[407]*407By the court: (Preston, J. dissenting.)
Rost, J.
Adelecia Aciden, the former wife of Isaac Franklin, deceased, seeks to set aside, on the ground of error, various acts by which she renounced all her rights in the property composing the succession of her late husband, and claims her community rights therein, on the ground that at the time of her marriage with Franklin, in the State of Tennessee, in April, 1839, he was domiciliated in this State, and that the matrimonial domicil having been in Louisiana until the dissolution of the marriage, the distribution of the real estate acquired here during its continuance, and of the personal estate, wherever situated, should be according to the law of Louisiana.
The plaintiff, also, in her own right as heir of two of her children, deceased since their father, and as tutrix of Fmma Franklin, the only surviving issue of her former marriage, seeks further to annul the universal legacy made by Isaac Franklin, to his brothers James and William Franklin, in trust, for a seminary of learning to be established in Sumner county, in the State of Tennessee, so far as it disposes of property in Louisiana, on the ground that the title thus created is in violation of the laws of Louisiana; that its effect would be to tie up and to place out of commerce the property bequeathed, against the policy of the State; and that if the title was otherwise valid, it would be void by reason of the substitutions andJidei commissa which it contains.
The under-tutor of the minor has also intervened in her behalf, claiming the nullity of the universal legacy.
The defence to these claims is, that the domicil of origin of Isaac Franklin was in Sumner county, State of Tennessee, that he never changed it, and no community, at any time, existed between him and his wife. That he made for her, by his will, ample provisions, which she has accepted; and that she is estopped,.by her acceptance, from contesting the validity of any of its dispositions. That the acts of renunciation were signed by her, of her own free will, and with full knowledge of her legal rights.
The Franklin Institute has been incorporated by the Legislature of the State of Tennessee, with full power to receive the legacy and to carry the dispositions of the will into effect, and the trustees appointed under the act of incorporation, have made themselves parties to the record, and have joined the executors in the defence, averring the legality of the bequest in favor of James and William Franklin, of one-third of the plantations and slaves of Isaac Franklin, in Louisiana.
The record is voluminous, and the pleadings it contains raised many other issues in the district court, but I understand the points stated to be the only ones submitted for our decision; they were decided in the court below, in favor of Mrs. Acklen and her minor child. The executor and the trustees of the Franklin Institute have appealed from the judgment.
Article 2369 of the Civil Code provides, that every marriage contracted in this State, superinduces, of right, a community of acquets and gains, if there be no stipulation to the contrary.
The marriage, in this case, was not contracted in this State; it did not, therefore, superinduce of right a community of acquets and gains, and the existence ofthe community can only be predicated upon the next article of the code, which is as follows: “ A marriage, contracted out of this State, between persons who afterwards come here to live, is also subjected to the community of acquets, with respect to such property as is acquired after their arrival.”
[408]*408To establish the position assumed, the plaintiff must show, that, after her Iaarl,jagej jjer husband and herself came here to live. She must make all the proof necessary to establish the domicil of Franklin in Louisiana; and further, that they both came to that domicil to live, and that they did live there until the marriage was dissolved, by the death of Franklin.
I will first dispose of the question of domicil, and, in relation to it, I may premise, that the district judge properly overruled the exception taken by the counsel of Mrs. Acklen, to the admission of the depositions taken under commission by the executors and trustees, to prove that the matrimonial domicil was in Tennessee, and because the cross-interrogatories have not been answered. Those depositions were received by the magistrate to whom the commission was sent, in the presence of the parties and their counsel, and the cross-interrogatories were answered, as far as the parties in interest desired them to be so; the cross-interrogatories, not answered, were irrelevant to the issue, and of such a character, as would have justified the district judge, if he had caused them to be erased from the records of his court.
The district judge says, in his opinion, that he is satisfied, from the evidence, that the domicil of Isaac Franklin, at the time of his marriage, and up to the period of his decease, was in the State of Louisiana. It is with great reluctance that we differ from the judges of the first instance on questions of fact; but'a question of domicil is not a mere question of fact, and we may well agree with our learned brother on all the facts going to show a residence in Louisiana, and, at the same time, differ from him on the legal inferences he draws from those facts, that the residence they establish, was the domicil of Isaac Franklin. His domicil of origin was in Sumner county, State of Tennessee; that domicil, of course, continued until another was acquired, ammo et facto. And the parties seeking to avail themselves of the change of domicil, from Tennessee to Louisiana, must prove it by express and positive evidence ; so long as any reasonable doubt remains, the legal presumption is, that it was not changed. See Grevillon's Heirs v. Richards' Exrs., 13 L. R. 299. Cole v. Lucas, 2 Ann. 250. Merlin Rep. verbo Domicil, § 2. Story’s Conflict of Laws, No. 41.
