I concur in opinion with the Chief Justice, that the claim of the State of Maryland cannot, in the present state of the record, be acted upon, and that the judgment, dismissing the petition of intervention filed in its b e-half, should be affirmed. I have nothing to add to the reasons adduced by him.
The main difficulty in arriving at correct conclusions upon an instrument so obscure and perplexing as the will under consideration, is to ascertain which rules of interpretation are applicable to the apparently conflicting dispositions it contains: and at the threshold of that inquiry it is proper to premise that the rules of interpretation, found in the Code, belong to the doctrinal part of the law; that their enactment by the Legislature is not restrictive of the rules for the interpretation of contracts and testaments found in the body of the Civil law: that all alike are advices given to the Judge, landmarks they might be called, taking effect to the cases to which they apply, not so much ratione imperii as imperio rationis, and that while it is his duty not to lose sight of any of them, he must in every case exercise his discretion in applying them, ever bearing in mind that the least circumstance is at times sufficient to prevent their application. Simml ae in aligno vitiata esi, perdit officium suwm. Leg. 1 ff. de reg. jw.
The true meaning of those rules and their relative force and effect, present sofne of the most embarrassing questions in jurisprudence, and the correct application of each to the class of cases for which it was intended, is an unerring-test of judicial ability. 6 Toullier, No. 333.
Before examining the respective claims of the parties to this litigation who are properly before us, it is well to ascertain whether there is in the heirs at law of the deceased an outstanding title to his succession. Eor if, upon examination, such a title should be ascertained to exist, a decision in favor of either party would be vain and useless.
The heirs at law of the testator are not before us. They have elected to exercise their legal rights in the Federal Courts, where their claim to the suc■cossion of their relative is now pending. Their counsel in that suit, who were also of counsel in the case of Aelclen v. Franldin’s ex’ors, alluded to by the Chief Justice in his opinion, submitted to us, as part of their argument,' the brief prepared by them. In that brief the following statements are found:
“ McDonogh looked upon his legal heirs as his enemies, because the law assigns them as the successors of his wealth.”
“ The Counsel for the defence labors with a bonhomie worthy of all commendation, to show that the testator meant to exclude, at all events, his heirs at law. The pains taken to prove this are superfluous ; it is admitted, without hesitation, the testator certainly intended to exclude his heirs at law for ever, and they do not claim one cent under the will, or the intention of the testator; he *253had the right to disinherit them if he devoted his property to some legal purpose, but if he has devoted his property to illegal purposes, his will is void, and the estate falls to them by the legal order of succession. They claim not under the will, but against it.
“ They do not seek to show that they, whom the testator has so ruthlessly disinherited, were in any possible event to be the objects of his beneficence.”
This is all true and manifestly results from the bequest by the testator of a mere pittance to his favorite sister and her children; from his omission to provide for his other numerous relatives, and especially from his declaration that if he had children, he would bequeath a very small amount to them merely sufficient to excite them to habits of industry and frugality, and no more; thus intimating that he would violate the law which secures to children a Ugitime in their father’s estate. But I am unable to perceive how, upon legal grounds, his admitted insensibility to the ties of kindred can benefit relatives claiming his succession. It necessarily makes against them,- and is one of those circumstances calculated to prevent the application of rules of interpretation which they might perhaps invoke if he had abundantly provided for them, and it could be inferred from the will that, under certain contingencies, he preferred them to the States of Louisiana and Maryland. It is to such a case that the rules “ in testamentis, plenius volúntales testantium interpretcmtur,” and “optimum ergo esse, Pedius ait, nonpropriam verborum signifloationem scrutari, seel in primis quid testator demonst/rcvre vohierit,” particularly apply. D. 50, 17, 12; D. 33, 7, 18.
The intention of the testator to exclude his heirs at law, at all events, being admitted, the conclusion is inevitable that if the cities could not take the legacies or violated the conditions which the testator had the right to impose, he intended to vest his succession in the States of Louisiana and Maryland. And if, in the language of Judge Story, the lawful intention of the testator is the polestar to guide Courts in the exposition of his will, or if, as Goin-Delisle graphically expresses it, it is the trail which the Judge should follow in all its turns and windings, it must be the rule of our decision, unless this case comes under some arbitrary law which controls the will of the testator.
