John Archibald Campbell

“ VII. The beneficiary legatees of McDonogh, the asylum, the school farm, the free schools, are not in existence, nor is even the board of commissioners of his general estate, as a legal corporation, capable of holding property in succession.
They are intended by the testator to be corporations with perpetual succession, he has so declared in his will, and he has attempted to organize them as what he calls 'institutions.'
The power of creating corporations is a sovereign power, which no individual can usurp. ”

“ The principle that parties are not at liberty to invest new tenures of property and to impress such tenures on their lands, is one not peculiar to Louisiana, but is a part of the public policy of every country. ”

“ To construe article 1536 as conferring a power on cities to take estates in trust, is to violate the principle that when a capacity is granted by law to a corporation, the clause conferring it is to be construed subordinately to the general law, and not as giving powers beyond those conferred on individuals. ”

“ The testator, dividing into eight equal portions the revenues of his estate, thus made up of the immovables left at his decease, and of those which shall be acquired by his executors, with the aid of his personalty and the interest accruing on his credits, gives and bequeathes the first eighth part of the net yearly revenue of the whole, during forty years, to the American Colonization Society for colonizing the free people of color of the United States; but the society shall not receive or demand, in any one year, a larger sum than $25,000. ”

“ The fee-simple estate to a corporation is that which most effectually promotes the creation of a perpetuity. The remedy in Europe in this case was to restrict the number of corporations, and to reserve an oversight of their acquisitions to the sovereign authority. This precaution was taken, as we have seen, also in Louisiana. If she has granted to her metropolis an unrestricted license to acquire and to hold property, we must conclude there were sufficient motives to justify the act.
Our next inquiry will be, whether the testator is authorized to define the use and destination of his legacy. ”

“ The mind is at a loss to conceive what interest in an estate can appertain to parties who are never to have it in possession, never to receive one dollar of its revenues, never to alienate it, and never, even, to manage, administer, or control it. ”

“ That the conditions are of the essence of the gift, and the will would not conform to the dispositions of the testator, if they should be erased or disregarded. They insist that the appellees take by virtue of the law, but the devisees claim under a will. That, if they cannot exhibit a clear and valid devise of the property, the legal right of the heir should not be defeated. That this court cannot, under the guise of judicial construction, sanction an instrument from which the main prescriptions of the testator are obliterated. ”

“ For, if the sovereignty of the States is not competent to legislate away the obligation of contracts lawfully entered into at the time, it should equally follow that the State Courts cannot construe away the obligation of antecedent contracts, which the Constitution meant to protect from every department of the State governments, and to place under the protecting aegis of the federal judiciary. ”

“ Nor do we esteem the facts, that he has given his estate a name, regards it as a distinct entity, and couples with it language denoting perpetuity, important as evidence that the cities are not his legatees. A gift to a municipal corporation tends to create a perpetuity. Property thus held ceases to be the subject of donation, or of devise, of transfer by bankruptcy, or in the order of succession. The property of such a corporation is rarely the subject of sale, and practically it is out of commerce. McDonogh supposed that he could prohibit any alienation or division. ”

“ Whenever a State sufficiently indicates that contracts which derive validity from its comity are repugnant to its policy, or are considered as injurious to its interests, the presumption in favor of its adoption can no longer be made. ”

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

“ They are themselves but agents clothed with a temporary authority; nor do the officers perform their executive duties, except by the interposition of agents subordinate to their control and subject to their supervision. Had the testator confined himself to an unconditional donation of the general estate to the cities, for the use of public schools, it would scarcely have fallen under the personal management of the corporate authorities. ”

“ The estates known as fidei commissa and substitutions, in so far as regards the order of persons and the duration of their interest, may be created by devise in an English will. This can be done without the interposition of trustees or with them. That is, legal estates or equitable estates can be limited to embody those conditions of the fidei commissa and substitution; but the separation of the same estate into parts, legal and equitable, with separate courts in which their respective qualities may be represented, is not of continental origin. ”

“ The fidei commissum originated in a prayer, petition, or request, of a testator upon his instituted heir, to deliver the inheritance, or some portion of it, to a designated person. Every testament being originally a law of succession, proposed by the testator, and consented to by the Roman people, the language of legislation, that is, of mandate and authority, was essential to its validity. Precatory words were insufficient to raise an obligation upon the heir, or to vest property in the donee. ”

“ The testator designed the joint management of the agents of the cities, and the joint supervision of their authorities over the estate, to be perpetual. He forbids the cities to vary, by agreement, or by any compromise, the relations he has established between them in regard to it. They must make no sale of their interests ”

“ The city councils shall have a supervision over their operations; and to them the commissioners are liable for the performance of all their duties, and must annually render an account of their administration.
Besides these commissioners, each city shall have agents on the spot to represent its commissioners; and these agents shall also be appointed by the mayors and city councils.
And, after the payment of the annuities, the respective commissioners, or the agents representing them, shall receive one moiety of the net revenue of the year, to be disposed of conformably to the will. ”