Does the evidence, in this case, establish, beyond reasonable doubt, that the domicil of Isaac Franklin, at the time of his marriage, and up to the period of his decease, was in the State of Louisiana 1
The witnesses for Mrs. Acklen, all testify that much the largest portion of his fortune was in Louisiana ; that they considered him as domicilated in the State before and since his marriage ; and that, they believe, he so considered himself. The witnesses of the executors, in greater number, and of equally unimpeachable character, testify, still more positively, that his domicil was on his Fairview plantation, in Sumner county, State of Tennessee; that he so considered it himself, and that nobody there knew, or suspected, thatithad ever been changed. Conflicting, as this evidence is, the acts and declarations of Franklin himself are, if possible, still more so. He voted in the parish of East Feliciana, where his plantations are situated, for a member of the police jury, and also at the presidential election of 1844; on both occasions his vote was at first challenged, but finally received, on his declaration, that he had voted no where else for seven years. The justice of the peace who presided at those elections, has testified that Franklin was not sworn on those occasions, every body being satisfied with his declaration; yet, there is record evidence that he voted in Sumner county, in the State of Tennessee, at the general elections of 1841 and 1843, and that, up [409]*409to the time of his death, his name was registered, under a law of the State, as a voter of that county. Many notarial acts are produced, passed between the years 1838 and 1846, in which he represented his domicil, or rather his residence, as being in Louisiana; but, it is in proof, that he availed himself of his privilege, as a citizen of Tennessee, to bring suits in the federal court, in this city, in 1840 and 1844 ; and that, in the latter part of 1845, a few months before his death, he was sued, as a citizen of Tennessee, in one of the courts of this city, and answered to the merits without pleading his domicil in West Feliciana. His statement to Mr. Warfield, that he could change his domicil from Louisiana to Tennessee, and back, for five dollars, when his business required it, shows what he understood by domicil, and that the animus manendi had nothing to do with it. The declaration of intention to change his domicil, from Tennessee to Louisiana, made in 1832, is falsified by his subsequent acts, and the erection of a permanent family residence in Tennessee. He was, at that time, a slave dealer, and was absent every summer from the State; the object of the declaration was, no doubt, to evade the law, as settled by the decisions of the Supreme Court, that the prescription of one year against the redhibitory action, was suspended during the absence of the party, who had sold the unsound slave. Morgan v. Robinson, 12 M. R. 76. Much reliance is placed on two letters from Franklin to his father-in-law; the first was written on board of a steamboat coming down the river, and in it, Franklin says, that he will, without accident, be at home on the next day; the other was written from New Orleans, in January, 1846, in which, after attending to the misconduct of his slaves on the Fairview plantation, he says: “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 all my other property.”
I do not attach to this evidence the importance which counsel do; he might well have his domicil in Tennessee, and call his Feliciana plantations his home, while in Louisiana. When he speaks of breaking up his establishment in Tennessee, he evidently contemplates the breaking up of the planting establishment there, by removing the greater part of the one hundred and thirty slaves, attached to the Fairview plantation, to Louisiana, and leaving only such as might be necessary for the care of the grounds and buildings, and of the stables and stock; he might have done all this without the least intention to change his domicil. The law which fixes the domicil of each citizen at the place where his principal establishment is situated, means the principal domestic establishment, not that where he may have the largest portion of his fortune. Art. 42 C. C.
In France, where, owing to the different systems of laws and customs formerly existing in the different provinces, questions of domicil have been much discussed, and are thoroughly understood, it is held, under a legislation which we have copied, that a place where a person exercises his political rights, and where the bulk ofhis property is situated, is not reputed his place of domicil, if that person, having a dwelling house elsewhere, habitually occupies it, and pays there his taxe personnelle et mobiliére. See the case of Saiffert v. Seranega, 10 Sirey, part 2, page 55.
There are other facts, not yet noticed, which far outweigh, in my mind, the statements in Franklin’s letters, and the other evidence offered by Mrs. Acklen. Franklin was born in Sumner county, where his father gave him a farm, after he became of age; he then engaged in business, spending the summer months in the district of Columbia, and the remainder of the year in [410]*410New Orleans and Natchez. He soon became wealthy, purchased the Fairview estat6) neal, his Tennessee farm, and erected upon it a large and costly mansion, which is shown to be the finest country residence in Tennessee. The grounds around were planted with choice trees, and laid out in the best manner; here he had green houses, flower gardens, sumptuous furniture, several fine carriages, choice wines of all kinds, a stable of race horses, a large quantity of blooded stock, and a number of picked servants, more than sufficient even for such an establishment. All this was done with the avowed purpose of making Fairview his permanent domicil. He was engaged in business until 1839, but although, up to that time, he only occupied his new dwelling a few days in each year, his intention, coupled with that occasional residence, was sufficient to continue his domicil on the Fairview estate. In 1838 he acquired a large estate in West Feliciana, and married Mrs. Acklen in the spring of 1839; from that time to his death, with one or two exceptions, he spent his summers with his family on the Fairview estate, leaving about the middle of October, of each year, to return to Louisiana, where he remained until the month of May following. The nature of his residence here is stated as follows, by Mr. Row, one of Mrs. Acklen's witnesses:
“ Mr. Franklin usually remained at his plantation, when he returned in the fall, some one, two, or three weeks, and then took his family to New Orleans, where they remained some time, and returned to the plantation, and so went and returned to and from New Orleans, two or three times during the winter.” Pie spent more than half of his time in the city of New Orleans, and, it is proved, that he passed the entire winter of 1845 there, in a rented house. The house he occupied, when upon the plantation, was old, and out of repair. The servants who waited upon him there, were those he brought with him every fall from Tennessee. He kept no carriages, had done nothing to improve the grounds, and had none of those comforts and luxuries in which he delighted, and by which his home in Tennessee was rendered conspicuous. The feet, sworn to by some of the witnesses, that he intended to erect a new house in 'West Feliciana, weighs but little on the question of domicil at the time of the marriage. In 1841, when he was declaring, in notarial acts, that his domicil was in this State, he was secretly making his will, in which he represents himself as of Sumner county, State of Tennessee, now residing, for the present, in West Feliciana; designates the Fairview estate as the future residence of his wife and children, and gives his wife the household and kitchen furniture, and the stock of wines and groceries, found on the place at the time of his death. None of these, which so essentially constitute his domestic establishment, appear to have existed on the Louisiana plantation. In that will, also, be ordered his executors to consecrate at least one acre of ground on the Fairview estate, to the erection of an expensive family vault, in which his remains, those of his wife and children, and of such other members of his family as might choose to be entombed there, were to be deposited, and requested them, if he should die at any other place, to have his remains removed there without unnecessary delay. I take this disposition and request to be strong evidence against Mrs. Acklen. The belief of the Romans, that the souls of the departed abided near their earthly remains, and, under the name of lares, were the guardian spirits of their descendants, was a beautiful superstition, and, even Christians may hope, without sin, that they will be permitted, in another life, to watch over and protect their offspring. The reason of the rule of the civil law, which made the presence of the lar indicative of the place of domicil, has survived the superstition that gave it birth.
