(dissenting.) This controversy involves the interpretation of the testament of one who, after a long career of industry and avarice, died the possessor of a great estate. Leading a life of isolation, his heart appears to have become insensible to natural affection, and his mind morbid on the single subject by which it was engrossed. Hence, it is not surprising that he should have left at his death a Will, which, with the exception of a small legacy, excludes his kindred from any participation in his enormous fortune, and strives to carry out after his death the process of accumulation which he had so successfully prosecuted. His imagination, heated by solitary musing, saw through a long distant future the result of his cherished schemes, “ in a huge mountain of wealth,” with which he designed to found magnificent corporations, as imperishable monuments of Ms wealth and philanthropy.
*261The questions presented for our solution are, whether the scheme so elaborately prepared by the testator is valid in law, and if it be not, what other disposition consistent with his wishes is to be made of his estate.
For the proper consideration of these questions, it is necessary to arrive at a distinct appreciation of the substance of his will, which is sufficiently manifest, although its style is verbose, and its details minute and complicated.
After a few special legacies of insignificant amount, the will proceeds to give the residue of his estate, real and personal, to the cities of Baltimore and New Orleans, not absolutely, but as he expresses it, “ To-and for the several intents and purposes hereinafter mentioned, declared and set forth concerning the same, and especially for the ’establishment and support of free schools in said cities and their respective suburbs, (including the town of McDonogh,) wherein the the poor, and the poor only, of both sexes, of all classes and castes of color, shall have admittance, free of expense, for the purpose of being instructed in the knowledge of the Lord, and in reading, writing, arithmetic, geography, &c.” Had the will stopped here, or contained no subsequent provisions in a conflicting sense, it might be held to be a devise of the ownership to the cities for the purposes contemplated. But the proprietary right thus nominally given is afterwards, in substance, withheld, for he subsequently declares that his executors must invest his personal property in real, and that his intention is that the whole of his estate, real and personal, ( except his slaves and the special legacies to his sister and her children,) is to be “a permanent fund on interest, as it were, to wit: a fund in real estate, affording rents, no part of which fund (of the principal,) shall ever be touched, divided, sold or alienated, but shall forever remain together as one estate, termed, in this my last will and testament, as ‘My General Estate,’ or ‘The General Estate,’ and be managed as I herein direct.” Again, when he comes to prescribe this management, he uses the fol- ■ lowing language : “ I hereby declare that my intention is not that any part of said general estate, or revenue from rents, arising from said general estate, shall go into the hands of the corporation of said city; but that they, the said corporations, shall have forever a supervision over-it.” He accordingly directs that the cities shall each annually appoint, until the end of time, three agents or commissioners, who shall have the sole and exclusive management of said general estate, the leasing of all the lands and houses, the cultivation of all the estates, the gathering of the crops, the collection of rents, and the doing all acts necessary to its full and perfect management. He confers upon the commissioners the seizin and .possession of all the real estate from tho day of their nomination. He directs his executors, after they have fulfilled their functions, to place all books of account and papers, &e., in the hands of these commissioners. They are to take an office in New Orleans, employ a secretary, and keep regular books, accounts, &c. They are to render accounts annually to the city of New Orleans, which are to be audited by a committee. They are to apply the revenues of the general estate as follows :
First—One-eighth of said revenues to the American Colonization Society, for the term of forty years from his decease, to be paid over from year to year.
Second—One-eighth part to the Mayor, Aldermen and inhabitants of New Orleans, for the sole purpose of establishing an Asylum for the Poor, until the sums paid should amount to the gross sum of $600,000. This annuity is to be paid to other commisioners, not mo^p than seven in number, to be appointed by /the municipal councils of New Orleans. They are required annually to invest *262it in good securities,, for the purpose of accumulation, until the full payment of the sum of $600,000. After which, one-third of the accumulated fund is to he invested in the purchase of land for the Asylum, and the erection and furnishing of suitable buildings, and the residue to be invested in real estate, to become thenceforth inalienable, and its revenues to be applied to the support of the Asylum.
Third—One-eighth part of the revenues of the general estate to be appropriated to the benefit of the Society for the Relief of Destitute Orphan Boys, until the sum paid should amount to $400,000. The fund to be deposited in bank by the commissioners, on interest, and as it accumulates to be invested in the purchase of real estate by said Society, which real estate is to be inalienable.
Fourth—One-eighth of said revenues to the City of Baltimore for the pux’pose of establishing a School Earm in Maryland, until the sum so paid shall amount to three millions of dollars. Eor the more rapid accumulation of this sum the will directs that so soon as the preceding legacies should be satisfied, the three-eighths bequeathed to them should be added to the school farm fund. The fund is to be x'eceived and managed by Dix’ectors, who are to be annually elected by the Mayor and Council of Baltimore, and to be subject to their supervision. The Directors are to invest the moneys thus received on interest, so as to augment its amount by the accumulation of interest to the largest possible sum, up to the time when the last payment of the three millions shall be received by them, when they are to invest a portion, not exceeding one-sixth, in land, buildings, fux’niture, implements, &c., for the School Earm, and the residue in real estate, which, when purchased, is never to be alienated, but its revenues applied to the support of the School Earm.
