Buchanan, J.
John Bamid Finio, of New Orleans, died, leaving a will which has been admitted to probate and execution. This will, dated the 7th November, 1855, contains the following clause:
“ It is my wish and desire, and I do hereby declare the same to be my will, that after the payment of my just debts, and the several legacies heroin above mentioned, that the proceeds of the whole of my estate, property, rights, effects and credits be applied to the erection and maintenance and support of a suitable asylum in this city, to be used solely as an asylum for Protestant widows and orphans, to be called “ Pink’s Asylum,” and I do hereby request and authorize my friend Biedericlo Bullerdiedlo, after my decease, to name and appoint three worthy and responsible persons as trustees, to carry out my said intentions respecting the aforesaid asylum.”
The plaintiffs, nearest of kin and heirs at law of the testator, pray that the above recited clause of the will be declared null and void, for the following-reasons :
1st. Because there was no person in being capable of receiving said bequest at the time of the testator’s decease.
2d. Because it creates a perpetuity, which no individual is authorized to do in a case like the present.
3d. Because of the uncertainty and vagueness of the bequest, and the omission of the testator to provide for the mode and manner in which his intentions, whatever they may have been, were to be carried into effect.
[319]*3194th. Because such testamentary dispositions are in direct opposition to the policy of the law, and could not, in a case like the present, he carried into execution, without making, as far as this disposition is concerned, an entire new will for the testator.
5th. Because the said disposition does not in reality dispose of or transfer the property therein designated to any person or persons ; and, as far as the said property is concerned, the testator must he considered to have died intestate.
In considering these objections we will he spared much labor by carefully examining who is the real devisee or legatee under this clause of Fink's will.
Note the expressions — “I will that the proceeds of my estate be applied, (after the payment of debts and of particular legacies,) to the erection and maintenance and support of an asylum in this city, to be used solely as an asylum for Protestant widows and orphans, to be called Eink’s Asylum.”
What is the object of the testator’s bounty ? Not the building to be erected; but the widows and orphans, for whom that building is to be a refuge and a home.
Again, what Protestant widows and orphans are intended ? The answer is equally clear. Protestant widows and orphans in this city; that is to say, in the city of New Orleans, where the will was made : for it is in this city, says the will, that the asylum is to he erected for Protestant widows and orphans.
The difficulty in this case has arisen principally from Mr. Fink's having-given a name to the asylum thus proposed to be built and maintained with the proceeds of his estate. But there are no words of devise to the asylum of that name. In this respect, the present case differs from that of Alexander Milne's will, reported in 17 La. Rep., 46, the doctrine of which case has been so much questioned by the counsel of plaintiffs. Milne declared in his will, his intention that an asylum for destitute orphan hoys, and another asylum for destitute orphan girls, should be established at Milneburg, in the parish of Orleans, under the name, &c., and that his executors should cause the same to be incorporated — and to the said contemplated institutions he game and bequeathed, &c., and instituted for his universal heirs and legatees the saAd institutions, &c.
We do not feel ourselves called upon to pronounce any opinion upon the correctness of the ruling of our predecessors in relation to Milne's will, containing dispositions so evidently distinguishable from those now under consideration. The only particular in which there is an apparent resemblance, is in the injunction of Fink to his executor to appoint trustees to canry out his intentions respecting the aforesaid asylum. But the language by no means implies, necessarily, what is expressed in terms unequivocal in the will of Milne, namely: that the executor or the trustees, or both together, should take measures for the incorporation of the “ Fink’s Asylum.” On the contrary, it appears to us entirely probable that the design of Fink was that his executor should nominate trustees, in whom should vest the superintendence of the erection of the asylum, and the administration of the charity, without any other or further authority than what they would derive from the appointment of the executor under the will.
Had the testator gone so far as to name those trustees himself, and to vest his estate in them for the objects and purposes expressed, the will would have been void under Article 1507 of the Louisiana Code. The case of Franklin’s [320]*320Succession, in 7th Annual Reports, would then have been directly in point. On the other hand, the design of the testator may have been that the trustees, so to be appointed by his executor, should merely advise and aid in all means sanctioned by law for the accomplishment of the testator’s intention of founding an asylum for Protestant widows and orphans in the city of New Orleans. And were we compelled to give an interpretation of this clause of the will, in reference to the object of the proposed appointment of trustees, we would undoubtedly feel bound to understand this disposition in a sense in which it could have effect, if possible, rather than one in which it could have none. C. C. 1706. But no interpretation of this disposition is necessary. On its face, it is a delegation by the testator to a third person of the choice of administrators of a portion of the estate; and as such, by Article 1566 of the Code, is amere nullity, and, under Article 1506, must be considered as not written.
