bound in law by the several acts of renunciation of community, executed by her after her husband’s death; or, whether the evidence establishes the execution of those acts to have been induced by such misrepresentation, and founded on such error of law and fact, as entitled.her to demand that the acts of renunciation be set aside and annulled.
3. Whether any part of the particular legacies left by the deceased, aught to be paid out of the portion accruing to the forced heirs.
4. And mainly, whether, by the terms of the will of Isaac Franklin, the bequest to the trustees contains a substitution or jidei commissum, or any other disposition of his property, which, even if not imputed actually written, the definition of either is still null and void, as being in opposition to the whole policy of our law.
The district court has decided all these questions in favor of Mrs. Acklen and her minor child. The trustees of the “Isaac Franklin Institute ” have appealed.
The views I have taken of other parts of this case, render the inquiry whether Isaac Franklin was a citizen and resident of Louisiana, or of Tennessee, at the time of his marriage and death, not so important as it has been regarded by the adverse counsel. But, as it has some bearing upon my opinion, I am obliged to give my reasons for maintaining the decision of the district court.
It is a mere question of fact, and I think the evidence greatly preponderates in favor of the judgment of the district judge. As the judge resided in the same parish with him; was intimate with him; was called as a witness to his will, when made, and to prove it at his death — it is a question of fact, on which, peculiarly, 1 would submit to his decision, even if I thought the evidence doubtful. But it leaves no doubt on my mind of the correctness of his decision on this question of fact.
For a quarter of a century, Franklin was known in this city and State as a trader in slaves, and laid the foundation of his vast fortune in this State by that business.
It being known that the population and improvement of Louisiana was to be achieved in a great measure by emigration, the old, as well as the new Constitution of the State prescribed, that the Legislature shall “ prescribe the manner in which a man coming into the State, shall declare his residence.” Sec. 12. In pursuance of this clause in the Constitution, the General Assembly, in 1816, prescribed by law: “That an individual coming into the State from any other State of the United States, and desirous of acquiring residence therein, shall *423give notice, m writing, to the ludge of the parish where he proposes to reside, of , . . . . „ , . i j, • • , , his intention to acquire residence.” Additional facilities were given by law, passed in 1818, but the act quoted was never repealed.
In pursuance of it, on the 28th of February, 1832, Franklin presented the following petition, on which he obtained the order annexed, both certified in this suit to be true copies of the record of the court in which they were filed :
“To the Honorable Charles Maurian, Judge of the Parish Court for the parish and city of New Orleans: The petition of Isaac Franklin shows, that he is a resident of the State of Tennessee, and that it is now his intention to become a resident of the city of New Orleans and State of Louisiana, and to vacate and cease his domicil in the State of Tennessee. He therefore makes this his declaration of his change of domicil, and prays the same be registered, and a certificate given him according to law. Isaac Franklin.”
Order. — “ Let the within declaration be filed in the Clerk’s office, and a copy thereof be delivered to the person making the declaration.
“ New Orleans, 28th, February, 1832. Charles Maurian, Judge.”
This declaration made in pursuance of the Constitution and law of the State, was conclusive of his will and intention to become a citizen and resident of Louisiana. If, as contended, this was done merely to facilitate his business of trading in slaves, it may be answered, that a leading object of all in acquiring a residence in our State is, to facilitate their business, whether it be commercial, agricultural or mechanical.
But, did he follow up his declaration of residence in our State by acts evincing the reality of his intentions ? In May, 1835, he purchased the undivided half of near eight thousand acres of land, in West Feliciana, upwards of two hundred slaves, and all the stock necessary for the immense plantation; and immediately formed a copartnership with a resident of the parish, for the purpose of carrying on, as it was expressed, “the business of planting, upon several plantations situated in the parish.” It was to continue until March, 1840. In the notarial act, he is described, in pursuance of his declaration, as of New Orleans. In numerous acts, suits and exceptions, from that period until 1840, he describes himself as domiciliated and a resident of New Orleans. He was married in Tennessee, in July, 1839. But a few months before, in a notarial act, passed in Concordia, he described himself as “of the city and parish of Orleans,” and about six months before, formally excepted to a suit filed against him in the parish of West Feliciana, “that the legal domicil of this respondent is in this State, in the city and parish of New Orleans. Our code formally declares, that “ a married woman has no other domicil than that of her husband.” Art. 48. It is so notorious, that our laws are so much more favorable to married women than those of the State of Tennessee, that it cannot be doubted Mrs. Franklin and her friends considered this, in contracting her marriage, and had a right to avail herself of the advantages of our laws, unless his heirs and legatees could show conclusively, that all this was fiction, or that he afterwards, in truth and reality, removed with her to Tennessee, and remained there till his death.
Now, so far from afterwards removing to Tennessee, as early as 1842, he had removed to West Feliciana, where he had become the undivided proprietor of the vast plantations in which he was before interested — had accumulated together more than five-sixths of his colossal fortune, in immovable property, and where, I have no doubt, his heart was as immovably fixed.
*424He afterwards avowed, judicially and in public acts, his residence in that par¡gj1> But two months before his death, in a notarial act, passed in New Orleans, he described himself as “ of the parish of West Feliciana.”
He exercised all the political and parochial rights of a citizen, in that parish. His votes were challenged; he satisfied the commissioners, and exercised the right of suffrage. The commissioners of election were liable to indictment, conviction and punishment, for allowing him to vote without evidence of his right of suffrage. Bui. and Cur. Dig. 393. The evidence which it was their sworn duty to take and receive, was his own oath as to his residence; and if he swore falsely, he was liable to the pains and penalties for perjury. Bul. and Cur. 398. Upon the challenge, I cannot doubt that the commissioners did their duty, and that Franklin swore the truth; and yet he voted.
It is the sacred duty of his surviving wife to maintain the integrity of these acts; and she should not be divested of rights based upon them without overwhelming evidence.
On the other hand, it is shown, that Franklin voted twice, in 1841 and 1843 in Tennessee. Their laws are much less rigorous than ours on the subject of illegal voting, and but six months residence and citizenship of the United States, is required to exercise the right of suffrage. His last vote was in Louisiana. He instituted a suit in the Federal Court of this circuit, as a citizen of Tennessee. It is proved by his own declaration, that it was colorable only to obtain an advantage in a particular case. No one who has an adverse interest, should suffer from these illegal acts.
