Eustis, 0. J.
( Dunbau, J., concurring.) This appeal is taken by the State of Louisiana and the State of Maryland from judgments of the Court of the Eifth District of New Orleans. The judgment from which the State of Louisiana has appealed,'is general in favor of the defendants, for the reason that the State of Louisiana is not entitled to take, under the will of the late John McDonogh, the half of his estate, in the place and stead of the City of New Orleans.
The judgment from which the State of Maryland has appealed, dismisses the petition of intervention filed by that State, for the reasons given for the decision of the Court, as between the State of Louisiana and the defendants. The State of Maryland claimed the legacy in favor of the City of Baltimore, on the same grounds that the State of Louisiana claimed that in favor of the City of New Orleans, and in its petition of intervention prayed for a citation against the City of Baltimore, to answer and plead to their petition through Thomas J. Durant, J2sq., the Attorney appointed to represent'the absent heirs in the mortuary proceedings. The citation and petition having been served on him accordingly, he filed an exception that ho had no authority to represent the City of Baltimore by virtue of his appointment of Attorney of absent heirs, and was not bound to answer the petition, and on this he prayed the judgment of the Court. The exception thus taken was, after argument of counsel, sustained by the Court, and the said Attorney of absent heirs dismissed from the suit.
The City of Baltimore is not in Court under these proceedings through the medium of the Attorney of absent heirs. I find no appearance entered for this party, nor any authority to make the City a party to this suit.
The dismissal of the petition of intervention, there being no antagonist interest represented on the record, was a just consequence of' the decision on the exception. According to my judgment, neither the State of Maryland nor the City of Baltimore is in Court, and we have no power to adjudicate upon the rights of either.
The grounds of this opinion may or may not be applicable to the legacy in favor of the Colonization Society. That institution is not a party to this suit. I am not advised that the State would undertake to defeat this legacy, alone and separated from the residuary bequest to the City of New Orleans, and I desire to be considered as expressing no opinion whatever in relation to it. The subject has not been fully treated in argument, and ought not to be acted upon except under the most deliberate examination.
The construction of the will, in relation to the titles created by it, is exclusively a question of law. Erom a very considerate perusal of it, from a scrutiny of every part of it, and in viewing its character as a whole, I have been able to come to no other conclusion than that contended for by the counsel for the defendants, viz: that it conveys the title or ownership of the property embraced by the legacies to the residuary legatees—the Cities of New Orleans and of Baltimore. The words of the will on this subject are :
“ I give, will and bequeath all the rest, residue and remainder of my estate, real and personal, present and future, as well that which is now mine as that which may be acquired by me hereafter, at any time previous to my death, and of which I may die possessed, of whatsoever nature it may be, and wheresoever situate, subject to the payment of the several annuities or sums of money hereafter directed and set forth, which said annuities or sums of money are to be paid by the devisees of this, my general estate, out of the rents of the said [246]*246estate, unto the Mayor, Aldermen and inhabitants of New Orleans, and the Mayor, Aldermen and inhabitants of Baltimore, my native City, in the State of Maryland, and their successors, in equal proportions of one-half to each of the said Cities of New Orleans and Baltimore, forever, to and for the several interests and purposes hereinafter mentioned, declared and set forth, concerning the same, especially for the establishment and support of free schools, &c.”
There is some confusion in the will, which is confined to the administration, however, and in no respect affects the title created in the residuary legatees. The other parts of the will contain the same words used in the portion just cited —“ willed and bequeathed ”—and the title of the cities is used in no other sense throughout the whole instrument.
The prohibitions of the will seem to be in affirmance of the titles of the legatees. The prohibition to alienate, to compromise, the annuities, the charges on the legacies, the penalty, the provision for the lapse, in my judgment all concur, and none of them conflict with the hypothesis of the title being vested in the legatees.
Municipal corporations are expressly authorized to receive legacies by the Louisiana Code; their capacity in this respect is recognized by Article 423, and by the whole course of legislation on this subject.
