
    Heirs of Stephen Henderson v. P. A. Rost et al. Exec’s.
    An attempt by a testator to perpetuate Ms succession is in violation of tbe policy of tbe law.
    Tbe spirit of tbe laws abolishing substitutions and Jidei commissa is to prevent property from being tied up and out of tbe reach of commerce.
    Where a testator wills that a certain plantation shall forever belong to bis succession, and directs that an act of incorporation shall be obtained for the town which he expects to be erected thereon, it will be considered that tbe act of incorporation relates merely to the municipal government of the town, and that it does not effect any change in the title to the property on which the town is to be situated.
    Where a legacy is so intimately connected and interwoven with another legacy which is the principal one, as to be dependent upon it and legally indivisible, the nullity of the principal legacy necessarily carries with it the other.
    Where a testator directs that the interest of his eo-pai-tner in a plantation shall be purchased, and reserves a fund for that purpose, upon tbe refusal of the co-partner to sell, the executors are bound to distribute the funds which had been reserved to effect the purchase.
    APPEAL from the Fourth District Court, of New Orleans, Strawbridge, J.
    
      E. Briggs. J. R. Grymes and S. S. Prentiss, for plaintiffs,
    contended: Stephen Henderson, formerly residing in this city, made, on the 1st of August, 1837, an olographic will, and on the 5th of March, 1838, another will or codicil to the first. These wills appointed the defendants and appellees executors, and were by them duly probated.
    On the 6th day of August, 1838, John Henderson, and Ann Henderson filed a petition in the then court of probates, alleging that they w,ere the surviving brother and sister of the said Stephen Henderson, and that with the exception of certain legacies in the petition referred to, all the bequests, dispositions and provisions of the said will were null and void, as well for defects of form, want of certainty, and incapacity of legatees, as because said bequests, dispositions., nnd provisions are contrary to law.
    On the 26th April, 1839, an agreement was entered into by counsel, based upon two acts of compromise and settlement, passed on the 11th of the same month, before Felix Grima, notary public, whereby the .case presented under the petition above referred to was submitted .upon .a variety of points, the sixth .of which was, whether the dispositions of the will in reference to the slaves of ¡the testator were valid in law, and whether those slaves -were to be sent to Africa, if they choose to go at the time and in the manner provided in the will, and to receive, each one hundred dollars when they are sent. The 7th. 'Whether the slaves, in the meantime, were to remain on the plantations upon which they were at the death of the testator, or whether they might be sold separately and taken away from the plantations. The 8th. Whether the executors or legatees, or both, are bound to erect a Presbyterian church, a good house for the minister, and a school house, on the Destrehan plantation, and to keep them in repair at the expense of the succession. The 9th. Whether the executors, or legatees, or both, are bound to provide a Presbyterian minister for the church so built, and pay him forever after a reasonable annual salary out of the succession. The 10th. ‘Whether the executors, or the legatees, or both, are bound to erect on the Destrehan plantation a manufactory of negro shoes and coarse clothing, to keep it in repair, and to supply it with Scotch workmen, at the expense of the succession. The 11th. Whether the Destrehan plantation is to be laid out into a city, at the expiration of twenty years from the death of the testator, and are buildings to be erected thereon at the expense of the succession, as directed by the will.
    The judgment of the court, rendered 10th May, 1839, decreed, that “the questions that arise under the compromise of the parties litigant, and which have been submitted to the court, the court considers that they were only cognizable by tribunals of ordinary jurisdiction.”
    
      By the first article of the act of compromise and settlement, referred to under cjnte t¡le 0f April, 1839, it was agreed that the questions arising under the articles six, seven, eight, nine, ten, thirteen, fifteen and seventeen of the olographic last will of the deceased, shall be submitted to the Court of Probares in and for the parish and city of New Orleans, under issues joined between the present defendants, the said John Iienderspn, Ann Henderson, Stephen Henderson, Jr., and the minor heirs of the late George Henderson, and the executors of the late Stepherp Henderson.
    
    It is in furtherance of the agreement, and with the view to put at rest the matters in dispute, that the present suit was instituted. The petition filed the 4th November, 1846, reciting the suit brought to set aside the will on the 6th August, 1838, avows that the clauses referred to, to wit, the 6th, 7th, 8th, 9th, 13th, 15th, 17th, and 12th, “are void ; that to give effect to them in accordance with the intention of the testator, and the tenor of his will, would be'impossible; that they are parts and parcels of a complex indivisible disposition, which is contrary to law, and are by the testator made dependent on if, and cannot be sustained apart from the disposition of which they form but subsidiary ingredients, and that they are otherwise in contravention of the laws of this State, and void for impossibility.”
    It was agreed, to avoid the necessity of awaiting the collection of foreign commissions, that the matters in controversy should be severed, and that the decision of the court should be obtained on the following points. 1st. As to the validity of the several trusts and pi’.qvisions in the will of the late Stephen Henderson contained, and whether or not the same is void, as containing substitutions prohibited by law- 2d. As to the legality apd validity of the provisions of the will which provide for the enfranchisement and expatriation of the negroes belonging either to the deceased or to him and Henry Doyal in common, and as the same affect not only those hereafter to be drawn, but those who were the subjects of the first drawing.
    We shall first proceed to establish our general allegation, that the provisions of of the will are inconsistent with each other, and incapable of receiving any construction which would carry out or realize the intention of the testator.
    In Wigram’s Essay on the Interpretation of Wills, a work of high authority in England, the author at p. 11 has given, as the result of principle and authority, seven propositions or canons of construction, which, as they embody all the rambling dicta upon the subject, we shall set out. “1st. A testator is always presumed to use the words, in which he expresses himself, according to their strict and primary acceptation, unless from the context of the will it appears that he has used them in a different sense} in which case the sense in which he thus appears to have used them, will be the sense in which they are to be construed.”
    “2d. Where there is nothing in the context of a will from which it is apparent that the testator has used the words in which he has expressed himself, in any other than their strict and primary sense, and where his words so interpreted are sensible, with reference to extrinsic circumstances, it is an inflexible rule of construction that the words of the will shall be interpreted in their primary sense, and in no other, although they may be capable of some popular, or secondary interpretation, and although the most conclusive evidence of intention to use them in such popular or secondary sense be tendered.”
    “3d. Where there is nothing in the context of a will from which it is apparent that the testator used the words in which he has expressed himself, in other than their strict and primary sense, and where his words so interpreted are insensible, with reference to extrinsic circumstances, a court of law may look into the extrinsic circumstances of the case, to see whether the meaning of the4 words be sensible in any popular or secondary sense of which, with reference to these circumstances, they are capable.”
    “4th. Has reference to difficulties arising from the writing or language of the will.”
    “5th. For the purpose of determining the object of a testator’s bounty, or the subject of disposition, or the quantity of interest intended to be given by his will, a court may enquire into every material fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition, and to the circumstances of the testator, and of his family and affairs, for the purpose of enabling the .court to identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will.”
    
      “The same, it is conceived, is true of every other disputed point respecting which it may be shown that a knowledge of extrinsic facts can in any way be made auxiliary to the right interpretation of the testator’s words.” '
    “6th. Where the words of a will, aided by the evidence of the material facts of the case, are insufficient to determine the testator’s meaning, no evidence will be admitted to prove what the testator intended, and the will, except in certain special cases, (see prop. 7th,) will be void for uncertainty.”
    “7th. Notwithstanding the rule of law which makes a will void for uncertainty, where the words aided by evidence of the material facts of the case are insufficient to determine the testator’s meaning, courts of law, in certain special cases, admit extrinsic evidence of intention to make certain the person or thing intended, where the description in the will is insufficient for the purpose.”
    “These cases may be thus defined : where the object of the testator’s bounty, or the subject of disposition (i. e. person, or thing,) intended, is described in terms which are applicable, indifferently, to more than one person or thing, evidence is admissible to prove which of the persons or things so described was intended.”'
    The provisions of the code, which will govern our subject, are art. 1506. “In all dispositions inter vivos, and mortis causa, impossible conditions, those which are contrary to the laws or to morals, are reputed not written.”
    Art. 1507. “Substitutions and fidei commissa are and remain prohibited.”
    “Every disposition by which the donee, the heir, or legatee, is charged to preserve for, or to return a thing to a third person, is null, even in regard to the donee, the instituted heir, or the legatee.”
    The former of these articles is the 900th of the French Code, the latter the 896th. In the translation of the latter, charge de conserver et de rendre, is rendered, charged to preserve for, or return.
    Substitutions, as known to the Romans, were of two kinds, simple vulgaris subslitutio, where, uncoupled with an interest, they created a trust which was presently executed. Of the nature' of an entail at common law, where, under the name of fidei commissa, they conferred a particular vested estate, with a future disposition in the shape of a remainder in favor of a third party. Toull. t. 5, no. 17. Merlin Rep. verbo Sub. Coin. Delilse Com. art. 896. Mackeldy, sec. 692, 747. Rolland de Villargues des Substitutions, passim.
    Of these, by the construction given by all commentators on the French Code, and the judicial interpretation of its text, the latter are alone prohibited by the French law and by our code; the former being expressly excepted by both.
    They were devised as uses and trusts were at common law,, to evade the prohibitions of statutory enactments, and Were resorted to as a means of conveying property to persons incapable of holding it, and of perpetuating estates in the possession of families, in doing which, as Toullier says, vol. 5, No. 20, “Le donateur ou testateur s’erigait en Legislateur. II changeait l’ordré de succeder s’etablie par la loi.”
    The result of this restriction on alienation was found so prejudicial to (he interests of the community, that the Roman emperor imposed a limit to their duration, restraining the power of limitation to four degrees, as the right to entail had, for the very same reasons, been reduced to the duration of a life in being, and twenty-one years afterwards.
    The Code Napoleon, and that of Louisiana, prohibited them altogether.
    Strictly speaking, Dalloz, verbo Lib., say's, the Romans confined the word substitution to the former of these two species, where the third party was to take either on the refusal of the person interposed, or where he was incompetent to receive, or where such interposed party, like a testamentary executor or mere trustee, was merely used as a means of vesting the estate in the real legatee or person beneficially interested, though the term seems to have been applied to both species. Mackeldy, sec. 727.
    The provisions of Henderson's will would, therefore, come within the defini■tion of the first species, vulgaris substitutio, and as such not within the prohibition of our code. There is no particular estate: the recipients of his property are mere executors or trustees.
    Our own courts, following the construction of those of France, have held that the fidei commissum was alone abolished by the code. ;■
    In Mathews v. Livaudais, 5 N. S. the court says, “our code, it is true, declares that Substitutions and fidei commissa are abolished. But the object of this change in our jurisprudence was, as it is well known, to prevent property fr0m being tied up for a length of time in the hands of individuals, and placed out ^8 teach of commerce. The framers of our code never contemplated to abolish naked trusts, uncoupled with an interest, whiph were to be executed immediately.”
    In Malone v. Baker and, another, 2 R. R., the court says, “we have also held there is nothing in our laws which prevents property from being held in trust for the use of another, when all the parties having an interest assent; and that such a naked trust, to be executed within a reasonable period, does not amount to a substitution. . A case in 4 L. R. 213, and that above referred to, are cited.
    We shall now proceed to examine how far the will of Mr. Henderson complies with the implied condition upon which the vulgaris subslitutio is admitted to be a valid testamentary disposition, and to ascertain whether or not its provisions are characterized with all the features which rendered the fidei commAssum alone obnoxious, under two systems so opposed to each other as that of the civil and the common law.
    In the first article he appoints the defendants executors, together with Stephen Henderson, Jr., whose appointment was afterwards revoked.
    In the second he directs that in the event of their absence, resignation or death, that their places are to be filled by one or two commissioners, and requires that the commissioners be appointed by the Governor of the State, and any one of the Judges of the Supreme Court, and the Judge of the First Judicial District Court, or any two of them ; that the commissioners are to have a yearly salary of fifteen hundred dollars.each. That the executors, until resignation or death, are to have the like gratuity ; that the first commissioner must be a Scotchman, and that when the whole three are appointed, one must be from his native country. They may be dismissed by two judges for immorality, &c.; must keep an office and employ a clerk,.who must keep a set of books, which must be examined and approved annually by any two of the judges. The clerk to have the like stipend of fifteen hundred dollars.
    Here we have a fitting preparation for that which is to follow. By art. 3 he directs that his estate is not to go into court, except for the purpose of opening and probating the wills, having no forced heirs ; “but every thing belongingto my estate is to be continued and conducted as it may be found at my death. The executors or commissioners to keep upon each plantation a good planter, and a man of humanity.” The remainder of this article, and the whole of articles 4 and 5 contain directions for the working and maintenance of the slaves, and an exposition of his views on the subject of slavery in the abstract, and of foreign interference in his domestic concerns.
    Of articles 6, 7 and 8 we shall speak hereafter. Art. 9 directs, that the Destrehan estate is to remain forever as a part of his estate, and that at the end of twenty-five years from his death it must be laid out into a city to be named Destrehan.
    Art. 10 directs the plan on which the city is to be built.
    Art. 11. That all his real estate in the city is to remain upon ground rent, and no lease to exceed twenty-five years in time.
    In art. 12 he bequeaths in perpetuity to his brother John Henderson, or to his heirs, two thousand dollars per annum; to Ann Henderson, Stephen Henderson, Jr., and to George Henderson, the like amount. Two thousand dollars to be paid annually to the poor of the parish of Orleans, to be distributed by persons appointed for that purpose by the governor, one of the judges of the Supreme Court, and the judge of the probate court. Two thousand dollars to the poor of the town of Dunblane in Perthshire, North Britain. Two thousand dollars to build a school house in Dunblane, for ten years only.
    It. is impossible to doubt, for one moment, that with the exception of the last legacy, the whole were payable in perpetuity, were inference on the subject necessary; but we shall find that the fourteenth article of the will sets the question entirely at rest. The reason for the restriction in the last instance is too obvious to require elucidation.
    In art. 13 he directs, that when funds can be spared after twenty years, a large manufactory of negro shoes and coarse clothes shall be erected at Destrehan, under the direction of experienced workmen from Scotland, and that Destrehan must be incorporated by an act of the Legislature. The remainder of the article is devoted to an exposition of the inducement to this provision, and to biographical disclosures.
    