It is proved, that he had a large and elegant farm in Tennessee, with a hundred slaves, improved with all the conveniences for a residence. The impression on my mind, from the whole evidence, is, that he kept up that farm as an appendage to his immense estates in Louisiana, and as a summer retreat, which he visited, rather than inhabited, in his western and northern excursions. It is certain, that in writing, with the familiarity and confidence of a son-in-law, to the esteemed father of his wife, when returning down the river from Fair-view to Belleview, he said, “we are all well and will be at home to-morrow.” And, but a few months before his death, as to Fairview, “I will be compelled to break up that whole establishment. If I do not change my mind, I will take the greater part of the hands off next fall, and put them on some of my lands in Louisiana. They give me more trouble than ail my other property.”
It is proved, by the manager of his estates in Louisiana, that he kept fine furniture in the residence exclusively used by him, on his Belleview plantation, and never moved it. That for two years before his death, he frequently spoke of building a new house, raising a mound and erecting a fine residence to gratify his pride; that he selected the spot, and carpenter to build it, and commenced the cabins, and that one object was, to educate his children at home by private tutors.
The community of acquets has never been a favorite system with me; but since it is the law of Louisiana, I would as soon think of depriving the wives of our wealthy citizens of its advantages, because they are able to keep and to retire from the toil of business, a few months in the summer, to their fine houses at the Bay of St. Louis or Pass Christian, as to pronounce that Franklin deprived his widow of the community of acquets, by his summer establishment in Tennessee. The tenure of the wife to the community, would be feeble indeed, if, after toiling with the husband three-fourths of the year, with *425all the self-sacrifices by which fortune is made on our plantations, the husband might deprive her of it by a summer retreat from home for a few months in the year.
I have no doubt, therefore, that Isaac Franklin was a citizen of Louisiana when he contracted matrimony, in July, 1839 ; and that Louisiana was his' place of residence when he died, on the 26th of April, 1848; and, therefore, that a community of acquets existed between him and his wife from their marriage, until it was dissolved by death. But that community no longer exists.
By his will, he gave Mrs. Franklin the property she received from her father, with the increase of the same.
He gave her his household furniture and supplies on his plantation in Tennessee. He gave her out of the revenues of his plantation, what she might deem necessary to support her and his children, and to educate them in the best style. He gave her the use of his Fairview plantation, and all that was on it, while she remained unmarried.
And in lieu of it, in case of a second marriage, one hundred thousand dollars, or an annuity, at her election, of six thousand dollars per annum. He gave this large sum to his executors, in trust, for her separate use and maintenance, and that of any children she might have by her second marriage. It was given, however, in full payment “ of all her rights of dower or any other rights she might have on his estate.”
From the whole tenor of his will, the anxiety manifested to improve and enlarge his plantations, to increase the number of slaves upon them, and state the positive injunction to his executors, to purchase in his plantations and slaves, if from any cause or for any purpose, their sale should be ordered by a court, I have no doubt the donation was made as it purports to be, in full of all rights (including, in my opinion, community rights) upon his estates, that they might be kept indivisible during the minority of his children, in order to1 place each in possession of a splendid plantation, as they arrived at the age of majority.
The terms of the bequest clearly show this intention and understanding of them as to Franklin : “ it shall be in full for all her rights of dower, and any other rights she may have on my estate.” That this was the understanding of the testator, no one can doubt. For in Tennessee, Mississippi and Texas, she could only have the right of dower on his estates. And the terms, any other rights, to which full effect and meaning must be given, could alone refer to her matrimonial rights on his estate by the laws of Louisiana.
As Franklin understood it, so did his widow and her advisers. For, by an act before a notary, made with his executor eight months after his death, she declared, that “ she is desirous by these presents, to express her solemn intention for herself and her heirs, to accept each item and all the provisions and stipulatiops contained in the last will and testament of her beloved husband; and because of provisions made for her on certain contingencies, stated in the will, and in order to comply with the intentions of her deceased husband as manifested in his will. For these purposes, and in consideration of his bequests and of the benefits and advantages she will derive by taking and adopting the will, she does by these presents, accept the will, and consent to be bound by the same, with all its conditions, and does hereby renounce, relinquish, and abandon all rights of community dower, by the courtesy or otherwise, by the laws of Louisiana, Tennessee, or other States, where this property may be situated, that she may be entitled to, according to the laws of those States,”
*426Again, about a year after the death of her husband, reciting specially the property belonging to the community of acquets and gains, which had been inventoried and claimed for her, she ratified before a notary public the renunciation of the community, she had made, in accepting a sum of ten thousand dollars a year, allowed by the will for her support during her widowhood, in lieu of that community. And, as he had given her, further, the use and enjoyment of his Fairview plantation during widowhood, as another consideration for her matrimonial rights, by another notarial act, made about eighteen months after the death of her husband, she renounced that use and enjoyment in favor of “the Isaac Franklin Institute,” for the sum of thirty thousand dollars, expressly declaring, that she received it also in consideration of the renunciation of her community and other rights.
And here it is proper further to observe, that Mrs. Franklin, having contracted a second marriage, in 1849, she, on the 9th of Jan. 1850, with her husband, elected, by an act before a notary public, to take the hundred thousand dollars instead of the annuity of six thousand dollars, and accepted it in full of all the rights of dower and any other rights she might have upon the succession of her late husband. As it is clear to my mind, that Franklin gave this large sum in satisfaction of the community of acquets, under the expression of “ all other rights,” and to prevent the division of his estates by that or other matrimonial rights, I think she should be compelled to receive it for the consideration for which it was given, according to the understanding of her first husband and herself, until her second marriage, and not according to her present understanding.
Mrs. Aciden contends, that the three acts by which she renounced the community of acquets, should be annulled, because made under errors of law and fact. 1. That at the time she renounced, she was deceived as to the extent of the community of acquets, by which she has been greatly injured. I do not think she was deceived. The effects of the community were inventoried minutely, and as accurately as the nature of the case admitted, and was fairly appraised and exhibited to her and even copied into one of the acts she signed. In the next place, I do not think she has been injured by her acts. She has received, under the acts, in consideration of her renunciations, $130,000. The evidence does not satisfy me, that Franklin increased his fortune more than $260,000 during the last seven years of his life, while the community of acquets was in existence.
The acts were made while doubts existed whether she was entitled to any community of acquets at all, and which doubts still exist, as appears by the division of opinion of this court on that subject, and were, therefore, made by way of compromise, and might be considered irrevocable on that account.
The motives expressed in the acts, to carry out and accomplish the wishes of an affectionate husband, of a highly useful and benevolent character, he having made a splendid provision for her of what she chose if she remained a widow, and one hundred thousand dollars if she married again, should have great weight in the consideration of this part of the subject. As other than pecuniary considerations, a respect for the memory of such a husband, operated upon her in accepting his will. She is not to be permitted, for pecuniary considerations alone, to disturb rights vested upon that acceptance of the will and renunciation of her community.
