Moore, J.
The judgment in this case must necessarily be reversed. The verdict is defective in respect to a material issue, upon which the plaintiff’s right to a recovery in part depended. The plaintiff, Mrs. Acklin, claims the property in controversy as-the surviving mother and an heir of the children and heirs of her former husband, Isaac Franklin. Although this fact is put in issue by the pleadings, yet the, necessity of the jury passing upon it seems, in the hurry of business in the District Court, to have been overlooked. In remanding the case; however, it will be proper to express the conclusions at which the court have arrived upon-the questions that are involved in its final determination.
It is not necessary to determine whether the parol evidence off title offered by the plaintiffs would have been sufficient, of itself,to have entitled them to a recovery. At the date of the sales, in-proof of which the testimony -was offered, a parol sale was as valid and effectual to pass the title of land as a conveyance in writing,, if possession of the land accompanied the sale. Whether all of the [192]*192-different parties who purchased the lot by parol took such actual possession as was necessary to the validity of their contracts, need not be discussed. The evidence before the court shows that both parties claim the lot under and through Pleasant Branch Cocke; and the subsequent links in the plaintiffs’ chain of title were not defective in this particular. It is a well established rule, in actions involving the title of land, that a plaintiff need not deraign title beyond the common source under which he and the defendant claim.
The appellants, who were the defendants in the court below, insist that the effect of the deed from Cocke, under which the plaintiffs claimed, was to pass the legal title to the lot to Shepperd. And although it may have been the intention that he should hold the lot as the agent and in trust for Franklin; yet, as the latter was an alien the trust was illegal, and he did not therefore acquire even an equitable right to the lot. The appellants have mistaken the import of the deed. It is not a conveyance to Shepperd as the agent of Franklin, but the title is made directly to the latter, who merely contracts and purchases by his agent and attorney in fact, Shepperd.
Appellants have also insisted, but without the slightest foundation upon principle or authority, that as the proof upon which Franklin’s will was admitted to probate in the State of Louisiana, would have authorized its admission to probate in this State, a certified copy of it from the records of the proper court in that' State might, by virtue of the act of congress giving full faith and credit to the records and proceedings of the courts of each State of the Confederacy in those of the other "States, be used in the courts' here as a muniment of title, without the probate of the,will in this State. This position is in direct contravention to the elementary doctrine in the law of real property, that the title to land can only be affected by the lex loci rei sites. The records, judgments and proceedings of the courts in one State can, in no particular, or under any circumstances, affect or pass the title of land situated in another. When courts of equity have jurisdiction of the person, they may compel a party to convey lands beyond their juris[193]*193diction; but, in all such eases, it is the act of the party, and not the decree of the court, which effects the title.
This question, however, in the view taken of the case, is unimportant, and would not have been adverted to, but for the fact that it was insisted upon by counsel with much assiduity. Upon the copy of the will offered in evidence, was indorsed an agreement by the counsel of the appellees, that they waived its filing and record. It might be urged, with some plausibility, that this agreement does not waive or admit the probate of the will. But on an application for its probate, its execution need not have been proved; and the only order that the court could have made with reference to it, would have been, that it should be “filed and recorded.” (Hart. Dig., art. 1114.) It would seem, then, to be but a fair construction to give to this agreement, to hold that it, in effect, admits that the preliminary steps had been taken, which alone would have authorized its filing and record. And this the counsel for both parties say was the object and intention of the agreement, and the construction they wished to see placed upon it by the court.