“ John McDonogh, a native of Baltimore, an inhabitant of McDonoghville, State of Louisiana, made his olographic will at McDonoghville aforesaid, on the 29th of December, 1838, according to the forms prescribed by the local law.
No question is raised about the form of the instrument; nor could it be otherwise. The Civil Code of Louisiana gives every man the right of making an olographic will. Such a will, in Louisiana, as in France, is one written by the testator himself; and, in order to be valid, it must be entirely written, dated, and signed by the testator's own hand. (Art. 1581.) ”

“ The annuity is inseparably connected with the trust, and must fall with it; there is no possibility of upholding it when the trust on which it depends is overthrown. It is to be paid from rents and profits which will never accrue. ”

“ Corporations created by law are permitted to possess an estate, receive donations and legacies, make valid obligations and contracts, and manage their own business. Civil Code, tit. 10, c. 1, 2, 3, art. 418, et seq.
The privileges which thus belong to corporations legally existing, have been granted to the inhabitants of New Orleans in various legislative acts. The authorities of the city have, besides, received powers of government extending to all subjects affecting their order, tranquillity, and improvement. ”

“ The Roman jurisprudence, upon which that of Louisiana is founded, seems originally to have denied to cities a capacity to inherit, or even to take by donation or legacy. They were treated as composed of uncertain persons, who could not perform the acts of volition and personalty involved in the acceptance of a succession. The disability was removed by the Emperor Adrian in regard to donations and legacies, and soon legacies ad ornatum civitatis and ad honorem civitatis became frequent. ”

“ The will requires that the benefit of the schools shall be confined to the poor, as a class. The constitution and laws of Louisiana require that free schools shall be established and kept under the supervision of public officers, where all white children alike, the rich and poor, may be educated by the same teachers, and on terms of equality.
Free schools confined to the poor alone give rise to distinction of classes in the community, are antirepublican in tendency, and conflict with the policy of the State. Constitution of La. articles 133-4; Acts of Legislature of La. ”

“ The money appropriated to the asylum, school farm, and orphan boys, he requires to be invested as capital in real estate, and the rents only to be subject to the uses of the donees. The capital of the asylum and school farm is to be entirely collected, before any appropriation takes place for their use ”

“ In the case of natural persons, the abrogation of the capacity to limit property from successor to successor, and generation to generation, removed the evil of perpetuities. But no statute against estates tail, or of remainder, or reversion, operate upon a corporation. ”

“ We have examined the legislation of the European states, so as better to appreciate that of Louisiana. No corporation can exist in Louisiana, have a public character, appear in courts of justice, exercise rights as a political body, except by legislative authority ”

“ The legal capacity of the city, therefore, corresponds with that of the city of New Orleans. Do the laws of Louisiana make a discrimination?
The code declares, 'that all persons may dispose of or receive by donations, inter vivos or mortis causa, except such as the law declares expressly incapable.' C. C. 1456. There is no distinction between corporations and natural persons in the power to receive by donation, nor do we find any discrimination besingle article. 'Donations may be made in favor of a stranger, single article. ”

“ Political reasons entered largely into the motives for this legislation-reasons which never have extended their influence to this continent, and, consequently, it has not been introduced into our systems of jurisprudence. 2 Kent's Com. 282, 283; Whicker v. Hame, 14 Beav. 509.
The precise result of the legislation is, that corporations there, with the capacity of acquiring property, must derive their capacity from the sovereign authority, and the practice is, to limit that general capacity within narrow limits, or to subject each acquisition to the revisal of the sovereign. ”

“ Such appears to me to be the obvious intendment of the article.
'There is not the slightest ground for any distinction as to the legality of the holding or ownership by donation inter vivos and mortis causa-that is, that the property could be acquired by one donation and not by the other.
'Nor does not law make any distinction between a legacy to the poor of a city, and a legacy to a city for the poor. For in both cases it is a legacy to pious uses, and the city is the recipient. ”

“ He adds, that the legacies to the two cities are for certain purposes of public utility, and especially for the establishment and support of free schools in said cities and their respective suburbs, (including the town of McDonogh, as a suburb of New Orleans,) wherein 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, history, geography, and singing, &c., &c. ”

“ Such a substitution might be properly called a 'substitution fidei commissaire,' or an 'oblique substitution.' This mode of limiting estates from degree to degree, and generation to generation, was much employed on the continent of Europe, and served to accumulate wealth in a few families at the expense of the interests of the community. The vices of the system were freely exposed by the political writers of the last century, and a general antipathy awakened against it. ”

“ For the execution of his will, and with the unequivocal intent of increasing his real estate, after his death, the testator appoints executors, to whom he gives the seisin of all his personal estate, corporeal and incorporeal, and clothes them with the most extensive powers, without the interference of judicial or extrajudicial authority. ”