      In art. 14 lie directs, that after the first four years the executors will divide amongst the four following congregations, say, Clapp’s Church two thousand dollars; Catholic Cathedral two thousand dollars; the English Church in Canal street two thousand dollars; and to the church commenced by Maffit two thousand dollars; and to the Orphan Boys two thousand dollars; and to the Orphan Female Society two thousand dollars. The legacies to the four churches is only to remain and be payable for five years; but all the others, so far named, are to be perpetual.
    Art. 15 reverts to Dunblane, which name, by the 17th and concluding article, he had substituted for Destrehan, and directs the building of a chapel, or church, and gives other directions having reference to the same.
    Art. 16 directs the settlement of his debts, and directs that no exception be taken to his will either on account of form, writing, or spelling.
    This, with the exception of a few particular legacies, and the clause relating to the negro force upon his plantations, is the whole of the will ; and we think that the court must come to the conclusion, that although it is not a substitution prohibited by the code in express terras, it is a disposition made in violation of the policy which induced the prohibition of that species which is prohibited, and that it is therefore void.
    It is, we presume, needless to impress upon the court that its power is limited to the ascertainment, if possible, of the intention of the testator. That the moment construction goes beyond what may, from the language of the will itself, be inferred to be that intention, the court ceases to interpret and assumes a power which is not delegated to it. That its province is to ascertain what was the will of the testator, to be inferred from the language he has employed in expi’essing that intention, but that it cannot make his will for him, and that if, from a fair and honest examination of his words, either no practicable attainment of his dispositions can be effected, or that the execution of them would involve the violation of positive laws, it is the duty of the court to declare it void, in the one case for uncertainty, in the other as a contravention of law.
    Coin. Delisle, Donat, et Test., liv. 3, tit. 2, No. 7, after giving an abstract of the principles which governed the construction of wills under the Roman jurisprudence, and citing that which directed that where the words were erroneously employed, (vicieux) the will of the testator was to be sought rather than to accept the word in its literal sense, goes on to say: “mais il faut se garder d’une trop grande liberté et ne point s’écarter des páreles pour introduire une disposition qui ne resulterait ni de leur signification propre, ni de leur signification impropre, et que le testateur n’aurait exprimé d’aucune fagon. Quand il est manifesté que le testateur á pensé autrement qu’il ne s’est exprimé on ne doit s’éloigner du sens propre, naturel et consacré par l’usage que pour s’attacher un sens moins exact et moins usuel que le testament demontre avoir été dans la pensé du testateur, sans mettre arbitrairement á la place de la disposition écrite une autre disposition que les termes ne comportent pas: ce ne serait plus interpreter ni expliquer, ce serait suppléer et disposer pour le tesfateur,” and cites Furgole, ch. 7, see. 4, No. 121; and in No. 14 of the same book and chapter, he says: “ Il faut done donner á la volonté tout l’effet qu’elle peut avoir, ne point aller au delk, mais ne pas rester en dega. Le principe du droit Romain, semper in obscuris quod minimum est sequimur. L. 9, § de R. J. n’est pas écrit dans nos lois, ilfaudra done décider suivant les circonstances.” P. 4L7, edit. 1841.
    Troplong Donat, et. Tes. tit. II, No. 365, says: “Toutes les clauses d’un contrat s’enterprétent les une par les autres, en donnant á chacune d’elles le sens qui resulte de l’acte entier, (art. 1161, C. N.) pareillement dans les testamens il faudrait interpreter et expliquer toutes les dispositions faites au profit de la méme personne, les unes par les autres. si le sens de quelquesunes d’entr’elles presentait quelque obscurité, doute ou ambiguité.”
    No. 366. “Mais quand deux clauses du méme acte se combattent, elles se neutralised, et elles sont l’une et l’autre sans effet : ubi puguantia inter se in testamento juberenter neutrum ratum esse.” L. 188 § de regul juris.
    No. 367. “Cela doittoutefois étre entendu du cas ou le testateur a clairement voulu que l’une et l’autre disposition eút son effet. Dans le cas contraire la derniére clause est suivie comme abrogeant la premiere.”
    Toutes les clauses des conventions s’enterpretent les unes par les autres en donnant á chacune le sens que resulte del'acte entier. Art. 1160 C. N. Cette régle parait rarement convenir aux testamens ce n’est pas qu’il ne soit pas utile de lire un testament dans son entier, et d’examiner s’il n’a pas été dictó sans ¡’influence d’une pensée dominante á laquelle les dispositions seraient subordonnés; mais c’est le cas le plus rare. Coin. Deslile, Don. et Test. s. 3, tit. 2, No. 13, p. 447.
    Having established by authority what we conceive to be the law of construction, we will now proceed to arrive at the intention of the testator in framing this extraordinary document.
    He died possessed of the Forest plantation, containing eighteen hundred and seventeen superficial arpents, conveyed by the 2d article of the act of compromise of the llth April, 1839, appraised with the negroes and utensils at $92,635. The Elm Park plantation, containing one thousand and fifty-two superficial nrpents, valued with the negroes and utensils at $93,87S 50, conveyed by the 3d art. The Destrehan plantation valued at $191,094 60, conveyed by the 5th article of the said act, and of an undivided half in the Mount Houmas plantation, sold to the joint owner Henry Doyal, by act of compromise dated 29th March, 1849.
    All this property is by law vested in his executors, to whom seizin is given, and when'these, either by resignation or death, shall be replaced by the commissioners under the second article of his will in those commissioners; who are directed how to comport themselves with reference to the slaves; who are charged With the payment of the perpetual legacies under art. 14, and with the erection of the city of Dunblane on the Destrehan plantation, which is to remain forever as a part of his estate; who are to erect at the expiration of twenty years a manufactory of shoes, art. 13, and the church and school house, art. 14.
    Did the matter rest here, we presume that any one endowed with common sense would say that the intention of the testator to create a perpetuity could not be mistaken, that his will was an attempt to legislate for himself, and in violation of the law to make that forever unalienable which the policy of all civilized nations has declared shall, under various modifications, be marketable. Were these the only questions involved, we conceive the court would avoid the will on these grounds alone.
    What, then, is there in the will that’can interfere with the decree or give vitality to provisions so manifestly in violation of both policy and law. By the 6th, 7th and 8th articles of his will he makes the following dispositions, having reference, first to the negroes he owns individually, and second, those owned jointly with Mr. Doyal. He divides them into two classes: 1st. Those born at his decease, or within five years of that event. 2d. The issue of the first born subsequent to the expiration of five years. The former he directs shall be liberated in the following manner: “ At the end of the five years as aforesaid, there may be drawn by lot out of all the slaves, ten, five females and five males, who will be furnishad with a free passage to our settlement in Africa, and $100 each; but they must go of their own free will; and to return to slavery, if ever they return back to this country. At the end of ten years, twenty may be emancipated in the same manner as the first five, and in twenty-five years all the first born free may be sent off,- with the entire remainder of the old stock that is willing to go, so that at the end of twenty-five years from my death there will not be upon any of my estates any other slaves but the apprentice children; and if the other slaves did not wish to go to Africa they will remain upon their respective plantations upon which they reside as apprentices, to be provided for accordingly, but to be strictly under the management of the overseer, as well as all their offspring; the whole to be considered as apprentices, and their labor to be applied to the general good of all the affairs of my succession.”
    in the construction of these clauses let us first see what says the law upon the subject matter to which they have reference.
    Arts. 1459 C. C. and 906 C. N. provides that with regard to the capacity of receiving, it is sufficient that it exist at the moment of acceptance in a donation inter vivos, or at the opening of the succession, if testamentaiy.
    1460 and 906. That where the donation depends on a condition, it exist when the condition is accomplished.
    1469 and 906. That the capacity to receive by donation inter vivos exist in the child conceived at the time of the donation; in testamentary dispositions at the time of the decease of the testator, but that in this case the child must be born alive.
    1172, 2026, and 1885, 1886. Impossible conditions,- or those prohibited by law, avoid the agreement where it is conventional.
    1506 and 900. In dispositions inter vivos and mortis causa, they are considered as not written. Toull. vol. 5, 206, et seq.
    
    
      37. Slaves for a time statu liberi are those who have acquired the right of being free at a future period or on a condition not fulfilled, or on a certain event which has not happened, but who in the meantime remain in a state of slavery.
    196. The child born of a woman after she has acquired her right of being free at a future time follows the condition of the mother, and becomes free at the time of her enfranchisement even if the mother should die before that time.
    Let us now turn to the views of the testator; admitting that the enfranchisement might be effected by mere expatriation, what did he intend to do ?
    The first difficulty which presents itself is in the construction of the first clause. He says: “All the children that are born five years after my death, if females, are to be free at the age of 20 years, and male children at the age of 25.” Did he mean all children who might be born after the effluxion of five years, or did he mean all children born within that period and the time of his decease ? We conceive the latter construction to be the correct one; because however inconsistent and contradictory may be the provisions of the will in this behalf, it is the only one which enables us to establish anything like consistency between them. We shall, therefore, take this to be the meaning of the testator in employing this ambiguous expression, and proceed to consider under this view the objects he had in contemplation in making his will, and the possibility of carrying them out consistently with the laws which govern this particular species of property.
    The desire of the testator was, we conceive, to set free at the periods appointed, all those of his slaves who, being born at the time of his decease, or within five years afterwards, were willing to leave this country forever; and to convert the condition of their descendants into one unknown to our laws and which it would be impossible to establish. For unless he could, as he attempts, restrain in perpetuity the alienation of his estates, it is clear that his views could not be carried out. He intended gradually to withdraw from his plantations all his slaves born at his decease, or within five years afterwards, and to substitute in their place their children, whose condition should be one utterly unknown to outlaws, and by him borrowed, as is the term he employs to describe it, from the recent colonial enactments of Great Britain. In using the term apprentice, he clearly contemplated a condition different to that known as such under our code, because it is there defined to be a hiring of free labor for a certain period, to effect which there must be a mutual consent, a limit as to time, and the observance of formalities wholly wanting here. It would seem on the contrary that the testator contemplated a forced and hereditary servitude, subject to laws and regulations which he himself prepares. No provision is made to qualify at any future period the social position he assigns them. He clearly meant that they, like predial serfs, were to be attached to his estates in perpetuity, and in every thing save name they were effectually slaves, and in this extraordinary position were to be coerced and governed by laws which emanate from him.
    That this construction is the correct one, is evident from the language of the will itself. He says: “So that at the end of twenty-five years from my decease there will not be upon any of my plantations other slaves but the apprentice children, and if the other slaves did not wish to go to Africa, they will remain upon their respective plantations,” &c. Now it is clear, that even under the construction we have adopted., this provision is not strictly in keeping with the one which confers upon those born within five years from his death their liberty at twenty and twenty-five years, inasmuch as the privilege here granted of enfranchisement by going to Liberia, would anticipate this epoch in the case of all those who were born even a day after that on which he died. But it is vain to expect exact concordance between the various provisions of this extraordinary document; the utmost we can do is to adopt that construction which is the least calculated to •produce collision between the various desires and directions it contains.
    Were the converse of this construction adopted, and this provision considered applicable to the children of the first class born after the effluxion of the five years, the intention of the testator would be entirely defeated, and the disposition here made at complete variance with other provisions of the will. If this be the class to be emancipated, the males at 25, the females at 20, it is clear that the power given to them to leave for Africa at the end of a fixed period, to wit, the term of twenty-five years from testator’s decease, would, besides depriving the estates of the apprentice children, of which he speaks and who can alone be furnished from this class, render fruitless the declaration of the testator that their enfranchisement should be affected at these respective ages.
    
      Ten, twenty, or twenty-five years, are by the testator assigned for the formation of this class, the periods at which the parents are to be ballotted for or finally expatriated. Suppose, as the testator evidently anticipates, that children continue to be born through this period, how can we reconcile his declaration that they shall be emancipated at 20 and 25 years of age, with that which gives them power to free themselves at a fixed period of 25 years. It would be emancipating, by one provision of the will, children of all ages from one day to 25 years old, the whole of which were by another, as formerly enounced, declared to be slaves to the respective ages of 20 and. 25.
    And here let us call the attention of the court to the language of the will. “There will not be upon my estates any other slaves but the apprentice children, and if the other slaves did not wish to go to Africa they will remain upon their respective plantations as well as all their offspring, the whole to be considered as apprentices.” Now here are three classes, 1st, the apprentice children; 2d, the parent stock expatriated; and 3d, the parent stock who refuse expatriation, and who, together with their offspring, become apprentices; and under no construction save the one for which we are contending, can one raise even an hypothesis upon the object the testator had in view in framing these absurd provisions.
    Such, then, we conceive to have been the intention of the testator. To what extent are these intentions to be modified by the law. If the will should be considered as conferring at once the statu liber on all the old stock, the children under article 196, would be in the same condition, but are the provisions of the will consistent with this view? The testator meant that whatever might be the fate of the parent stock, whether they went to Africa or. remained in Louisiana, the children should remain in perpetuity upon the plantations to which they were attached.
    If the provisions of the will confer upon all the slaves on the plantations a present right to future emancipation, it confers upon them the privileges and rights of slaves in statu liberi, and all children born subsequent to his decease are in the like condition with the mother, and entitled to emancipation on the happening of the event or contingency upon which that of the mother was made dependent. And the testator instead of declaring that at the end of 25 years there would be upon his plantations no other negroes than apprentice children, might more correctly have declared that there would or might be at that period none at all; an event he clearly never contemplated, for that in using the term apprentice children, he did not restrict its application to the children of those elected to remain, is evident from the context we have above set out; language which, as we have observed, clearly refers to a class of apprentices already established, to which these latter were to be added.
    That the testator intended to perpetuate his worldly possessions, we conceive no one can doubt who reads the will; the language of that instrument supports .our position in express terms, and we presume that the court will come to this conclusion. These possessions consisted for the most part of large productive plantations, and no provision whatever is made for the mode in which they are to be worked when the slaves shall have been wholly withdrawn from them. The executors, or their successors in office, who certainly are to be sustained through all ages, charged as they are with the payment of perpetual annuities, are not authorized to purchase new force, nor do we find the slightest indication of the testator’s intention that they should be worked by free labor. We repeat what we have before asserted, that the testator had no definite views upon the subject matter of these dispositions ; that he entertained a vague desire, in imitation of the colonial movements of Great Britain, to convert slavery into apprenticeship ; and could he legally have effected this object, his intentions, such as they were, would have been effected. His plantations worked as he directs, under the control of his overseers and managers, and the produce of this labor been appropriated as he expressly declares it should be to the general purposes of his testamentary disposition.
    We contend, that this instrument exhibits the existence of a confused and ill-digested desire to effect an object that may, to use the language of Troplong. be termed “ l'idée dominante.” That the testator desired to vest his property in the hands of trustees, who, through all ages, should continue to administer it in the manner and form he had himself dictated; that they should, out of the proceeds of his property, pay their own salaries, the salaries of the clerks, of the minister of Dunblane, and the perpetual legacies bequeathed to his relations. To do this, it was of course necessary to supply hands, and that, troubled at the contemplation of an event for which he was actually preparing, and as a peace offering for the atonement of his sins, in this particular, during bis life, he determined to effect a revolution in the social condition of his predial force, and from a state of slavery to change them into apprentices, ns known to the British possessions. But it is equally clear, that he did not intend to give them unconditional freedom. He intended, if any definite intention he had, to give time to supply the place of all the old stock, who should elect to go by their increase, which, together with those who should refuse expatriation upon the terms proposed, would enable his trustees to do that which, it is manifest, they could not do without them. We have before observed, that the bulk of his property consisted of plantations, and that the only means by which this property could be made productive was the employment of negro force. It cannot be imagined, that he contemplated emancipation on the one hand, and an implied power to his trustees to purchase new force on the other; the only alternative then is, that the terms of the will are to be construed as they stand, in the ordinary acceptation of the language employed by the testator, and that the slaves were not, with the exception already referred to, to b.e released from his control as proprietor; but that, under the management of overseers supplied in endless succession, they were to work for the benefit of his succession.
    This, then, wo take to be his primary object, the handing down in perpetuity his whole estate, the emancipation of the .negroes are auxiliary to it. There is nothing to be gathered from the will itself which can induce a belief, that apart from this object the provision would have been inserted in it. It follows the creation of the machinery by which his system was to be worked out, and any supposition as to what he would have done, had he known when he wrote the instrument, that it could not. be carried into effect, ceases to 'be any thing more than conjectural interpretation, in having recourse to which the court transgresses the limit of its power, and incurs the risk of making, rather than interpreting, the will of the testator.
    