It is urged, that she was deceived as to the amount she was to receive, by inheritance, from her two deceased children, it being represented that she was *427to receive twice as much as the law allowed her. If this opinion had been correct, she would have received back a little more of what she renounced than the law gives her. She would have received it from her surviving child. It would have been so inconsiderable, and the source from which she was to receive it was of such a character, that I cannot believe it operated at all on her mind. Beside, her right to only a fourth of the successions of her children, being a textual provision of our law, which the notary or any citizen could have stated to her, it is probable she knew the extent of her rights, in this respect, before she signed the acts. The counsel who inadvertently mistook her right in this respect, was not present when the first act of renunciation of her community of acquets was made. It was made in New Orleans, before an intelligent and careful notary. She was surrounded by intelligent friends, who had every possible means of knowing what is familiar to all. I cannot believe that the inadvertance of her former counsel, in a letter to her father, on this subject, some time before her renunciation, had the least influence on her mind.
It is said she was made to believe, that claiming her share of the community would be dissenting fx'om the will of her husband, and, in that event, she could not claim the legacies made to her, and especially the legacy of one hundred thousand dollars in case of her second marriage. I have hastily given my reasons for believing this advice to have been corx’ect. She never can take the hundred thousand dollars bequeathed to her, and claim any matrimonial rights from her late husband’s estate, of any kind whatsoever.
I cannot see, in the whole evidence, any reason whatsoever for annulling settlements, made in the most formal and solemn manner, by a lady who has enjoyed the best opportunities of having improved her own mind, and no doubt fully availed herself of them, aided by a most intelligent fathex-, and able and careful counsel, hosts of the best and ablest friends, on account of errors, either of law or fact, which do not clearly appear to have existed, or to have influenced her: and thereby throwing the whole succession, thus happily settled, open again to endless litigation, between a mother and her child, some dozen years hence, when the child marries or arrives at the age of maturily, or even with the instituted heir of a benevolent and affectionate husband.
The next point in controversy between the parties‘is, whether any part of the special legacies, left by the deceased, ought to be paid out of the portion accruing to the forced heirs.
The children of Franklin were the forced heirs of two-thirds of his property, of which the father could not deprive them. Code, 1482. Property, in the sense of this article, means his succession; and the succession is the transmission of the rights and obligations of the deceased to his heirs. Code, 867. Two-thirds of his rights were transmitted to his heirs, with no other duty than to pay two-thirds of his obligations. The aggregate of his donations, therefore, could amount to but one-third of his rights, with the duty of discharing one-third of his obligations. The point submitted, therefore, seems hardly to admit of a controversy, and requires us only to recur to these definitions. The article 1703 of the code is express, that no checks or conditions can be imposed on the legitimate portion of the forced heirs.
But, inasmuch as all the sums paid to Mrs. Acklen, were given in lieu and compromise of her share in the community of acquets, right of dower and other rights, upon the estate of her husband, they must be deducted out of the general estate, as claims against it, and not out of the disposable portion,
*428I think the real and personal property of Franklin, wherever situated, f,e]ongg ]j¡g guCcession, and must be considered in determining the amount of the disposable portion. And, if it should become important in the settlement of the estate, I have no doubt that the whole of her personal property must be considered as belonging to the place of his domicil, and must be governed and distributed according to our laws.
By far the most important question is the fourth and last. The appellants maintain, that the dispositions in the will of Isaac Franklin, establishing a seminary of learning in Sumner county, in the State of Tennessee, are valid to the extent of the portion of his properly, of which he had a right, by law, to dispose. His late widow, on behalf of herself and child, contends that those dispositions to establish a seminary of learning in Tennessee, are null and void, because they contain substitutions and fidei commissa, reprobated by law, and, if not embraced technically within the definition of either, are yet in opposition to the whole policy of our law. They therefore claim the whole property bequeathed to the seminary.
I am of opinion that the dispositions in favor of the institution, do not contain substitutions or fidei commissa reprobated by law, and that so far from being opposed to the whole policy of our laws, that they are most highly favored by our laws, as they are by the jurisprudence of every other civilized State or country with which I am acquainted.
In considering this subject, I will take for granted, that a testator, in Louisiana, can make every disposition of the property acquired by his industry and economy, or good fortune, by donations mortis causa which he could make by donations inter vivos. It is the greatest inducement of man to industry and economy, and to seek good fortune, to permit him to give that, which is his own, to the objects which he deems most useful.
Individual industry, economy and energy in conquering fortune, result in the general welfare and prosperity of society. The interest of society is thus promoted by allowing to man the free disposal of his property. And it seems to me to be the corresponding duty of society to gratify him with the only earthly consolation he can enjoy in death, the confidence in society, in her laws and tribunals, that the property accumulated by the toil and self-denial of his life, shall be sacredly appropriated, according to his will, to the objects dearest to his heart, and most approved by his judgment.
The code fully authorizes a testator to dispose of his whole property unless restrained by law. Individual interest has added another very indefinite restraining power called “ the whole policy of the law,” as to which there must necessarily be great varieties of opinion, and which merits, therefore, but little consideration.
By an act of the General Assembly, approved the 25th of March, 1828, “ all the civil laws which were in force before the promulgation of the Civil Code of 1825, were abrogated.” Unless, therefore, an article of that code or a statute can be presented to me, which prohibits a testamentary disposition, or with which it is manifestly inconsistent, (as, for example, articles enforcing morality and duty,) I shall consider the testamentaiy disposition valid, and carry it into effect if possible. And, in doing so, will, in pursuance of art. 1706 of the code, interpret the disposition in the sense in which it can have effect, rather than in that in which it can have none.
I find in our code but a single restriction upon dispositions in favor of a stranger, and that is, when the laws of his country prohibit similar dispositions *429from being made in favor of a citizen of this State. Art. 1477; There is no prohibition of a disposition in favor of a foreign State, or corporation, created by it. If a citizen of Louisiana choose to bequeath his property to the Emperor of China, there is no law in our code to prevent it. Would you allow a despotic sovereign, it will be asked, to own and manage property in Louisiana? Certainly, until the equally sovereign State of Louisiana prohibits it by law. And the danger of the existing freedom from restraint, in this respect, is just as imaginary as the dangers so much insisted upon in the argument of this case, of tying up property, bequeathed to a literary institution, from commerce. When either becomes a real, and not an imaginary evil, the sovereign Legislature of Louisiana will readily apply the proper remedy, a prohibition by law. In the mean time, it is not for the courts to imagine danger which does not exist, and make laws, destructive of freedom and right, to prevent the unreal evil.