Considering, imprimis, what the testator intended, it is too clear for argument that if the bequest to the cities did not take effect, or become forfeited by the violation on their part of lawful conditions, the States were to take it without conditions, as the next best thing he could do to insure the preservation of his fortune, and the application of it in his name to charitable uses.
It is said that the legal meaning of the word lapse does not cover a case of this kind, and that cases of lapsed legacies should not be extended by implication. The intention of the testator, and the sense in which he used the word lapse, being manifest, under the rules already cited, and the additional one, “m conditionibus testamentorum voluntatem potius quam verba eonsidera/ri oportet,” that sense should be preferred though not* the most correct and usual. D. b. 35 ; C. 1, b. 101 ; Ooin-Delisle, Donations et Testamens, page —.
If the will simply provided that the lapsed legacies shall enure to the States, it may be that the States could receive, under that disposition, only the title or interest first bestowed on the cities, and that in that case the thing bequeathed would not be altered in its nature or extent in passing from the first legatee to the second; but it will not be denied that the testator might have added that the legacies, so lapsed, should enure to the benefit of the States, free from some *254or all of the conditions imposed upon the first legatees. This I conceive he has done by requesting the Legislatures of those States to carry his intentions into effect as far and in the manner which will appear to them the most proper. No one reading the will can fail to see that when he says, “ If the legacy to the Cities lapses, it shall inure to the benefit of the States.” He means “the property composing it shall inure to the benefit of the States ; ” and it would he strange if Courts of Justice could not reach that meaning.
It is true that in the construction of wills Courts of Justice ought not to depart, without necessity, from the proper sense of the words used. That necessity seldom occurs in cases of single dispositions, unconnected with others the will may contain ; but when the several dispositions in the will are constituent parts of one scheme, each must receive the sense which results from the entire instrument, and the rule relied on has, in that case, reference, not to the terms used in any one disposition, hut to the entire contents of the will. In such a case, “ if there is a just reason to believe that the testator has used terms in a sense different from that sanctioned by usage, they must be taken in the sense in which it is believed he understood them.” 6 Toullier, No. 312 ; D, 1. 24, de réb. dub.
“ The intention of the testator must prevail over the grammatical meaning of the words which he has used, provided that his intention is ascertained, by dispositions contained and words used in the will, and it is manifest that he had another object and another thought than that which the terms used in a particular disposition would otherwise convey.” 1 Nouveau Eurgole, Nos. 507, 508 ; D. 1. 7, § 2, in fine de supelleetile leg.
Under the authority cited from the Roman Digest, the interpretation should he more plenary in wills than in contracts; by which I understand that when the sense of a particular disposition resulting from the entire instrument has been ascertained, Courts may go further in cases of testaments than in cases of contracts, in disregarding the grammatical meaning of the terms used, so far indeed, as to supply words omitted, which may be done whenever the obvious meaning, and other parts of the will, restore those words naturally. Coin-Delisle, p. 447, No. 9 ; D. 1. 07, § 9, ff. de legat, 2d 1. 10 ; C. de fid. 1. 1, § ff. de liwred. insí. 1. 1; C. de Test.
The lapsed legacies, that is, the property composing them, was to inure to the States unconditionally, and the mode of 'execution of the will was left to the discretion of the Legislature. This disposition created precisely the title which the city of New Orleans claims under art. 1506 of the Code, and the answer of Hodestinus, cited in argument, D. 6, 33. Such a disposition would unquestionably he valid if that in favor of the cities was not, and the claims of the heirs at law may safely be left out of view.
The disposition in favor of the city of New Orleans may be viewed as a bequest for pious uses—and the first question to be examined is, whether the holding of property for pious uses by this city is a tenure recognized by the law of Louisiana.