      J. Finney, in behalf of Mrs. Wilcox and George Henderson, co-plaintiffs, contended : From a careful perusal of the will, we understand the general scheme and intention of the testator, to be as follows, viz; 1. To appoint his executors, and to provide the manner of the appointment of their successors, to take- their places during all time, whenever any vacancies in the office may occur; thus endowing them with the faculty of perpetual succession, and creating a quasi-corporation to represent him after his death. This purpose is manifest from the first and second articles of the will, taken in connection with others, which assign a perpetual task to those novel functionaries. The perpetuity of their duties is manifest; no limit is fixed to the duration of the office; provision is made for the perpetual succession of the officers, and we may without difficulty infer, that their office is intended to endure as long as the performance of their functions are required. 2. To endow them with the perpetual seizin of the estate. This is accomplished by the next to the last paragraph of the second will, taken in connection with the perpetuity of the duties imposed on the executors, and the absolute necessity of seizin to perform those duties. 3. To declare the trusts for which the property is vested in the executors and their successors. These may be reduced to the following general heads: 1. The payment of his debts, and the discharge of certain legacies payable immediately. 2. The emancipation of his slaves at certain specified periods, and the payment of certain annuities for charitable purposes, for terms of years. 3. The payment of certain annuities in perpetuity, the foundation of a cily, and the establishment and the maintenance of a church, a school, and immense factories in that city.
    The most important of these trusts are declared in those articles of the first will, which are numbered from six to sixteen inclusive. In order to meet the drain upon the executors, the testator directs them to look to the cultivation of his several plantations, and the lease of his cily property on ground rents. This we believe to be a meagre but correct outline of the general plan of the will. It is not necessary, for the present purpose, to go more into detail. The whole property of the estate is vested in the executors and their successors, for the trusts and purposes above set forth. It is never to pass to any other heir or devisee, or for any other purpose.
    In the second will there is a provision, that if any of the properly of which he may die possessed should not pass for any cause whatever, under any of the dispositions of the first will, that such properly shall be divided among his legatees in proportion to the amounts of their several legacies. But, this clause is not intended to disturb any of those dispositions. It is only intended to take eifect in case of the failure of any of them, or of a surplus of means beyond what may be necessary to cany them into eifect. The testator expressly declares in the same connection, that he “ makes anew,” and “ confirms” those dispositions. If this be the general scheme of the will, it is obvious, the intention of the testator would have been better expressed ; if, in apt and proper language, he had devised his whole estate in trust to his executors and their successors, or to trustees and their successors, for the following purposes, viz: 1. To pay his debts, and discharge certain legacies due immediately. 2. To pay annuities for terms of years, and to emancipate all the slaves on his several plantations, living at his death, or born within five years afterwards, in five, ten, and twenty-five years after his death. 3. To pay certain perpetual annuities, found a city, found and maintain a school, a church, and certain factories in that city, and to provide the means necessary for the accomplishment of these objects from the cultivation of his several plantations, under the direction of the will, and the lease of his city property on ground rents. This is the general scheme of the will, reduced to plain language.
    For the present, we may leave out of view all these various trusts, except that which respects the emancipation of the slaves. The others are not now before the court. The question may then be thus stated : Is a devise in perpetuity to executors and their successors, of an estate embracing slaves and other property in trust, to emancipate the slaves at certain specified 'periods, and for other purposes, good and valid, as respects the emancipation of the slaves 1 It may be urged, that we have improperly presented the matter as a devise to the executors and their successors ; that the word devise implies investiture of title, and that executors are not invested with title.
    We admit, that the mere appointment of a person as executor, and charging him with duties properly appertaining to that capacity, does not vest him with title. But the testator may, if he think proper, confer title upon his executor as well as any other person, and where he directs, that his executors and their successors, shall hold his estate in perpetuity, independently of the authority of all courts of justice, and of his lawful heirs, and shall perform, throughout all time, certain functions, which necessarily imply absolute control over the whole estate, such a disposition appears to us equivalent to a transfer of complete ownership, comprising both possession and title. That is its substance, whatever may be its form. We think, therefore, the question may be fairly stated, as it has been already propounded, viz. : Is a devise in perpetuity to executors, and their successors, of an estate embracing slaves, and other property in trust, at certain specified periods, to emancipate the slaves, and for other purposes, good and valid, as respects the emancipation of the slaves ? Our laws manifest a rigid purpose to confine the testamentary power to narrow limits. A testator cannot grant the seizin of his estate to an executor for a longer period than a year and a day La. Code, 1662. “ Substitutions and jidei commissa are and remain prohibited.” “ Every disposition by which the donee, the heir, or legatee, is charged to preserve for, or return a thing to a third person is null, even with regard to the donee, the instituted heir or legatee.” La. Code, 1507.
    The executor is a species of mandatory which the law permits the testator to appoint, for a short period, to take charge of the property which he may leave, pay his debts, discharge legacies, settle all earthly accounts which the testator may have left behind him, and render an account of his doings, at the expiration of the time limited by law, to the person whom either the law or the will designates as the new owner of the estate. He is a mandatory of the dead, permitted by the law for a brief period to close the accounts of the out-going proprietor, and prepare the way for a new master of the estate. As the agent of the dead, it is proper, that his authority should be limited in time and extent. It is in derorgation of the general rule, that the dead have no agents; and is permitted for a short period, out of tenderness to the dying. The limit in point of time is fixed by article 1662 of the Civil Code. The extent of the authority is defined by the articles numbered from 1659 to 1670 inclusive. If the will clothe the executor with power for a long period of time to hold the estate, receive its revenues, and apply them according to the directions of the will, it is an attempt of the deceased to prolong his ownership, and exercise the rights appertaining to it beyond the grave. This the law forbids. When a man dies, he ceases to be owner. The last act of ownership which the law permits the dying is, to appoint an executor to do such offices as properly belong to that capacity, and to designate the new owner, to take place at the death of the testator. Clague's widow v. Clague’s executors, 13 L. R. 1; 13 Mer. Rep. de Jur. Verb. Héritier, sec. 7, no. 2, bis.
    It is proper here to refer to the law of 1837, which provides, that “ all executors, administrators, syndics, &c, shall continue in office, until the estate be wound up.” Bul. and Cur. Dig. 3.
    This law was not intended to enlarge the testamentary power, or to clothe executors, administrators, or syndics, with other powers than they previously held. The law simply means, that if the duties appertaining to the offices respectively cannot be completed within the period then fixed by law, such further time shall be allowed as may be necessary to perform those duties. The case in 13 L. R. was decided after the adoption of this statute. We do not understand that this law enlarges the power, either of the testator or executor. The law, then, does not permit our testator to clolhe his executors with power in that capacity merely to control and manage his estate for an indefinite period; and such objects of his testamentary dispositions, as require the executors to have this long and indefinite seizin of the estate, clearly cannot be accomplished by them in the capacity of executors. The powers with which they are clothed are inconsistent with their capacity, and characterize them as trustees with a vicarious ownership, to hold the property for ever, and perform the commands of the testator. Sensible that the powers conferred are not those of an executor, the testator himself drops the term, in the course of his testamentary dispositions, and calls them sometimes commissioners, and sometimes trustees. Is a disposition conferring .such powers valid 1 So far as the powers conferred embrace acts which properly belong to an executor, such as the payment of debts, the discharge of legacies deliverable immediately, the settlement of accounts, the safe keeping of the property, and the rendition of an account at the termination of his functions, the disposition is to that extent valid. But when the disposition confers the entire management and control of the estate for a long and indefinite period, upon executor's, and their successors, to receive its revenues, and apply them according to the directions of the will, to execute acts of alienation, at distant periods, according to the directions of the will, to exert a vicarious ownership, emanating from the tomb, and representing its inmate ; and finally, with a charge upon each executor or each commissioner, at his death, to transmit the trust estate to a successor, to be appointed according to the directions of the will, and to be charged with the same trusts — we think the legitimate limits of the powers both of the testator and his executors or trustees (or whatever other name they may be called) are transcended, .and that all such dispositions are void, both as regards the ,executor or .trustee, and the beneficiary of the trust. Such a disposition appeal's to us to come within the prohibition of art. 1507 of the Civil Code.
    The corresponding article of the Code Napoleon, is numbered ,896. The French jurists consider the 2d clause of the article beginning with “ toute disposition,” as restrictive of and qualifying the 1st .clause. They interpret the law, as prohibiting only “ substitutions graduellés,” or such fidei commissa as give the property or .thing bequeathed to a person during life, with a charge to transmit it to a third person at his death. 5 To.ullier, no. 21, et seq.
    
    But, there is a palpable difference between the French Code and ours. The French Code reads “les substitutions sont prohíbes.” In our code the article reads “ substitutions and fidei commissa, are and remain prohibited,” thus extending the prohibition to fidei commissa, as well as substitutions. But, there is another still more striking difference in the second clause of the article. In the Code Napoleon, the words “ de conserver,” and “ de rendre,” are connected by the copulative conjunction. In our code, the disjunctive is used, between the corresponding words. The French jurists hold, that to bring a disposition within the prohibition, there must be a concurrence both of the charge “ de conserver” and the charge “ de rendre á un tiers,” thus giving effect to the copulative. To give effect to the disjunctive, which occurs in our code, we must hold, that the occurrence of either of the proscribed features, either the charge “ de rendre,” or “ de conserver,” vitiates the disposition. The French text of our code however differs from the English, using the copulative, as does the Code Napoleon. The English text must prevail. State Constitution of 1812, art. 6, sec. 15- .9 M. R. 364.
    The third and last clause of the same article shows, that it was not a mere inadvertence that the disjunctive was used. That clause reads thus: “ In consequence of this article, the trebellianic portion of the civil law, that is to say, the portion of the property of the testator, which the instituted heir had a right to retain when he w.is charged with a fidei commissum, or fiduciary bequest, is no longer a part of our law.” Observe, why the trebellianic portion is no longer a part of our law. Because, by the preceding clause, the dispositions to which it attached, viz : substitutions and fidei commissa had been already abolished. But, by the civil law, the trebellianic portion attached, not only to the fidei commissa with a charge to keep during life, and render to another after death, “ de conserver et de rendre,” but to all fidei commissa and substitutions. If the preceding clause had abolished nothing but the fidei commissa deliverable over at the death of the first holder or instituted heir, no such consequence as the abolition of the trebellianic portion, would have followed. A large family of substitutions would have remained untouched, to which the trebellianic portion might have adhered. But, the Legislature says, the whole family of dispositions to which the trebellianic portion belonged having been abolished, that too is abolished. If the whole family had not been abolished, the reason given by the Legislature altogether fails, and they are made to utter nonsense. This shows that the law maker understood and meant to use the disjunctive, which is used in the second clause.
    Your honors will here permit us to remind you, that according to the civil law proper, there was no such office known as that of executor, in the sense in which we understand it. The term executor is used as synonymous with “ instituted heir.” Vide Domat, liv. 3, tit. 1, sec. 1.
    So also Domat speaks of the trebellianic portion as belonging to the executor or heir, and it may be thoughtlessly applied to the above reasoning, which we have used to prove the abolition of fidei commissa and substitutions, that, by the same argument, we could prove the abolition of executors. As thus, for instance, the law says, the trebellianic portion is abolished, because all the dispositions to which it was attached are abolished. But, the trebellianic portion belonged to an appointment of executors. Ergo, executors are abolished. The force of this argument fails altogether, when we recollect that the term executor, as used by the civilians, means an entirely different thing from what the term is employed to signify in our law. Bouvier’s Law Die., verbo Executor. We insist, therefore, that our Legislature meant what they said ; that when they used the disjunctive, they meant that the clauses, thus connected, should be understood in a disjunctive sense, and that when they undertook to assign a reason for a conclusion, they must be understood to assign a reason in some sort, at least, having the appearance of justifying that conclusion. We must not stultify them.
    There has been a contest among our jurists, whether the article 1507 should be understood in the restricted sense in which the French jurists interpret article 896 of the Code Napoleon, to wit, as applicable only to “ substitutions graduelles,” (a term which for convenience, we will hereafter use as equivalent to fidei commissa, deliverable over only at the death of the instituted heir, or the person first called,) or whether the article 1507 shall be construed to have a wider range, and prohibit not only “ substitutions graduelles,” but all substitutions aod fidei commissa, except what are excepted in articles 1508 and 1509. Great pains were certainly taken to change the language, as it stood in the Code Napoleon, with an evident intention to give the prohibition a wider range than it had in that code. This was evidently done with a view to embrace cases left out by the Code Napoleon. The most comprehensive language was used. All this will be without effect, if we are to take the prohibition in the qualified sense in which it is explained by Toullier and the French jurists.
    Our courts at an early day recognized the difference between our law and that of the Code Napoleon, and have held, in numerous cases, that not only were “ substitutions graduelles” abolished, but fidei commissa to be delivered over immediately, or within a certain period ; dispositions which would unquestionably be good, according to the jurisprudence of France. 5 Clague’s widow v. Clague’s Executors, Vide 13 L. R. 6. 10 L. R- 03. 4 L. R. 506. 3d Ann. 430. 3 R. R. 453.
    In the first case cited, the testator directed that his estate should remain in the hands of his executors until his children became of age. After quoting article 1507, the court says : “a disposition by which the properly of the testator is to remain in the hands of the executors until the majority of the testator’s children, one of whom is under ten years of age, cannot be distinguished from one that would authorize the executors to preserve for, or to return the estate to, them, at the period of the majority of the children and heirs.” “ Such a disposition is, indeed, a fidei commissum or trust -which the law forbids.” In the case cited from 12 L. R. 23, the testator had obtained a promise of his executor and universal legatee, to deliver a tract of land and six slaves to a third person. The court held, that although there was no substitution, yet there was a fidei commissum, which was as much prohibited as a substitution. They declared the disposition invalid. The trust did not appear in the testament; but that circumstance does not appear to have been regarded as material. There is no law that condemned it the more for being purely confidential. That was not the objectionable feature. It was condemned simply because it was a fidei commissum.
    