The will being properly before the court, its construction gives rise to several questions, some of which are of great importance and much difficulty. The first of these, and that of most ready solution is, did the testator, Franklin, by his will, devise his land situated in the Republic of Texas, which was as to him at that time, a foreign government? In the first clause of the eighth item of his will, he says: “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 in any other common law State, where trust estates can be created,” &c. The leading object in the construction of wills is, to ascertain and give effect to the intention of the testator, and, guided by this rule, there can be but little doubt in concluding that the testator’s lands in Texas were devised by his will. His manifest intention was to convey all his property by this clause of his will, that was situated where by law trust estates, such as he was providing for in his will, could be created; and the phraseology of the sentence makes it manifest, that he supposed that this could be done in common law States. In Texas trust estates could be created; the common law was in [194]*194force; and although not then one of the States of the American Union, it was, in a technical and legal sense, a common law State. It would he unreasonable to conclude that by “other common law States,” only the other States of the Union besides those named were referred to, in none of which does it appear that he had property; and that he should have left the large amount of land, "which ultimately, for the purposes of his will, must he very valuable, undisposed of, although there was nothing to prevent his-doing so, in the manner and for the purpose for which he evidently wished to dispose of all of his property, except that embraced in ’ the special bequests in his will. If there could be any doubt about it, it is certainly removed by the still stronger and broader language subsequently used in the same item of the will, in which he makes the devise extend to all “the rest and residue of his estate wherever situated.”
It is also .insisted by the appellees, and was so ruled in the District Court, that Isaac Franklin’s will is inoperative and void in this State, to the extent of three fourths of his estaté, because, as they allege, it contravenes the provisions of our former statute of wills, which forbid a parent depriving his children by will of more than one-fourth of his estate. To this appellants reply, that this provision of the statute is not applicable to the wills of non-residents, unless their children are citizens. But no satisfactory reason has been given, upon which such a distinction can be rested. It has never been questioned, that the right to dispose of property conferred by the statute, extends equally to residents and non-residents.
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Moore, J.
The judgment in this case must necessarily be reversed. The verdict is defective in respect to a material issue, upon which the plaintiff’s right to a recovery in part depended. The plaintiff, Mrs. Acklin, claims the property in controversy as-the surviving mother and an heir of the children and heirs of her former husband, Isaac Franklin. Although this fact is put in issue by the pleadings, yet the, necessity of the jury passing upon it seems, in the hurry of business in the District Court, to have been overlooked. In remanding the case; however, it will be proper to express the conclusions at which the court have arrived upon-the questions that are involved in its final determination.
It is not necessary to determine whether the parol evidence off title offered by the plaintiffs would have been sufficient, of itself,to have entitled them to a recovery. At the date of the sales, in-proof of which the testimony -was offered, a parol sale was as valid and effectual to pass the title of land as a conveyance in writing,, if possession of the land accompanied the sale. Whether all of the [192]*192-different parties who purchased the lot by parol took such actual possession as was necessary to the validity of their contracts, need not be discussed. The evidence before the court shows that both parties claim the lot under and through Pleasant Branch Cocke; and the subsequent links in the plaintiffs’ chain of title were not defective in this particular. It is a well established rule, in actions involving the title of land, that a plaintiff need not deraign title beyond the common source under which he and the defendant claim.
The appellants, who were the defendants in the court below, insist that the effect of the deed from Cocke, under which the plaintiffs claimed, was to pass the legal title to the lot to Shepperd. And although it may have been the intention that he should hold the lot as the agent and in trust for Franklin; yet, as the latter was an alien the trust was illegal, and he did not therefore acquire even an equitable right to the lot. The appellants have mistaken the import of the deed. It is not a conveyance to Shepperd as the agent of Franklin, but the title is made directly to the latter, who merely contracts and purchases by his agent and attorney in fact, Shepperd.
Appellants have also insisted, but without the slightest foundation upon principle or authority, that as the proof upon which Franklin’s will was admitted to probate in the State of Louisiana, would have authorized its admission to probate in this State, a certified copy of it from the records of the proper court in that' State might, by virtue of the act of congress giving full faith and credit to the records and proceedings of the courts of each State of the Confederacy in those of the other "States, be used in the courts' here as a muniment of title, without the probate of the,will in this State. This position is in direct contravention to the elementary doctrine in the law of real property, that the title to land can only be affected by the lex loci rei sites. The records, judgments and proceedings of the courts in one State can, in no particular, or under any circumstances, affect or pass the title of land situated in another. When courts of equity have jurisdiction of the person, they may compel a party to convey lands beyond their juris[193]*193diction; but, in all such eases, it is the act of the party, and not the decree of the court, which effects the title.