Viewing, then, the Protestant widows and orphans in the city of New Orleans as the true residuary legatees of John D. Finis, we are dispensed from any remark upon the first ground of plaintiffs, to wit, that there was no person in being at the time of the testator’s death, capable of receiving said bequest.
The second ground of objection is, that the will creates a perpetuity; which, say the plaintiffs, no individual is authorized to do in a case like the present.
It is not perceived by us that this will creates a perpetuity, in any other sense than every institution of heir by testament creates a perpetuity. The death of the testator invests the instituted heir with all rights to the same extent as they were possessed by the deceased. O. C. 934, 937. And this is alike the case, whether the instituted heir be a natural person or a mere legal entity, or a class of destitute or afflicted persons, objects of the testator’s charity.
The third, fourth and fifth grounds of objection to Finis's will, may be considered together. They present, in different aspects, the uncertainty of the objects of the testator’s benevolence, as objections to the validity of his will.
Article 1536 of the Code sanctions a donation to the poor of a community. And note that the word community
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Buchanan, J.
John Bamid Finio, of New Orleans, died, leaving a will which has been admitted to probate and execution. This will, dated the 7th November, 1855, contains the following clause:
“ It is my wish and desire, and I do hereby declare the same to be my will, that after the payment of my just debts, and the several legacies heroin above mentioned, that the proceeds of the whole of my estate, property, rights, effects and credits be applied to the erection and maintenance and support of a suitable asylum in this city, to be used solely as an asylum for Protestant widows and orphans, to be called “ Pink’s Asylum,” and I do hereby request and authorize my friend Biedericlo Bullerdiedlo, after my decease, to name and appoint three worthy and responsible persons as trustees, to carry out my said intentions respecting the aforesaid asylum.”
The plaintiffs, nearest of kin and heirs at law of the testator, pray that the above recited clause of the will be declared null and void, for the following-reasons :
1st. Because there was no person in being capable of receiving said bequest at the time of the testator’s decease.
2d. Because it creates a perpetuity, which no individual is authorized to do in a case like the present.
3d. Because of the uncertainty and vagueness of the bequest, and the omission of the testator to provide for the mode and manner in which his intentions, whatever they may have been, were to be carried into effect.
[319]*3194th. Because such testamentary dispositions are in direct opposition to the policy of the law, and could not, in a case like the present, he carried into execution, without making, as far as this disposition is concerned, an entire new will for the testator.
5th. Because the said disposition does not in reality dispose of or transfer the property therein designated to any person or persons ; and, as far as the said property is concerned, the testator must he considered to have died intestate.
In considering these objections we will he spared much labor by carefully examining who is the real devisee or legatee under this clause of Fink's will.
Note the expressions — “I will that the proceeds of my estate be applied, (after the payment of debts and of particular legacies,) to the erection and maintenance and support of an asylum in this city, to be used solely as an asylum for Protestant widows and orphans, to be called Eink’s Asylum.”
What is the object of the testator’s bounty ? Not the building to be erected; but the widows and orphans, for whom that building is to be a refuge and a home.
Again, what Protestant widows and orphans are intended ? The answer is equally clear. Protestant widows and orphans in this city; that is to say, in the city of New Orleans, where the will was made : for it is in this city, says the will, that the asylum is to he erected for Protestant widows and orphans.
The difficulty in this case has arisen principally from Mr. Fink's having-given a name to the asylum thus proposed to be built and maintained with the proceeds of his estate. But there are no words of devise to the asylum of that name. In this respect, the present case differs from that of Alexander Milne's will, reported in 17 La. Rep., 46, the doctrine of which case has been so much questioned by the counsel of plaintiffs. Milne declared in his will, his intention that an asylum for destitute orphan hoys, and another asylum for destitute orphan girls, should be established at Milneburg, in the parish of Orleans, under the name, &c., and that his executors should cause the same to be incorporated — and to the said contemplated institutions he game and bequeathed, &c., and instituted for his universal heirs and legatees the saAd institutions, &c.