    
      ' In the case cited from 4 L. R. the disposition under consideration was, in fact, a “ substitution graduelle,” and would have been condemned by Toullier. But the court there recognizes the force of the disjunctive conjunction in the second clause of article 1507. This language is used : “ in pursuance of the law, if a donee be charged to preserve for or return a thing, &c., an instrument in which either of these dispositions is contained, has the effect to annul the donation.” The case cited from 3d Ann. is fresh in the minds of your honors. The case in 3 R. R. 453, reiterates the doctrine of the case cited from 12 L. R. 23.
    These cases, we think, abundantly establish the doctrine, were any thing necessary beyond the article of the code, that all dispositions characterized either by a charge to keep a thing or deliver it to a third person, “ de eonserver,” or “ de rendre ü un tiers,” are void. There are, we doubt not, some rambling dicta to the contrary, occurring occasionally in the reports; but, we have met with no case seriously involving the question, in which the contrary doctrine has been maintained. The cases of Mathurin v. Linaudais, 5 N. S. 303, and Malone v. Barker et al., 2 R. R. 369, have been sometimes cited as sanctioning the contrary doctrine. But the first case was decided on other grounds; and the last does not touch the point at all; the instrument involved in that case being a common law deed of trust to secure a debt. It is impossible to confound a common law deed of trust to secure a debt with a fidei commissum or a substitution. Your honors understand full well, that a deed of trust to secure a debt, is but a form of hypothecation practised in the common law States, to answer the same purposes that mortgages are with us. We conclude, therefore, that according to our law, a testator cannot authorize an executor to hold his estate for an indefinite period, and thus continue his ownership after death. An attempt to do so, is, in fact, an attempt to designate a successor to the estate, upon condition, that the ownership of the successor shall be subject to the commands of the deceased. The so-called executor must be regarded as a trustee, an owner of the estate in trust; and the validity of the dispositions must be considered, without reference to the name, by which the functionary appointed to carry them into effect may be called. A man cannot, merely by using the term executor, give validity to dispositions otherwise invalid. Neither can he charge the owner, whom he appoints to succeed him, with an obligation either to keep the property for, or deliver it to, a third person, by whatever name his successor may be called.
    We do not deny that a man may lawfully charge his executor, to pay or deliver a legacy within the usual limits of an executorship, when the discharge of the duty does not involve a transgression of the limits both of the time and power of an executor. But, when the discharge of the duty requires an indefinite prolongation in the executor of that ownership which should have died with the testator, the use of the word “ executor,” cannot sanctify such a disposition ; it is, in fact and substance, a designation of a successor with a charge “ to keep for and render to a third person,” and cannot be construed otherwise, than as if the same charge had been imposed upon the instituted heir.
    We have endeavored already to show, that the imposition of either of these charges upon the heir comes within the prohibition of article 1507 The testator must transmit the property, untrammelled with any command either to keep for or deliver to a third person, or otherwise infringing upon the rights of the new proprietor. As we have before said, the last act of ownership permitted to the dying is, to appoint an executor, whose principal business it is to set the house in order, and to designate the new lord.
    Let. us now examine briefly the will under consideration. It constitutes commissioners, or trustees, (the testator in the course of his dispositions, dropped the term executors, and adopted those we now use,) and requires them to take jjjg en(;ire estate, hold it during their lives respectively, to pass at their deaths respectively, to such successors as may be appointed according to the provisions of the will, who are to take and hold and deliver in the same manner; thus vesting the estate in a species of quasi-corporation, attempted to be created by the will. Each trustee, or commissioner, is to hold during life, and deliver at his death. Here we have the concurrence both of the charge “de conserver,” and “ de rendre;” the unmistakeable characteristics of the “ substitution graduelle,” condemned by all the French jurists, since the adoption of the Code Napoleoq, and admitted by all of our own country to fall within the ban of arliclo 1507.
    Thus, a series of substitutions is formed, constituting the parent trunk, Rom which, at proper periods, limbs are to branch out, as we shall see hereafter. The fact, that these trustees .and their successors are to apply the revenues which they are to produce and receive from the estate, to certain trusts declared in the will, cannot cure the vice of their own creation. We shall endeavor to show presently the invalidity of those trusts. But whether they are, or are not valid, they cannot give life to the unsoundness of the parent trunk, to which they are attached. The attempt to administer the estate through the agency of these trustees, to reap fruits, and direct their use, is itself unlawful ; it is, in fact, an exercise of ownership after one’s death, and subversive of the principles which we have labored to establish. There is no usufruct in one and fee in another. The possession and the ownership are both in the trustees and their successors in trust, to reap the fruits, and thus create a fund to perform the commands or trusts of the will. It is, in fact, an attempt of the testator to remain master of his estate after his death.
    2d. At the respective periods of five, ten, and twenty-five years, all the slaves Jiying at the time of the testator’s death, and born within fiv.e years after-wards, are to be -“furnished with a free passage to our settlement in Africa, and $100 each; but they must go of their own free will, and to return to slavery if they ever come back to this country.” They are to receive at those periods, their passage to Africa, and $100 each, upon condition that they “go of their own free will.” There is another condition, that the benefit bestowed is not to extend to a murderer, or thief, or runaway, or .such as have committed any high crime, whereof they may be duly convicted before the executors or commissioners.
    Observe, the provision is, that three lots of slaves to be formed at the three periods designated, and in the manner designated, are to be furnished with their passage to Africa and $100 each by the trustees, upon condition that they go out of their own free will, &c., and that they have not incurred the condemnation of the trustees for any of the offences detailed in the 7th article. Their freedom is not devised to them expressly. It is given to them indirectly, simply by furnishing each of them a passage to Africa, and the $100 as an outfit; and they ar-e not to have the passage, or the $100, until they consent to go to Africa. Their consent is a precedent condition to be complied with before they become ¡entitled. Their freedom is not given to them by the will; if they get it at all, it is simply by the operation of the law of our settlement in Africa, upon their status when they get there. We doubt very much whether a gift to a slave ie valid, although his master may have ordered him to be sent to Africa, and the laws of that place may set him free when he gets there. He is a slave until the laws of Africa release his bonds; and, as such, cannot receive a gift. Neither is he, as it seems to us, a stalu-liber. He is simply a slave about to embark on a voyage to a country whose laws, it is supposed, will set him free if he ever reach their jurisdiction. His freedom will depend on the success of his voyage and the existence of the supposed laws in the port of destination. He has not the present right of being free at a future time: the characteristic of the statu-liber; he is oply a slave under the orders ofhis matsterto go to Africa. What he will be when he gets there will depend on the laws he may find in force in that country. We think, therefore, it may well be doubted whether the slaves have the capacity to receive the pecuniary legacy and the passage to Africa. La. Code, 184. And if they do not receive these bequests, they receive nothing; and all that is said about them in the will may be regarded as perfectly idle.
    But passing this by, as perhaps a little too technical, (we only intended to suggest the point,) and admitting that the will means, that they are to receive their freedom and the pecuniary legacy and passage to Africa all at once, it evidently also means and expressly declares, that they are not to receive any of these things except upon condition : 1st, that they consent to go to Africa; 2d, that they have not incurred the condemnation of the trustees for any of the offences detailed in the 7th article. The first is evidently a condition precedent to their receiving anything at all.
    Their title to their freedom, or, in other words, to themselves, does not vest until the performance of this condition. In the meantime the title remains with the trustees. They hold the slaves and receive the proceeds of their labor until they have entitled themselves to the benefits bestowed on them conditionally, by compliance with the condition. Here we have a charge to keep for a certain time and deliver upon a certain contingency, or performance of a certain condition precedent. The freedom of the slaves, the donation of their passage to Africa, and the $100 outfit, all come within the above description. Such a disposition is clearly within the prohibition of article 1507. If there is not the concurrence of the charge “de conserven,” and that “de rendre,” there is at least the charge “de rendre;”and that of itself, according to our law, as we have endeavored to show, condemns the disposition as unlawful.
    We have already shown, that the series of substitutions presented in the limitation of the estate to trustees and their successors, were prohibited by article 1507. We have also endeavored to show, that the several bequests to each of the slaves, of their freedom, their passage to Africa, and the pecuniary legacy, were also in violation of the same law, viz: the article 1507. But there is another reason why these last dispositions cannot be executed. The trustees are ordered to hold the plantation and slaves, and all other property of the estate, to receive the revenues, reap the fruits, and thus accumulate a fund to defray the expenses of this scheme of emancipation and colonization. The means are to be raised through the agency of the trust estate. We have already seen, that the trust estate must fall by virtue of the prohibition of article 1507. The means which it was intended to supply cannot be supplied; and the end necessarily fails of accomplishment. There is a necessary and indissoluble connection between the contrivance which was designed to furnish the means, and the end to be accomplished. You cannot destroy the former, without also defeating the latter.
    Nor was the contrivance of the trust estate more than adquate to the supply of means for the accomplishment of the objects contemplated in the will. Besides, the other stupendous schemes attempted to be executed, the emancipation and colonization of so large a number of slaves, of itself requires immense resources. There are several hundred slaves; each slave is entitled to $100 and the passage to Africa. The mere passage money and outfit of so many slaves amount to a vast sum. Besides, the value of the slaves themselves is to be taken from the estate, and yet other immense and expensive schemes are to be accomplished. The emancipation induces heavy liabilities, for which there are no means provided, except through the agency of the trust estate.
    According to law, slaves cannot be emancipated except upon the execution of bonds by their masters, with good and sufficient security to the amount of $1,000 for each slave, conditioned that said slaves depart permanently from the State, within one month after their emancipation. Bui. <fe Cur. Dig., 430. Acts of 1830 and 1831.
    Slaves of extraordinary merit, such as have rendered important or valuable services to their masters, or mistresses, or to the State, do not come within this rule. But this exception evidently does not apply to large bodies of slaves taken from several plantations. It only applies to individual instances of rare merit, to be established by the most incontestible evidence to the satisfoction of the police jury. The emancipation of the great mass of the slaves under consideration must be governed by the general rule, and bonds and security must be given. The trustees then must give bond with good security to the amount of several hundred thousand dollars. Of course, they cannot give such bonds and furnish security without correspondent means ; and we have already shown, that the contrivance of the testator to provide those means has wholly failed.
    Again, emancipation necessarily imports an obligation on the part of the person granting it, to provide for the subsistence of the slave emancipated, if he '''should be unable to support himself. L. C. 188. This obligation certainly would fall upon the trustees if the emancipation takes place here, although the slaves may have emigrated to Africa. The act being done here, all the obligations which our laws attach to it necessarily arise.
    
      According to the scheme of the will, we can easily perceive whence the means to meet these vast liabilities were to proceed: to wit, from the accumulation of the revenues of the plantations and city property during a long period, in the hands of the trustees. But there are no trustees ; there is no trust estate; and there is no accumulation .of revenues to take place, accoi'ding to the provisions of the will. The contrivance of the will to provide means in that manner has wholly failed, as being an unlawful disposition; the end,, therefore, it seems to us, must follow.
    Your honors will not endeavor to do that in a lawful manner, which the testator endeavored to do in an unlawful manner and has failed to accomplish, by reason of the illegality of his mode of proceeding.
    Before we dismiss this subject of substitution, we will say a few words in relation to a common idea which prevails, that our law does not prohibit a trust uncoupled with an interest. To apply the doctrine to the case before us, it may be said that the trustees have no interest, only a naked trust; and that such a disposition is not prohibited.
    Now, we believe it to be a sound rule of interpretation, that wherever a law establishes a general rulo, and then enumerates certain cases and excepts them, out of the operation of the general rule, that all cases, which the language of the general rule embraces within its purview, and which do not fall within the enumeration of excepted cases, must be controlled by the general rule. The law prohibits alljWei commissa. The case of a trust uncoupled with an interest does not come within the excepted cases enumerated. As, for instance, when property is given, for life, to A, to receive and accumulate the proceeds during life, and at his death to deliver both the property and its proceeds to B, we have a fidei commissum, or trust in A, uncoupled with an interest; for he takes no profit whatever. There is a naked trust in him for the benefit of B, who enters upon the enjoyment at his death. The case presents a fidei commissum fairly within the purview of the general rule; and the fact that the trust, or fidei commissum is uncoupled with an interest, does not bring it within any exception; it must be deemed then, to be within the general rule. -
    Admit, for one moment, that the article 1507 does not prohibit a trust uncoupled with an interest, and observe the consequence. There is nothing to prevent a man from controlling his estate forever; as thus, for instance, he gives his estate to A. for life, to receive the revenues and hold them also during life; at his death to deliver the estate and accumulated revenues both to B, who also is to hold the estate and the sums of money transmitted by A, during his life, receive the revenues from them, and accumulate them during his life, and to deliver the whole at his death to C, who, in like manner, is to receive, accumulate aDd transmit to D, and so on ad finitum. Each legatee or successor to receive and hold and accumulate during his life, and transmit at his death to a successor. Each person called to the estate takes a trust uncoupled with an interest, and yet a perpetuity is created. The only effect of excluding all interest in the trustees is, not only to tie up the estate forever, but also its proceeds. The mischief is evidently greater than if the trust were coupled with an interest. Such a disposition clearly cannot be permitted, and yet there is nothing in our law to prevent it except the article 1507. If that law does not prohibit a fidei commissum uncoupled with an interest, the disposition above suggested may be lawfully made. All that the testator has to do to accomplish it, is to designate the successive trustees A. B. C. &c., in such a manner that there will always be in esse, at the determination of each life, a person who can be identified as the devisee designated by the will. This can be easily done; for instance, the estate may be thus limited to the mayor of a city and his successors in office.
    One word more. If the limitation to the trustees and their successors is void as a series of substitutions, it strikes with nullity every disposition dependent on it: that for the emancipation of slaves as well as others. A substitution is one of those dispositions “quae viiiantur et miiant;'’ it is not only void itself, but communicates its vice to every disposition connected with, and dependent upon it. Remote beneficiaries, to whom the testator designed to convey his bounty, lose the benefits intended for them, under the penaliy which the law has denounced against the corrupt channel through which that bounty is to be communicated. 5 Toullier, 12, 13.
    Therefore we have labored so diligently to show, not only that the limitation of the estate to the trustees and their successors is void, but that it is a series of substitutions, and void on that particular ground; believing that if we make good that point, all the dispositions in favor of the beneficiaries of the trust, or fidei commissum, whether in themselves lawful or unlawful must be set aside.
    There is another point to which we must call your attention. It is evidently the intention of the will, that all the offspring of the slaves born after the expiration of five years after the death of the testator shall remain upon the plantations on which they may be found, in some peculiar modification of slavery, w-hich is attempted to be described by the use of the word “apprenticeship.” The force of this term, in the connection in which it is thus used, is not very clear, but it evidently means some kind of slavery; for the will, after having provided for the transportation of the old stock and those born within the first five years to Africa, uses the following language: “so as that at the end .of twenty-five years from my death there will not be upon any of my estates any other slaves but the apprentice children;” and then goes on to provide thatthese apprentice children and those of the old stock who refuse to go to Africa shall “be strictly under the management of the overseer;” “the whole to be considered as apprentices, and their labor to be applied to the general good of my (his) succession.”
    They are to remain on the plantation under the control of an overseer, and their labor is to be applied to the general good of the succession. There are to be no other slaves on the several plantations but the apprentice children and those of the old stock who may refuse to go to Africa. Of course, then, the apprentice children are to be slaves, and to be employed on the several plantations for the account of the succession. But if their parents are deemed to take, by the will, a vested right to their freedom at a future time, in other words, to be made slaiu-liberi, the disposition by which the children are to work on the several plantations during all their liyes for the general good of the succession, is repugnant and contradictory to that providing for the emancipation of the parents. The parents cannot have a right to freedom at a future time, and yet the children born after the vesting of that right be subjected to slavery. L.
    Here we have two opposite and repugnant intentions of the testator, and there is no rule of interpretation by Which vie can reconcile them, or give the preference to either. Even article 3716 of the Code, which provides that «in cases of repugnancy of two dispositions of a testament, the first must give way to the last, affords us no assistance whatever in the solution of the difficulty; for, both the dispositions are found in the same sentence, and neither can have the preference from its position. Or, if either have a preference, the disposition which fixes the condition in slavery actually has it, for that is written last in the sentence.
    If the two dispositions be repugnant, and the court can give no preference to either, both must be set aside for uncertainty.
    Again, if the parents are statu-liberi, we get into another difficulty. The children born after the death of the testator must be either slaiu-liberi from their birth, or slaves. If they are decided to be statu-liberi, the patent intention of the will is violated. Moreover, they cannot be emancipated without being sent out of the country, as we have already seen by reference to the acts of 1830 and 1831, and not a dollar is provided for the purpose of sending them away. They cannot be removed and colonized without money; and there is no money. And if the children are slaves, the parents being statu-liberi, we have a state of things which the law does not permit. The children of a statu-liber cannot be slaves. So that if the parents are statu-liberi, whether their children follow their condition or not the law is violated. Whether we take either horn of the dilemma we encounter a legal impossibility’'.
    We therefore conclude: 1st. That there is a series of substitutions in the limitation of the estate to trustees and their successors, which is null itself, and imparts the same vice to every disposition in favor of the benefice ries of the trust, whether direct or remote. 2d. That the disposition for the emancipation of the slaves is dependent upon, and intended to have effect only through, the series of substitutions above mentioned, and is therefore affected by the penalty which the law has denounced against all substitutions and the dispositions dependent on them. 3d. That the disposition for the emancipation of the slaves must fall with the trust estate, for want of means to cany it into effect, the contrivance to provide the means having failed by reason of its illegality; 4th. That the disposition for the emancipation of the slaves is, itself, a fidei 
      
      commission -within the meaning of article 1507 of the Civil Code, and therefore void. 5th. That the provisions of the will with regard to the slaves are null and void for uncertainty and impossibility of execution.
    P. Soule, for defendants.
   The judgment of the court (Rost, J. recusing himself on account of interest,) was pronounced by

Slidell, J.

