Mr. Justice Duele
delivered the opinion of the Court:
The assigned errors are three in number, and relate respectively to the validity of the devise of the real estate to the cemetery company, the validity of the residuary bequest, and the validity of the provision for the erection of the monument.
The latter will be first passed upon. There seems to be no question that the decedent’s husband was buried in Greenwood cemetery, and no trouble arises in locating the lot. There is no trouble in carrying out the provision of the will providing for the erection of the monument, and no difficulty in upholding the clause relating to it and separating it from the other provisions attacked. The deceased was admittedly of sound mind, left no husband or children surviving her, and was under no legal obligation to leave her property for the support of her relatives. It may be conceded, as claimed, that the amount is greater than ordinarily expended for such a purpose by those in the same station of life as decedent, without warranting us in holding that the provision should be overthrown. The court below was not in error in upholding it, and we agree with the conclusion of the learned justice in upholding it and with the reasons adduced by him.
The question of the validity of the bequest of the real estate presents a more serious question. It is contended with much force that the conveyance, or attempted conveyance, of the real estate to the trustee creates a perpetuity, and is, therefore, void. If there were no' exceptions to the general provisions of the lawr applicable to the subject we would be compelled to hold that the devise was unquestionably void, but there are exceptions, and the question ultimately to be decided is whether this devise falls within the exceptions or any of them.
It is urged on behalf of the Greenwood Cemetery Company that the bequest is valid because it is for a charitable use. At least many of the cases referred to by it are cases where such bequ’ests have been sustained as being for charitable uses. We think, however, that the bequest cannot be upheld on such ground, for the weight of authorities is that bequests for the [215] care of burial lots are void as creating perpetuities, for such uses are not charitable. Bates v. Bates, 134 Mass. 110, 45 Am. Rep. 305, and many English cases there cited.
The ground upon which the bequest must be sustained, if upon any, is that the laws of the District of Columbia provide that cemetery companies incorporated under its laws can take and hold real estate and personal property, use the income thereof for the care of cemetery lots, monuments, etc.; and, though it is contended by appellants that, as the Greenwood Cemetery Company is not incorporated under the District laws, this exception contained in section 669 of the Code [31 Stat. at L. 1295, chap. 854] does not apply, yet it is admitted that the laws of the State of New York, under which the Greenwood Cemetery Company is incorporated, permit it to take real and personal property for the purpose of using the income for the care of cemetery lots, renewal of monuments, etc. It will be seen, therefore, that the policy of the law of the District of Columbia, where the deceased was domiciled, makes a clear exception to the common law, and also to the statutory law of the District, so far as cemetery companies incorporated under the laws of the District are concerned; and that the laws of the State of New York, where the proceeds of the real estate are designed to be taken, and where the trustee has its legal abode, permits the trustee to take and hold real and personal property, and creates tho same exception. It scarcely seems possible that Congress intended to be so narrow as would be the case if it intended, in permitting cemeteries incorporated under the laws of the District to take and hold property for the purpose specified, to refuse to recognize a like right in similar companies incorporated under the laws of the various States, where a like privilege was granted. We think, rather, that Congress considered that it was necessary to specify companies organized in the District in order that they could acquire and hold property for the purpose specified, and believed it unnecessary to provide that such companies, incorporated under the laws of the States in which they were given like privileges, could take real and personal property situated in the District, and which was to be [216] taken out of the District and administered elsewhere. It is fair to presume that Congress knew of and recognized the rule, now well established and generally followed, that “while the laws of the testator’s domicil govern as to the formal requisites essential to the validity of the will, the capacity of the testator, and the construction of the instrument, the validity of particular bequests depends (unless expressly prohibited by the law of the testator’s domicil) upon the law of the domicil of the legatee.” Congregational Unitarian Soc. v. Hale, 29 App. Div. 396, 51 N. Y. Supp. 704.
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Mr. Justice Duele
delivered the opinion of the Court:
The assigned errors are three in number, and relate respectively to the validity of the devise of the real estate to the cemetery company, the validity of the residuary bequest, and the validity of the provision for the erection of the monument.
The latter will be first passed upon. There seems to be no question that the decedent’s husband was buried in Greenwood cemetery, and no trouble arises in locating the lot. There is no trouble in carrying out the provision of the will providing for the erection of the monument, and no difficulty in upholding the clause relating to it and separating it from the other provisions attacked. The deceased was admittedly of sound mind, left no husband or children surviving her, and was under no legal obligation to leave her property for the support of her relatives. It may be conceded, as claimed, that the amount is greater than ordinarily expended for such a purpose by those in the same station of life as decedent, without warranting us in holding that the provision should be overthrown. The court below was not in error in upholding it, and we agree with the conclusion of the learned justice in upholding it and with the reasons adduced by him.
The question of the validity of the bequest of the real estate presents a more serious question. It is contended with much force that the conveyance, or attempted conveyance, of the real estate to the trustee creates a perpetuity, and is, therefore, void. If there were no' exceptions to the general provisions of the lawr applicable to the subject we would be compelled to hold that the devise was unquestionably void, but there are exceptions, and the question ultimately to be decided is whether this devise falls within the exceptions or any of them.
It is urged on behalf of the Greenwood Cemetery Company that the bequest is valid because it is for a charitable use. At least many of the cases referred to by it are cases where such bequ’ests have been sustained as being for charitable uses. We think, however, that the bequest cannot be upheld on such ground, for the weight of authorities is that bequests for the [215] care of burial lots are void as creating perpetuities, for such uses are not charitable. Bates v. Bates, 134 Mass. 110, 45 Am. Rep. 305, and many English cases there cited.