1 know, too, as a judge, that the State of Tennessee has not prohibited by law her citizens from making bequests in favor of citizens of Louisiana. And if she had, or art. 1477 of our code was intended, by way of retaliation, to prohibit our citizens from making donations mortis causa to citizens of Tennessee, in my opinion both laws would be void, as conflicting with the 2d sect, of the 4th art. of the Constitution of the United States, guaranteeing to the citizens of each State all the privileges of citizens of the several States.
There is nothing in the suggestion, that colored citizens of other States might have rights, forbidden by our laws, under this view of the Constitution. Principles of law are to be illustrated by ordinary, not by extreme suppositions. I have always doubted whether colored persons could be citizens of a State, and much more, that they can be citizens of the1 United States, for whom alone the Constitution of the United States was adopted. I am aware that the courts, ampliare jurisdictions, have held them citizens. A mere suggestion, immaterial to this case, does not render it necessary to refute such decisions.
It has been pressed upon the court, that property in Louisiana can only be bequeathed to a legatee in being at the death of the testator, and then capable of accepting the legacy. The late Alexander Milne devised half his large estate to create and establish two charitable institutions in this city. It was done under our advice, as his confidential counsel, that he had power to bequeath any part of his estate to a charitable corporation, to be created after his death, ■ if the Legislature would seasonably incorporate the charitable institutions. I based my advice upon the opinion, that the provisions of our code, relied upon to the contrary, and requiring a capacity to receive, at the opening of the succession, were applicable, in terms and spirit, to natural persons alone, and not to establishments of public utility; that there was nothing in the code which prohibited the creation of such establishments by will; that they were thus created in all countries, and greatly favored by modern philanthropy; and, that it could not be otherwise in Louisiana. As to the notion, that the fee of real properly could not be in abeyance, but must vest, at the death of the testator; that the title must pass out of the deceased with the breath of the body, to an existing heir. Had 1 been deluded, like many lawyers, with that unmeaning jargon of words, which, without thinking for ourselves, we take for granted, represents necessary realities, until I carefully perused the opinion of the Supreme Court of the United States, in the case of Inglis v. The Sailors’ Snugharbor of New York, 3 Peters, 112.
The conclusions of the court, in that case, seem to meet every objection to Franklin's bequest, as to the point under consideration, as it supported the decision as to Milne's will. The court say, “if the first mode, pointed out by the *430testator, for carrying into execution his will and intention with respect to this ]pu,E1¿jj cannot legally take effect, it must be rejected, and the will stand as if it had never been inserted; and the devise would then be to a corporation tobe created by the Legislature, composed of the several officers designated in the will as trustees, to take the estate and execute the trust,” pp. 114, 115.
The opinion in support of this position was the production of such men as Thompson, Marshall, McLean, and Baldwin, then on the Supreme Bench. It is true, the most learned member of the bench delivered an able dissenting opinion, collected from the learning of antiquity. The more 1 have read his works, the more Ihave found that he substituted the learning of books, almost exclusively, for the study of men and things, the worst species of substitution in my opinion.
The decision of the court satisfied me that a testator could create an establishment of public utility by will, and if the sovereign power assented, the bequest would be effectual against his heirs before the courts of any country that had thrown off the shackles of mere terms, and looked, with the wisdom of modern civilization and philanthropy, at things. I therefore advised that old gentleman to venture half his fortune on the faith of that decision, in establishing asylums bearing his name.
Being at the time a member of the General Assembly, and acting under as high obligations in that capacity as these imposed upon me in my present situation, I prepared acts of incorporation of the Milne Asylums, and had them passed through that body, without a dissenting voice, at the next session after the death of the testator.
Those institutions were destined to encounter the most powerful attacks by distinguished counsel on behalf of the heirs of Milne, on account of their nonexistence at his decease. Those efforts were successfully resisted, and the validity of the bequests, though the donees were not in existence at the death of the testator, was established by the late Supreme Court, in an opinion marked by great ability and unanswerable truth. They based their opinion upon the powerful reasons given by the Supreme Court of the United States, in the case of Inglis v. The Trustees of the Sailors’ Snugharbor of New York. Of the correctness of that able opinion I never entertained a doubt, and to this day subscribe to every sentence it contains.
The great argument in opposition to the Milne Asylums, and of course to the establishment of the seminary of learning in Tennessee, by the will of Franklin, is, that the bequests were void, because the institutions were not in existence at the time of the death of the testators. The objection was overruled in the succession of Milne ; but the correctness of the decision is still zealously and vehemently assailed. It is urged that the general rule is, that the legatee must be in esse when the succession is opened, and that, therefore, it is incumbent on the appellants to show that the law makes an exception in favor of the validity of the bequest in controversy. Besides the cases already referred to, the authorities are abundant, that the exception exists in England. Many are collected in the very able argument of Mi-. Binney, in support of the will of Stephen Girard.
In my opinion, the exception had its origin in the civil law, long before the English customary law was reduced to a regular system of jurisprudence. Without examining minutely the Roman law on this subject, 1 shall content myself by quoting a short paragraph from the celebrated compendium of Mackeldy, a work universally admitted to be distinguished for its accuracy and soundness of doctrine. In the 145th paragraph of the general part of Ms work, he says: “ The term *431pia causa, denotes an institution for pious and charitable purposes, or for the public benefit, and is the general name given to every establishment which has for its object the promotion of piety, the relief of necessitous persons, the spread of education, or the advancement of science and the arts. Institutions of this kind are to be regarded as moral persons only, in case they have been recognized as such by the State, by way of approval and confirmation; otherwise, they lack the capacity for rights, and cannot acquire any thing. But the confirmation of them, on the part of the State, may be subsequent to their foundation, and then it has a retrospective effect back to the time, of such foundation. If suchy>¿a causa be confirmed by the State, and thereby recognized as a moral person, it can, not only have rights of all kinds, and make acquisitions inter vivos as well as mortis causa, but it also enjoys the privileges of minors, as well with respect to restitutio in integrum, as concerning the alienation of property.
This exception to the general rule, as thus enunciated by Mackeldy,is not, as has been contended, the mere creature of the statutory laws of Rome ; but has its foundation in correct reasoning and the very nature of things. When the lawmaker lays down the general rule relative to the acquisition of rights or property by natural persons, by means of a testamentary disposition, he requires the existence of the legatee or testamentary heir at the time of the death of the testator; for, he who is not in being cannot acquire anything. But, when a testator is desirous of becoming the founder of a charitable or educational institution, he does so on the implied condition, that the State will ratify and confirm his benevolent intentions. If the confirmation is withheld, the will is defeated; but if granted, it operates like the accomplishment of all suspensive conditions, whether express or implied, and has a retroactive effect. The correctness of these views is, I believe, recognized in every system of jurisprudence, both ancient and modern. And I have heard nothing in the argument of this case, to induce me to entertain the slightest doubt of the soundness of the able opinion, rendered in the case of the Milne Asylums.