In the first article of the will the testator names three persons as his testamentary executors. In the second, he directs that in the event of their absence, resignation, or death, their places are-to be filled by one or two commissioners to be appointed by the Governor of the State, and any one of the Judges of the Supreme Court and the Judge of the First Judicial District Court, or any two of them. The commissioners are to have a yearly salary of fifteen hundred dollars each; they may be dismissed by any two of the judges for criminal conduct; they are to keep a set of books, to be examined and approved annually by any two of the judges. In the third article, he directs that his estate is not to go into court except for the purpose of probating the wills, and that every thing belonging to his estate is to be continued and conducted as it may be found at liis death. He orders the executors or commissioners to keep on each of his plantations a skilful and humane superintendant. He gives instructions for the food, treatment and discipline of the negroes. In the sixth, seventh and eight articles, he directs the gradual liberation of his slaves. In the ninth, he says: “The Destrehan estate is to remain forever asa part of my succession; and at the end of twenty-five years from my death, it must be laid out into a city to be named Destrehan.” In the tenth, he says : “Four acres, including the back and front garden, running back with parallel lines to the lakes, with all the dwellings, are to remain as one lot, with a good street and buildings on each side of the street.” In the eleventh, he says: “All my real estate in the city to remain upon ground rent, and no lease to exceed twenty-five years in time. All the stocks to be sold in ten years from my death.”

In the twelfth article, he bequeaths to his brother John Henderson, or his heirs, if he be dead, two thousand dollars per annum ; a like amount to Ann Henderson or her heirs, to Stephen Henderson or his heirs, to the children of George Henderson or his heirs; two thousand- dollars annually to the poor of New Orleans, to be distributed by persons appointed for that purpose by the governor, &c.; two thousand dollars per annum to the poor of Dunblane, in North Britain.

In the thirteenth article he says: “ When funds can be spared after twenty years, I wish a large manufactory of negro shoes and coarse clothes to be erected at Destrehan, under the direction of experienced workmen from Scotland. Destrehan city must be incorporated by an act of the Legislature. If these manufactories are well conducted, it will be the means of doing much good to the country, and give employment to a great many of the poor, and it will no doubt be the means of stimulating a great many of the young men to exert themselves, because, by perseverance and industry, they see what can be done.”

In the fourteenth article he directs “that after the first five years the executors will divide the following sums amongst the four following congregations, say, Clapp’s Church, two thousand dollars; Catholic Cathedrel, two thousand dollars; the English Church on Canal street, two thousand dollars; and the church commenced by Maffit, two thousand dollars; and to the Orphan Boys, two thousand dollars; and to the Female Orphan Society, tofo thousand dollars; the legacies to the four churches is only to remain and be payable for five years, but all the others so far named are .to be perpetual. Two thousand dollars per annum to the Charity Hospital. Five hundred dollars per annum to the Firemen’s funds.”

In the -fifteenth article he says: “ I wish a chapel or church to be erected ■upon the upper corner of the four acres lot, and a Presbyterian minister to be sent for from Dunblane or its neighborhood, at a moderate salary; I also -wish a good house for the minister to be erected upon the lower corner of the four acres lot; there must also be a small house for the education of. the poor of the town, over which the minister must preside.”

In the seventeenth, he changes the name of the proposed city from Destraban to Dunblane.

The provisions in the will for laying out one of his plantations at the end of twenty-five years into a city to be called Dunblane, and establishing a manufactory in it, are, in my opinion, an attempt to perpetuate his succession and violate the policy of the law. It must be observed, that the future city was not to pass from his succession, but to remain forever a part of it. If lie had bequeathed the Destrchan plantation to a contemplated charitable corporation, not in esse, but thereafter to be incorporated, then the disposition would have been like that in Mylne’s case. But here the future city was to remain in his succession. What he says of an incorporation seems to me to be in quite another sense. It was, that an act of incorporation for the purposes of municipal government should be obtained. A number of villagers ask the Legislature to incorporate them as a cily, and the Legislature does so. What is the effect of such an incorporation? A mere provision for the purposes of municipal government. The lands and the houses remain the property of the respective villagers. So here, the succession of Henderson would still remain the owner of the Destrehan lands after the city of Dunblane was established upon them and incorporated. The rents of the tenements, the products of the contemplated manufactory, the fruits of the soil, would have still belonged to his succession, and been collected and gathered by his executors. There is not a word in the will that takes the ownership of the proposed city out of his succession. But that, if carried into effect it takes it out of commerce forever, is indisputable. He expressly orders, “it is to remain forever as a part of my succession.” The executors might lease, but could not sell. In this particular the provision is not peculiar. His intention was the same as to his real estate in the city. It was to remain upon ground rent, and “no lease to exceed twenty-five years intime.” The conclusion, indeed, from the entire will, is irresistible, that the testator deshed to perpetuate a large portion of his succession, and that this was the dominant idea under which it was composed.

It is said that the provisions of the will do not amount in law to a substitution or a jidei commissum, and consequently are not reprobated by law. Conceding that they do not fall technically under either of these denominations, still they are clearly opposed to the policy of our laws and jurisprudence, which resists the perpetuation of estates. Their spirit is to prevent property from being tied up for a length of time in the hands of individuals, and placed out of the reach of commerce. If it would be illegal for a testator “to leave his property to any person or set of persons with the charge to preserve it, and to transfer it at their death to some persons designated,” as conceded by the learned counsel in his brief a fortiori, is it unlawful to tie it up in the hands of the executors and commissioners forever.

As to the provision in the fifteenth article for the erection of a chapel, and a house for the minister, his salary, &c., it is clear that this provision is most intimately connected with the scheme of establishing on the Destrehan plantation the town of Dunblane, and populating it with workmen from Scotland, as directed in an antecedent part of the will. It is so interwoven with that portion of the will as to be dependant upon it and legally indivisible. The nullity therefore, of the one carries with it the nullity of the other. It is impossible to deduce from the will itself the conviction that the article in question would have been adopted, if the testator had known that his desire with regard to the town and manufactory could not be accomplished. On the contrary, the opposite conclusion is unavoidable.

The sixth and seventh clauses of the will contain provisions respecting the sending of his slaves to Africa, the disposition to be made of such as do not wish to go, áte.; and the eighth article is as follows : “Some arrangements must be made with Henry JDoyal, who is one half owner of the Mount Houmas plantation and slaves, by selling the land to him at the end of the first five years; he, in the meantime, must liquidate his account at his leisure, paying no more interest upon any balance that may be due to my estate than six per cent per annum; the negroes upon the Houmas estate to be emancipated upon the same conditions as those upon the other plantations, one-half of them being already my property. Mr. JDoyal would no doubt make an agreement with the executors for those belonging to him; every thing, however, must be settled with Mr Doyal within ten years after my death; be has been a faithful agent and partner in the management of these estates. I therefore recommend him to the indulgence and notice of the executors.”

The court, not being at present prepared to express an opinion upon the testamentary provisions as regards the slaves generally, has, under the written agreement of the parties, retained that portion of the cause for further consideration. But whatever may be our conclusion upon the general question, there is abraneh of it as to which our opinion is formed, and which it is proper to act upon now, as it appears from the statements of counsel, the distribution of a large amount <of funds is dependent upon it.

Mr. Doyal has protested against this disposition of the will; has notified the executors of his refusal; and has appeared in this suit by counsel, for the purpose of resisting this interference with his property.

We are of opinion, that even if we should come to the conclusion hereafter, , „ . . . ,, , . , , . - that the provisions concerning the slaves generally on the various plantations lett by the testator,are valid and can be carried into effect, DoyaVs share of the slaves cannot be affected by the dispositions of the will without his consent; and that so far the dispositions of the will must fail. Hence, if the disposition as to the testator’s interest in the Houmas slaves be hereafter declared valid and practicable, all the executors can do, will be to provoke a proceeding in the nature of a partition in kind of the slaves, and carry out the benevolent dispositions of the testator in behalf of those that may fall upon such proceeding, to the succession of Henderson.

As, however, the members of the court are not unanimous upon this point, it is proper that the reasons which have induced the majority to come to this conclusion should be stated at length; and in doing so, it is necessary to notice in detail what was said by the testator, and what has been done by the residuary legatees, by the executors, and by Doyal.

The eighth clause of the will is considered by Judge Preston as indivisible; in other words, as authorizing a sale of the undivided half of the plantation to Doyal, only in case he should consent to sell his own half of the slaves. In this opinion we do not concur. Mr. Doyal was the owner of an undivided half of the land and slaves. He had been a faithful agent and partner; the testator appreciated his fidelity and the propriety of rewarding, it by indulging him in the payment of what he owed, and giving him an opportunity of buying the outstanding half of the land at private sale. He did not desire to expose a faithful agent and partner to the inconvenience of cutting up the land by a partition in kind, or the competition of a public sale of the whole by a decree of partition which might result in bringing in a stranger as co-proprietor with Doyal. But Doyal, being an owner, was not bound to sell his undivided half of the slaves. He might not desire to part with them, from feelings of attachment, or considerations of interest. And to suppose that the testator desired to coerce him into such a sale of his slaves by withholding a sale to him of the land except upon those terms, is inconsistent with the indulgent and grateful disposition towards him which the will exhibits.

We, therefore, conclude that the testator desired that a sale of the land on easy terms should be made to Doyal. That he desired also, that his executors should buy Doyal’s half of the slaves, so that the whole might be emancipated. But that he did not intend to withhold the sale of the land if Doyal refused, and was aware that in that event his testamentary disposition would operate only on the undivided half of the slaves attached to the Houmas estate.

Let us now examine the power of attorney given by the residuary legatees to Most and Montgomery; premising that the testator himself intimates in his second will his doubts as to the validity of portions of his first will, by directing that any property not passing for any cause whatever under the first will should accrue to the legatees under that will; and premising also, that the residuary legatees have, throughout, contested the validity of that portion of the first will which proposes the emancipation of the slaves.

In the act of 7th April, 1839, these residuary legatees, who, in tho absence of a will, would have been heirs of the deceased, having extinguished, by compromises, the claims of other legatees, and thus become the owners of the entire property of the succession, subject, however, to such valid charges as the testator may have imposed upon it, made transfers, partly to each other, of various portions of the testator’s property, and among others of three plantations and the slaves attached thereto. But in order to secure to the slaves their ullimate rights, such as they might be, judicially ascertained under the wills, the transferrees of the respective plantations and slaves covenanted, that should the courts having jurisdiction in the matter decide that the slaves belonging to the respective plantations are entitled to be sent to Africa and receive one hundred dollars each, then they would comply with the directions of the will, and support the charges of its execution in that particular; and, on the other hand, would receive a deduction from the price of twenty per cent on the appraised value of the slaves. They also constituted' P. A. Most and Jonathan Montgomery their attornies, with authority to administer all the property of the succession undisposed of, to collect debts, settle accounts, pay creditors, and close the estate. They also authorized them to sell to Doyal the undivided half of the Mount Houmas plantation and slaves “for and in consideration of the sum of one hundred and twenty-five thousand dollars, payable in five equal installments from the day such sale shall have been made, and under the following conditions, to wit: That in case the Court of Probates for the parish and city of New Orleans, or the court having jurisdiction in the matter, should decide that the undivided half of the slaves belonging to the succession of the late Stephen Henderson, are to be sent to Africa, in obedience to the last will of the said late Stephen Henderson, and are entitled to receive each one hundred dollars, and in the event that the said Henry Doyal should, in such case, agree to receive a sum of money to consent that his own half of the said slaves shall also be sent to Africa on the same conditions, then the said Henry Doyal shall bind himself to comply with such part of the judgment of said court on the subject; and that in such case a deduction of twenty per cent on the appraised value of the slaves, as the same are appraised in the inventory, shall be made from the first installment of the purchase price of the said plantation and slaves. That in the event the said Henry Doyal shall refuse to purchase the undivided half of said plantation and slaves on the conditions herein specified, an action of partition shall be instituted against the said Henry Doyal, and the Mount Houmas plantation will be sold at public auction in order to effect said partition.”

What is the meaning of this power, which is certainly inartificially expressed, and is not free from obscurity ? Does it mean that the attornies shall not sell to Doyal except upon the double condition that he will let Henderson’s half of the slaves go to Africa if the judgment of a court of competent jurisdiction should sustain the validity of the testator’s will respecting those slaves, and will also agree to receive a sum of money to consent that his own half shall be sent to Africa ? Or does it mean that the attornies, if unable to obtain such consent, may still sell to Doyal upon conditions that he will bind himself to comply with the judgment as to the half of the slaves; leaving his consent or refusal as to his own half open for future negotiation? The question is not free from difficulty, looking merely at the instrument itself. But it loses its importance when we consider the manner in which this obscure power was presently thereafter executed by the agents, Rost and Montgomery, and the subsequent acquiescence of their principles. A few weeks after the execution of this power of attorney, we find Doyal and the agents meeting before a notary, to pass the act of sale under which he now holds Henderson’s undivided half of the Houmas plantation and slaves. The act commences by recitals. It refers to the eighth clause of the will, the recommendation of the testator that the half of the land should be sold to Doyal; the indulgence proposed by the testator to be extended to him in liquidating his account, the testator’s desire that all the Houmas slaves should be emancipated, one-half of them being already his property, and that an agreement to that end should be made with Doyal by the executors. It declares, that by virtue of the will, he, Doyal, claims the right of purchasing the undivided half of the Houmas plantation and slaves belonging to the succession at a reasonable price, to be fixed by experts in case the parties could not agree upon the same. Doyal then declares, that “whereas the said late Stephen Henderson did, by the said last will, direct his testamentary executors to make some arrangement with him, the said Henry Doyal, and to pay him a certain sum of money to consent and permit that all the slaves attached to the said Mount Houmas plantation may be emancipated and sent to Africa, in the manner and at the time provided by the last will of the said late Stephen Henderson,, and that the said slaves receive each one hundred dollars. Now he, the said Henry Doyal, here declares, that he does hereby expressly refuse his assent to the execution of this or any part of the last will of the said late Stephen Henderson, relative to the emancipation of the said slaves attached to the Mount Houmas plantation, and as owner of the undivided half of all the said slaves, he objects to their emancipation, and formally denies the right of the said late Stephen Henderson, to emancipate any of the said slaves without his consent.”