This question, however, in the view taken of the case, is unimportant, and would not have been adverted to, but for the fact that it was insisted upon by counsel with much assiduity. Upon the copy of the will offered in evidence, was indorsed an agreement by the counsel of the appellees, that they waived its filing and record. It might be urged, with some plausibility, that this agreement does not waive or admit the probate of the will. But on an application for its probate, its execution need not have been proved; and the only order that the court could have made with reference to it, would have been, that it should be “filed and recorded.” (Hart. Dig., art. 1114.) It would seem, then, to be but a fair construction to give to this agreement, to hold that it, in effect, admits that the preliminary steps had been taken, which alone would have authorized its filing and record. And this the counsel for both parties say was the object and intention of the agreement, and the construction they wished to see placed upon it by the court.
The will being properly before the court, its construction gives rise to several questions, some of which are of great importance and much difficulty. The first of these, and that of most ready solution is, did the testator, Franklin, by his will, devise his land situated in the Republic of Texas, which was as to him at that time, a foreign government? In the first clause of the eighth item of his will, he says: “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 in any other common law State, where trust estates can be created,” &c. The leading object in the construction of wills is, to ascertain and give effect to the intention of the testator, and, guided by this rule, there can be but little doubt in concluding that the testator’s lands in Texas were devised by his will. His manifest intention was to convey all his property by this clause of his will, that was situated where by law trust estates, such as he was providing for in his will, could be created; and the phraseology of the sentence makes it manifest, that he supposed that this could be done in common law States. In Texas trust estates could be created; the common law was in [194]*194force; and although not then one of the States of the American Union, it was, in a technical and legal sense, a common law State. It would he unreasonable to conclude that by “other common law States,” only the other States of the Union besides those named were referred to, in none of which does it appear that he had property; and that he should have left the large amount of land, "which ultimately, for the purposes of his will, must he very valuable, undisposed of, although there was nothing to prevent his-doing so, in the manner and for the purpose for which he evidently wished to dispose of all of his property, except that embraced in ’ the special bequests in his will. If there could be any doubt about it, it is certainly removed by the still stronger and broader language subsequently used in the same item of the will, in which he makes the devise extend to all “the rest and residue of his estate wherever situated.”
It is also .insisted by the appellees, and was so ruled in the District Court, that Isaac Franklin’s will is inoperative and void in this State, to the extent of three fourths of his estaté, because, as they allege, it contravenes the provisions of our former statute of wills, which forbid a parent depriving his children by will of more than one-fourth of his estate. To this appellants reply, that this provision of the statute is not applicable to the wills of non-residents, unless their children are citizens. But no satisfactory reason has been given, upon which such a distinction can be rested. It has never been questioned, that the right to dispose of property conferred by the statute, extends equally to residents and non-residents. Why, then, shall we conclude that the limitation upon this right, as to the one class of testators, is not equally applicable to the other ? At the time of the enactment of this law, the legislature deemed that sound policy required that the unlimited power of the owner of property to dispose of it by will, should be to some extent limited in favor of children. It was surely not the intention of our law-makers to confer upon non-residents a more enlarged privilege of disposing of their property, than it was thought fit should be enjoyed by our own citizens.
On the other hand, the position assumed by appellants, that the court, in applying this statute to the will, can only take into view [195]*195the property of the testator situated in this State, is equally fallacious. The only limitation upon the right of the owner to dispose of his property by will has reference to the proportional part of the value of his estate. In other respects, his discretion is unshackled. The authority to dispose of his property by will is general; the limitation or qualification of this right is special and* particular. In the nature of things, it is impossible that a part of each specific article of property should be allotted to the children. To deprive the testator of the privilege of selecting the item of property for bequest, would often, if not generally, take from him the incentive for making it. The object of the law was to secure to children a just and reasonable portion of their parents’ estate. If they received the portion to which the law declared they were entitled, it was immaterial where or in what they received it. It is not to be understood from this, that there may not be cases in which our courts would refuse to send our citizens abroad, to encounter difficulties and uncertainties in obtaining their portion of their parents’ estate in a foreign tribunal, to enable the devisees or legatees to secure the full amount of them bequests here. The question presented in this case is, can the children, or those claiming under them, if they have already received their legitimate portion of the entire estate, claim a like proportional part of the property in this State, simply because the portion which they have received was not within its limits, or within the jurisdiction, or under the control of, our courts? To answer in the affirmative would be to give the statute in question a construction altogether foreign to its spirit and purpose, as well as to violate a fundamental principal in this department of jurisprudence. A party will not be permitted to take under, and at the same time adversely to, a will. (1 Jarmon on Wills, 385.) Whether the children of Franklin, or tholie now claiming in right of them, have received the proportion-of his estate to which they were entitled under our statute in force at the time of his death, is a question of fact which we need not at present discuss. If this can be done in the attitude in which this cause was presented in the court below, the evidence offered to the court was insufficient to enable it to dispose of the case consistently [196]*196with the respective rights of the parties. The verdict of the jury ’ is, in this particular, altogether defective.