It is urged that the tenure, under which the city claims, is a technical trust of the English law, similar in all respects to those set aside by this Court, in the cases of Harper v. Stansbrough and Acklin v. Franklin's executors ; that if it is not such a tenure, it is at least a tenure invented by the testator, without warrant of law to sustain it, and therefore void. It is further urged, that the disposition is otherwise void for the want of capacity in the city to take, and-*255by reason of the uncertainty oí the beneficiaries and of their non-existence at ‘ . „ , „ „ . the time of the opening of the succession.
Overlooking the inherent powers of Municipal Corporations, I thought, after the argument, that these grounds wore tenable ; but further consultation with my brethren, and a reference to authorities, to which, until lately, I had no access, have satisfied me that I was in error, and that under our system of jurisprudence, the capacity of the city of New Orleans to take and administer this charity is substantially the same as that claimed in this suit for the State of Louisiana.
The Oity was the original element of the Roman world; its organization was so complete, and so well adapted to the wants of civilized man, that after all other institutions perished, in the fall of the empire, the municipalities not only remained, but acquired additional importance, and through them the civilization of Rome impressed itself upon the institutions of its conquerors.
In no part of Europe, during the middle ages, was the importance of municipalities so great as in the country from which the civil law has descended to us. The fueros of the cities of Spain were constitutions rather than charters ; they exercised under them most of the powers of sovereignty, and it is with truth that Gregorio Lopez says: Villa et castra sunt nomina que in se continent jurisdictionem, lionorem et disti’ictum et etiam jus patronatos. No. 3,1. 9, t. 4, p. 5.
It is in accordance with the spirit of the legislation of that country that the successive constitutions of the State of Louisiana have made the city of New Orleans and its officers permanent functionaries of government, for all purposes of police and good order and for the punishment of minor crimes and offences, and that the Code has authorized it to accept donations made to the poor, and to take by will and by donations inter vimos.
It needs not the authority of Domat, at the present day, to prove that the police and good order of a city include the education of youth and the care of the poor within its limits. This is a truth which comes home to the bosoms of all men; deduced at first from the precepts of Christianity, it has become an elementary principle in the theory of our government. Domat, Des Qomm. p. 107.
If, for want of other means, the city taxed itself for those purposes, that -tax could not be diverted to other objects, or seized by the creditors of the city, Egerton v. Municipality No. 3, 1 Annual, 436. If a particular branch of the revenue was affected by law to that object, it would equally be free from seizure. But the revenues of a city are not all derived from taxation; the original act of incorporation of this city recognized that it had other means, and authorized the levying of taxes only to supply any deficiency in other branches of revenue. It being unquestionable that cities can hold property patrimonially, and that the property thus held may be applied by law to any object for which the city is bound to provide, what is there contrary to public policy or injurious to creditors in the enforcement of a condition appended to a bequest, and without which the bequest would not have been made, that the property giveh shall be applied to some of those objects and shall never be alienated? Nothing that I can see. The giving, on such a condition, is a reasonable liberty to bestow upon testators, and the bequest, by providing a fund which the city was otherwise bound to supply, enriches it, and increases its means to meet its obligations.
*256As already stated, the law establishes the capacity of this city to take by will.
It also recognizes donations in favor of the poor, such as were made in the will of Many, in 2d R. R. p. 440, and in that of Mr. Henderson, in 5th Annual, 441.
If the legacy, in this case, had been made directly to the poor and to the children of the poor, it would come within the letter of the law; the city would have taken charge of it, and administered it for the beneficiaries. I am satisfied, however, that this is not the only form such a disposition can assume, and that the bequest, as made, comes within the spirit and learning of our jurisprudence in the matter of charitable bequests.
“ On peut léguer á une ville ou une communauté, quelle qu’elle soit, eeclesiestique ou laique, et destiner le don á quelque usage licite et honnéte, comme pour des ouvrages publics, pour la nourriture des pauvres, ou pour d’autres oeuvres de pióte, ou du bien public. Et il faut considérer comme un legs fait á une ville ou autre communauté, ce qui serait legué á ceux qui la composent, comme aux habitans d’une telle ville ou autre lieu.” Domat, Lois Civ. b. 3, tit. 2, § 2, p. 465 ; Law 17, Du legs, 1. 1; 0. law, 122; D. law 2d, de reb. dub.; D. law 20, de reb. dub.