Doyal then proceeds to declare, that he has taken cognizance of a deed of compromise made between the residuary legatees John Henderson and others, with certain other legatees of the deceased, and the extinguishment of the interest Of the latter; also of a compromise between the residuary legatees their agreement for the disposal of the remaining property, stocks and credits of the succession, and the powers granted to Henderson and Rost; their agreement to sell the undivided half of the Houmas plantation and slaves to him, and the grant of power to Rost and Henderson to sell to him ; and he declares that he consents to accept the sale proposed to be made to him as aforesaid. “Wherefore,” says the act, “ by reason of the foregoing, and in conformity with and by virtue of the powers granted to the said parties of the first part (Rost and Montgomery,) the said Rost and Montgomery sell to Royal the undivided half of the plantation and slaves.” After fully describing the land and slaves, reciting the titles under which Henderson and Royal respectively held by undivided moieties, stating the price, $125,000, the promise of Royal to pay it in conformity with the terms and conditions fixed by the said legatees in the aforesaid compromise, and in the powers conferred unto their said attornies, describing the notes given by Royal, &e., the act concludes with the following clause: “It is further agreed and understood by and between the said parties hereto, that the present sale is made and accepted under the condition that in case the Court of Probates for the parish and city of New Orleans, or any court having competent jurisdiction in the matter, shall decide that the undivided half of the slaves attached to the said plantation and belonging to the estate of the said late Stephen Henderson, are to be sent to Africa in obedience to the last will of the said late Stephen Henderson, and are entitled to receive each one hundred dollars, the said Henry Royal shall, as he does hereby bind himself, comply with such part of the judgment of said court on the subject, and that in such case a deduction of twenty per cent on the appraised value of the said slaves as the same are appraised in the inventory of the said plantation and slaves made by the Hon. Edward Ruffel, parish judge, in and for the parish of Ascension, on the 6th day of April, 1838, shall be made from the first installment of the purchase price of the said plantation and slaves, or from any other installment of the said purchase price as the said parties may agree upon.”

The legal effect of this act I conceive to be, that Royal binds himself to carry into effect a judgment, if such be rendered, recognizing the validity of the testator’s disposition for the liberation of his half of the slaves; but does not bind himself, and, on the contrary, expressly refuses, to sell his own half so as to enable the parties to carry out Henderson’s desire to emancipate the whole. Royal’s half was not affected before the act of purchase, by the testamentary disposition of his co-proprietor. He considered himself as having an equitable claim under the will to demand a sale of the undivided half of the land, even if he refused to sell his half of the slaves. Standing on his rights as owner, he refuses that consent, but agrees to execute the testator’s wishes respecting the testator’s own half, which alone the testator could control, if a court of competent jurisdiction should adjudge the validity of Henderson’s will respecting the liberation of his share of the slaves. To this view of the matter the agents must be considered as assenting. Else, why did they not insert in the act an express covenant on Royal’s part to sell his undivided half? and why also did they not agree upon the price to be paid to Royal ? Flow is it that the act speaks as to Henderson’s undivided half and is silent as to the other ? It cannot be said that the meaning in the power is that Royal is to be allowed twenty per cent on the appraised value of the slaves — the whole slaves. I understand the power as adopting that standard as to the undivided half proposed to be sold to Royal, and contemplating a sum of money to be fixed by future agreement for the purchase of Royal’s undivided half.

The true test of the legal effect of the act of sale to Royal is, to enquire whether upon that act the residuary legatees, or the executors, or any one else could, by suit, compel Royal to give up the whole of the slaves upon receiving either the twenty per cent of the appraised value in the inventories, or an estimated value of one-half of the slaves with a deduction of twenty per cent upon the purchase price of the other half. After the most careful investigation which I have been able to give to his contract, I am unable to say that I could consent to a judgment taking the whole of the slaves from him without his consent.

In the construction of all instruments, it is the duty of the court to collect the intention from the whole instrument taken together; and I concede that even matter put by way of recital in an instrument may sometimes amount to an agreement. But I am unable to perceive how in this case the reference to the power of attorney, itself of difficult interpretation, can create by implication a promise to do an act which the party in express terms refuses to do.

It is said that a partition cannot be had, if the validity of the testamentary disposition touching the undivided half of Henderson should be her'eafter adjudged, because the estate of Henderson has ceased, by the sale to JDoyal, to be a co-proprietor. It has ceased to be co-proprietor, but only sub modo. If such validity should be adjudged, the moiety upon which the will of the deceased will operate can be ascertained by a proceeding in the nature of a judicial partition. Doyal is bound by his covenant to submit to such a division.

In conclusion, I have to observe that not only does the execution of the power show how it was understood by the agents, and the acquiescence in that execution how it was understood by the principals; but the pleadings of the executors point to the interpretation which I have given, and the argument of their counsel admits its correctness.

In the answer of the executors in this cause they say, as one of the reasons why they should not give up the assets in their hands to the residuary legatees, “ that a sum equal to the amount to be paid under the will to Henry Doyal, if he should be compelled to sell his undivided half of the slaves attached -to the Mount Houmas plantation, must also remain with the executors, the eventual claim of Doyal being one of the charges, and indeed a debt of the succession.” “ That the said Henry Doyal has served upon the executors a protest by notarial act, against that portion of the will which directs his undivided half of the slaves upon the Mount Houmas plantation to be purchased from him, so that they may be sent to Africa, and that it is necessary he should have notice of these proceedings.”

And in the brief filed in behalf of the -executors in this court, the counsel of the executors say: “ But with regard to the slaves owned jointly by the deceased and Henry Doyal, we apprehend their fate can hardly be finally decided in this case as it presents itself under the agreement. When in the .8th article of the will the testator prescribes the arrangements to be made with Doyal, it is little else than a desire he expresses, the realization of -svhich he endeavors to render easy by the advantages he confers, and the friendly disposition he exhibits towards his partner. This clause, however, taken abstractly, would seem not to be executable, as there is no law that can compel a man in such a case to cede his property. The consent of Mr. Doyal might have easily settled the difficulty. But as he has peremptorily l’efused it, we should think that the benefit which the testator intended to .confer on all the slaves of the Houmas plantation, can, at best, attach only one-half of them. A partition in nature of the slaves, held in common .by the testator and Henry Doyal, might be effected, and would become, the means of attaining, in part at least, the end proposed by the will. The slaves falling to the lot of the testator might be enfranchised in the same manner as those which he owned exclusively.”

It is therefore decreed, that the ninth, tenth, thirteenth, fifteenth and seventeenth .clauses of said will, as set forth in the schedule annexed to this decree as part thereof, are, and they are hereby declared null and void. And it is further decreed, that the provision in the said will contained, touching the liberation of the slaves attached to the Houmas plantation, if they should hereafter be decreed valid, can only operate upon su.ch portions of said slaves as may on a proceeding in the nature of a judicial partition in kind fall to the succession of said Stephen Henderson the testator, and not upon the portion of said Hoyal. And it is further decreed, that this decree shall become final within the usual delay without reference to such portions of the cause as, under the agreement of the parties on file in this cause, are reserved for further consideration and decree.

And it is now ordered, that the questions in this cause touching the liberation of the slaves of said succession, except so far as in the foregoing decree they are determined, be reserved for further consideration by this court.

Schedule, “Art. 9. The Destrehan estate is to remain forever as a part of my succession, and at the end of twenty-five years from my death it must be laid out into a city, to be named Destrehan.”

“ Art. 10. Four acres including the back and front garden, running back with parallel lines to the lakes, with all the dwellings, to remain as one lot, with a good street and buildings upon each sid.e of said street.”

“Art. 13. When thp funds can be spared after twenty years, I wish a large manufactory of negro shoes and coarse clothes to be erected at Destrehan, under the direction of experienced workmen from Scotland. Destrehan city must be incorporated by an act of the Legislature. If these manufactories are well conducted, it will be the means of doing much good to the country, and give employment to a great many of the poor, and it will no doubt be the means of stimulating a great many of the young men to exert themselves, because by perseverance and industry they see what can be done.”

“Art. 15. I wish a chapel or church to be erected upon the upper corner of the four acres lot, and a Presbyterian minister to be sent for from Dunblane or its neighborhood, at a moderate salary; I also wish a good house for the minister to be erected upon the lower corner of the four acres lot; there must also be a small house for the education of the poor of the town, over which the minister must preside.”

“ Art. 17. Upon mature reflection, I have concluded to name the Destrehan plantation, when it is incorporated as a city, Dunblane, inplg.ee of Destrehan as named in the foregoing.”

Eustis, C. J.,

concurring. I understand, that so faj? as Mr. Hoyal is concerned in the matters in which the judgment of the court is now given, the only question before us is, whether fhe executors shall continue to retain in their hands a large sum of money, for the purpose of purchasing fr.om,the said Henry Hoyal his interest in the slaves belonging to the late Stephen Henderson and himself, and attached to the Mount Houmas plantation. Mr. Hoyal refuses, and has always refused to sell his interest in the slaves; the testator, of course, has no control oyer it, and I can find nothing in the evidence which .could authorize the court to compel Hoyal to make a conveyance of his interest for the purposes mentioned in the will. It seems clear, therefore, that the ■ executors cannot retain thp money for the purpose for which it is ayovyedly, solely to be applied; on this point I fqlly copcur in the opinion of Judge Slidell.

In relation to the other testamentary dispositions considered in the opinion of Judge Slidell, we all concur in the cpnclusions to which he has arrived. The reasons assigned in that opinion, are those ppon which I have founded my assent.

Preston, J.,

dissent'mg. On the 1st of August, 1837, Stephen Henderson made an olographic will, which, on the 14th of March, 1838, was duly proved, and ordered to be registered and executed by the Court of Probates of the parish .and city of New Orleans. By the will and a codicil, he appointed Jonathan Montgomery and Peter A. Rost his testamentary executors, and gave them the seizin of his estate. He left a very large estate, consisting, beside city property, of plantations and slaves.

The following important clauses in his will give rise to the controversies in this suit: “Article 6fh. All the children that is born five years after my death, if females, are to be free at the age of twenty years; and male children at the age of twenty-five ; at the end of the five years aforesaid, there may be drawn by lot, out of all the slaves, ten, five females and five males, who will be furnished with a free passage to our settlement in Africa, and one hundred dollars each, but they must go of their own free will, and to return to slavery if ever they return to this country; at the end of ten years, twenty may be emancipated in the same manner as the first five, and in twenty-five years all the first born free may be sent off with'the entire remainder of old stock that is willing to go, so as that at the end of twenty-five years after my death, there will not be upon any of my estates, any other slaves but the apprentice children ; and if the other slaves did not wish to go to Africa, they will remain upon their respective plantations upon which they reside, as apprentices, and to be provided for accordingly, but to be strictly under the management of the overseer, as well as all their offspring. The whole to be considered as apprentices, and their labor to be applied to the general good of all the affairs of my succession.”

Art. 7. It must be clearly understood, that the benefit now granted to my slaves, is not to extend to a murderer or thief, or a confirmed runaway, or for any other high crime that can be legally proved before the executors or the commissioners, which they have been guilty of; but at the same time I wish the negroes to have a fail, just, and impartial trial, the same in point of fact, as if they were tried before a judicial tribunal.”

“ Art. 8th. Some arrangement must be made with Plenry JDoyal, who is one-half owner of the Mount Houmas plantation and slaves, by selling the land to him, at the end of the first five years ; he in the mean time must liquidate his account at his leisure; paying no more interest upon any balance that may be due to my estate than six per cent per-annum; the negroes upon the Houmas estate to be emancipated upon the same conditions as those upon the other plantations, one-half of them being already my property. Mr. JDoyal would, no doubt, make an agreement with the executors for those belonging to him; every thing must, however, be settled with Mr. JDoyal, within ten years after my death ; he has been a faithful agent and partner in the management of these estates ; I therefore recommend him to the indulgence and notice of the executors.”

“ Art. 9th. The Destrehan estate is to remain forever as a part of my succession, and at the end of twenty-five years from my death it must be laid out into a city, to be named Destrehan.”

By subsequent clauses of the will, he declares that Destrehan city must be incorporated by an act of the Legislatui’e ; changes its name to Dunblane ; directs that four acres, including the back and front garden, running between parallel lines to the lakes, with all the dwellings, to remain as one lot, with a good street; and buildings upon each side of the street; that a church shall be erected upon the upper corner of the lot; that a Presbyterian minister shall be sent for from the town of Dunblane or its neighborhood, and employed at a moderate salary ; that a good house shall be erected for the minister on the lower corner of the lot, and that there must be a small house for the education of the poor, over which the minister must preside.

He further directs, that after twenty years, if funds could be spared, a large manufactory of negro shoes and coarse clothing should be erected at the place, under the direction of experienced workmen from Scotland. “If these manufactorie.s (he says,) are well conducted, it will be the means of doing much good to the country, and give employment to a great many of the poor, and it will no doubt be the means of stimulating a great many of the young men to exert themselves, because by perseverance and industry they will see what can be done.”

For the purpose of accomplishing the objects proposed in these clauses of the will, and of making other legacies, he disposes of the whole of his estate, declai'ing that he had no forced heirs. By an agreement of the counsel of the parties, they limit the court to the determination of their controversies, growing out of the 6, 7, 8, 9, 10, 13,15, and 17th articles of his will. We have also been requested to postpone the decision of the question as to the emancipation of the testator’s slaves.

The hebra of Stephen Henderson and their representatives have instituted this suit against the executors, and allege that the foregoing clauses of the will are void; that to give effect to them in accordance with the intention of the testator and the tenor of the will would be impossible ; that they are parts and parcels of a complex indivisible disposition, which is contrary to law, and are, by the testator, made dependent on it, and cannot be sustained apart from the disposition of which they form subsidiary ingredients; and that they are otherwise in contravention of the laws of this State, and void for impossibility. The reading of the whole will exhibits the testator as a man of strong mind, of great practical good sense, without the advantages of much education or knowledge of our laws in relation to testamentaiy dispositions, and therefore he enjoined, that “ no exception be taken to his will on account of form, wilting or spelling.” “His greatest object,” as he expressed himself, “was to do the greatest quantity of good, and to the greatest number of persons, and to the poorest people.” But, with many of those who without families acquire great wealth in this country, he neglected to commence, and during life to place upon a sure foundation their benevolent intentions, and which become abortive at their death, by ineffectual testamentary dispositions.

The will is not written with precision, but the intentions of the testator are manifest. It is clear to my mind, that he had three leading objects in view, in making his will. 1. To emancipate all his slaves, and those in which he had an interest, and to send them to Africa. 2. To found a city to be called Dunblane, with a manufacturing establishment, a church, and school for the poor. 3. To establish a number of annuities, in favor of charitable and other institutions, some perpetual, and others for terms. In a codicil, he confirmed the provisions of the will in all its clauses, and declared his wish and desire, that any property of which he died possesséd, not passing for any cause whatever under any of the dispositions of his will, might accrue to his legatees, in proportion to the amount of their respective legacies.