Fifth—The remaining one-half of the revenues of the general estate, to be divided equally between two other sets of commissioners, one to be appointed by the Councils of New Orleans, the other by the Council of Baltimore. These commissioners are required to devote the sums so received by themrespectively to the suppoi't of public free schools, to be established in the two cities, and under their supervision. After the annuities created for the use of the Societies, the Asylum and the School Earm are satisfied, then the whole revenues of the general estate are to be paid over annually by the commissioners of the general estate to the commissioners of public free schools, in equal shares, and to be devoted to the support of such schools.
In various parts of his will, the testator suggests the incoi’poi’ation of the several funds and institutions which he desired to create, accompanied by minute instructions respecting the mode of leasing his lots and lands, and administering the general estate.
He seems to have contemplated an ideal being, the General Estate as the true recipient of all his property, to be held for the purposes of the will. He recommends to the commissioners of the General Estate to sue out an act of incorporation of it, and in his instructions he observes, “ the great object I have in view ( as may be plainly seen,) is the gradual augmentation in value of the real estate, WHICH WILL BELONG TO AND BE OWNED BY THE GENERAL ESTATE EOR CENTURIES TO COME.”
The will also contains the following clause, which, from its vital importance in the decision of this case, it is proper to insert verbatim:
“No compromise shall ever take place between the Mayor, Aldermen and inhabitants of .the City of Baltimore, in the State of Maryland, and the Mayor, *263Aldermen and inhabitants of the Oity of New Orleans, in the State of Louisiana, and their successors, in relation to their respective rights in said general estate; nor shall one party receive from the other party, by agreement, a certain sum of money annually, or otherways, for their respective proportions in said general estate, nor shall either party sell their respective rights, under this will, in the said general estate, to one another, or to others; but said general estate shall forever remain and be managed, as I have herein pointed out, ordered and directed. And should the Mayor and Aldermen of the Oity of Baltimore, in the State of Maryland, and the Mayor and Aldermen of the Oity of New Orleans, in the State of Louisiana, or their successors in office, combine together, and knowingly and willfully violate any of the conditions hereinbefore and hereinafter directed, for the management of the general estate, and the application of the revenue arising therefrom, then, and in that event, I give and bequeath the rest, residue, remainder and accumulations of my said general estate, ( subject always, however, to the payment of the aforementioned annuities,) to the States of Louisiana and of Maryland, in equal proportions to each of said States, of half and half, for the purpose of educating the poor of said States, under such a general system of education as their respective Legislatures shall establish by law. (Always understood and provided, however, that the real estate thus destined by me for said purpose of education, shall never be sold or alienated, but shall be kept and managed as they, the said Legislatures of said States, shall establish by law, as a fund yielding rents forever, the rents only of which general estate shall be taken and expended for said purpose of educating the poor of said respective States, and for no other.) And it is furthermore my wish and desire, and I hereby will, that in case there should be a lapse of both the legacies to the cities of New Orleans, in the State of Louisiana, and Baltimore, in the State of Maryland, or either of them, wholly or in part, by refusal to accept, or any other cause or means whatsoever, then both or either of said legacies, wholly or partially so lapsed, shall inure, as far as it relates to the Oity of New Orleans, to the State of Louisiana, and as far as it relates to the Oity of Baltimore, to the State of Maryland, that the Legislatures of those States respectively may carry my intentions, as expressed and sot forth in this, my last will and testament, into effect, as far, and in the manner which will appear to them most proper.”
When the provisions of this will are considered as a whole, it appears to me impossible to regard the Cities of New Orleans and Baltimore as invested by it with any title known to our laws. It is asserted by the counsel for the defendants that the Cities are, in legal contemplation, the owners of the property devised. But I am unable to conceive, under our system, an ownership stripped forever of the right of possession, use, administration and disposal. Such an estate has no warrant in our Code, nor precedence in our jurisprudence.
The law, from wise motives, permits men to exercise a last act of volition over their estate, by disposing of its ownership. But when they exercise this just privilege, they must exercise it under the law. They have no right to invent new tenures of property. I think there is much wisdom in what was said by .the Chief Justice in Harper v. Stanbi'ough: “ The modifications of the right of property under our laws are few and easily understood, and answer all the purposes of reasonable use. . It is incumbent on the Courts to maintain them in their simplicity.”