My conclusion is, therefore, in favor of the position of the counsel for the defendants, that the City of New Orleans is a residuary legatee under an universal title.
This legacy clearly belongs to a class known to the civil law from the foundation of Christianity, by the name of legacies to pious uses. They are an element in the polity of municipal administrations in all countries which have preserved the features and jurisprudence of Roman civilization.
Legacies to pious uses are those which are destined to some work of piety, or object of charity, and have their motive independent of the consideration which the merit of the legatees might procure to them. In this motive consists the distinction between these and ordinary legacies. Domat, lib. 4, tit. 2, section 6, §2.
The term pious uses includes not only the encouragement and support of pious and charitable institutions, but those in aid of education and the advancement of science and the arts. Makelday on the Roman law, § 145.
They are viewed with special favor by the law: ils sont consideres comme prvoil'egies dans Vesprit des lois, and with double favor on account of their motives for sacred usages and their advantage to the public weal. Domat loc. cit.
The great consideration which the law attaches to these legacies, controls tribunals in the interpretation of them, and has secured for their support a doctrine of approximation which is coeval with their existence.
That without a positive prohibition municipal corporations in Louisiana should be incapacitated from receiving legacies for the public purposes of health, education and charity, seems to me repugnant to all sound ideas of policy, and to the reason of the law.
What legacies could they be expected to receive except for some public or humane object ? Who would give a city a legacy, to be absorbed by its debts or appropriated to common expenses? Certainly, so far as the conscience of the public is concerned, a legacy of money to a city, without any designation, would be held to have been given for some object of charity or beneficence.
[247]*247I think there are Articles in the Code which exclude the conclusion as to the incapacity of the City of New Orleans to take legacies of this kind.
The Article 1530 provides that donations for the benefit of a hospital of the poor of a community, or of establishments of public utility, shall be accepted by the administrators of such communities or establishments.
Provision is made by this Article to give effect to donations for the poor made by living persons—inter vivos—because in donations of this kind the donor is not bound, and the donation is without effect until the act of donation is signed and accepted by a party competent to receive the donation. The Article relates to the form of the act, and provides for its acceptance and the completion of the donation, and is not its legality pro-supposed ? Is it not predicated upon the legality of this mode of property for pious uses? Such appears to me to be the obvious intendment of the Article. There is not the slightest ground for any distinction as to the legality of the holding or ownership by donation—inter vivos and mortis cama—that is, that the property could be acquired by one donation and not by the other.
Nor does the law make any distinction between a legacy to the poor of a city and a legacy to a city for the poor. In both cases it is a legacy to pious uses, and the city is the recipient. Domat lib. 4, tit. 2, sec. 2, § 13 ; id. sec. 6, §1 et seq.
The article 1543 provides that when the donation is made to minors, to persons under interdiction, or to public establishments, the registry shall be made at the instance of curators, tutors or administrators.
The Article 607 provides that the usufruct granted to corporations, congregations and other companies which are deemed perpetual, lasts only thirty years. If these corporations, congregations and companies are suppressed, abolished, or terminate in any other manner, the usufruct ceases and becomes united with the ownership.
The legislation concerning the powers of the City of New Orleans, I think is in the same sense.
Doubts having existed as to the power of the City to hold property out of its limits, the corporation was declared capable.of holding or possessing real estate without its limits, and of acquiring, retaining or possessing by donation or legacy any property, real or personal, whether situate within or without the limits of the City. Act of 1840, p. 50. Digest of Statutes, 144, § 150.
I have no doubt of the legality of the testamentary disposition under consideration. 1 think it would follow as a necessary consequence from the definition, origin and nature of legacies to pious uses that those in favor of the Cities are of that sort; those in favor of the States, in the contingency provided, are of the same character. The difference is that in the former the mode of administration is regulated by the will; in the latter it is left to the wisdom and discretion of the legislative power.
The administration of property, devoted to pious uses by a legacy, through the instrumentality of overseers, commissioners or a quasi corporation, makes no difference as to the title; both, in fact, are legacies to pious uses, and not unlike the Girard legacy, maintained by this Court in 2d Annual Reports, 898. Girard heirs v. New Orleans.
