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Executors of McDonogh v. Murdoch, 56 U.S. 15 How. 367 367 (1854)

Executors of McDonogh v. Murdoch

56 U.S. (15 How.) 367


McDonogh, a citizen of Louisiana, made a will in which, after bequeathing certain legacies not involved in the present controversy, he gave, willed, and bequeathed all the rest, residue, and remainder of his property to the corporations of the Cities of New Orleans and Baltimore forever, one-half to each, for the education of the poor in those cities.

The estate was to be converted into real property and managed by six agents, three to be appointed by each city.

No alienation of this general estate was ever to take place, under penalty of forfeiture, when the States of Maryland and Louisiana were to become his residuary devisees for the purpose of educating the poor of those states.

Although there is a complexity in the plan by which the testator proposed to effect his purpose, yet his intention is clear to make the cities his legatees, and his directions about the agency are merely subsidiary to the general objects of his will, and whether legal and practicable or otherwise, can exert no influence over the question of its validity.

The City of New Orleans, being a corporation established by law, has a right to receive a legacy for the purpose of exercising the powers which have been granted to it, and amongst these powers and duties is that of establishing public schools for gratuitous education.

The civil and English law upon this point compared

The dispositions of the property in this will are not "substitutions, or fidei commissa," which are forbidden by the Louisiana code.

The meaning of those terms explained and defined.

The testator was authorized to define the use and destination of his legacy.

The conditions annexed to this legacy, the prohibition to alienate or to divide the estate, or to separate in its management the interest of the cities or their care and control, or to deviate from the testator's scheme, do not invalidate the bequest, because the Louisiana Code provides that

"in all dispositions inter vivos and mortis causa, impossible conditions, those which are contrary to the laws or to morals are reputed not written."

The difference between the civil and common law upon this point examined.

The City of Baltimore is entitled and empowered to receive this legacy under the laws of Maryland, and the laws of Louisiana do not forbid it. The article in the code of the latter state, which says that "Donations may be made in favor of a stranger when the laws of his country do not prohibit similar dispositions in favor of a citizen of this state," does not most probably apply to the citizens or corporations of the states of the Union. Moreover, the laws of Maryland do not prohibit similar dispositions in favor of a citizen of Louisiana.

The destination of the legacy to public uses in the City of Baltimore, does not affect the valid operation of the bequest in Louisiana.

The Cities of New Orleans and Baltimore, having the annuities charged upon their legacies, would be benefited by the invalidity of these legacies. Upon the question of their validity this Court expresses no opinion. But the parties to this suit, viz., the heirs at law, could not claim them.

In case of the failure of the devise to the cities, the limitation over to the States of Maryland and Louisiana would have been operative.

The bill was filed by the appellees, as the heirs at law of John McDonogh, to set aside his will.

The will itself is too long to be inserted in this report of the case; it would, of itself, occupy more than thirty printed pages. The reporter adopts the following statement of it, made out by

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the following French jurists, whose opinion was requested upon the whole case, viz.: Coin-Delisle, Advocate, late of the Council of the Order of Advocates of Paris; Delangle, late Bastonier of the Order of Advocates of Paris; Giraud, LL.D., a member of the national Institute; Duranton, Pere, Advocate, Professor in the Law Faculty of Paris; Marcade, Advocate, late Advocate in the Court of Cassation.

Statement of the facts of the case

John McDonogh, a native of Baltimore, an inhabitant of McDonoghville, State of Louisiana, made his olographic will at McDonoghville aforesaid, on the 29th of December, 1838, according to the forms prescribed by the local law.

No question is raised about the form of the instrument; nor could it be otherwise. The Civil Code of Louisiana gives every man the right of making an olographic will. Such a will, in Louisiana, as in France, is one written by the testator himself; and, in order to be valid, it must be entirely written, dated, and signed by the testator's own hand. (Art. 1581.) This kind of will is subject to no other form, and may be made anywhere, even out of the state. (Same art.) These are the same rules as those contained in arts. 970 and 999 of the French Civil Code.