[411]*411The place selected by the testator, in this case, for the final resting place of himself and his family, was, I cannot doubt, the home of his choice, the place where his spirit dwelt during life, and whence, in the language of the Roman Code, he had no desire to depart, unless compelled by business, and was a wanderer when he had left it, but ceased to be so when he returned to it. C. 10, 39, 1. 7.
The law of domicil, as it bears upon a case where the party has two residences, was examined with great care by this court, in the case of Hill et al. v. Spangenburg, 4 Ann.; and the authorities adduced in this case, have confirmed us in the view we then took. “ Where each of the residences is accompanied by some of the circumstances, going to show the existence of the domicil, the judge should be guided by the most convincing; he should also take their number into consideration ; and if, by their weight and number, they neutralize each other, the presumption that there has been no intention to change the domicil, must prevail; and, if the party has divided his time alternately between the two places, this habitual change should be considered as of no importance, if he has not done, where the new domicil is claimed, a series of acts, proving, beyond reasonable doubt, his intention to abandon his old domicil.” 1 Duranton, No. 358. Tested by these principles, the case is clearly against Mrs. Aciden. So far from having shown affirmatively, as she was bound to do, that the domicil had been changed, I think it is satisfactorily proved that the change never took place. Franklin's domicil having continued in Tennessee, it necessarily follows that he and the plaintiff never came here to live, and that their marriage was not subjected to community of acquets and gains.
This case is strikingly similar to that of DeSinceny, c. Ses. Syndics, found in Dalloz, 1849, 2 part. p. 71. The plaintiff, in that case, had established at his new place of residence a large sugar refinery, had lived there many years, had been appointed maire of the commune, chef de bataillon of the national guards, and placed on the list of electors, had represented himself in a great number of acts as a sugar refiner of that commune, and had made.a declaration of domicil, in due form, a short time before his failure.
But the court, considering that the first domicil was that of his nativity; that it had been his habitual place of residence; that the traditions of his family and the habits of his life, as well as the largest portion of his fortune were there; that if, in a great number of acts, under private signature, he stated the last place of residence to be his domicil, those declarations lost their weight when at the same epoch, and in acts more serious, he retained his original domicil; that the declaration of domicil lately made by him, would not have been necessary, if, in truth, his domicil had been as stated, and was, moreover, falsifi ed by the facts of the case ; that his furniture and household establishment were still at the original domicil, and that none of the facts proved, implied the certainty of the complete abandonment of that domicil, maintained the exception to the jurisdic-' tion bf the court of his last place of residence, over the cessio bonorum.
Having come to the conclusion that no community ever existed between Mrs. Acklen and Isaac Franklin, it is unnecessary to examine the grounds of nullity alleged against the acts of renunciation, which she signed; her rights against the succession rest upon the will alone, and the errors set up by her have not impaired those rights.