Domat places donations to a city for pious uses, and those for the erection of works of public utility, on the same footing, and the laws which he cites clearly establish the truth of that proposition. He further lays down the rule that, in either case, the destination affixed to the property by the testator, follows it in the possession of the legatee, who is, notwithstanding, vested with the title.
It is hardly necessary to say that a donation of land to the city, within its limits, for the purpose of erecting works of public utility, has ever been held valid and binding towards all persons, so far as the conditions it imposed were lawful. In 1785, Don Andres Almonaster built an hospital on a tract of land which he owned, and gave the land and building to the city, with the charge to keep it up for ever as an hospital for lepers, so that the public might have the benefit of it in perpetuity.
In the succession of time the disease of leprosy disappeared from the country. The house ceased to be used as an hospital, and was finally destroyed by fire. In 1833 the city passed an ordinance converting the land into a cemetery, the heir of the grantor then brought suit to recover it by reason of the breach of the condition attached to the bequest. We held that the legacy being for a pious use, could not be revoked by the inexecution of the condition—but we recognized at the same time the principle that the destination given to the property might have been enforced so long as there were lepers entitled to be admitted to the hospital. Pontalba v. The City of New Orleans, 3d Ann. 660.
Within a few years past, and after the repeal of the Spanish laws, Abijah Mslc gave to this city a house and lot, on condition that it should be applied to the keeping of a public library, and to be used for no other purpose.
The residuary legatee contested the validity of this bequest, on the ground that the will in which it was contained had been revoked by a posterior will; but neither in this case, iior in that of Pontalba, was it alleged in the pleading or contended in argument, that the dispositions attacked created a tenure of property unknown to the law. The judgment creditors of the city have seized in succession the taxes of the city, its perpetual rents, and its interest in the water *257works; but it has never entered their minds that they could seize this house as the property of the corporation, and disregard the destination affixed to it by the testator. The right of the city to acquire property under a testamentary disposition with a specific destination to some work of public utility, such as the erection of a court-house, a jail, an hospital, a public library or lecture room, &c., admits of no doubt, and, as shown by Domat, its right to take and hold property, upon the same tenure for pious uses, rests upon the same principle. It may be said that the city is not bound to make provision in all the cases provided by the testator; this may be true, but the public schools and the asylum for the poor, are certainly things which the city is bound to provide; and they alone would be sufficient to sustain the disposition.
The ground that the bequest is void for uncertainty and for the non-existence of the beneficiaries at the time of the opening of the succession, can hardly be considered serious in any forum governed by the rules of the Civil law.
“ Quocl pauperibus testamento vel eodieillis reUnquitur, non ut inaertis per sonis relictum evaniscat, sed omnibus modis, ratum firmumque consistat, ” is the rule on that subject in the Code of Justinian, which, so far as I am informed, has passed into the jurisprudence of all modern nations. An opinion of learned Counsel has been placed in our hands in support of the claim of the heirs at law of the testator, going to show that under the laws of Maryland bequests for the poor, or for their benefit, are void for uncertainty. It seems to have been so held by the Courts of that State, although it is probable that those decisions would not be followed, after the enabling- statute, passed in 1842, by the legislature of Maryland. However this may be, I adopt fully the opinion of the Supreme Court of the United States in the cause of Vidal v. the Gity of Philadelphia, that the law was otherwise in England before the statute of Elizabeth, and I am very sure that it is otherwise here. See 2 Howard, p. 107.
Although, says Bicard, the great interpreter of the Roman law, on this subject—although the poor and the captive do not'compose legal communities, and although they may pass for uncertain persons when not otherwise designated, nevertheless as their indigence has placed them under the protection of the public, whose duty it is to assist and sustain the weak, the laws have not only authorized donations and bequests to be made for their benefit collectively, but they have declared them the most favorable of all dispositions, and to avoid the inconvenience resulting from the uncertainty of the persons to whom the gift or legacy is to be distributed, it is customary to leave the distribution to the executors, or to the local authority. Ricard, Donations, p. 150.