The General Assembly of this State took the same view of the subject in 1825, in authorizing the parishes of Point Coupée and West Baton Rouge, to accept the legacies of Julian Poydras, to endow indigent young girls of those parishes with marriage portions. The parishes had no capacity to receive the donations, at the death of the testator. They were trusts, so much denounced in this case. They were perpetual trusts, the interest alone of the donations to be appropriated to the wishes of the donor. The General Assembly anthorized the parish of Point Coupée to accept his donation, to establish an academy. Avarice has never suggested the idea of contesting the noble bequests of Poydras, The present situation of his donations differs in no respect from the situation of Franklin’s bequest, except, that the police jury of Point Coupée are its administrators by authority of the State of Louisiana; the magistrates of Sumner county are the administrator’s of Franklin’s bequest, by authority of the State of Tennessee.
So, our Legislature gave powers, by special act; to the city of New Orleans, to accept the bequest of Stephen Girard, to this city. Powers which, no doubt, the city possessed before, but, as doubts had been suggested to render assurance doubly sure, they were conferred by a special act, thus sanctioning the principle that legacies in favor of corporations do not lapse by the incapacity of the corporation to receive at the death of the testator; but, that the incapacity might be removed retroactively by the sovereign.
The General Assembly of Pennsylvania took the same view of this subject, by enacting a law, immediately after the opening of the will of Stephen Girard,, *432that “it shall be lawful for the mayor, aldermen, and citizens of Philadelphia, to ex6rc¡se ajj guch jurisdiction, enact all such ordinances, and to do and execute all such acts and things whatever, as may be necessary and convenient for the full and entire acceptance, execution, and prosecution of all the devises, bequests, trusts, and provisions, contained in said will.” Judge Story drew up the decision of the Supreme Court of the United States, sanctioning the clause in the will establishing the Girard College. On account of his preconceived views, expressed in his dissenting opinion, in the case of the Sailors’ Snugharbor, he presented this act in support of the will, only as “ a legislative exposition and confirmation of the competency of the corporation to take the property and establish the college.” But, if it had become necessaiy, in support of the bequest, to rely upon the act of the General Assembly alone, I have no more doubt than of my existence, that the Supreme Court of the United States would, as in the case of the Sailors’ Snugharbor, have sanctioned the acceptance and execution of the bequest by the city of Philadelphia, under this act of the Legislature alone.
As Judge Story left the matter, the legislative action of a State must have great weight, for I see no difference between the legislative and judicial interpretation of laws and sanction of principles, except in their merit. Each must recommend itself by its intrinsic merit, to the intelligence and reason of man, to command respect and confidence.
In conformity to the principles established in all these cases, the State of Tennessee, being advised of the munificent bequest of one who was born within her limits, to establish a seminary of learning at the place of his nativity, has done all she could to avail herself of that munificence, by incorporating the seminary under the name of “ The Isaac Franklin Institute.” She gave the corporation, the trustees and superintendents, ample powers to carry'out the will of Franklin. And, in the preamble to the act, exhibited a remarkable deference to the laws of Louisiana, and the opinions and action of her courts, whatever they might be, and evidently recommended full justice to all interested, and the settlement of all their controversies by compromise.
As the State of New York gave full powers to the trustees of the Sailors’ Snugharbor, to carry out the bequest of its founder; and the States of Pennsylvania and Louisiana, to the citizens of Philadelphia and New Orleans, to accept and carry out the will of Stephen Girard; and the State of Louisiana to the Milne Asylum to accept and cany out the will of their founder; and to the parishes of Pbinte Coupée and West Baton Rouge to carry the noble bequests of Julian Poydras into effect, so the sovereign State of Tennessee might incorporate a literary institution, to be established within her limits, and give all the powers necessary to carry out the will of its founder. The fact that the bequest was made by a citizen of Louisiana, and that the largest portion of the property is situated in this State, can make no difference in the eyes of liberal minded men. It can make no difference in the eye of the law, because our code has made no distinction between another State and our own, and foreign and domestic corporations, in this respect.
If the institution had been established in West Feliciana, it would have been maintained, under the decision in favor of the Milne Asylums. Is it to be destroyed because established in a sister State 1 It is impossible, without an imperative legal prohibition against it.
As already stated, it became necessary, for the widow and heir of Franklin, to succeed in this suit, for their counsel to overthrow the solemn opinion of our Supreme Court, in the case of Milne Asylums, guaranteed by the great *433decision of the Supreme Court of the United States, in the case of the Sailors’ Snugharbor, and, by what was done, rather than said, by that court, as to the Girard College. And feeling this, the counsel have boldly attacked that decision as a violation of our laws. They have not succeeded, in my opinion. The Milne Asylums, the Sailors’ Snugharbor and the Girard College, remain noble monuments, not only of the munificence of their founders, but of the legislative and judicial wisdom which maintained and carried into effect the benevolent dispositions of their donors. And it is to be hoped, that The Isaac Franklin Institute will remain, during the five hundred years for which it is incorporated, an equally noble monument of wisdom, as well as of benevolence.
It is next contended, that the will of Isaac Franklin contains a substitution and a fidei commissum, which are prohibited by the 1507th article of the Civil Code. The article is in these words: “ Substitutions and fidei cotmvissa are, and remain, prohibited. Every disposition by which the donee, the heir, or legatee is charged to preserve for or return a thing to a third person, is null, even with regard to the donee, the substituted heir, or the legatee. In consequence of this article, the trebellianic portion of. the civil law is no longer a part of our law.”
The authorities quoted in argument, satisfy me that there is no substitution in Franklin's will. To constitute a substitution, the donee must be charged to preserve the property until his death, and then return it to the substituted heir or legatee. The substitution supposed in this will is, that Franklin gave the third of his property to his brothers, and charged them to preserve and return it to their heirs. I am of opinion that he did riot give the property to his brothers or their heirs, but merely appointed them, as trustees, to take charge of and administer it for the seminary of learning in Tennessee. The testator never contemplated, the brothers never construed the will as conveying any right of property to them. The manifest meaning and intent of the whole bequest is, that they, with the magistrates of Sumner county, should manage and superintend the property for the institution, without any beneficial interest in it themselves. This does not constitute a substitution: a term which embraces the ownership, and not the administration of property, and implies that one should hold the property for another during life, and transmit it to him at his death, and is very similar in its effects to the entail of the English law.