The only question remaining is as to the validity of the bequest of one-third of the real estate and slaves belonging to the succession of Isaac Franklin, in Louisiana, to James and William Franklin, in trust, for the Franklin Institute,
[412]*412The bequest is as follows: “ I give and bequeath all my property, real and personal, of whatever kind or nature, that is situated in the States of Tennessee and Mississippi, or any other common law State where trust estates can be created, together with my bank stocks, and effects, and credits; and in case I should have no other children by my said marriage, except my said daughter Victoria, then two-thirds of all my property, movable and immovable, that is situated in the State of Louisiana; but if there should be two children born of said marriage, then only an undivided half of all my said property, movable and immovable, slaves, &c., that is situated in said State of Louisiana; and, if there should be three or more children born of said marriage, then I only give an undivided one-third part of all my said property, movable and immovable, slaves, &c., that is situated, lying and being in said State of Louisiana; and, also, the rest and residue of my estate, wherever situated, in trust to my two brothers James and William Franklin, of Sumner county aforesaid, for the following purposes, to wit: The revenues arising from said property, bank stock, and such money, funds or other credits due me, as may remain after the payment of the several legacies and devises, annuities, increase and ameliorations of my said plantations in Louisiana, and other purposes, as directed by this will, together with the revenues arising from my plantations in Tennessee, and other property in Tennessee and Mississippi and other common law States, together with the dividends of my bank stock and interest on money and debts due me ; and the revenues of the one-third, one-half, or two-thirds of all my property situated in the State of Louisiana', as the case may be, by the birth of children of my said marriage, after the payment of said several devises and legacies, annuities and expenditures, increase and ameliorations of said plantations in Louisiana, &c., to be laid out in building proper and suitable edifices, on my said Fairview plantation, in the county of Sumner and State of Tennessee, for an academy or seminary; the furnishing the same with fixtures and furniture, and the employment of such teachers and professors, male and female, as may be considered necessary by my said trustees for the education, board and clothing of the children of my brothers and sisters and their descendants, as well as my own children and their descendants, in the best and most suitable and proper manner for American youths, having a particular regard to a substantial and good English education, and such other, higher and ornamental branches as the aforesaid revenues, &c., will enable my said trustees to accomplish; and if the revenues, &c., should be sufficient therefor, I also wish that the poor children in said county of Sumner, of unexceptionable character, and such as my said trustees may select, should likewise be educated and supported, during the time, at the same seminary; and after the death of my aforesaid brothers, it is my will and desire that the aforesaid trust shall be continued and pass over forever in the heirs of my said brothers, to pass the estate, and that the magistrates of the county court of said county of Sumner, and State of Tennessee, and their successors in office, be hereafter the perpetual superintendents of the aforesaid seminary, to see that my intentions are fully carried into effect.”
The title which the testator has attempted to create, belongs to a class of tenures familiar in the other States of this Union, where the common law prevails, but unknown to the laws of Louisiana. And the jurisprudence regulating and defining the almost infinite variety of those tenures, and the rights of obligations arising under each, forms one of the most important and intricate portions of that artificial system of laws. I do not see the possibility of recognizing trust j estates here, without letting in all the law which regulates that peculiar tenure j [413]*413of property. Counsel hare referred us to no precedent that would authorize or justify the enforcement of such a title; and it is a self-evident proposition, that the constitutional inhibition to the Legislature to adopt any system of foreign laws, by general reference, would be rendered nugatory, if courts of justice assumed the power to introduce those systems, by piecemeal, in this insidious manner.
The case of Harper v. Stansborough, 2 Ann. 380, was a much stronger one than the present in favor of the legatee ; in that case the bequest had been made in the State of Mississippi, where it was authorized by law; the testator had died there, and the law of that State had had its full effect on the slaves in dispute, during several years, when they were removed to Louisiana, where the surviving son of the testator came to claim them from Stansborough, who had purchased them at the probate sale of the succession of the other son, on the ground, that by the dispositions of the will they were to revert to him after the death of his brother. Even under that state of facts we held, that as no such title to property, as that under which the plaintiff claimed, was recognized by the laws of Louisiana, the courts of the State could not enforce it upon property found here, although it might be valid in the place where it was created. The chief justice, who was the organ of the court in that case, says, “ slaves are considered in Louisiana as immovables, and it rests with the legislative power of the State, exclusively, to regulate the different descriptions of property, or ownership in relation to them. The modifications of the rights of property, under our laws, are few and easily understood, and answer all the purposes of reasonable use; it is incumbent on courts to maintain them in their simplicity.”
This opinion has since been reviewed and affirmed in the case of Terrell et al. v. Allen, 7 Ann., and the principle it involves is recognized in every system of jurisprudence. It is thus elucidated by Lord Brougham, in the case of Kippell v. Bayley, 8th English Chancery Reports, 120: “ There are certain known incidents to property and its enjoyment; among others, certain burdens wherewith it may be affected, or rights which may be created and enjoined over it by parties other than the owner, all which incidents were recognized by law.
“ All kinds of property, however, all these holdings, are known to the law, and familiarly dealt with by its principles. But it must not, therefore, be supposed that incidents of a moral kind can be devised and attached to property, at the fancy or caprice of any owner. It is clearly inconvenient to the science of the law and the public weal, that such latitude should be given. There can be no harm in allowing the fullest latitude to men in binding themselves and their representatives — that is, their assets, real and personal, to answer in damages for breach of their obligations. This tends to no mischief, and is a reasonable liberty to bestow; but, great detriment would arise, and much confusion of rights, if parties were allowed to invent new modes of holding and enjoying real property, and to impress upon their lands and tenements a peculiar character, which should follow them into all hands, however remote.”
It was contended, in argument, that the only illegal conditions which could affect the validity of a testamentary disposition, were those containing prohibited subsitutions; that all other illegal or impossible conditions were to be reputed not written.
Under the hypothesis, that the words in trust, in this case, should be reputed not written, the title must have vested in the original trustees, in full ownership; and, if it did, the charge to preserve and return the property to other persons after them, would be such a substitution as would avoid the entire disposition. [414]*414gut I am satisfied that this case does not come within the rule established by al.|.jc]e J5O0 0f the code.