There appears, however, a still more serious difficulty in the appellees recovering the property, in opposition to the bequest of the will, by their present suit. A will is not void because the testator may have attempted to bequeath more than the disposable portion of his estate; it is only voidable' to the extent of the excess. The agreement to waive the filing and recording of the will must be construed, as has been said, as an admission that it stands before the court as properly probated. This being the case, to raise the question of its validity, in the present suit, would be to attack it in a collateral proceeding. The will, when admitted to probate, is presumptively valid and good. It remains so until its invalidity is established in a direct proceeding between the proper parties in the proper tribunal. (Hodder v. Shepperd, 1 La., 184; Miller v. Andrews, 1 La., Annl., 237.)
There remains but one other question that need be discussed. Appellees’ counsel have maintained, in an argument of much zeal and cogency, that the special bequest in Franklin’s will in favor of his brothers, upon the trusts therein declared, is in violation of our constitutional prohibition of perpetuities and entailments; and that the court must, therefore, hold it illegal and void. The solution of this question depends upon the fact, whether the devise in question can be sustained as a bequest for charitable uses. If so, it must be conceded, that it does not come within the constitutional inhibition referred to. (See Griffin v. Graham, 1 Hawks, 96; The State v. McGown, 2 Iredell’s Eq. R., 9; Bell County v. Alexander, 22 Tex., 350.) Otherwise it would result that neither churches, schools, societies, or corporations, intended for the public good, could be endowed or maintained in usefulness beyond a limited period.
The leading objections that have been urged against this bequest are : first, that the trust is in favor of the issue of the testator and his brothers and sisters, who are so specifically and certainly designated that it must be held to be a gift, and not a charity, the essence of which is uncertainty of beneficiaries. Second, the leading object of the will is to make provision for the [197]*197education of the descendants of the testator and his brothers and sisters. That the provision in favor of the poor of Sumner county is contingent and incidental, and that a provision of this sort for one’s own family, is not a charitable use. Third, if the trust should be construed to be in favor of the academy or seminary to be on the Fairview plantation, it must fail, there being no cestui que trust in existence at the testator’s death, in whose, favor it could be executed.
If bequests for charitable uses have been the means of much social good, they are certainly chargeable with great countervailing evils, and have often been the source of great corruption and abuse. They have, perhaps, more frequently proved the subject of protracted, wasting and perplexing litigation, than of- public utility or the successful means of accomplishing the objects of their donors. If the laws and the decisions of the courts by which they are upheld and sustained, had not long since become firmly incorporated into our judicial system, much might, and undoubtedly would be urged against both the policy and propriety of doing so. It may, perhaps, also with truth be said that this doctrine presents one among a number of instances which might be enumerated, in which the courts have by precedent upon precedent, engrafted into our jurisprudence principles and doctrines which have no legislative authority to sustain them, if in fact they are not frequently repugnant to it. And although at a later day their policy and legality may be questioned, doubted or denied, yet so firmly have they become fixed, each new occasion that furnishes an opportunity for questioning them, furnishes a precedent for sustaining them. They have their origin generally, no doubt, in impulses and feelings that permeate society, or from the passions or sentiments, whether for good or ill, which find a response in almost every bosom. It cannot be questioned that one of the strongest and most universal of these sentiments, by which all men seem actuated, is the desire in some way or other to perpetuate our names or connect ourselves with posterity. It stimulates the patriot to noble deeds in the senate and the field; even the child wants some memorial to mark his grave that it may not be forgotten. With one it leads to entail[198]*198mente and family settlements; others would make the hoarded treasures of their life a fountain of charity for all future time; and while the former of these feelings has been reprobated and forbidden because selfish and 'injurious to the public, the latter, for the contrary reasons, has been upheld and maintained, at least by the courts.