John McDonogh died in October, 1850. His will was proved in due form of law.

This will has been printed at New Orleans, at full length, with the testator's instructions appended, under the title of "The last Will and Testament of John McDonogh, late of McDonoghville, State of Louisiana; also his Memoranda of Instructions to his Executors &c." We do not mean to give it here in extenso, deeming a synopsis of it quite sufficient for our purpose.

The testator, after having called on the holy name of God, commences by declaring that he was never married, and that he has no heirs living, either in the ascending or the descending line. So that, according to the laws of the state, his power of willing away his property was unlimited. Civil Code of Louisiana, 1483.

He orders that immediately after his death, an inventory shall be made of his property by a notary public, assisted by two or more persons, whom his executors shall appoint, the same to be done on oath.

First comes a devise to the children of his sister Jane, the widow of Mr. Hamet, of Baltimore, of land which he purchased on the 29th of February, 1819, of one John Payne in Baltimore

county. This lot, containing ten acres, more or less, together with the improvements, goes to his nephews aforesaid, a life estate in the same being, however, reserved to their mother.

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He also bequeaths to his said sister, widow Hamet, six thousand dollars, recommending to her so to place the capital as to make the interest support her in her old age.

He then bequeaths their freedom to certain slaves, fixes a fifteen years' term of service to be performed by certain others on his plantations, and orders the remainder of his black people to be sent to Liberia by the American Colonization Society.

And now, in language expressive of piety towards God, and charity towards mankind, the testator after having made these deductions for his sister, Mrs. Hamet, for the children of his sister, and for the freedom of a certain number of slaves goes on to lay down what may be called emphatically his will.

He gives, wills and bequeaths all the rest, residue, and remainder of his estate, real and personal, present and future, as well that which is now his, as that which may be acquired by him hereafter, at any time previous to his death, and of which he may die possessed, of whatsoever nature it may be, and wheresoever situate, unto the Mayor, Aldermen and Inhabitants of New Orleans, his adopted city, and the Mayor, Aldermen and Inhabitants of Baltimore, his native city, and their successors forever, in equal proportions of one-half to each of the said Cities of New Orleans and Baltimore.

He wills, at the same time, that the entire mass of property thus bequeathed and devised shall remain charged with several annuities or sums of money, to be paid by the devisees of his general estate out of the rents of said estate.

He adds that the legacies to the two cities are for certain purposes of public utility, and especially for the establishment and support of free schools in said cities and their respective suburbs, including the Town of McDonogh, as a suburb of New Orleans, wherein the poor, and the poor only, of both sexes, of all classes and castes of color, shall have admittance, free of expense, for the purpose of being instructed in the knowledge of the Lord, and in reading, writing, arithmetic, history, geography, and singing &c.

This is the principal object of the testator's bounty, as appears by the words which usher in the general devise:

"And for the more general diffusion of knowledge, and consequent wellbeing of mankind, convinced as I am that I can make no disposition of these worldly goods which the Most High has been pleased so bountifully to place under my stewardship that will be so pleasing to him as that by which the poor will be instructed in wisdom and led into the path of virtue and happiness, I give,"


For the execution of his will, and with the unequivocal intent of increasing his real estate after his death, the testator appoints

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executors, to whom he gives the seisin of all his personal estate, corporeal and incorporeal, and clothes them with the most extensive powers, without the interference of judicial or extrajudicial authority.

As relates to his real estate, such as it will be found to be at his death, which estate he has just devised to the Cities of New Orleans and Baltimore, he expressly forbids the Mayor, Aldermen and Inhabitants of each of the cities, and their successors, ever to alienate or sell any part thereof; but the cities shall let the lots improved with houses, to good tenants, by the month or year; they shall let the unimproved lots in New Orleans, its suburbs, Town of McDonogh, or elsewhere, for a term not to exceed twenty-five years at anyone time, the rent payable monthly or quarterly, and to revert back, at the end of said time, with all the improvements thereon, free of cost, to the lessors; and, as to the lands, wherever situate, in the different parishes of the state, the cities shall lease them in small tracts for a term not to exceed one to ten years, revertible back with their improvements, to be re-leased for a shorter time and at higher rates.