When the words of the testamentary disposition are sufficient to vest a legal title in the legatee, and the intention of the testator to create such a title for his benefit, to the exclusion of the heirs at law, and of all other persons, is ascertained, then, in furtherance of that intention, any impossible or illegal condition the disposition may contain, is presumed to. have been inserted inadvertently and is reputed in law, not written; but where the title, created by the will, as ascertained by the words used and the intention of the testator is a tenure of property which our laws do not recognize, the attempt to change the nature of it and to convert it into a title valid under our laws, would no longer be an interpretation of the will, but the making of a new will for the testator. When it is manifest, says Coin Delisle, that the testator has not correctly expressed his thoughts, the proper, natural and unusual sense of the words should only be departed from, to adopt the less usual and less correct sense which the will shows he gave to them, without placing arbitrarily in the place of the written disposition, another disposition which the terms used in no sense authorize; this would no longer be interpreting or explaining the will, it would be disposing for the testator. Donat, and Test, book 3, tit. 2, No. 7.
I put this case upon the principle, that when the conviction is of the essence of the title created by the bequest, and intended by the testator, so that the title cannot stand without it, if that title be one which the law does not recognize, courts of justice cannot replace it by another, and the disposition must fall.
There is another serious objection to the claim of the trustees. Art. 1477 of the code provides, that donations mortis causa may be made in favor of a stranger, when the laws of his country do not prohibit similar dispositions from being made in favor of a citizen of this State. The property bequeathed, now in controversy, is all immovable under our laws, and is to be held in Tennessee, for the benefit -of a charity created there. The trustees have not shown, that neither a citizen or a corporation of Louisiana, can take real estate by will in Tennessee, or if they can, that they would have power to hold and administer it, for a charity in Louisiana. It is said they may, because the prohibition of ■the code has exclusive reference to citizens of other countries, and should not be extended to sovereign States or corporations. This is manifestly wrong; the authority of Maekeldy, cited in support of another part of this case, shows, that under the civil law, corporations required the action of government to give them the powers of natural persons, and that they possess no others.
By the textual provision of our code, corporations legally ordained, are substituted for persons. Art. 423. Milne’s Heirs v. Milne’s Executors, 17 L.R. 54. The only questions which have heretofore arisen under that provision, were, whether corporations had the capacity to take by will, as natural persons ; it has never been pretended before, that they enjoyed all the rights without being subject to the disabilities of natural persons. It has’ been urged, that the prohibition to a citizen of Louisiana to make donations mortis causa in favor of citizens of other States, conflicts with the second section of the 4th article of the Federal Constitution, guaranteeing to the citizens of each State, all the privileges of citizens of the several States. This argument may be answered by inquiring, whether the article of the Constitution also applies to black citizens of Massachusetts or Ohio coming to Louisiana, and whether such a Iatitu[415]*415diñarían construction would not be destructive of the sovereignty of the State, as well as of the security of its inhabitants.
The disability of citizens of one State to inherit real estate in another, as well as the disabilities resulting from color in the slave States, existed before the adoption of the Federal Constitution, and during the sixty three years it has been in operation, the article invoked has never been held to apply to either class of cases. It is too late now to adopt a different interpretation.
But all this argument assumes, that there is in this case a foreign corporation created, in execution of the will of the testator. The fact is not so. The bequest is not made to a corporation to be created after the death. And I do not understand how the trustees under the will, can be viewed merely as detainers of the estate until the charity was incorporated, and the bequest itself, a naked trust, uncoupled with an interest, to be executed as soon as practicable, when the testator, so far from providing for such an incorporation, expressly directs that the trust shall be continued and pass over forever in the trustees appointed and their heirs. Nor is it true, that the trust was uncoupled with an interest. The charity of the testator began at home; the institution contemplated by him, is for the education of the descendants of the trustees, who were, in succession, to manage the trust to the end of time; they all had a direct interest in the bequest, and on that ground also, if the title was otherwise valid, I would be inclined to consider the bequest not merely as an attempt to create a perpetuity, but as containing an indefinite series of prohibited substitutions. In principle, this case cannot be distinguished from that of the Philadelphia Baptist Association et al. v. Hart’s Executors, 4 Wheaton, p. 1, decided under a system of laws, which goes further than ours in the maintenance of charitable bequests. In that case, the bequest was made in trust to an association unknown to the law; the court held, that it could not take, and that its subsequent incorporation could not give it capacity to receive, to the prejudice of the next of kin ; the court intimated, that if the trustees named in the will had been authorized to execute it, as individuals, the bequest would have been sustained, because trust estates are recognized at common law; but as they are unknown to the laws of Louisiana, the trustees in this case occupy identically the same position which the individual members of the unincorporated association occupied in the other. Chief Justice Marshall, the organ of 'the court in that case, said .in his opinion, “ the bequest was intended for a society which was not at the time, and might never be, capable of taking it; according to law, it is gone forever; the legacy is void, and the property vests, if not otherwise disposed of by the will, in the next of kin. A body corporate, afterwards created, had it even fitted the description of the will, cannot divest this interest, and claim it for their corporation.” ,
In a subsequent case, Mr. Justice Story says, with reference to that opinion, “ upon that occasion, I had prepared a separate opinion, but that of the chief justice was so satisfactory to me, that I did not deem it necessary to deliver my own.” 3 Peters, 148.