*264The defendants seek to escape this difficulty by first assuming that the testator intended to confer the ownership upon the Cities, and then contending that those subsequent provisions which regard the possession, administration and disposing power, are to be considered as conditions illegal, or contrary to public policy, and consequently as not written; and so, they, argue, the bequest to the two Cities must be reduced to a pure and simple legacy, or to a legacy modified only by the conditions found compatible with public policy and the laws.
In assuming that the right of ownership in favor of the Cities results from the express terms of the will, the counsel for the defendants appear to me to err. The language is. not, I give and bequeath to the Cities, but, I give and bequeath to the Cities to and for the several intents and purposes hereinafter mentioned. Those intents and- purposes are fully expressed in subsequent clauses of the will; being thus referred to, they must be considered as embodied in the devising clause, and clearly qualify and limit it. The argument, therefore, starts from erroneous premises, when it assumes that there was a devise to the Cities of the ownership.
No one can peruse the will without a clear conviction that MeDonoglh was unwilling to trust the city governments, and believed that to invest them with the dominion of an owner, would jeopardize the security of the estate, and the success of the scheme which he had dévised. No one was more familiar than the testator with the history of our city government, and the disastrous financial results of its administration. Hence it is that he entrusts the possession and administration to other hands, forbids the city ever to sell a single item of property, and prohibits the passage of a single dollar into their hands. The intention of the testator to withhold from the cities the ownership of his estate, in any sense of that term known to our law, seems to me to admit of no doubt. It is interwoven with the whole theory of the will, and speaks unmistakeably through its. entire context.
The truth is, that the real legatee intended and preferred by McDonogh, was the ideal being which he designates as his General Estate. The cities were intended to be the mere supervisors of the perpetual trust which he desired to create, and which, in its turn, was to be the source of the other trusts contemplated in the will.
But while on the one hand the title proposed to be vested in the cities is unknown to our laws, on the other, the ideal being which the will contemplates has no legal existence, and is consequently incapable of taking.
And here it is proper to observe that the aid which the testator expected from legislation is now manifestly hopeless. The States of Louisiana and Maryland have both spoken through their proper organs, and by ratifying upon their statute books the institution of the present suit, have clearly disapproved the scheme of future incorporations contemplated by the will. See Statute of Louisiana, March 12, 1852, and Statute of Maryland, January, 1852.
Moreover, the purposes which the testator desired to accomplish through this ideal being, are in part manifestly unlawful. It was his ambition to effect a huge accumulation by a protracted system of investment and re-investment. Not only was any sale of the real estate existing at the time of his death forbidden, but his personal property was ordered to be invested in real estate, interest was to be accumulated on interest, leases were tobe so effected that the improvements were to fall into the estate at the end of the terms; in short, the* *265fortune of the testator, so administered as if possible to increase it more and more during a long distant future. That such a scheme is inconsistent with public policy, no one will deny. It would withdraw large masses of property from commerce; it would put the administration of a great landed estate into the hands of agents having no personal interest in its well-being; it would be a check upon improvement wherever these lots and lands are situate, and in fact become a huge nuisance, whose evils would be aggravated from year to year. No unbiassed mind will regret the defeat of projects so unreasonable and pernicious.
Yet these evils are so interwoven with the scheme devised by the testator, that an attempt to purify it of them would involve a destruction of the scheme itself, which the testator desired should be accomplished in it its entirety, declaring a violation of any of his conditions by the cities a cause of forfeiture.
But if the system thus elaborately planned by the testator, and by which, through the instrumentality of mere nominal devisees, he sought to create an ideal being as the recipient of his estate, the engine of a vast accumulation, and the founder in a far-off future of magnificent charities, must fail, because it creates a tenure of property unknown to our laws, because it exceeds the power granted by law to testators, and because it would violate public policy, what other disposition is to be made of his estate ?
This question is fully answered by the testator himself. It is to go, not to his natural heirs, whom by the clearest implication he intended under all circumstances to exclude, but to the States of Louisiana and Maryland, as absolute owners, leaving it to them to employ his fortune in the accomplishment of his philanthropic intentions, “ as far and in the manner which will appear to them most proper.”
Unquestionably the testator’s preference was for the extraordinary scheme which he had so elaborately prepared, and over which he had no doubt brooded for years with a morbid delight. He desired it to be carried out in its entirety, and forbade the cities to violate omy of its conditions.- But still an apprehension existed in his mind that the scheine might fail; and from “ whatsoever cause ” this failure might arise, by “ whatsoever means ” it might come to pass, his desire was that there should then be recipients of his fortune, who, by virtue of their sovereign power, could accomplish the substantial execution of such of his wishes as they might consider lawful, and to whose discretion and fidelity he was willing to leave that execution. The great object of the testator was the education of the poor. “ I can make no disposition of those worldly goods which the Most High has been pleased so bountifully to place under my stewardship, that will be so pleasing to Him as that by means of which the poor will be instructed in wisdom, and led into the path of virtue and holiness.”