As concerns his personal estate, which, as we have seen in the general bequest above also belongs to the Cities of New Orleans and Baltimore, the testator instructs his testamentary executors to invest his personal estate of all kinds, as well as the amount of all debts owing to him, as fast as they are received, together with the interest and increase, in real estate of a particular description, to-wit: lots of ground, improved and unimproved, lying in the City or suburbs of New Orleans, and to hand over said real estate, with the title deeds, to the commissioners and agents of his general estate, so that by said means the whole of his estate, real and personal, shall become a permanent fund on interest, as it were, viz., a fund in real estate affording rents, no part of which fund shall ever be touched, divided, sold, or alienated, but shall forever remain together as one estate, termed in his will "the general estate," and be managed, as hereinafter directed. The net amount of the revenues collected annually shall be divided equally, half and half, between the two Cities of New Orleans and Baltimore, by the commissioners and agents of the general estate, after paying the several annuities and sums of money hereinafter provided for, and applied forever to the purposes for which it is intended.

The testator, dividing into eight equal portions the revenues of his estate, thus made up of the immovables left at his decease, and of those which shall be acquired by his executors, with the aid of his personalty and the interest accruing on his

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credits, gives and bequeaths the first eighth part of the net yearly revenue of the whole, during forty years, to the American Colonization Society for colonizing the free people of color of the United States, but the society shall not receive or demand, in any one year, a larger sum than $25,000.

He gives and bequeaths the second eighth part of the net yearly revenue of the whole to the Mayor, Aldermen, and Inhabitants of the City of New Orleans until said eighth part of the net yearly revenue of rents shall amount to the full and entire sum of $600,000, and that for the express and sole purpose of establishing an asylum for the poor of both sexes, and of all ages and castes of color.

He gives and bequeaths the third eighth part of the net yearly revenue of the whole to the Society for the Relief of Destitute Orphan Boys of New Orleans, for the express and sole purpose of its being invested in real estate, until the annuity shall amount to the full sum of $400,000, exclusive of the interest which may have accrued on it.

He gives and bequeaths the fourth eighth part of the net yearly revenue of the entire estate to the Mayor, Aldermen, and Inhabitants of the City of Baltimore for the express and sole purpose of establishing a School Farm, on an extensive scale, for the destitute male children of Baltimore, of every town and village of Maryland, and of the great maritime cities of the United States, until the said eighth part shall amount to the sum of $3,000,000.

There now remains the revenue of one-half or four eighths of the revenue of what the testator styles his general estate. The two Cities of New Orleans and Baltimore being the principal legatees, it is obvious that they are entitled to the four eighths not bequeathed by a particular title; consequently, it is laid down that until such time as these four annuities, bequeathed under a particular title, shall have been paid off and expire, the Cities of New Orleans and Baltimore shall receive, for the establishment and support of said free schools, one-half only of the net yearly revenue of rents of the general estate, and no more.

Moreover, the total amount to be received by each of the legatees of one eighth of the revenue, until the respective sums of $25,000, $600,000, $400,000, or $3,000,000 are realized, shows that one of the annuities is to determine before the others are paid off. The testator therefore orders that as soon as any one of the annuities shall be filled and paid off, the proportions of the net yearly revenue of rents of the general estate, which were payable under the extinct annuity, shall go and be payable to the annuity, bequeathed to the City of Baltimore, for

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the establishment of a School Farm, so that the $3,000,000 may be made up in as short a space of time as possible. It will not be till the full and entire discharge of the annuities that the two cities will divide between them the net yearly revenue of rents of the general estate.