It is urged, that the testator has attempted to perpetuate his property in his succession, and, in violation of law, to make that inalienable which the policy of all civilized nations has declared shall, under various modifications, be marketable. Thus, he declared, that the Destrehan plantation, which was to be the site of the town of Dunblane, should forever remain a part of his succession. But this provision is to be construed-with reference to its establishment as a city, and incorporation by the Legislature, which he subsequently directs. The obvious meaning of the whole is, that it is dedicated to public use forever, under such regulations as the Legislature should, by an act of incorporation, prescribe. The establishment of a city necessarily implies the division of the site into squares and streets, and the sale of the squares, by authority of law, would be in pursuance of, and not in violation of, the dedication of the whole to the public. The sovereign power might even dispose of the avenue reserved if the interest of the city required it; because the testator, by directing its incorporation for the benefit of those who might inhabit it, giving them no rights or property but what might be derived from the act of incorporation, evidently subjected the whole to the wisdom of the Legislature. He directs that every thing belonging to his estate is to be continued and conducted as it may be found at his death. This is evidently a temporary provision, subject to the three great objects of the will. So, with regard to his city property and plantations, there is no prohibition of their sale. There are directions to make leases of his city property, which may extend to twenty-five years, but not perpetually. It has never been questioned, that perpetual annuities may be created, in favor of institutions or classes of society capable of enjoying them. The property or fund belongs to- the institutions or classes of society to which it is donated, and may be kept and used by them and their successors, so long as no law is violated in the last case, or as long as the act incorporating the institution in the first case, authorizes it.

To accomplish the great objects of the will, to wit, the transportation of his slaves and those in which he had an interest, to Africa, the establishment of the perpetual annuities, and the city of Dunblane, and, indeed, for. other objects, the executors, testamentary or dative, might at all times apply to the courts for orders of sale, which would be decreed for those purposes: the private sales, except that to Mr. Doyal, being unauthorized by the will and of course by law. It is proper here to remark, that if commissioners could not be appointed as directed, to execute the .will, in case of the death or resignation of the testamentary executors, it is always competent for the court in which the succession was opened to appoint dative executors.

With regard to the establishment of the city of Dunblane, I have come to the same conclusion with the district judge; but he has placed his judgment upon grounds to which I cannot assent, and deem it my duty to state the reasons of my opinion. The judge declares, “ that property passed on the decease of its owner, 1st. To his heirs appointed by law. 2d. To those he devises it to. Some person, natural or artificial, must be in existence to fill one of the places, or the land escheats. The ownership cannot remain in abeyance. The inheritance is cast upon the heir-at-law, or instituted at once.” And article 1702 of the Civil Code, is quoted in support of the opinion.

This opinion of the district court conflicts directly with the decision of the Supreme Court of the State, in the case between the Executors and Heirs of the late Alexander Milne, 17 L. R. 52. The testator devised half his estate in favor of two charitable asylums, not in existence at the time of his death, but to be incorporated after his death, with power to receive his legacies irs their favor. The general assembly of the State, at its first session after his death, incorporated the asylums ; and the courts of this State, after able and elaborate arguments on behalf of the heirs, maintained the dispositions of the will.

So in the case of Inglis v. The Trustees of the Sailor’s Snug Harbor in the city of New York, the testator had devised a large estate to establish that institution, and requested in his will, that it should be incorporated by the State of New York. The Legislature did incorporate it five years after the testator’s death, and the Supreme Court of the United States, after great investigation and deliberation, declared the devises valid. 3 Peter’s Rep. 112. And for half a century the institution has remained a noble monument of the wisdom of the testator who devised it, the Legislature that established it by law, and the jurisprudence that maintained the devise.

Judge Story delivered an elaborate dissenting opinion in the case of The Sailor’s Snug Harbor, and referred to a decision he had prepared in the case of The Philadelphia Baptist Association v. Smith and Robertson, in which he came to the conclusion, that a bequest to the association was void, because “the legatees were not at the time a corporate society capable of taking it; and it is a maxim, that the legacy must take effect at the death of the testator, or be void at that time, and the right vest in another.” But in this opinion he admitted “that the government of a State os parens patriae has a right to enforce all charities of a public nature by virtue of its general superintending authority over the public interests, where no other person is entrusted with it.” If so, the proposition that the title to property cannot remain in abeyance a resonable time to enable the government to provide the proper means to enforce the bequest, is a refinement to which we cannot assent. The English chancellors have often enforced executory devises, without a freehold to support them ; and have said, that the only question was whether the contingencies were to happen in a reasonable time or not. Thelluson v. Woodford, 4 Vesey, Jr., 325. And it has been decided inEnglaud, “that if a corporation, for whose use a charity is designed, is not in esse, and cannot come into existence but by some future act of the crown, as for instance a gift to found a new college which requires an incorporation, the gift is valid, and the court will execute it. White v. White, 1 Brobis Chan. Cases, 12. Attorney General v. Downing, Ambler 550, 571. Attorney General v. Bowyer, 3 Vesey, Jr., 714, 727. There is no reason that the same principle should not apply in this country to a legacy for any purpose of public utility.

In our State there should not be a question on the subject. The testator vests the seizin in the executor, and divests the legal heir. The seizin is vested in the executor for a purpose which, if lawful and possible, he may accomplish. The heir has neither seizin of, nor interest in, the property bequeathed for the object, unless the legacy lapse. The article 1702 of the code is not inconsistent with, and is to be construed subject to, these plain principles; otherwise the executor could not lay a marble slab over the body of his testator without the consent of an heir whom by will he had divested of all title to his property.

So also substitutions and fidei commissa are prohibited by our code; but the prohibition is subject to the rights, powers and duties, expressly given and prescribed to executors, by the same code, which are all summed up in article 1665 : “The testamentary executor is bound to see the testament faithfully executed.” We concur in opinion with the Supreme Court of this State in the case of Mathurin v. Livaudais, that the framers of our code, in abolishing substitutions and fidei commissa, “never contemplated to abolish naked trusts, uncoupled with an interest, which were to be executed immediately.”

Executors are sworn officer's of law, peculiarly under the control of the courts; and there is no danger of their exercising unlawful trusts, Or of the creation in their hands of perpetuities inconsistent with public policy.

I am, therefore, of opinion, that the dispositions of the will in favor of the City of Dunblane and its establishments did not lapse' immediately on the decease of the testator, for the want of a legatee in which they should vest at the tirite, gs held by the district judge.

Had the General Assembly of the State of Louisiana, within a reasonable time',incorporated the inhabitants of the city of Dunblane, with power to carry into' effect the objects of the testator, the dispositions of the will might have beeti accomplished.

But the Legislature have not incorporated the city of Dunblane, though twelve years have elapsed since the death of Stephen Henderson. It does not appear, that any of the successive representatives of the parish, nor the'parochial authorities, nor any 'citizen of the parish where the City Was to have been established, has applied for the incorporation. This indicates that the Legislature, the parochial authorities and citizens do not consider expedient the incorporation of such a city, principally for manufacturing purposes, by white laborers, in a parish peculiarly agricultural. Not only" a reasonable, but very ample time has elapsed for the public authorities to provide for the enforcement of the dispositions'of the will in this respect, Without the first step being taken for that purpose.

I amt of opinion, therefore, that the dispositions of the will providing for the incorporation, of the city of Dunblane, and to make charitable and other establishments in it, have lapsed for non-acceptance by proper authority in a reasonable time, and that the property should vest irrevocably in the heirs Or their vendees.

The 8th clause' in the will in favor of the slaves owned jointly between the testator and Henry Hoyal is attacked, because the testator could not remove or emancipate slaves in which Hoyal had an interest. That is true; but the executors had a right to demand a partition, and to remove to Africa those which fell to the share of Henderson's estate. It was uncertain, as contended, which of the slave's should receive the beneficence of Henderson; but the chance of receiving it was a right which vested in each slave at his death, and which slaves should enjoy it depended upon a legal partition between Hoyal and Henderson’s executors.- Instead of a partition, however, the testator directed that some arrangement should be made with Mr. Hoyal; declared he had no doubt Mr. Hoyal would make an agreement with his executors for his half of the negroes; directed the sale to him of the testator’s half of the land; recommended him highly to their kindness and indulgence, being already a debtor of the estate. Under this clause of the will Hoyal, in act of compromise with the heirs of Henderson, dated the 1st of June, 1839, reciting its provisions, and protesting against the right of Henderson to emancipate the slaves in Which he had an interest, yet in the words of the act “claimed the right of purchasing the undivided half of the Mount Houmas plantation and slaves belonging to the estate of the late Stephen Henderson, at a reasonable price to be fixed by experts appointed to that effect, in case the parties should not agree upon the same,” and purchased the undivided half of the plantation and slaves from them.

The parties referred to the following clause in an act of compromise and division among the heirs and executors of Henderson, made on the 11th of April, 1839, “that in case the Court of Probates for the parish and city of New Orleans, or the court having jurisdiction in the matter shall decide, that the undivided half of the slaves belonging to the succession of the late Stephen Henderson are to be sent to Africa, in obedience to the last will of said Stephen Henderson, and are entitled to receive each one hundred dollars, and in the event that the said Henry Doyal should in such case agree to receive a sum of money to consent that his own half of said slaves shall also be sent to Africa, on the same conditions; then the said Henry Doyal shall bind himself to comply with such part of the judgment of said court on the subject; and that in such case a deduction of twenty per centum on the appraised value of the slaves, as the same are appraised in the inventory, shall be made from the first installment of the purchase price of said plantation and slaves,”

Under this claim and reference the parties made the following agreement: “It is further agreed and understood by and between the said parties hereto, that the present sale is made and accepted under the condition, that in case the Court of Probates for the parish and city of New Orleans, or any court having competent jurisdiction in the matter, shall decide that the undivided half of the slaves attached to the said plantation, and belonging to the estate of said late Stephen Henderson, are to be sent to Africa, in obedience to the last will of the said late Stephen Henderson, and are entitled to receive each one hundred dollars, the said Henry Doyal shall, as he does hereby bind himself to comply with- such part of the judgment of said court on the subject, and that in such case a deduction of twenty per centum on the appraised value of the said slaves, as the same are appraised in the inventory of the said plantation and slaves made by the Hon. Edward Duffel, Parish Judge in and for the parish of Ascension, on the sixth day of April, 1838, shall be made from the first installment of the purchase price of the said plantation and slaves, or from any other installment of the said purchase price, as the said parties may agree upon.”

The executors clearly understood by all these acts, that they conveyed Henderson's undivided half of the plantation and slaves to Doyal, upon the condition that he should submit his undivided half of the slaves to the 8th clause of Henderson's will, because they had no power to sell to him in any other manner, and were bound by the will and their duty to sell to him on that condition alone.

The heirs and executors jointly so understood the sale to be made to Doyal, because they authorized the sale to him on the following condition: “that in case the court having jurisdiction of the matter shall decide, that the undivided half of the slaves belonging to the succession of the late Stephen Henderson are to be sent to Africa in obedience to the last will of the late Stephen Henderson, and are entitled to receive each one hundred dollars, and in the event that the said I-Ienry Doyal should in such case agree to receive a sum of money to consent that his own half of said slaves shall also be sent- to Africa apon the same conditions, then the said Henry Doyal shall bind himself to comply with such part of the judgment of said court on the subject; and that in such case a deduction of twenty per centum on the appraised value of the slaves, (that is, the whole of the slaves,) as the same are appraised in the inventory, shall be made from the first installment of the purchase price of said plantation and slaves.” And because they expressly forbid a private sale to Doyal, unless he consented to the condition, by providing “that in the event the said Henry Doyal shall refuse to purchase the undivided half of the plantation and slaves, on the conditions herein specified, an action of partition shall be instituted against the said Henry Doyal, and the Mount Houmas plantation will be sold at public auction, in order to effect said partition.

Doyal understood that he was purchasing upon the condition that his interest in the slaves should be subjected to the conditions of the 8th clause of Hender son's will, because he claimed the right to purchase at private sale Henderson's undivided half of the slaves, by virtue of that clause in his will, and thereby made that clause and all its conditions a part of his contract, as muchas if it had been incorporated in the bill of sale made to him. He accepted the conditions of the clause to avoid an action of partition and a public sale at auction, in which the executors of Henderson would have had greatly the advantage of him, as the estate was immense, and he, as appears by the will, was already indebted to it.

He, moreover, subjected his half of the slaves to the conditions of the 8th clause in Henderson's will, because he says in the bill of sale to him, “that he has particularly taken cognizance of the powers granted by the parties to the deed of transaction unto P. A. Rost and J. Montgomery. In that deed the power to sell at private sale to him was given only on condition, that he should accord to his undivided half of the slaves the same beneficence Henderson had bequeathed to his undivided half of the slaves. This power, therefore, was also made a part of the bill of sale to him, as much as if it had been incorporated in words in the bill of sale.

The consideration of subjecting his interest in the slaves to the same condition as Henderson's interest, appears in the very words of the sale made to him. In case of the decision of the court against him, there is to be a deduction of twenty per centum on the appraised value of the whole, and not of Henderson's undivided half of the slaves', as the-same are appraised in the inventory of the plantation and slaves made by the parish judge. The inventory is not before us, but as it is thus made a part of the bill of sale, it is reasonable to conclude, that he purchased the undivided half of the slaves at the appraised value in the inventory, and was willing to sell his undivided half at the same appraisement, with the deduction of twenty per cent, in case the decision of the court should be against him. Even if this equitable conclusion as to the consideration for which Doyal was obliged to subject his undivided half of the slaves to the conditions of Henderson's will is inadmissible, still a court, if he was so obliged, would compel him to comply for a reasonable compensation.

At all events, he reserved nothing but the right of contesting Henderson?s power to direct the emancipation of slaves in which he had an interest, fhat right is fully reserved to him by our decision, and is to be the subje.e.t matter of future discussion.

It is said, the executors might compel Royal to ascertain by lot which of the slaves should be entitled to Henderson’s benificence, -and which should not. Such a proceeding would not be binding upon the slaves, should the court determine that any part of them were entitled to their freedom. Neither Royal nor the executors contemplated any such proceeding, and the executors did not intend to be subjected to it. The intentions of the exeeutors in the power they gave to sell are not obscure; but if so, their intentions are to be construed with constant reference to the 8th clause in Henderson’s will, -which they wexe bound to cany into effect. And Royal's obligations as pux-chasex, if left in doubt by the words of the sale, are to be construed by the 8th clause in the will, and by the clause in the transaction between the heirs, executors and legatees, in which they gave the power to sell to him, and to bo.th of which he expressly referred in his purchase.

It is said, that the executors .of Henderson would have a right, in case the court should decide that his slaves held with Royal were entitled to be sent to Africa, to sue Royal for a partition, and thus extend the beneficence of their -testator to the slaves that might fall to them. Neither the executors, nor Henderson's estate have any longer a title to the undivided half of the slaves; and, therefore, cannot sue for a partition. Besides, the heirs and executors, to exonerate themselves from the necessity of sqch an action,, provided in the contract by which they gave power to sell to Boyal, ¿‘that in the event the said Henry Boyal shall refuse to purchase the undivided half of said plantation and slaves, on the conditions herein specified, ¡(that is, that his own half of the slaves shall be sent to Africa,) an action of partition shall be instituted against him, and the Mount Houmas plantation sold at public auction, in order to effect a partition.”