I agree fully with the able counsel for the city of Philadelphia in the case of Vidal, that uncertainty seems to be of the essence of charitable bequests. Whenever the beneficiary is designated by name, he has a legal right which he can exercise, and his merit is alone to bo considered; the bequest ceases to have the peculiar 'merit of a charity.
But it is urged, and it has been argued at great length, that the will under consideration is one connected scheme ; that it should he construed so as to give to each portion of it the sense which results from the entire instrument, and that if this rule of interpretation be adopted, it must necessarily lead to one or the other of two conclusions—either the testator intended the general estate as the beneficiary, or he intended to create a trust in the sense of the English law, identical with that in Franlclin's case; it is further said that as the intention of the testator, when ascertained, is the law of the will, in either *258alternative the disposition fails, and what has been termed a translation nomine pomos, is a mere vulgar substitution in favor of the State, expressly authorized by article 1508 of the Code.
I believe that the enquiry as to the nature of the title intended and who was the beneficiary, may be gone into in the manner suggested by the plaintiffs’ counsel—and it is lawful to take into consideration for that purpose everything that is written in the will, whether legal and possible, or the reverse. It is to me a self-evident proposition—a proposition which I cannot demonstrate otherwise than by stating it—that for the purpose of ascertaining whether the title intended by MeDonogh is a conditional, or impossible title, all the conditions attached to it, whether legal or illegal, must be considered. In Franklin’s case the dispositive words of the bequest to the brothers of the testator, were the same as are made use of in this case. Franklin attached conditions to his bequests and provided that it should be in trust for the establishment of an institution of learning in the State of Tennessee. We took those conditions into consideration for the purpose of ascertaining what was the tenure intended, and being satisfied that it was a tenure unknown to our laws, we held that the disposition must fall, the nature of the conditions cannot affect the principle.
The very able jurisconsults, whose mémoire has been submitted to us, evidently take this view of the law, or they would not argue from the nature of the illegal conditions imposed, that the testator intended a title in full ownership in favor of the Cities. The counsel here go still further when they assume as one of their grounds of defence, that the right of ownership in favor of the city . results, not only from the express terms of the will, but also from the prohibitions to alienate, to compromise, and to attempt a partition of the property.
Art. 1506 does not reach that question, it applies only to illegal, immoral and impossible conditions attached to a title, otherwise valid.
But when all this is conceded and the different parts of the will are interpreted one by the other, they do not establish beyond all reasonable doubt the quality and quantity of the title intended and who was the beneficiary. The intention to give to the City for pious uses remains, at least, as probable as either of those suggested—in proof of this I deem it sufficient to state that each of the three judges who heard the argument, originally came to a different conclusion on this part of the case. The Chief Justice, after some hesitation, adopted the opinion, that the title intended was one to the cities in full ownership, with a destination to pious uses, which attached to the property. Mr. Justice Slidell thought, and still thinks, that the General Estate, for which the will provides, was intended as the beneficiary. I was under the impression that the holding intended was in the nature of a trust of the English law, and involved the legal and equitable titles which had caused the disposition in the will of FrcmMin to fail. My brethren have given at large the reasons of their respective opinions. I deem it unnecessary to state those upon which mine was predicated. The diversity of those opinions sufficiently shows that the question is not free from doubt, and the moment it is shown to be doubtful, the words used by the testator in the will are no longer to be construed and weighed; another rule of interpretation comes into play to solve the doubt.
If the disposition was in favor of the General Estate, it is gone.
If it establishes a legal and an equitable title in the technical sense of the English law, it is, in my opinion, equally gone.
*259If it vests in this City a title in full ownership, with a destination to charitable uses, for which the City would otherwise be bound to provide, it is lawful, and may be carried into effect. How is it then possible to evade or disregard the textual provision of article 1700 of the Code — that a testamentary disposition must be understood in the sense in which it can have effect, rather than that in which it can have none ?