Ajfidei commissum is created when property is given to one for another, to vest in the latter, immediately at a given period or upon a condition. Idonotthink the will contains a fidei commissum, because the property was not given by Franklin to his brothers, for the literary institution, but was given to the institution itself; and that the title remained in the succession of Franklin until the seminary was incorporated.
But, if it be conceded that the title to the property was given to the brothers, for the literary institution,and was to be transmitted only when the institution was created and rendered capable of receiving, a fidei commissum was perhaps created, but, in my opinion, one not prohibited by law.
I have long entertained the opinion, that the article 1507 of our Civil Code, when adopted in the Code of 1808, was not intended to introduce new principles of law into Louisiana, but merely recognized the existing law at the time; and that no other than substitutions and fidei commissa, previously unlawful, were prohibited by it. The argument of this and other causes, lately, have confirmed me in this opinion.
*434The digest prepared in 1808, was adopted asadigestof the civiliawsthen in force in the Territory of Orleans, with alterations and amendmentsadapted to its present system of government. The digest did not purport to make any amendment of the law in relation to substitutions and fidei commissa, and none flowed from the new system of government in Louisiana. The terms of the article indicate, that the jurisconsults were adopting, not altering, the existing laws.
The words of the code are, “ substitutions and fidei commissa are, and remain prohibited equivalent to saying, we declare what is, and shall remain, the law on these subjects, not that they are hereby prohibited. Now, what substitutions and fidei commissa were prohibited, by the laws, anterior to 1808? It has often been decided, that the laws of Spain were in force in Louisiana at that period. The laws of Spain on the subject of substitutions and fidei commissa, are summed up in Filreno, part. 1. c. 1, § 3, as follows:
“ Fidei commissary substitutions have come to us from the Roman law. At Rome they were not held obligatory till a period much posterior to the establishment of the republic. All depended on a principle of good faith and probity. The order of successions and testaments being fixed by the laws, testators sought a means of leaving their property to proscribed persons, to exiles, to unmarried men, and other persons who could not inherit. Instituting legal heirs in their wills, they charged such heirs to restore, or deliver up their property to these persons. But it happened frequently that the fiduciary heirs appropriated the estate, or kept it back longer than the testator had ordered, or that others were unwilling to accept or enter upon the inheritance, in order to free themselves from the responsibility which brought with it no utility ; and thence it resulted that fidei commissa, and all the remaining dispositions in the will, failed, to the prejudice of the true heirs and the legatees. Under these circumstances, Augustus ordered that the consuls should take fidei commissa into consideration. A prtetor was created to try the lawsuits which arose on this subject. Various senatus-consult^‘were made to restrain and remedy the abuses which had crept in, and as they did not produce the desired effect, it was thought expedient to give an interest to the fiduciaries. For this, was made the trebellian senatus-consult, thus called from its author Trebellius, the Consul, by which the fiduciary could retain the fourth part of the inheritance, but dividing the actions and the charges with ths fidei commissary in proportion to the share of each.”
I am satisfied the jurisconsult, who penned the article 1507 of our code, had this section of Filreno before him, from the remark in the article itself, that in consequence of this article, the trebellianic portion of the civil law, is no longer a part of our law; which remark was not in the article of the Napoleon Code, which he copied.
Now, the fidei commissiary substitutions and fidei commissa thus ennumerated and explained by Filreno, were thus disposed of by ordinance of Charles the III, in May, 1789.
“ Considering the evils which flow from the facility which has existed of entailing estates forever, by an abuse of the permission granted by the laws to that effect, whereby idleness and pride, are promoted in the possessors of small entailed estates, and in their children and relations, which deprives the army, navy, commerce, the arts and trades of their services, I have resolved, that, henceforth, no one can found an entail, nor prohibit forever the alienation of his estates for that purpose, without obtaining my previous permission, * * * and *435the contrary is only permitted in the ease of great public utility.” Novis. Recop. , - ... T lib. 10, tit. 17, Law 12.
It was, therefore, substitutions which changed the order of descents and fostered pride and laziness, and abstracted property from commerce, and field commissa, by which one held property for another who was incapable of receiving, or for an unlawful purpose, which were prohibited by the laws of Spain, in force in 1808, and which the jurisconsults who framed the code, declared are and remain prohibited.
It has been supposed, however, that the jurisconsult who penned the article, referred to the laws of France, not only because he was born and reared under her jurisprudence, but because he adopted verbatim, the language of the Napoleon Code as to substitutions, and extended it to fidd commissa. If so, the result, in the present case, would be precisely the same. A substitution by the French and Spanish jurisprudence, is the same, and inapplicable by its exact definition to the will of Franklin. In France, fidd commissa were, and remain to this day, lawful for lawful purposes, and were reprobated only when used for an unlawful purpose. Now, the chapter of our code, in which the article under consideration is found, treated “ of dispositions reprobated by law in donations inter vivos and mortis causa," not of donations which were not reprobated by law. The digest did not purport to establish new, but to publish existing reprobations in donations, and using in the article the terms of the Napoleon Code as to substitutions, all of which were prohibited, extended the prohibition, as expressed in the title of the chapter, to reprobated fidd commissa. The donation to one, to hold for another capable of receiving, for a useful and lawful object, and from good motives, was never reprobated by the French Code, or any other system of laws. Therefore, I am obliged to express the opinion, that our late Supreme Court fell into an error in the case of Tournoir v. Tournoir, 12 L. R. 23. And to conclude, that even if there was a fidd commissum in the bequest of Franklin to the seminary in Tennessee, as the object was lawful, and the trust created from good motives, it does not fall within the reprobated donation of which alone the chapter of the code so often cited, treats, and, therefore, is not a donation that falls.
From a full consideration, then, of the clause in the code abolishing fidd commissa, the time and circumstances under which it was adopted, and the title of the chapter in which it is inserted, I am of opinion, that the clause means, in , the English language, nothing more than, that trusts for unlawful purposes are abolished, and thus truly interpreted, it is not only a harmless but wise provision of law.
But I have seen so much litigation growing out of this enactment substantially in the Latin language, so much perversion of right and restraint of the innocent wishes of men as to the disposition of their property, that I shall hereafter entirely disregard it, as having been inserted in our code of 1825, in violation of a clause in the old and present Constitution, requiring the laws to be published in the English language. In my opinion, the constant resort to foreign jurisprudence, in languages dead or alive, for the government of our State, produces a baneful effect, and was intended to be restrained by the Act of 1828, which abrogates all civil laws which were in force before the promulgation of the Code of 1825. They are to be looked to merely as a means of elucidation, where there is no written law. But in such cases, there is an express rule prescribed by the 21st article of the code. The judge is bound to *436proceed and decide according lo equity and established usages. In so decidj w;q never impose any restraint upon the munificent and noble disposition of men’s property, where I find no restraint imposed by the code or statutes.