The obj ections to the validity of these bequests may be reduced to three heads, which I will now proceed to consider separately, and in the order they are presented.
[248]*248It is said they are void, because of the uncertainty of the recipients of the charity; because the estate created is a trust or fidei commissum, and therefore prohibited, and because the conditions of the bequest being impossible, and against public policy, the contingency provided for by the will has occurred, and the intention of the testator must be carried into effect, and that intention will be entirely defeated unless the States are to take the legacies as provided by the will.
I. Prom what has preceded it is plain that under the civil law it is no objection to the validity of a legacy to pious uses, that it is for the benefit of the poor even without any designation of locality. There is no principle better settled than that such legacies are valid. I met with a case in the course of my examination of this subject in which a will was maintained in which a testator instituted the poor his heirs. Indeed, the very generality complained of is an illustration of Christian charity; and uncertainty of individual object at the time of the gift is its characteristic and element.
In the language of the Partidas, “ when the testator declares I institute for my heirs the poor of such a city or town, or I order that my estate shall be given to the poor for the good of my soul, as doubts may arise who the poor are, we will explain ourselves in this respect. And we say that it ought to be given and distributed among the poor in the hospitals of the city or town designated by the testator, and especially to those who are afflicted with such infirmities as to be unable to leave the hospitals to seek for alms, as the maimed, the lame, the blind, the foundlings, who are reared there, and the aged, or those who are affected with such infirmities as to prevent them from walking and going out of the hospitals, as they are more in want of assistance than those who can ask for alms. And if the testator had not designated the city or town, to the poor of which he intended to give his estate, then it shall be divided among the poor of the place where he makes his will.” Partidas 6, 3, 20. By the general beneficence to the poor, without distinction—istis feaundior pietas est—the greater the merit in the donor, as the charity is the more comprehensive and catholic.
So the bequest of a sum of money “ to the orphans of the First Municipality of Few Orleans,” was recovered by the Council of that Municipality under the Article 1536. This was a donation causa mortis, indefinite and comprehensive in its terms, making no distinction among the beneficiaries either as to age, sex or religion, and was maintained as valid by the Supreme Court of this State. Succession of Mary, 2d Robinson’s Reports, 438.
II. Before considering the second objection to the validity of these legacies, because they create trust estates or fidei eommissa, a few observations seem to be required as to the decision rendered by this Court on the will of the late Isaac Pranklin.
I do not think that what was decided or said in that case has any application to this. I so expressly stated in the separate opinion which I delivered in that case. I undertook to give my reasons for deciding that the prohibition in the Code of substitutions and fidei eommissa intended trust estates. I showed that these words trusts and fidei eommissa were used as of the same sense by Kent and BlaeJcstone, and that the Supreme Courts of the United States, and of this State, had both held the prohibition of fidei eommissa to include trusts. That they are not the same thing every one knows. The English trust estate had no place in the Roman law, and its resemblance to the fidei commissum is remote. [249]*249But that in the common language of jurisprudence the word trust is used to express the fldei commissum is most certain. Gibbon so uses it. Dr. Gooper, an accomplished jurist and scholar, so uses it in'his translation of the Institutes. Dr. Browne, in his treatise on the civil law, so uses it,, and it is used in that sense in Wood’s Institutes.
But whether the trust estate was or was not included in the prohibition is a matter of no moment in the present case. We have always held the trust estate to be an impossible estate, that the two cotemporaneously existing estates had no place in our laws, and that we could recognize no right of property in real estate, no tenure, no holding, no title, in relation to it, which the Code did not recognize.
Franklin gave by his will a legacy of a large portion of his lands and slaves in Louisiana to his brothers, residing in Sumner county, in the State of Tennessee, in trust, for the foundation and support of a seminary of education in that county. The title thus attempted to he created in the’property was held to have no effect as a conveyance of it. The testator undertook to establish a trust estate in the technical sense of the English law. Tho title, was held to be impossible between the parties, and to be prohibited by law.