That paramount object, with other wishes of the testator, so far as they may be deemed practicable and politic, the States can, and no doubt would, in good faith, and with a just discretion, endeavor to accomplish, and thus the charitable object of the testator would be disappointed only as to the preferred mode of its fulfillment, an alternative of his own choice being adopted.
The above opinion necessarily involves the proposition that the natural hern of the testator have no right to his succession beyond the specific legacies left to a portion of them. For we could not render a decree in favor of the plaintiffs in this action as owners of the succession, if a valid title were outstanding in others. The heirs have thought proper to appear in another forum; avoiding *266the State tribunal in which the succession of the testator was opened. Still, although they are not before us, and our decree may not be technically binding upon them, I deem it my duty briefly to notice the grounds upon which I understand their claims to be predicated.
In considering the controversy between the Cities and the States, I was controlled by what I believed to be the intention of the testator, as gathered from a reasonable interpetration of the entire will. The same course of investigation seems to me decisive of the pretensions of the heirs.
The intention of the testator to cut off his natural heirs, beyond the specific legacies left to them, seems to me irresistibly manifest from the whole scope and purport of his will, and is peculiarly deducible from the scantiness of the legacy left to his sister and her children, and his declaration, “had I children (which I have not,) and a fortune to leave behind me at my death, I would bequpath (after a virtuous education, to effect which nothing should be spared,) a very small amount to each, merely sufficient to excite them to habits of industry and frugality, and no moi’e.” And again, that other declaration: “ The first, principal and chief object I have at heart, (the object which has actuated and filled my soul from early boyhood with a desire to acquire a fortune,) is the education of the poor (without the cost of a cent to them,) in the Cities of New Orleans and Baltimore, and their respective suburbs, in such a manner that every poor child, and youth of every color, in those places, may receive a common English education, (based however, be it particularly understood, on a moral and religious one, that is, the pupils shall, on particular days, be instructed in morality and religion, and school shall be opened and closed daily with prayer.) And in time, when the general estate will yield the necessary funds, ( for in time its revenue will be very large,) over and above what will be necessary to the education of the poor of those two cities and their respective suburbs, it is my desire, and I request that the blessing of education may be extended to the poor throughout every town, village and hamlet in the respective States of Louisiana and Maryland, and, was it possible, through the whole of the United States of America. Eor this purpose, and this only, my desire being that one dollar shall never be expended to any other purpose, I destine the whole of my general estate (excepting only my black people, the legacy bequeathed the children of my sister Jane, and that to herself,) to form a fund in real estate which shall never be sold or alienated, but be held and remain forever sacred to it alone.”
In the face of these declarations, and of the entire scope and purpose of the will, it would be monstrous to say that McDonogh did not intend to exclude, at all events, his heirs at law. Indeed, the counsel for the heirs expressly concede that point in their printed argument, a copy of which was submitted to this Court in the recent case of Fra/nldin's heirs. “The testator,” they acknowledge, “ certainly intended to exclude his heirs at law forever, and they do not claim one cent under the will or the intention of the testator.”
Their hopes rest upon the proposition “ that the testator did not dispose of the title and ownership of his estate. He attempted to build up magnificent trusts and charities out of the future revenues, but he kept the ownership for himself. As to the ownership, he died intestate, and it passed to his heirs at law.”
I have carefully considered the ingenious argument by which counsel have endeavored to support this startling proposition, but it has brought no favorable *267convictions to my mind. It is narrow and technical. It asks from an unprofessional mind the nice accuracy of an expert conveyancer. This is contrary to the received theory of the interpretation of wills. The law is indulgent to testators who are regarded as inopes consilii. It exempts the phraseology of wills from technical restraint, and obeys the clear intention of the testator, however informal the language in which it may be announced. If that intention be even obscured by conflicting expressions, it seeks the intention rather in a rational and consistent, than an irrational and inconsistent purpose. Of two modes of construction, it prefers that which will prevent a total intestacy. Such is the spirit of our Code, and the teaching of the commentators.
Approaching the interpretation of the will in this spirit, looking to the language used in the devise to the States with reference to the surrounding provisions, and the general scope and purpose of the will, which is the work of an unprofessional mind, I have, from the first, experienced little difficulty in appreciating the intention and meaning of the testator.
By the lapse of the legacies to the cities, I am clearly of opinion that he meant their failure to take effect from any cause whatever.
By the expression, “ said legacies wholly or partially so lapsed shall enure,” &c., he evidently meant the property embraced in those legacies.
To say that under the clause in question he simply intended to place the States in the stead of the Cities—their actions fettered by the same restrictions —their title qualified and limited by the same anomalous provisions as to possession, use and management—is to obliterate from that clause its closing words, which commit to the States respectively a dominion controlled only by their own discretion.
[The judgment of the Court will be found at page 252.]