We will now turn our attention to the means and devices adopted by the testator to improve the condition of his particular legatees.

He forbids the alienation of the real estate which he leaves at his death to the two cities, and points out how the houses shall be let for short terms, the unimproved lots let for twenty-five years, at most, so as to be revertible, together with all improvements, to the mass of his estate, and the lands leased out so as to bring in returns more and more ample.

He also orders his testamentary executors to invest his personalty in houses and building lots in New Orleans and its suburbs.

He has not ordered anything of the kind for the $25,000 of the Colonization Society (first eighth). The sum is a small one, and can be paid off in a short time.

But as respects the Society for the Relief of Destitute Orphans (third eighth), he gives this third eighth part of the revenues to be first deposited in one or more of the banks in New Orleans which allow interest on deposits, and then, always with the approbation of the Mayor, Aldermen, and Inhabitants of New Orleans, who shall become parties to the deeds, the said society shall invest the money, as good purchases offer, in houses and lots lying in New Orleans and its suburbs, so that such real estate, once acquired, shall be inalienable, and shall forever be retained and held by it and remain its property in order that the revenue of the said real estate may be sufficient for the support of the institution.

With respect to the particular legacy bequeathed to the City of New Orleans for the purpose of establishing an Asylum for the Poor (second eighth), he orders that, annually or semiannually, the amount of the fractions of eighths be invested, as the commissioners receive it, in bank stocks, or other good securities on landed estate, on interest, so that the capital of $3,000,000, may be thereby augmented up to the time when the last of the annuity shall be received from the general estate; that, after this period (or even earlier, if a favorable opportunity occur), one-third of the whole (not more) be invested in the purchase of landed estate, in the erection of buildings, and the furnishing of necessary articles, and the remainder, or two-thirds at least, invested in the purchase of such houses and building lots in New Orleans and its suburbs, as will probably

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greatly augment in value which real estate, when purchased, shall never be alienated, but a permanent revenue derived therefrom for the support of the institution.

Again, as regards the particular legacy bequeathed to the City of Baltimore for a School Farm (fourth eighth), which legacy is to reach the amount of $3,000,000, to be taken out of the eighth charged therewith, and out of the other three eighths as soon as the other three legacies are finally paid off, the fund must be increased as it is received, by investing the moneys in bank stocks or other good securities on landed estate on interest, and this capital, with its increase, shall be invested, for one sixth part at the utmost, in the purchase of such land, animals, and agricultural implements as the institution shall need, and the other five-sixths invested in the purchase of houses and building lots situated in the City, suburbs, and vicinage of Baltimore, or of tracts of land in its immediate neighborhood, viz., such lots or lands to be all purchased under fee simple titles as will probably greatly augment in value. And in this instance too, the real estate, when purchased, is never to be sold or alienated, but is to remain forever the property of the institution, to the end that a permanent revenue may be derived therefrom.

We will now examine the measures taken by the testator to prevent the cities from giving the moneys a different destination from that prescribed by the testator.

Not content with appointing testamentary executors, McDonogh, wishing to debar the city corporations from the handling of moneys, has ordered that there be commissioners of his estate, having a principal and central office in the City of New Orleans, where all the muniments and papers relating to his affairs may be kept, as well for the Asylum for the Poor, for the investment of the moneys due to the Orphan Relief Society, for the School Farm of Baltimore, as for the management of the general estate, or fund for the education of the poor. These commissioners are to have the sole management of the general estate, the leasing and renting of its lands and houses, the cultivating of its estates, the collecting of its rents, the paying of the annuities bequeathed as above, and are to do all acts necessary to its full and perfect management.

These commissioners cannot be members of the city councils; but they shall be appointed by the City Councils of New Orleans, as regards the Asylum for the Poor; by the mayor and city councils, as respects the School Farm at Baltimore, with the style of Directors; by the respective City Councils of New Orleans and Baltimore, as to the management of the fund for the education of the poor.