Judge Preston thought the legacy was one to pious uses, and that the title created by the will was therefore valid. He supported his views by a very elaborate argument, but they were not concurred in by a majority of the Court.
Legacies for pious uses, I considered, were authorized by law for the purpose of procuring aid from individuals in supplying those wants which the State itself, or the communities into which it is divided, were bound to provide for in the interest of society, and as a function of government; that in their objects they were local and limited to the jurisdiction of the State, being for the support and education of the poor, and for purposes which fall within the circle of the duties of government; that the Articles of the Code recognized legacies to pious uses for these objects, and none others, and that there was no warrant of law for a title in real estate in trust in Louisiana to be held for the exclusive benefit of a foreign corporation. I thought that this diversion and holding of property from private uses and ownership, with all the privileges and favor tho law can bestow, was exclusively in the interest of tho public weaL The privileges and favor with which these legacies are maintained and carried into effect —the doctrine of ey pres would all be inapplicable when attempted to be applied for the benefit of persons beyond our jurisdiction—the reason of all these would fail in such an application, it being the obligation of every State to provide for the wants of its own inhabitants in this respect.
But the answer to this second objection is, that if the residuary legacies do create trusts or fldei commissa, they are, with numerous other testamentary trusts necessary in the execution of a will, saved from the general prohibition by the provisions of tho Code itself. It is to ho observed that I use the words trusts and fidei commissa in their most general sense. Vide §33, tit. 2,16 and IT.
III. It is urged that the testator never intended the Cities to take his property, unless his directions were to be observed, and if the Cities could not and did not carry into effect his directions, in that event his will was that his property should go to the States.
I believe I am only following in the uniform current of opinion in the civil law writers, and in tho decisions of the Court of Cassation, in treating the directions contained in' this will, concerning the property and its administration, as [250]*250modes, charges or conditions. There- is One mode or condition, and it is that on which the District Judge has decided the case, the utter impossibility of the compliance with which cannot be contested. It is that prohibiting the partition of the lands bequeathed to the Cities of New Orleans and Baltimore, and requiring their joint ownership to continue forever. The same may be said of the supervision and check which the testator attempts to organize of one corporation over the other, through the instrumentality of commissions. In these respects it is clearly impossible under our laws to carry into effect the intention of the testator. The condition is impossible, and there are others equally so in the will which it is not necessary particularly-to note.
Our inquiry is to be directed to the effect which the law gives to impossible conditions in testamentary dispositions. At the commencement of the inquiry we are met by this dilemma on the part of the defence. If the conditions, modes, or charges imposed on the legatees by the will are legal and possible, we will execute them; if they are not legal or possible, as the plaintiffs insist they are, then and in that case they form no part of the will. By the Article 1506 of the Code, every impossible condition, or condition contrary to the laws and 'to good morals, is reputed not written in a will, and the property remains to the legatees free from the incumbrance of the impossible condition, mode or charge.
This Article is not in the ordinary form of a prohibitive law. It is the first of the chapter which treats “ of dispositions reprobated by law in donations inter vivos and causa mortis.” The expression reprobated—reprouvées—by the law implies something even more than prohibition. The terms made use of are plain, general and comprehensive, excluding all exception, direct, positive and unambiguous, the whole tenor imperatively- establishing the law having for its object the exclusion of the possibility of the legal existence of this class of conditions in testaments.
Concede that to give effect to this Article is to defeat the intention of the testator, and by reading the will without the impossible or illegal condition, the intention of the testator is sacrificed. But if the law so ordains it that a rule established in the interest of order and sound policy, shall be the paramount consideration, in giving effect to the wills of men disposing of their property after their death, who can gainsay it ?
That this consequence of defeating the intention of the testator is recognized as following the same legislation on the same subject in the Code Napoleon, is abundantly shown. The authority of Merlin is conclusive on this point. Code Napoleon, 900. Merlin, Repertoire, verbo condition, sec. 2j §4.