They thus waived the action of partition of the slaves, and a sale at auction of the plantation, op condition that Boyal agreed to the arrangement contemplated in the 8th clause of Henders.on’s will, because they could waive neither, nor give powers to sell at private sale to hini on any other condition.

If, therefore, this court should determine, that Idenqlerson’s slaves should be emancipated and sent to Africa, in my opinion Henry Boyal has obliged himself to permit all the slaves on the Mount Houmas plantation, at the death of Stephen Henderson, and their issue, to be sent to Africa, upon the same conditions prescribed by the testator for those upon the other plantations ; and that .the judgment of the district qoprt on the questions submitted to us should be .affirmed. 
      
      Thisis my last olographic will and testament,, made and done at the city of JSTew Orleans, this 1st day of August, 1837, in the presence of the almighty and eternal God, I humbly and solemnly approach the throne of grace, hoping that through our Lord Jesus Christ forgiveness of all my sins, Amen.
      Art. 1st. I nominate and appoint Stephen Henderson, Jr., Jonathan Montgomery, and P. A. Rost, Esqrs , to be my testamentary executors.
      2d. In their absence/frora the United Slates*, resignation or death, that their places is to be filled by one or two commissioners as the case may be,. and requires the commissioners to be appointed by the governor of the State, and any one of the judges of the Supreme Court, and the judge of the First Judicial District Court, or any two of them to malte the appointment of the commissioners, who will be entitled to a yearly salai'y of fifteen hundred dollars each. There is no commissioners, however, to be appointed until the death or resignation of two of the testamentary executors, who will be entitled to the same salary, say fifteen hundred dollars per annum, and when it becomes necessary to appoint one or more commissioners, the first must always be a Scotchman, aud lastly when the whole three has to be appointed by the officers of the State', one of which number must always be from my native country. They must be moral, correct, honest and intelligent men, and under a good character. Any two of the judges can dismiss them for any great or strong presumptive crime. They must keep an office and employ a clerk at a salrry of fifteen hundred dollars per annum. He must keep a set of books and accounts, which must be examined and approved annually by any two of the judges.
      Art. 3 My estate is not to go into court except for the purpose of probating and of opening of the wills, havingno forced heirs, but every thing belongingto my estate is to be continued and conducted as it may be found at my death. The executors or commissioners to keep upon each plantation a good planter and a man of humanity. He must not, under no circumstances, treat the blacks with cruelty, but on the contrary with kindness; and they must allow for every grown person that labors, three pounds of good beef or pork per week, and in that proportion for all the young ones. There must be strict discipline and good order kept amongst all the negroes, and in all their quarters. I have always considered this allowance, with what they made upon their own patch of ground, which must be allowed to all those that labor, as an abundance; more particularly so if they get as much good fresh cornmeal as they stand in need of This treatment, in my humble opinion, places the black in a much more and happier situation than many of the lower order who has to labor in Europe, or‘even in the Eastern States. I have always treated my blacks with much indulgence, and even personal kindness.
      Art. 4. I have always been opposed to slavery, but as it is a property recognized by the Constitution of ihe United States,.to take that away, you would at once destroy the greatest and best regulated government nowin the Oidor New World. Therefore, all attempts made by tbe fanatics or misguided people thatls going about and preaching, like evil spirits, against slavery, turns the heads of the unfortunate negroes, and prepares them for the commission of every kind of crime, which compels their masters to limit the very liberty which they formerly awarded to them. In a great moral point of view a good master ought to be as care* fill of his slaves as be is of bis own family. All those who forget this duty has much to account for; but I am decidedly opposed to tbe people of any other State or country, interfering in any manner with our domestic concerns.
      Art. 5. There must be written rules for -tbe government of all my slaves upon all of my different estates. They are not to be taken oat to work until nearly sunrise in the morning, nor are they to be kept in the field longer than half an hour after sundown in the evening. Sunday is to be a day of rest upon all my plantations, except the people who may choose to work upon their own piece of ground, or to be paid for their labor by their overseer, but under no circumstance are «they-tp be permitted to leave their respective camps without permission from their overseei*. It is clearly understood, however, that during tbe time that they are engaged in taking off the sugar and cotton crops, they are to work as they formerly did; because, by their care and labor every thing is to be made, and by that the comfort of themselves and others are to be secured.
      Art. 6. All the children that is born five years after my death, if females, are to be free at the age of twenty years, and male children at the age of twenty-five; and at the end of the five years as aforesaid there may be.drawn by lot, out of all the slaves ten, five females and five males who will be furnished with a free passage to our settlement in Africa, and one hundred dollars each ; but they must go of their own free will, and to return to slavery, if ever they return back to this country. At the end of ten years twenty may be emancipated in the same manner as the first five; and in twenty-five years all the first born free may be sent off with the entire remainder of the old stock that is willing to go, so as that at the end of twenty-five years from my death, there will not he upon any of my estates any other slaves but the apprentice children. And if the other slaves did not wish to go to Africa, they will remain upon their respective plantations upon which they reside as apprentices, and to be provided for accordingly, but to be strictly under the management of the overseer, as well as all their offspring, the whole tobe considered as apprentices, and their labor to be applied to the general good of all the affairs of my succession.
      Art. 7. It must be clearly understood, that the benefit now granted to my slaves it not to extend.to a murderer or thief, or a confirmed runaway, or for any other high crime that can be legally proved before the executors or the commissioners, which they have been guilty of; but at the same time I wish the negroes to have a fair, just and impartial trial, the same in point of fact, as if they were tried before a judicial tribunal.
      
        Art. 8. Some arrangement must be made with Henry Doyal, who is one-half owner of the Mount Jioamas plantation and slaves, by selling the land to him at the end of the first five years, he in the meantime must liquidate his account at his leisure, paying no more interest upon any balance that may be due to my estate than six per cent per annum. The negroes upon the Houmas estate to be emancipated upon the same conditions as those upon the other plantations, onerhalf of them being already my property, Mr. Doyal would, no doubt, make an agreement with the executors for those belonging to him. Everything, however, must be settled with Mr. Doyal within ten years after my death. He has been a faithful agent and partner in the management of these estates, I therefore recommend him to the indulgence and notice of the executors.
      Art 9. The Destrehan estate is to remain forever as apart of my succession; and at the end of twenty-five years from my death, it must be laid out into a city to be named Dcstrelian.
      Art. 10. Four acres, including the back and front garden, running back with parallel lines to the lakes, with all the dwellings to remain as one lot, with a good street, and buildings upon each side oí said street.
      Art. 11. All my real estate in the city to remain upon ground rent, and no lease to exceed twenty-five years in time, all the stocks to be sold in ten years from my death.
      Art. 12. I'leave the following legacies, having no forced heirs, to my brother John Henderson, or to his heirs, if dead, two thousand dollars per annum, and to be paid upon due proof, and to the proper person authorized to receive the sam.e, say $2000. Ditto two thousand dollars to my sister Ann Henderson, or to her heirs, and to be paid upon the same terms and conditions, say $2000. Two thousand dollars to my nephew, Stephen Henderson, Jr., or to his heirs, if dead, and upon the same terms as to the family of John Henderson, say $2000. Two thousand to the children of my late nephew Geo. Henderson or to their heirs, and on the same conditions, say $2000. Two thousand dollars to be paid annually to the poor of the parish of Orleans, to be distributed by persons appointed for that purpose by the governor, one of the judges of the Supreme Court, and the judge of the Court of Probates for the parish of Orleans, $2000. Two thousand dollars per annum to be paid to the poor of the town of Dunblane, in Pertshire, North Britain; this sum to be divided by the resident minister of the Presbyterian church, and to the two highest civil officers in the town to be paid upon due proof of their acceptance of the trust, say $2000. Two thousand dollars for the erection of a school house in the town of Dunblane, for ten years only, and for the purpose of educating of the poor, this being the place of my birth. I feel no obligation, however, for these acts of charity. It is only done to help the poor, who like myself may he thrown upon the world without a penny or a friend. My greatest object is to do the greatest quantity of good, and to the greatest number of persons and to the poorest people. I shall leave the world without regret, believing that I shall go to a better and happier one, and God grant that all mankind maybe pi*epaved fortius last, eternal and awful change; as it is the immutable laws of Heaven that we must all die, let us be ready and prepared as nearly as we can.
      Art. 13. When funds can be spared after twenty years, I wish a large manufactory of negroe shoes and coarse clothes to be ejected at Destrehan, under the direction of experienced workmen from Scotland. Destrehan city mast be incorporated by an act of the Legislative. If these manufactories arc well conducted, it will be the means of doing much good to the country, and give employment to a great many of the poor, a?id it will, no doubt, be the means of stimulating a great many of the young men to exert themselves, because by perseverance and industry they see what can be done. My whole family may be considered as a family of drunkards, and this misfortune must have come upon the side of my father, although thathewas an antiquarian, learned and intelligent, yet to get drunk once a month was to him a jubilee. My mother was a Drummond, a descendant of the Me’Gregors, good natured, but without much capacity; they were honorable and high-minded as respects their intercourse with others, but profligate and indolent as respects the management of tlicir private concerns; being poor they were always in bankruptcy.
      Art. 14. After the first five years, the executors will divide the following sums amongst the four following congregations, say, Clapp’s Church two thousand dollars; Catholic Cathedral two thousand dollars; the English Church in Canal street two thousand dollars, and the church commenced by Maffit two thousand dollars; and the Orphan Boys two thousand dollars, and to the Orphan Female Society two thousand dollars ; the legacies to the four churches is only to remain and be payable for five years ; but all the others so far named are to be perpetual. Two thousand dollars per annum to the Charity Hospital; five hundred dollars per annum to the Firemen’s funds : this last class of people are much exposed, and ought to be protected. My house furniture and plate to be sold, and the proceeds applied to the erection of a tomb to be erected over my grave, and my burying place must be the Church of St. Charles, and to be interred alongside of my late beautiful and accomplished wife ZeliaD. Henderson, the whole tobe surrounded by a neat iron railing, and the tomb as well as the railing to be keptin good order by the executors. Mrs. R. A. Rost will receive all my diamonds and jewels, that belonged to her late sister, giving a part to Mrs. Marigny of such of them as she thinks fit.
      Art. 15. I wish a chapel or church to he erected upon the upper corner of the four acres lot, and a Presbyterian minister to be sent for from Dunblane or its neighborhood, at a moderate salary. I also wish a good house for the minister to be erected upon the lower corner of the four acres lot. There must also be a small house for the education of the poor of the town, over which the minister must preside.
      Art. 16. All my debts, if any, must be settled and liquidated before any of the legacies is paid. There must be no exception taken to this will, either on account of form, writing or spelling.
      
        Art. 17. Upon mature reflection I have concluded to name the Destrehan plantation when it is incorporated as a city, Dunblane in place of Destrehan as named in the foregoing. As life is uncertain, I will sign this will as it.is written, in haste, and add a codicil to it hereafter, if it is necessary hereafter.
      New Orleans, 1st of August, 1837. (Signed,) S. Henderson.
      
        Nevanetur, New Orleans, 14th March, 1838. (Signed,) J. Bermudez, Judge.
      
        Be it remembered, that on the fifth day of March, one thousand eight hundred and thirty-eight, Stephen I-Ienderson of the city of New Orleans, being in his house in Canal street, sick of body, but sound of mind, presented to the undersigned witnesses, all residing in the city of New Orleans, this paper which he had caused to be written out of their presence, and declared to them that it contained his last will.
      On the first of August eighteen hundred and thirty seven, I made an olographic will disposing of all my property for the following objects. 1st. The payment of all my just debts.
      2d. The payment of certain legacies therein specified.
      3d. The erection and gradual improvement of a new city.
      I intended to have made various changes and additions to said will, which circumstances (have prevented me from doing, and the present will is made to remedy any error of law or fact, or any other deficiency to be found therein.
      I do hereby confirm said will in all its clauses, and it is my wish and request that all my debts be punctually paid, and that all the dispositions contained in said will in relation to the erection and gradual improvement of the new city ordered to be erected by said will he carried in full effect, agreeably to the true intent and meaning thereof.
      I hereby make anew each of the particular legacies contained in my said will, in favor of each of the legatees purely and simply, and it is my wish and desire that any property of which I may die possessed, not passing for any cause whatever under any of the dispositions of any former will, or of this, may accrue to them in proportion to the amount of their respective legacies,-or their value.
      In remuneration of their faithful services I give their freedom to my house servants Lucy and Agnes. They will be emancipated next fall, and in the meantime remain in my house in Canal street.
      The jewels of which I may die possessed, will he divided between my nieces Louisa Foucher and Adilla Marigny, and the oldest daughter of my nephew George Henderson, deceased, in the following manner, Louisa Foucher will receive the breast-pin with my portrait set in diamonds; Adilla Marigny will take the medallion of diamonds, and the daughter of George Henderson shall receive the balance of the jewels, whatever they may be; she will further receive all the woman’s apparel made or not made, found in my possession, and the miniature portrait of my late wife, Mrs. Henderson. I give all the family pictures which I have to Mrs. Rost and her sister Mrs. Grilhe.
      
      
        I give and bequeath to Henry Doyal of Mount Houmas, the carpets, looking glasses, side board, curtains and pier tables of my drawing room, and of my dining room, also two bedsteads, one armoir, and ono-balf of the bedding and table cloth in my New Orleans house, to be used by him to furnish the new house which he is about to build on the Mount Houmas plantation-, and not otherwise. The rest of my household and kitchen furniture will be sent to my three other plantations ; one press and a part of the bedding and table eloth will be sent to each of the cotton plantations.
      It is my will and desire; and I do hereby revoke the appointment which I had made in my former will, of my nephew Stephen Henderson as one of my trustees, my reasons for doing so are that liis duties are such, would take too much of his time, but ho shall receive all the legacies made to him; and I further bequeath him the sum of five hundred dollars payable immediately, and’also payable annually the amount to which he would have been entitled for commissions as trustee had he acted, on condition that ho shall pay over to the heirs of George Henderson one-halfof the amountof such annual payment. I also give andbequeath to him my gold watch, my wslking cane, and all my wearing apparel, without exception, linnen, cloth, &c.; and I give and bequeath to Peter A. Rost my carnation breast-pin, being the one I wear, together with my guns. I give and bequeath my diamond breast-pin to Jonathan Montgomery, and I further give and bequeath all my stock of wine to the said Peter A• Rost and Jonathan Montgomery jointly.
      It is my wish and desire, that next fall a competent person be employed who will give all his time and attention to the affairs of my estate, and the management of my plantations ; and that a suitable compensation be allowed him. Philip Rockford will be employed until that time, and should his services as clerk be no longer necessary, he shallreceive out of my estate the sum of one hundred dollars, besides his salary. If deemed necessary to carry my two wills into effect, and not otherwise, I appoint Jonathan Montgomery and Peter A. Rost my testamentary executors and give them the seizin of my estate.
      The foregoing last will was then read by Theodore Clapp, one-of the witnesses, to the other witnesses, in presence of the testator who approved the same in all its parts, but did not sign it, being unable to do so, as he stated, on account of weakness; and the’ same was then signed by all the witnesses, without passing to other acts, the day, month and year above written.
      (Signed.) R. D. Shephard. R. Davidson. Theodore Clapp. J. Towro. David C. Her. J. Monroe Machie.
      
      
        Ne varietur, New Orleans, 14th March, 1838. (Signed,) J. Bermudez, Judge.
      A true copy, (L. S.) W. K. Wanton, D’y Clerk.
     