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New appointments shall be made annually, on a day fixed by the will.

The city councils shall have a supervision over their operations; and to them the commissioners are liable for the performance of all their duties, and must annually render an account of their administration.

Besides these commissioners, each city shall have agents on the spot to represent its commissioners; and these agents shall also be appointed by the mayors and city councils.

And, after the payment of the annuities, the respective commissioners, or the agents representing them, shall receive one moiety of the net revenue of the year, to be disposed of conformably to the will.

As for the purchases to be made, before the full payment of the annuities by the commissioners of the Asylum for the Poor, they must be approved by the Mayor and city Councils of New Orleans. The same rule is laid down for the purchases to be made by the Directors of the School Farm. They must be approved by the Mayor and City Council of Baltimore.

The testator recommends to the commissioners of the Asylum for the Poor to apply to the Legislature of the State of Louisiana for an act of incorporation, subject always, however, to the conditions provided for in the will. He has also recommended, in the same language and under the same conditions, to the Directors of the Farm School, to apply, for the same purpose, to the Legislature of the State of Maryland. He recurs to the same idea, using the same phraseology, and with the intent, no doubt, that his general estate should become a juridical person, he also recommends to the commissioners to sue out an act of incorporation for said general estate, always subject to the conditions laid down in the will.

We omit a variety of minute regulations concerning the publication of the annual accounts, the building and locality of schoolhouses and residences for teachers, the school organization, the immense lands for the Poor Asylum, together with the high-flown disquisitions in which the testator indulges. All this matter appears to be foreign to the controversy. The whole may be reduced to these few words:

"The cities are the devisees, but the administration of the property devised shall be carried on forever by commissioners appointed by the cities, and accountable to them, and it shall be the duty of said commissioners to hand over the moneys to the new public institutions which the testator orders to be created."

The testator goes on to say:

"No compromise shall ever take place between the Mayor, Aldermen, and Inhabitants of

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Baltimore and those of New Orleans or their successors in relation to their respective rights to my general estate."

"Neither party shall receive from the other by agreement a certain sum of money annually or otherwise for its respective proportions. Neither party shall sell its respective rights under this will to the general estate, to the other or to others, but said general estate shall forever remain and be managed as I have pointed out, ordered, and directed."

"And should the Mayor and Aldermen of New Orleans and the Mayor and Aldermen of Baltimore combine together and knowingly and willfully violate any of the conditions hereinbefore and hereinafter directed for the management of the general estate and the application of the revenue arising therefrom, then I give and bequeath the rest, residue, remainder, and accumulations of my said general estate, subject always, however, to the payment of the aforementioned annuities, to the States of Louisiana and Maryland in equal proportions, to each of said states, of half and half, for the purpose of educating the poor of said states under such a general system of education as their respective legislatures shall establish by law (always understood and provided, however, that the real estate thus destined by me for said purpose of education shall never be sold or alienated, but shall be kept and managed as they, the said legislatures of said states, shall establish by law as a fund yielding rents forever; the rents only of which general estate shall be taken and expended for said purpose of educating the poor of said respective states, and for no other). And it is furthermore my wish and desire, and I hereby will, that in case there should be a lapse of both the legacies to the Cities of New Orleans and Baltimore, or either of them, wholly or in part, by refusal to accept, or any other cause or means whatsoever, then, both or either of said legacies, wholly or partially lapsed, shall inure, as far as it relates to New Orleans, to the State of Louisiana, and, as far as it relates to Baltimore, to the State of Maryland, that the legislatures of those states respectively may carry out my intentions as set forth in this my will as far and in the manner which will appear to them most proper."