The case of Milne’s Heirs v. Milne’s Executors, already quoted, was one of a bequest per verba de futuro to corporations not then in existence, which was to take effect when the corporations should be created. And in the case of Inglis v. The Trustees of the Sailors’ Snugharbor, 3 Peters, 145, the majority of the Supreme Court of the United States, interpreted the devise as being one of the same class; neither of these cases conflicts with the decision [416]*416in the case of the Baptist Association, which is on all hands, admitted to be law. I concede, that the weight of authority, under our system of jurisprudence as well as at common law, is in favor of the validity of dispositions per verba de futuro, to corporations not in esse, to take effect when they are created. But the bequest in this case, is of a different kind; in the words of Judge Story, “ it is a devise in presentí, to persons who should be officers at the death of the testator, and to their successors in the trust; the vesting of the devise was not to be postponed to a future time, until a corporation could be created. It was to take immediate effect, as in the case of the Baptist Association. See the case of the Sailors’ Snugharbor.
It has been further urged, that the character of this legacy as a charity, entitles it to the protection of the court, and that we are bound to interpret it in the sense in which it can have effect, rather than that in which it can have none. This rule of interpretation is subordinate to the one which precedes it in the code, that in the construction of acts of last will, the intention of the testator must principally be endeavored to be ascertained, and is only applicable to cases in which that intention is left doubtful. Art. 1705.
A testament is a law, and the first duty of courts in this, as in other laws, is to ascertain the mens legislatoris; when it is once ascertained, beyond reasonable doubt, it must be followed, and the disposition stands or falls, as the intention of the testator can or not be carried into effect consistently with the rules of law. The testator’s intention in this case, was to create a perpetuity and a new tenure of property; that intention is a legal impossibility, and the disposition falls.
Under the view I have taken of the case, it is unnecessary to answer the argument, that the establishment of perpetuities by will, is not prohibited in Louisiana. I may state, however, that the powers given to testators by the code, are exceptions to the general law, regulating the devolution of property; that they are limited both as to form and substance, and that it is not enough to say, that perpetuities are not prohibited, it should be shown that they are authorized. The testator has full power to vest in his legatees the title to the property he leaves; but he cannot vest in them a title which he has not, and if he attempts to do so, the legal title of which he does not dispose, passes to his heirs at law; the extent of his power over his property after his death, is the right to separate the usufruct from the ownership for a single life. If he attempts in any manner to control the descent of the properly after the death of the first legatee, the entire disposition falls. He cannot change the nature of the title he transmits, or, in the language of Lord Brougham, “ impress upon his lands and tenements a peculiar character, which should follow them into all hands however remote;” such as would be impressed upon them by the creation of a perpetuity. His power is limited to the transmission of the title he holds. He may use, and abuse, his property, while he lives, and delegate those rights to others by will; but he must divest himself of both, when the power to use terminates; by his death the right to abuse also ceases; and if he attempts to exercise that right by creating a title which cannot be enforced, without subjecting the soil of Louisiana to the dominion of foreign laws, the disposition falls, and is superseded by the general law of successions, unless the heirs at law have themselves been superseded by other dispositions in the will.
For the reasons assigned, it is ordered, that the judgment in this case be reversed. It is further ordered, that in the settlement of the succession of [417]*417Isaac Franklin, his domicil be considered as having been in the county of Sumner in the State of Tennessee. It is -further ordered, that the compromises entered into between Mrs. Acklen and the executors, and the renunciations made by her to the community rights she might have in the property left by Isaac Franklin, be held valid and binding; and that there be judgment against her upon her claim, as common in acquets and gains. It is further ordered, that the universal bequest contained in the will in favor of James and William Franklin, in trust for the purposes therein specified, be set aside and annulled, so far as it bears on the real estate, slaves and immovables, by the destination of law in the State of Louisiana. It is-further ordered, that the said Mrs. Acklen recover from the executors and trustees of the Franklin Institute, all the said real estate, slaves and immovables, by the destination of law in Louisiana, 19-96ths in her own right as heir of her two children, Victoria and Adelicia Franklin, and the other 77-96ths as tutorix of her minor daughter Emma Franklin. It is further ordered, that the costs of the district court be paid by the succession, and those of this appeal by Mrs. Acklen.
Slidem, J.
I. “A marriage, contracted out of this State, between persons who afterwards come here to live, (s’y élablir,) is also subjected to the community of acquets, with respect to such property as is acquired after their arrival.” Civil Code, 2370.
Did Franklin and his wife live in Louisiana — were they established here, in the true sense of the language used in the code?
We are first to ascertain the true meaning of those expressions, and then apply them to the facts of the case.
My opinion is, that by these words, we are to understand the domestic domicil, the true and permanent home; that domestic hearth, where the husband and wife have surrounded themselves and their offspring with the comforts of domestic life, and from which, when he and his wife occasionally depart, for the purposes of business or pleasure, they do so with the intention to return.