The two first objections to the bequest, present substantially the same question. They differ rather in the manner of stating the objection, than in bringing before us distinct legal propositions. Uncertainty of individual object has often been said to be a characteristic of charity, and if the beneficiary is certain it is a gift and not a charity. This must be understood, however, to some extent as referring to certainty of individuals, to whom as such the bequest is made, and not to certainty of a class of individuals from whom the beneficiaries shall come. In determining whether the bequest in question is a mere gift, or a charitable use, it is necessary to ascertain the intention of the testator. Was the purpose of the will to make simply a provision for the education of his own descendants, and those of his brothers and sisters, or was it for the endowment of an institution of learning for all time, where these persons as a class might have preference, and, if the fund was sufficient, then the poor of Sumner county? When we look at the will there can be but little doubt that the latter’was its object. The amount of the donation, the manner of its administration, the time and circumstances under which the academy was to go into operation; the ample provision otherwise made for the support and education of his children; the solemn appeal to them to aid in carrying his design into effect; the means provided for selecting the children who could be educated; in short, every provision of the will points manifestly to the fact that the leading object of the testator’s life had doubtless been to acquire a fund to endow a charitable institution of learning. For this he had, early and late, toiled and plodded many a weary day and night; for this he had hoarded and accumulated the splendid fortune which he had amassed during a long and successful life; and for this he had charged his executors with the duty of still further accumulations. While the children who were to be educated were the [199]*199beneficiaries, they were to have no interest in or control over the property. In the course of time the descendants of his brothers and sisters might become so numerous that all of them could not be educated, and it would be uncertain who of them would be selected. If all could be received, it was uncertain who of them would submit to the conditions imposed. There is no difference in the interest conferred on those, and on such poor children as might also be received. The beneficiaries are also uncertain-, by reason of the continued fluctuations of those who are to be its recipients.
Nor does the fact that a preference is given to persons of the blood of the testator, take from the bequest the character of a charity. In the case of the Attorney General r. Price, 17 Ves. Rep., 371, it was held that a “ devise to A. and his heirs, with direction that yearly he and his heirs shall forever divide and distribute, according to his and them direction, amongst the testator’s poor kinsmen and kinswomen, their offspring and issue dwelling in the county of B., twenty pounds by the year,” ,was a good charitable devise. (See also Andrews, v. The General Theological Seminary of the Protestant Episcopal Church, 4 Seld. N. Y. Rep., 559; White v. White, 7 Ves., 422.)
And although the relief of the poor, or a benefit to them in some way, is in its popular sense a necessary ingredient in a charity, this is not so in view of the law, by which it is defined to be “ a gift to a general public use,” which extends, or doubtless may do so, either to the rich or the poor. (1 Bouv. L. D. Charity, 223.) An institution of learning for the education of gentlemen’s sons has been held a proper devise to charitable uses. (Attorney General v. Lord Lonsdale, 2 Eng. Ch. R., 105.)
Notwithstanding the strong and marked phraseology in that part of the will directing the erection of an academy or seminary for the education of the descendants of the testator, and of his brothers and sisters, it would be but a narrow and litteral construction of an isolated paragraph, without regard to the context, or the object and spirit of the testator as manifested by the entire body of the instrument, to conclude that his leading object was to make a provision for them. When the will is looked to as [200]*200an entirety, it will be readily seen that while the testator intended a preference to those of his blood, yet he looked to them merely as a class of persons from which the recipients of the charity might be selected; and if this class failed, or the fund should exceed their necessities, instructed by the author of all wisdom, that the poor we have always with us, he designed that his bounty should be a perpetual and enduring monument to his name, and of public use for the education of future generations, through all time to come. If the testator was actuated merely by the selfish purpose of advancing the descendants of his own blood, the record in this case admonishes us how vain and short sighted are all such hopes. Even before the limited period had elapsed which he deemed necessary for inaugurating the enterprise which he cherished with so much affection, a stranger occupied his bed, and children not of his loins inherited the property bequeathed to his own issue; and those who bear not his name, and in whose veins there flows not a drop of his blood, are now fighting for the remnant of the property which he designed as a bequest for charity, in preference to its bestowal upon his own family or friends.