The view I have taken of the articles 1506 and 1507, prohibiting dispositions reprobated by law, and substitutions and Jidei commissa, shows that they can have no effect upon Franklin's bequest. They prohibit the perpetuation of property, by will, in persons, beyond one life, to preserve the order of legal inheritance ; they prohibit trusts for unlawful purposes, and no other trusts. The laws of France, Spain, and of our own code, quoted on these subjects, refer exclusively to natural persons, and have no relation whatsoever, to bequests for the establishment of institutions of public utility. These could be founded and permanently established in France and Spain, from whence we derive the articles of our code. There was no prohibition to the contrary in those countries. A nd so far- from there being a prohibition in our code against similar donations, they are recognized in the most general manner, by article 1536 of the code. “ Donations made for the benefit of an hospital, of the poor of a community, or of establishments of public utility, shall be accepted by the administrators of such communities or establishments.” If there be no administrators, as is the case with an establishment founded by the testator, it is for him to appoint them or direct the mode of appointment, because no law forbids it. Or, he may defer to the Legislature the mode of their appointment, by an act of incorporation. As establishments of public utility are in general intended to be perpetual from their nature, so donations, made in order to found them, are generally made perpetual in their charter. The property bequeathed may be, and generally is, converted into a perpetual fund to support the establishments by its revenues.
There is no law which forbids the perpetuity of establishments of public utility, and no policy adverse to them, nor any law which forbids the perpetual endowments of such establishments. So far, there has not been, in this State, the perpetual destination of property to such establishments, by will, to such an extent as to create the least detriment to commerce or restraint upon alienations, injurious to the public.
I doubt if that will ever be the case in this State, where property thus destined by some, is soon, by waste, extravagance and unfaithfulness, again thrown back into commerce and speculation. When evils shall arise from the accumulation of inalienable property, by its destination to establishments of public utility, the sovereign Legislature to whom it rightfully belongs, will afford the remedy. Courts are not to usurp, without law, the business of remedying or preventing the evils which are yet at least only imaginary.
Trustees or other administrators of these institutions, must accept, hold in trust, and administer these donations for the institutions. These institutions are corporations, and can only act by trustees, directors, administrators or others. By them they are expressly authorized to act by the 429th article of our code. They are likened to minors, by the French commentators. Others, from necessity, must act for them. And after all, this system of trusts, frightful only in imagination, amounts to this, that the property is in reality given to persons incapable, not of receiving, but of administering the property; and trustees are appointed who have the power of administering it for the incapable owner, and nothing more. And the system must, from the nature of the case, exist as to *437all institutions of public utility and in all countries. Our system of laws is full of trusts. Executors are trustees; syndics are trustees; curators and tutors are trustees. The directors of assylums and all charitable institutions, are trustees of all the donations daily made to them. The list of such trusts, might be multiplied almost indefinitely. And I know of no restraint upon them, except when they are reprobated by law.
I come now to apply these principles to the controverted bequest in Franklin'1s will. He gave one-third of his estate to establish an academy or seminary of learning in Sumner county, in the State of Tennessee, for the purpose of giving his descendants, and the descendants of his collateral relations, and the poor children of the county, a substantial and good English education, and such other and higher and ornamental branches, as the revenues of the bequest would enable his trustees to accomplish.
The establishment of a seminary for education, in a sister State endeared to us by so many recollections of common sacrifices and brilliant achievements; connected with us by a commerce so highly beneficial to both, and by a constant intercourse which renders us so homogeneous in character, must be regarded by all our citizens as an establishment of public utility.
It was said in argument, that the bequest was an attempt of the testator to gratify his pride, by establishing a kind of aristocracy in his family. The few relics of his character left in the record, will scarcely justify the remark on behalf of his widow and child. If he had devoted the seminary to attract around it only the descendants of his blood relations, for the purpose of enjoying its advantages, the only aristocracy it conferred was, to receive the best of all legacies, in the language of the will, a substantial and good English education. But, it will be seen by the will, that his munificence extended to all the poor children of his native county, of unexceptionable character. Having acquired great wealth, by his own exertions, by industry, economy and good fortune, when, by will, he undertook to make the best disposition of it, in prospect of death, after providing mSst magnificently for his own immediate household, he turned his thoughts to those connected with him by blood, and to his native county, remembered its poor, and provided an establishment in which they could receive the greatest blessing of life, a good and substantial English education. This must be, in the language of our code, an establishment of public utility, and forbidden by no law, human or divine.
He gave the property to the institution. No other interpretation can reasonably be given to the terms of the bequest. And we are bound by law to interpret it so as to give it effect, and not to annul it. The trustees and magistrates of the county were appointed, merely to administer and manage it for an institution, which could not do so. The children were the donees, until the institution was incorporated. The children could neither receive nor administer the property. And yet, they could take the bequests, indefinite as they were. It was so decided by our late Supreme Court, in the Succession of J. C. Many, 2 R. R. 440, as to a bequest to the poor of New Orleans. And whoever wishes to see all the decisions settling the jurisprudence on this subject, are referred to the great argument of Mr. Binney, fdr the city of Philadelphia, in the contest as to Mr. Girard’s will.
Suppose, however, we consider the question in the point of view the appellee’s counsel contend it aught to be considered, what will be the legal result 1 As to the great and leading object of Isaac Franklin, there can be no doubt: it was *438to found an institution for the education, not only of the children of his own reiat¡onSl but of all the children, so far as the means provided would admit, of his native county. That this object was legal, and highly laudable, cannot be disputed. The inquiry, then, arises, whether there is anything illegal or contrary to public policy, in the means by which Franklin sought to accomplish that object?
Now, if he did convey the title to the property destined for the endowment and support of the seminary, to his brothers, William and James Franklin, they were only the instruments through whose agency the seminary was to be established and administered, until the Legislature of Tennessee should pass the necessary acts incorporating the seminary, and providing for its administration. This, then, is a trust, uncoupled with an interest, vested in two persons, for the purpose of accomplishing a lawful object, as soon after the testator’s death as, in the nature of things, it could be done. Is such a trust void, as prohibited by law, or repugnant to public policy? The question presents precisely the case of Mathurin v. Livaudais, in which the decision of our Supreme Court, in favor of the trust, has always been approved. It is a trust, uncoupled with an interest, valid by the settled jurisprudence of our State since that decision; and, therefore, if even a fidei commissum, tolerated and pernjitted by our laws, like many others, where the end to be obtained by them was legal and laudable.