The effect of this rule is to maintain the purpose and intention of the law, notwithstanding the intention of the testator, who has undertaken to regulate his property after his death, in a manner which the law reprobates and declares its ministers shall not execute.
The Article 1705 of the Code, which provides that in the interpretation of acts of last will the intention of the testator must principally be endeavored to be ascertained, is in its very terms a rule of interpretation of wills valid in all the requisites and forms of law, and having no radical defect as conveyances of property, and is clearly subordinate to the prohibition of the Article 1506, standing under the significant head-of “ dispositions reprobated by law.” In my judgment, the intention of the testator might, with the same propriety, be invoked in the interpretation of a will not having the requisite number of witnesses, or deficient in some necessary form, as in aid of the dispositions of this [251]*251will in favor of the States. It is equally'clear to my mind that the impossible or illegal condition cannot be read for the purpose of ascertaining the intention of the testator in order to give it effect. The law, in saying it shall be reputed as not written, has said it shall not be read for any purpose except for that of utter exclusion from the testament
The right of a man to dispose of his property ’after his death is derived exclusively from the law, and if the law says, that in certain cases, from motives of policy, the vain conceits of testators—inepta voluntatis—shall be- held not written, in the administration of justice by its ministers how can this command be disobeyed ?
I find no reason for disobeying it, in the opinion of learned jurists, who are of opinion that such an Article ought not to have boon introduced into a Code. It has been, after the most mature deliberation, introduced into the Napoleon Code, and adopted in ours. ■ I think I see great and, comprehensive foresight in thus exterminating triviality from jurisprudence, and putting an end to the endless controversies which it engenders. The principle of the rule has its foundation in a very high consideration of law as a science, which ought not to be conversant with anything impossible, nor be applied to any thing illegal or immoral, except for purposes of prevention or punishment. Its ministers ought not to be employed in seeking to carry into effect the whims and fancies of dying men, in which society has no interest, useless in themselves and utterly beneath its dignity as a system of enlightened reason and policy.
The history of this subject is given correctly in the printed argument of the learned counsel for the defendant, and in the m'emoire prepared by several of the most eminent jurists of France.
It is shown that the same principle with regard to the impossible or illegal condition prevailed in the Roman law, in the ancient jurisprudence of France, and under the law of Spain. As a general rulé it was adopted and still prevails in the English law. But there were a number of exceptions established by the civilians to the operation of the principle, which gave rise to subtle, difficult and intricate questions. Vide Swinburne on Testaments, part 4, section 6, and the works referred to by this author.
The Article 900 of the Napoleon Code, which corresponds with our Article 1506, was adopted without any discussion in the deliberations which preceded the formation of that Code. Its object unquestionably was to cut off, as far as possible, all exceptions to the general rule, to extinguish all controversy about useless things, to free the science of the law from all communion with that which involved no matter of right, and which it was the public interest to suppress.
So vast and comprehensive is this science that even to this rule there was a necessity for certain exceptions to meet the exigencies of other principles established by the Code. These few cases are all expressly provided for, which fact re-asserts the paramount authority of the rule in all other cases.
The general idea of property under the Roman law, and under our system, is that of simple, uniform and absolute dominion. The subordinate exceptions of use, usufruct and servitudes are abundantly sufficient to meet all the wants of civilization, and there is no warrant of law, no reason of policy, for the introduction of any other.
In conclusion, I think the dilemma presented by the defendants stands unremoved and unanswered. If the conditions of the will are lawful and possible, [252]*252the legatees avow themselves ready to fulfill them; if they are neither one nor f , , ’ J the other, the law holds them to be not written.
My opinion is that the judgment of the District Court ought to be affirmed. It is considered by the Court for the reasons given in writing in the opinions of the Judges, that the judgment appealed from be affirmed, and on the intervention of the State of Maryland, it is considered by the Court for the reasons given in the opinion of the Chief Justice, that the judgment appealed from be affirmed, without prejudice, the State of Maryland paying costs in both Courts.