When under all the different interpretations of which a testamentary disposition is susceptible, it is lawful and may be executed, the construction should rest upon the words and arguments used by-the testator. But where one interpretation will give effect to the will, and the other would not, the decision of the law supercedes the discretion of the Judge, and commands him to assume that the testator intended what is lawful. A striking example of the nature of this rule is afforded by the decisions of the Courts of Prance, before and since the prohibition of substitutions in that country. When substitutions were authorized, the words of advice or request, in which the substitutions were often made, were held equivalent to words of command, as lawful wishes and desires of testators always are. But since substitutions have been prohibited, charges of substitutions thus made are disregarded, and the disposition becomes pure and simple. Merlin thus explains why the words, “I request,” “I desire,” although sufficient to express the will of the testator when their object is lawful, cease to be so when the disposition intended is prohibited:
“ The reasons which might be adduced to attribute a binding force to the words, I request, I desire, are neutralized with us by the great principle drawn from the Roman law, that when there is doubt as to the sense of a disposition, the interpretation which tends to validate the act of which the disposition forms part, should be preferred to the interpretation which would avoid it. It is true that by thus interpreting the disposition, it is rendered illusory; but along side of the rule, that in cases of doubt the testator should be presumed to have written nothing useless, there is another which says, that in cases of doubt the testator is never presumed to have intended what the law forbids, and still less what would cause the failure of the principal disposition. In the conflict of those two rules, it is undoubtedly the first which must give way to the second.” Merlin, Rep. verbo sub. fid. § 8, No. 7. See also 5 Toullicr, No. 27; Grenier, Donations et Testaments, ob. pre. No. 10; Roland de Villargues, Des Subs. 175.
So in this case, we are bound to presume that the testator intended the disposition which he could lawfully make, to wit: a disposition in favor of the city of New. Orleans, with a destination of the property given to pious uses. Having come to this conclusion, it is clear that the disposition cannot be affected by the illegal conditions and charges, which the vanity and avarice of the testator prompted him to attach to it, and that they must be reputed not written, under article 1500 of the Code. I do not think, however, that all those conditions are illegal which have been assumed in argument to be so. I believe that the condition not to alienate, for instance, is as binding in a case like this as in the dispositions made by Almonaster and Msk, already referred to—-and that a city may, in such a case as this, be deprived of the jus abutendi over its property for an object of public utility, without its right of property being-affected thereby; the legislature having always the right to remedy the effects of the disposition whenever the alienation of the property given becomes of public advantage.
*260It was urged with great earnestness in argument, that the will in this case is not distinguishable from that of Mr. Henderson, acted upon in 5th Annual, so far as both establish a perpetuity—and that the decision avoiding the disposition in that case ought to govern the present. The obvious distinction between the two cases is, that Mr. Henderson had made no disposition of his property in favor of any one, but had simply provided that it should for ever form part of his succession and be administered by his executors and commissioners to be named after them, to the end of time. While the testator in this case has made a valid disposition of his property, and the perpetuity of the bequest is merely the consequence of the perpetual existence of the legatee. The General Estate does not form, as is erroneously supposed, the object of the disposition. The bequest embraces nothing more than the fortune left by the testator at his decease. The gradual increase of the General Estate, contemplated by the testator, was to be the result of the mode of administration he had prescribed, which is admitted on all hands to be illegal.
It may further be observed that as there was no disposition of the property in Mr. Henderson’s will, there could be no illegal or impossible conditions within the meaning of article 1506 of the Code. If the dispositions establishing the perpetuity, and providing for the erection of the town of Dunblane, had been reputed not written, the other dispositions, such as the building of a schoolhouse and a church in the projected town, should have been enforced, although manifestly a part of what the Court held to be an unlawful scheme, and inseparable from it. There being no interpretation under which the main disposition could be sustained, the subordinate dispositions necessarily fell with it.
I have not noticed the objection—why is it not permitted to give to one under any condition, and to make a second disposition in favor of another in case those conditions turn out to be illegal or impossible ? because, as well observed in argument, the alternative in favor of the second legatee would be but a continuation of the illegal or impossible conditions which the law reputes not written, and it would be giving effect to a violation of the law, if a third person was permitted to profit by the refusal of the first legatee to violate it. No difference can be made on principle between cases where there is a second legatee and those in which there is not—the legal rights of the first beneficiary are the same in both.
I am of opinion that the judgment should be affirmed.