The dispositions of the will being lawful, it is the imperative duty of the courts to carry them into effect, even if the mode of doing so, directed by the testator, should fail or be unlawful, as in the case of Clague’s Widow v. His Executors, 13 L. R. 7.
What law of Louisiana prevents us from adopting the reasonable rule of Lord Talbot, in Hopkins v. Hopkins, that, in such cases, the method of the courts is, not to set aside the intent, because it cannot take effect so fully as the testator desired, but to let it work as far as it can; or, of the Master of the Rolls, in Frelluson v. Woodward, that if the court can see a general intention, consistent with the rules of law, but the testator has attempted to carry it into effect in a way that is not permitted, the court is to give effect to the general intention, though the particular mode shall fail. 4 Yesy, Jr. 329. 1 Pierre Williams, 332. 2 Brown’s Chan. 51.
The modes of carrying the will into effect, are mere incidents to the will, and do not affect its substantial and valid dispositions. If the modes prescribed for carrying them into effect are impossible or contrary to law, they are reputed not -written, (Art. 1056,) and the courts will cause them to be executed by other means. The executors are bound to see the will faithfully executed, as long as they live, unless discharged; and in that case, if necessary, the courts will appoint dative executors. Though I by no means consider it necessary or proper, in the present case, to annul the invaluable dispositions in this will, because the forms prescribed for carrying them into effect may be considered objectionable ; it would be the sacrifice of an object of great public utility to immaterial forms, which can never be done, except, by what too often occurs, the sacrifice of public rights to individual interest.
The perpetuity of the donation, however, is made a serious objection to its validity. It is said, the revenues alone of the property bequeathed to the institution, are destined to its support for five hundred years ; that this takes the property itself out of commerce, and renders it inalienable, to the great injury of the State of Louisiana.
*439There is no express prohibition of the alienation of the property, but as the will directs the institution to be supported out of the revenues, and as the object, the support of a seminary of learning, is from its nature intended to be perpetual, it was no doubt the wish of the donor that the property should remain inalienable. I find no law of our State opposed to the inalienability of property, destined by its revenues to support an institution of public utility, intended from its nature to be perpetual. And all good policy indicates, that such property should be inalienable to prevent the waste, extravagance and exposure to total loss, by being converted into money. There is, and always will be, plantations and property enough for sale in Louisiana, without forcing into the market the very few that will ever be destined, by their revenues, to the support of establishments of public utility. The equal distribution of estates among children and other heirs, by our laws, and many other causes which it is unnecessary to detail, will forever prevent the burdensome accumulation of estates or their inalienability to an extent at all injurious to the State ; and when that occurs, the sovereign State may direct the alienation of the property, and prohibit its inalienability in future. At present, perhaps, a greater evil consists in the constant changes of estates, so as to counteract, in some degree, their permanent improvement and increase^ productiveness.
It is asked, can the sovereign State of Tennessee directly, or by a corporation of her own creation, be permitted to hold and administer estates in Louisiana, the revenues of which alone are to be expended ? Certainly 1 because there is no law of this State prohibiting a sovereign State from receiving a legacy from a citizen of Louisiana, nor a corporation created by that State ; nor, in my opinion, any policy of our State opposed to it.
The idea has been much urged, that our code prescribes certain rights of property, and can recognize no others at the will of individuals. There is ownership perfect and imperfect, the right of usufruct, use and servitude. In my opinion, but a single right of property is established by Franklin’s will, and that is ownership in favor of his seminary. His intention is clear to give the property to the seminary, but its revenues alone are tobe used. This restriction is but a mode of administration, which he had a right to impose on the institution he founded, and is not a modification of the title to the property. H’ehad the right to impose it, because the institution is to be likened to a minor, incapable of selling his property, or of even administering it, but entitled to its revenues for his support. He is the owner of his property, but, from minoi’ity, disabled from administering, much less from selling it. The Franklin Institute was created with the same disabilities, which the founder imposed on account of its’assimilation to a minor.
There can be no objection to this mode of administration, because it is almost universally adopted as to the endowment of institutions, and because no law or policy of the State forbids it. Usage, in default of express law, fully justifies it, as prescribed by article 21 of the Civil Code.
If the revenues were to be received by another person than the owner, it would constitute a kind of usufruct. But as the revenues are to be enjoyed by the owner, the ownership is perfect, and there is neither usufruct nor servitude. If a restraint upon alienation had been established, that would have affected the administration, not the ownership of the pi'operty. Such restraint is highly useful in the foundation of charities, or the endowment of institutions for education, to prevent waste, extravagance and even total loss; but they relate to the administration and destination, not the ownership of the property, and may be always changed by the sovereign power of the State.
*440The destination of the interest of the city, for example, in its waterworks, does not affect its ownership of that interest. The destination of its ground-rents to particular objects, of the revenues of its markets to a sinking fund to extinguish loans, based upon their faith, renders the property inalienable, but does not destroy the ownership of the city, because it affects the administration, not the title of the property. To apply these observations to the present case, the property is to be administered for the institution, in such a manner that the capital shall be preserved, and the revenues only expended for the support of the Franklin Institute. The trustees of the property are, therefore, merely administrators for the owners of the property, and limited to the expenditure of its revenues.
These principles might be illustrated by reference to the Roman distinction and definitions of property, the jusfruendi., the jus utendi and the jus abutendi, but they are more easily understood by all in the English language, and, therefore, the reference on my part, at least, would be but useless pedantry.
If, however, such ownership or administration, as is created by this will, becomes burdensome to our State, or adverse to our interest, it is always competent to our sovereign State to direct it to cease, as there is no express prohibition in the will to alienate the property ; and our Legislature might direct the alienation of the property, at any time, without violating even the terms of the will.
I feel it an imperative duty of the office I hold, to guard, with all possible strictness, the conjections of all wills, except in the olographic form, on account of the horrid impositions which have been practiced upon men in articulo mortis, under the pretext of wills.
But when it is ascertained, beyond a doubt, that a man has made a will, it is a more imperative duty, in my opinion, to carry it into full and entire effect, unless forbidden by express law. And, in doing so, I will not regard much the whole policy of the law, terms of very different meanings, in the minds of different men. As in the case of the great bequest of Stephen Girard, it was contended, with apparent sincerity, by the ablest counsellors in the Union, elevated above the mere influence of fees, that the liberal principle of the testator, excluding religious proselytism from his college, was not only against the whole policy of human laws, but a direct violation of Divine legislation.
Upon the whole case, I think every clause of the testament of Isaac Franklin can legally, and ought to be carried into full and entire effect. And, especially, that the great monument of wisdom and benevolence which he attempted to erect, should be left to perpetuate his memory, since, in my opinion, neither our laws nor any motives of public policy exist for crumbling it to the dust.