The ground upon which the bequest must be sustained, if upon any, is that the laws of the District of Columbia provide that cemetery companies incorporated under its laws can take and hold real estate and personal property, use the income thereof for the care of cemetery lots, monuments, etc.; and, though it is contended by appellants that, as the Greenwood Cemetery Company is not incorporated under the District laws, this exception contained in section 669 of the Code [31 Stat. at L. 1295, chap. 854] does not apply, yet it is admitted that the laws of the State of New York, under which the Greenwood Cemetery Company is incorporated, permit it to take real and personal property for the purpose of using the income for the care of cemetery lots, renewal of monuments, etc. It will be seen, therefore, that the policy of the law of the District of Columbia, where the deceased was domiciled, makes a clear exception to the common law, and also to the statutory law of the District, so far as cemetery companies incorporated under the laws of the District are concerned; and that the laws of the State of New York, where the proceeds of the real estate are designed to be taken, and where the trustee has its legal abode, permits the trustee to take and hold real and personal property, and creates tho same exception. It scarcely seems possible that Congress intended to be so narrow as would be the case if it intended, in permitting cemeteries incorporated under the laws of the District to take and hold property for the purpose specified, to refuse to recognize a like right in similar companies incorporated under the laws of the various States, where a like privilege was granted. We think, rather, that Congress considered that it was necessary to specify companies organized in the District in order that they could acquire and hold property for the purpose specified, and believed it unnecessary to provide that such companies, incorporated under the laws of the States in which they were given like privileges, could take real and personal property situated in the District, and which was to be [216] taken out of the District and administered elsewhere. It is fair to presume that Congress knew of and recognized the rule, now well established and generally followed, that “while the laws of the testator’s domicil govern as to the formal requisites essential to the validity of the will, the capacity of the testator, and the construction of the instrument, the validity of particular bequests depends (unless expressly prohibited by the law of the testator’s domicil) upon the law of the domicil of the legatee.” Congregational Unitarian Soc. v. Hale, 29 App. Div. 396, 51 N. Y. Supp. 704.
The rule of comity permitting a foreign corporation to acquire and hold lands by devise is now generally recognized, provided their charters permit them so to do, and no prohibition is found in the laws or public policy of the domestic State. 13 Am. & Eng. Enc. Law, 2d ed. p. 856. The public policy of the District of Columbia permits in express terms, as shown by express legislation, its cemetery corporations to receive such bequests. The State of New York permits the Greenwood Cemetery Company to hold such bequests as the one in question. It seems to us that it follows, from the general law of comity prevailing among the various States of the Union, that we should recognize and uphold the right of this appellee to receive the bequests provided by the will. While there is some conflict in the decisions of the courts of the various States, we think that the decisions of the United States Supreme Court, which are' controlling upon us, favor this doctrine of comity. American, & Foreign Christian Union v. Yount, 101 U. S. 352, 25 L. ed. 888. In the light of the decision in that case, it cannot be successfully contended that something which the District of Columbia permits to.its own corporations is so far against its public policy that it will not permit persons domiciled within its territory to devise their property to be used for the same purpose by a foreign corporation authorized by its own charter to receive and administer such bequests. But the position of the appellee is, we think, much stronger, for we have treated the property devised by the first clause of the will as real property. It appears that the will expressly directs.that the real estate [217] shall be sold upon the death of the life tenants, and perhaps sooner. The proceeds are to be invested in personal property. The authorities are quite well agreed that such express direction of sale, though the time of sale is not immediate, operates to convert the property into personalty from the death of the testator. Hope v. Brewer, 136 N. Y. 126, 18 L. R. A. 458, 32 N. E. 558; Reiff v. Strite, 54 Md. 298. It is unnecessary to multiply authorities upon this point. The real estate being once converted into personalty, it matters even less than in the case of real estate, to the District of Columbia, whether such property goes into the hands of a foreign corporation to be held in trust as a perpetuity, or whether it be put to other uses. The District of Columbia, and its residents, are more interested in having the right of foreign cemetery companies to take property, real and personal, situate in the District, for the purpose of the care of cemetery lots, and the maintenance and care of monuments erected thereon, recognized, than other States or their residents can be, for the reason that so many of the people domiciled in the District come from other localities, or are the descendants of those who came from such localities, and, while passing their lives here, expect upon death to be laid in cemeteries located outside the District and which are not incorporated under its laws. In considering the policy of the laws of the District, we think this fact should not be lost sight of, and, in interpreting its laws, we must bear in mind that they are enacted by Congress, which represents all sections of our common country. The law of comity should therefore be recognized, even more broadly here than elsewhere, in all questions like the one under consideration.
Irrespective, however, of the peculiar conditions which here exist, we think the weight of authority upholds the decision of the lower court; and, while we were much impressed by the full and careful presentation of appellants’ counsel, we do not find sufficient cause for holding that any error was committed in upholding clauses 1 and 12 of the will.
We do not think it necessary to here pass upon the question whether the Greenwood Cemetery Company has power, under [218] its charter, to act as trustee in the District of Columbia for property here located, and no power to convert the real estate into personalty, for the reason that equity will not allow the trust to fail for want of a trustee, but will, if necessary, appoint a trustee to carry it into effect.
There being no reversible error committed by the court below, it follows that the decree appealed from should be affirmed, with costs. And it is so ordered.
An appeal to the Supreme Court of the United States was allowed November 10, 1905.