I acknowledge, that when I attempt to apply these principles to the conflicting testimony in this cause, there is some difficulty. My first impression, at the oral argument, was rather in favor of Mrs. Acklen’s pretensions. But, on carefully perusing the evidence, after stripping the case of the difficulties which the untruthfulness of Franklin, in his public acts and declarations, has thrown around it, and endeavoring to ascertain the true intention, the true circumstances, the true acts, which ought to control this question, my mind has been brought to the conclusion, that the true, fixed, and permanent home of the husband and wife was in Tennessee; and that Louisiana was, both to himself and his wife, after their marriage, a temporary resort, for the purposes of business and pleasure. I consider Louisiana their transitory residence, for those purposes, during a portion of the year, and Tennessee their home.
In coming to this conclusion upon this mixed question of law and fact, I have been influenced by the well-settled legal principle, that where there is doubt upon such a question, the original home is to be considered the true home.
1 therefore conclude, that between Franklin and his wife, the community of acquets did not exist.
II. With regard to the bequest to his brothers and their heirs, forever, in trust, of certain property, the revenues to be employed in establishing and maintaining an academy in Tennessee, to be superintended by the magistrates of Sumner county, and their successors in office, as particularly set forth in the will, to [418]*418which I refer for a more full exhibition of the terms and nature of the bequest. j am cjear]y 0f opinion, and was so from my first perusal of the will, that said bequest is void, so far as concerns the immovables in Louisiana.
I consider it as establishing a tenure of property unknown to our laws, highly inconsistent with their spirit, creating an entail, and, substantially, involving, in a very aggravated form, prohibited fidei commissum and substitution.
I will observe, that it is not pretended that the testator ever had the idea of conferring a benefit upon his brothers, to whom he gave what, in the language of a foreign jurisprudence, with reference to which the will was framed, would be called the legal estate. This point has been satisfactorily discussed in the opinion of Mr. Justice Rost, and I do not think it necessary to enlarge upon it.
For the above reasons, and referring to the views of Mr. Justice Rost, in which, mainly, I concur, for an ample discussion of the law and facts, I accede to the decree prepared by him.
Eustis, O. J. After a very careful examination of the testimony concerning the place where Franklin must be held’as having lived, in ihe sensd of the code, I concur in opinion with Justices Rost and Slidell.
In relation to the validity of the trust estate attempted to be established by the will, I scarcely consider the question as an open one, in the present state of our jurisprudence; and I consider the argument in their favor, as a proposition to make an entire innovation in the law of titles to real property, and to introduce the English trust estate, in opposition to the positive prohibition of the code and the established jurisprudence on that subject.
In the prohibition of the code of 1808, which has remained unchanged by that of 1825, I think the most general and comprehensive terms which the legislator considered appropriate, have been made use of. At the commencement of the dominion of the United States in Louisiana, some of the lawyers from the old States were disposed to introduce here the system of laws with which they were familiar. It was natural for them to prefer a change which would enable them at once to make available what they had already acquired, to the toil of learning a system with which they were unacquainted, and which presented the additional difficulty of being in a foreign language. Efforts were not spared by this portion of the profession'to introduce the common law, as it has been since introduced and prevails in the other States, whose territory formerly belonged to France and Spain.
But of the members of the bar conversant with the common law, the most eminent did not favor its introduction as a general system, and the consequent exclusion of the civil law. In relation to public and personal rights in criminal proceedings, in commercial and maritime cases, the laws of Louisiana were assimilated to those of the other States; but, in relation to real property, and its tenures, the common law or the English equity system has never had place in Louisiana.
The views of these distinguished men, reflecting the evident sense of the people, were impressed on the legislation of the State. The subject was deemed of such moment, that it was not trusted to ordinary legislation; and hence the provisions, in both the Constitutions of 1812 and 1845, which prohibit the introduction of any system of laws by general reference.
In this condition of opinion, the codes of 1808 and 1825 were prepared and enacl ed. The prohibition certainly embraced the substitutions and fidei commissa of the Roman, the French and the Spanish laws. Strange, indeed, would it be if the prohibition, embracing all these, should exclude the English trusts [419]*419and retainders, with all their train of intricate and, except to the initiated, unintelligible modes and distinctions.
This prohibition was established from policy, in the interest of public order, for the purpose of preserving the simplicity of titles, which were all allodial, and which it was for the interest of society to maintain in their plain and intelligible form.
The terms made use of being thus general, the object of the legislator being known, a construction which would defeat its Salutary purpose, is not to be given to it; and such, a construction never has been given to it, to my knowledge.
Let us suppose at the time, the question had been put to the legislative council which enacted, or the jurisconsults who prepared, the code of 1808, or to the governor under whose authority it was made, whether the English trusts, executory devises, and the appurtenant jurisprudence was excluded from this prohibition, and were to be introduced into the titles to real property, can a doubt exist as to what would have been the answer ? B ut did the term, Jidei commissa, in its general sense, include trusts 1 Was it so intended, and was it so used in the prohibitive clause by the legislator ?
Kent says, “ A use is where the use of land is in A. in trust; that B shall take the profits, and that A will make and execute estates according to the direction of B.”
“In examining the history of uses, we shall find that they existed in the Roman law, under the name of Jidei commissa, or trusts,” vol. 4, p. 289.
Uses and trusts are, in their original, of a nature very similar, or rather exactly the same, answering more to the Jidei commissum than the usus fructus of the civil law. 2 Blackstone, 327.