It cannot be said that the bequest in favor of the poor of Sumner county, is too vague and uncertain a description of the beneficiaries to be sustained as a charity in our courts, where the English doctrine of cy-pres has never been recognized. Though this point may, at one time, have been a ground of much debate, it is now too firmly settled to admit of question. (See Bell county v. Alexander, 22 Tex., 350 ; Vidal v. Girard, 2 How., 56 ; McDonough v. Murdoch, 15 How., 367, and cases there cited.)
It is, also, said that the bequest is void because it was intended to operate in favor of an unincorporated institution; in fact, one that had, at the testator’s death, only an imaginary and ideal existence in his brain. And to sustain this position, the case of the Baptist Association v. Hart, 4 Wheat, 1, has been referred to; but this case has, in subsequent decisions in the same high tribunal, been much questioned. But whatever may be its weight as an authority, it is not applicable to the case now before the court. The bequest in that case was directly to the unincorporated association ; here it is. to trustees, who are capable of taking the esr. [201]*201tate. In such cases it has been frequently held that the subsequent incorporation of the beneficiary of the trust, within a reasonable time, is sufficient to support and maintain, the bequest. (See Milne v. Milne, 17 La., 54; Inglis v. The Sailors Snugharbor, 3 Pet., 112, and many cases to the same point are collected in the great argument of Mr. Binney, in support of the will of Stephen Girard.)
But without the aid of the subsequent incorporation of the “ Franklin Institute,” the trust was effectual in favor of the beneficiaries pointed out in the will. It was supported by the bequest to trustees, and their execution of it could have been enforced by the beneficiaries in a court of equity. (See Williams v. Williams, 4 Seld., 525; Griffin v. Graham, 1 Hawks, 96 ; The State v. McGowen, 2 Ired., Eq. R., 9; Bartlett v. Nye, 4 Met., 378 ; Washburn v. Sewell, 9 Met., 280; Gibson v. McCall, 1 Rich., S. C., 174; Shotwell v. Mott, 2 Sandf., Ch. R., 46.) In Moggridge v. Thackwell, 7 Yes. Jr., 36, it is said “ when an ascertainable object is designated by the donor, in general or collective terms, as the poor of a given county or parish, or when a person is appointed by him to select a described portion, or kind, or number from a designated class, the chancellor, sitting as judge in equity, will interpose upon the ground of trust.” And in Moore v. Moore, 4 Dana, 354, it is said, " whenever the only objection to a bequest is that it is for the benefit of the persons described collectively by some characteristic trait, by which they may be identified; if the bequest is a charity within the statute, and therefore valid, it is as good and available as it would have been at common law, had it been to one competent person in trust fqr another, identified by the will.”
Before closing this opinion, which we feel conscious has been, protracted to much greater length than could have been desired, it is to proper to say, we have been much aided, as well as. strengthened in the correctness of the conclusions at which we have arrived, by the very able and elaborate opinion of the Supreme Court of Tennessee, in the case of Franklin v. Armfield, 2. Sneed, 305, upon the identical will now before us. And although in a litigation involving the same subject in the State of Louisi[202]*202ana, (Acklin v. Acklin, 7 Annl., 395,) the trust in the will was held illegal, this seems to have been rather on account of the peculiar and stringent provisions of the code of that State against trusts. But even in this respect, the weight of the authority of that case is, to some extent, shaken by the learned and elaborate opinion of the distinguished and lamented associate justice, Preston, who dissented from the majority of the court.
The judgment is reversed and the cause remanded.
Reversed and remanded.