In October, 1852, the judge of the district court, sitting as a circuit judge, passed the following decree, viz.:

"That all that part of the olographic will of John McDonogh beginning at the second paragraph with the words 'It is my will and I direct my executors, hereinafter named, immediately after my death, to correspond,' &c., on the second page, numbered as the sixth page of the printed copy of the will on file, and ending with the words 'or other ways, and held and owned by said corporations' on the 33d page of the said printed copy

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of said will, being all and every portion of said will relative to the City of New Orleans, the City of Baltimore, the State of Louisiana, and the State of Maryland, the 'general estate,' the Colonization Society, a projected asylum in New Orleans, the Society for the relief of Destitute Orphan Boys, a projected school farm in Maryland, free public schools in New Orleans and Baltimore, and the appointment of various boards of commissioners, agents, directors &c., and for the investment and accumulation of the estate, be, and all said provisions are, declared illegal, null, and of no force and effect whatever, and that as to all the estate of said deceased, except such as is disposed of in the first paragraph of said will, the deceased died intestate, and his estate fell, by his death, to his heirs at law. That complainants are heirs at law of the deceased John McDonogh, in the following proportions, to-wit: Maria Louisa Ord, wife of Pacificus Ord, Laura J. Welsh, Thomas Welsh, Frank E. Welsh, and William P. Welsh, minors, represented by their guardian, William F. Murdoch, are heirs of twelve seventieths (12/70ths), one-half of said portion being for the said Maria Louisa, and the other half being equally divided between said minors. Anne Cole, Mary Murdoch, wife of William F. Mordoch, Eliza Hayne, wife of George Hayne, George F. Cole, Louisa Sheffey, wife of Hugh W. Sheffey, and the children of Margaret Cole, the deceased wife of George P. Jenkins, namely, George Jenkins, Mary McDonogh Jenkins, and Conway M. Jenkins, minors, represented by their father George T. Jenkins, are heirs of twelve seventieths of the estate. The said Anna, Mary, Eliza, George F., and Louisa, each to take one sixth part of said portion, and the remaining one sixth part thereof to be equally divided between said minors. Sarah Day, wife of Nicholas Day, is heir of twelve seventieths of the estate. Jane Beaver, wife of William Beaver, Sarah Beaver, wife of Jacob Beaver, Robert H. Hammett, Jesse Hammett, Anne Maria Snook, wife of Peter Snook, Eliza Anderson, wife of Joseph C. Anderson, and the children of Margaret Hammett, deceased, said children not being parties, are heirs of twelve seventieths of the estate; the said Jane, Sarah, Robert, Jesse, Ann, and Eliza, to take each a seventh part of said portion, and the remaining seventh to be reserved for the children of said Margaret, when they shall make themselves parties, and on due proof. Rosalba P. Lynch, wife of Andrew H. Lynch, is heir of twelve seventieths of the estate, the remaining ten seventieths to be reserved for the heirs of the half-blood, when they shall make themselves parties, and on due proof. That the said complainants recover of the defendants' executors of the will of the deceased all and singular the property, real and personal,

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corporeal and incorporeal, composing the estate of the deceased, and especially all and singular the property of the deceased, in the several parishes of the State of Louisiana, mentioned or comprised in the inventory of the succession, prepared by Thomas Layton and Adolph Mazureau, notaries public, a copy of which is in evidence, and that said complainants have execution and be put in possession of the same in conformity with law and the rules of court. That reference be made to the master in chancery for an account of the administration of the said executors, from the death of the deceased to the execution of this decree, and that said executors account to the said master in the premises, and that said master report to the court, and so much of the said bill as demands said account and the recovery of any moneys in the hands of said executors, is retained for further decree. That any other person or persons, not now parties to the proceedings, claiming title to the estate of the deceased, or any part thereof, be allowed to present their claims respectively before this Court, to make due proofs thereof, and to become parties to the proceedings for the due establishment and adjudication thereof. That the costs of the complainants and of the executors, be paid out of the succession of said deceased, and the costs of the other parties defendant by themselves respectively."

"Decree rendered 7th October, 1852."

"Signed 26th October, 1852."

"[SEAL] THEO. H. McCALEB, United States Judge"

From this decree, the executors appealed to this Court.

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