If the word Jidei cbmmissa was used in the sense in which the learned commentators used it, it must be considered synonymous with the word trusts. Indeed, it cannot be believed that all trusts were prohibited by the code except English trusts, and that the most obnoxious of all titles, from its complicity and origin, were exempted from this sweeping prohibition and allowed to have a place among the tenures of real property.
It is true that the English trust estate did not exist under the Roman law; it had its origin at another period; but it can be assigned to no place under that system of jurisprudence except as a Jidei commissum, in its general sense. In ■ its features it certainly most resembles an usufruct, but it is not one, it wants many of the essential requisites of that title.
A trust, as attempted to be created by this will, is a right in equity to the beneficial enjoyment of lands and slaves, of which the legal title remains vested in some other person.
That Jidei commissa was held to mean trusts, has, I think, been uniformly held by our courts.
In Maihurin v. Livaudais, the testator had a son who was a slave, and he bequeathed a sum of money to the master as a part of the price of his emancipation. This legacy was attacked on the allegation of its being aJidei commissum. The court said, “ Our code declares that substitutions and fidei commissa are abolished.” But the object of this jurisprudence was, as it is well known, to prevent property from being tied up for a length of time in the hands of individuals and placed out of the reach of commerce.
The framers of our code never contemplated to abolish naked trusts, uncoupled with an interest, which were to be executed immediately. If they had, they [420]*420would not have provided, in a subsequent part of the work, for testamentary executors, described their duties and recognized the validity of their acts. The obligation imposed on the legatee, by the acts of the testator, cannot be distinguished from that of the executor, except in name. 5 M. R. 302. Judge Martin, in delivering the opinion of the court in the case of Clague v. Clague, in a clause of a will by which the executors were directed to retain the property of the succession until the majority of the testator’s children, says: “ Such a disposition is indeed afidei commissum or trust, which the law forbids.”
I do not deem it important to refer to any other decisions on this point, because I have no knowledge of any trust estate, created under the laws of this State, nor of any case in which the legality of such an estate has ever been recognized by our courts.
There are. cases in which assignments of insolvents, residing out of the State, have been recognized, and foreign assignees, syndics and mandatories have been permitted to sue for and recover property to which they were entitled, for the benefit of creditors. There are certain testamentary trusts, which so far from being prohibited, are expressly recognized by the code, and are absolutely necessary in order to carry into effect the lawful dispositions of testators.
But I am not aware of any trust estate created in Louisiana, which has been recognized as a legal ten ure, adversely to third persons having an interest. Of the difficulty of dealing with this description of title, which has sometimes been under adjudication, or deeds of trust made out of the State, some idea may be formed by referring to the cases of Ricks v. Goodrich, 3 Ann. 212. Hayden v. Nutt, 4 Ann. 65. Gaulden v. McPhaul, 4 Ann. 79.
Mr. Justice McLean, the organ of the Supreme Court of the United States, in the case of Gaines v. Chew, 2 Howards’ Reports 650, so understood the jurisprudence of this State. After quoting the article 1507, he says, “ This abolishes express trusts,” &c.
I feel at liberty to avail myself of the labors of the distinguished jurisconsults, whose memoire has been submitted to us in the case of McDonogh's will, now under advisement, and to add to my humble convictions, the well deserved weight of their learning and eminent position in the science of jurisprudence. I say, I feel myself at liberty, because their opinion on this point has no connection with anything at all questionable, which is to be decided in that case, in the judgment of any of the judges; otherwise, however strong the temptation to secure such aid, my duty would require me not to adopt it on this occasion. These learned gentlemen say, “ To us, this word fidei commissa appears to have been added to the article 896 of the French Civil Code, in the article 1507 of the Louisiana Code, in consequence of the English origin of the other States of the Union, and to prohibit, at the sametime, as much the substitutions of the old French law, as the trusts of the English law.”
I am under the conviction, that the right which a man has to dispose of his property by will, to take effect after his death, is derived exclusively from the law of the land, which has established this right as an incident to the right of property. The law has, code 476, ordained certain forms, and imposed certain conditions on this species of alienation, which are essential to its validity. Code 1453. A man has no more power to create new or prohibited modes of property, in the exercise of his right to make a will, than he has in a sale or a donation inter vivos. Between parties, they may hold their property by any tenure or terms they please; but as to the establishment of titles effecting the property [421]*421itself, there is no power in man out of the law. Nor has society any interest in attempting to cany into effect the conceits of the dead, to the disturbance of the rules of public order and policy, which regulate the living.
I am, under this conviction, relieved from the necessity of entering into any other considerations, than those which the law holds as controlling the effect to be given to this will.
It is contended in argument, that the article 1506 of the code, is to be applied to the testamentary disposition under consideration. That article provides, that in all dispositions inter vivos and causa mortis, impossible conditions, and those which are contrary to the laws or to morals, are reputed not written.
I do no't understand this article as applicable to this disposition. It is not conditional. The title it creates is absolute — a trust estate. The trust may, by inference, be called a condition, but the trust is of the essence of the title, and I consider the title not as a conditional one, but as an impossible title. I think it would be a forced and inadmissible construction to give such an application to this article. I have found no authority which would support it.
This testamentary disposition, I conceive, confers no ownership on the legatees, and the court must hold it to be inoperative and of no effect.
Having come to this conclusion, it only remains for me to state my concurrence in the decree prepared by Mr. Justice Rost.