We do not feel ourselves called upon to pronounce any opinion upon the correctness of the ruling of our predecessors in relation to Milne's will, containing dispositions so evidently distinguishable from those now under consideration. The only particular in which there is an apparent resemblance, is in the injunction of Fink to his executor to appoint trustees to canry out his intentions respecting the aforesaid asylum. But the language by no means implies, necessarily, what is expressed in terms unequivocal in the will of Milne, namely: that the executor or the trustees, or both together, should take measures for the incorporation of the “ Fink’s Asylum.” On the contrary, it appears to us entirely probable that the design of Fink was that his executor should nominate trustees, in whom should vest the superintendence of the erection of the asylum, and the administration of the charity, without any other or further authority than what they would derive from the appointment of the executor under the will.
Had the testator gone so far as to name those trustees himself, and to vest his estate in them for the objects and purposes expressed, the will would have been void under Article 1507 of the Louisiana Code. The case of Franklin’s [320]*320Succession, in 7th Annual Reports, would then have been directly in point. On the other hand, the design of the testator may have been that the trustees, so to be appointed by his executor, should merely advise and aid in all means sanctioned by law for the accomplishment of the testator’s intention of founding an asylum for Protestant widows and orphans in the city of New Orleans. And were we compelled to give an interpretation of this clause of the will, in reference to the object of the proposed appointment of trustees, we would undoubtedly feel bound to understand this disposition in a sense in which it could have effect, if possible, rather than one in which it could have none. C. C. 1706. But no interpretation of this disposition is necessary. On its face, it is a delegation by the testator to a third person of the choice of administrators of a portion of the estate; and as such, by Article 1566 of the Code, is amere nullity, and, under Article 1506, must be considered as not written.
Viewing, then, the Protestant widows and orphans in the city of New Orleans as the true residuary legatees of John D. Finis, we are dispensed from any remark upon the first ground of plaintiffs, to wit, that there was no person in being at the time of the testator’s death, capable of receiving said bequest.
The second ground of objection is, that the will creates a perpetuity; which, say the plaintiffs, no individual is authorized to do in a case like the present.
It is not perceived by us that this will creates a perpetuity, in any other sense than every institution of heir by testament creates a perpetuity. The death of the testator invests the instituted heir with all rights to the same extent as they were possessed by the deceased. O. C. 934, 937. And this is alike the case, whether the instituted heir be a natural person or a mere legal entity, or a class of destitute or afflicted persons, objects of the testator’s charity.
The third, fourth and fifth grounds of objection to Finis's will, may be considered together. They present, in different aspects, the uncertainty of the objects of the testator’s benevolence, as objections to the validity of his will.
Article 1536 of the Code sanctions a donation to the poor of a community. And note that the word community in this Article means a municipal corporation. The word in the French text is commune, which has that signification. The Article is copied, word for word, from Article 937 of the Code Napoleon. Although Article 1536 is found under the head of donations inter vinos, its dispositions have been interpreted by this court in the case of the Succession of Joseph COlaude Mary, 2 Rob. 438, to be applicable to donations mortis causa.
Among the legacies contained in the will of Many, was one of five thousand dollars “to the Orphans of the First Municipality and the decision of the court was “that, under Article 1536 of the Civil Code, the city council of the First Municipality will be competent to claim and receive the legacy, and regulate its distribution among the intended objects of the testator’s munificence to be found within the limits of the First Municipality.” Surely the words “Protestant widows and orphans” used in Finis's will, in connection with other words which, as we have said, indicate with certainty his meaning to be “Protestant widows and orphans in the city of New Orleans,” are words as definite and precise as the words used in Many's will, “ orphans of the First Municipality.” This general form of expression is sanctioned by the law quoted.
Neither does it appear to us that the qualification “Protestant” of the nouns-substantive, “ widows and orphans,” is so vague, as to vitiate this bequest. It [321]*321will be for the administrators of this charity to determine what widows and what orphans came under the denomination of “Protestant.”
The cases of the Philadelphia Baptist Association v. Hart, in 4 Wheaton; of Inglis v. Trustees of Sailors' Snug Harbor, 3 Peters, and Vidal v. Girard's Executors, 2 Howard, have been much discussed in argument.
• There is much curious learning in those cases on the subject of the jurisdiction the Courts of Chancery oyer charities and testamentary trusts, very little of which has any application in Louisiana. The point which those decisions of the Supreme Court of the United States were used to elucidate, the validity of a devise to a corporation, not in essee at the time of the opening of the succession of the testator, we have deemed unnecessary to consider herein, as we regard the devise in Fink's will as a ,devise to “ the Protestant widows and orphans in New Orleans” and not to the “ Pink’s Asylum.” To the same point, we have been referred to the law 62 of the title de heredibus instit/uendis of the Roman Digest (book 28, title 5) and the commentaries of two standard German authorities, Mackeldey and Miihlenbruch, upon that law; also to the writings of the French jurists Coin-Dolisle, Troplong and others, commenting the 910th Article of the Code Napoleon, an Article which is not copied in our Code.
Did our subject require it, we would be pleased to review the doctrines of these authorities, all of the first rank in three different systems of jurisprudence. We have perused them with care, and with much edification, and may-remark en passant that the doctrine pf the Supreme Court of the United States^ in the cases of the Philadelphia Baptist Association and of the Sailors’ Snug Harbor, seems very like that of the Supremo Court of Louisiana in the cases of Hilnds and of Franklin's wills. The distinction of bequests per verba de presentí and bequests per verba de futuro, so strongly drawn by both those courts, and which constituted the point of difference between the cases of the Baptist Association and the Sailors’ Snug Harbor, decided by the one, and those of Hilne and of Franklin, decided by the other, was no less decisive of the interpretation of the wills of Staedel and of Blum, as reported by Miihlenbruch, cases which, says that learned commentator, attracted the attention of all Germany. Gliick’s Illustration of the Pandects, continued by Miihlenbruch, vol. 40, pages 89 to 10S.
Yet this distinction seems entirely unknown to the French jurists, perhaps because our Article 1460, which recognizes it, is not found in the French Code. An approach was made to the recognition of this distinction, and of the rule of the Roman law, “hceres esto, cum capero potuerit," in a decision of the Court of Cassation in March, 1854, commented by Troplong, 2d Donations et Testamens, p. 198 etseq., but it seems very questionable whether that decision is regarded as law in France.
A corporation has been formed, by the title of the “Fink’s Asylum,” under the Act of 14th March, 1855, “for the organization of corporations for literary, scientific, religious and charitable purposes," and has intervened herein, claiming- to be the devisee under the clause of the will in question; and as such, to be entitled to take the residue of the estate, after the payment of the debts and particular legacies. The remarks already made by us are decisive of the intervention. The chai'ity created by this will, in our opinion, is legally to be administered only by the city corporation of New Orleans.
It is, therefore, adjudged and decreed, that the judgment of the District Court, so far as regards the plaintiffs, be reversed; that there be judgment [322]*322against plaintiffs, declaring the will of John Devoid FinTc to be legal and valid; that, as to the intervenor, the Fink’s Asylum, the judgment be affirmed dismissing said intervention; that the costs of the lower court be borne by plaintiffs, except those of the intervention, which are to be paid by the intervenor; and that the costs of appeal be paid jointly by the plaintiffs and the intervenor.
George Eustis, Robert Preaux and P. E. Donford, for a re-hearing:
Neither in the written nor in the oral discussions which have taken place, upon the universal disposition contained in Finis's will, was it suggested that the heir, instituted by that disposition, was in esse at the death of the testator.
If, then, we press with more than usual earnestness our demand for a reargument of this cause, our apology must be found in the fact that the decision of the court conveyed to us the first intimation that there existed in the disputed clause, the elements of a present devise to persons capable of taking when the succession was opened.
In the following views, which we have hurriedly thrown together, we shall endeavor to establish, that the disposition will not bear the interpretation placed upon it by the court; and that even if it did, it would be inoperative to defeat the title of the legal heirs. In the limited time allowed for the preparation of applications like the present, a careful and well considered treatment of the subject is hardly practicable.