
    Milne’s Heirs v. Milne’s Executors.
    It is necessary to enable a legatee to take under our laws that he be in existence at the time of opening the estate, and have capacity to receive if the legacy be absolute; hut if it is conditioual, it is sufficient if the capacity to receive exist at the time of the fulfilment of tbe condition.— O. 0.1460.
    "Where legacies were given by the late Julien Poydras to the parishes of Pointo Coup6e and - West Baton Rouge, for particular specified objects, the legacies were absolute, but there was no capacity in the legatees to take at the moment of opening the succession, and laws were passed, authorizing the police juries of those parishes to accept the legacies for the objects named.
    So, where legacies were left to two asylums for destitute orphan boys, and destitute orphan girls, with directions to the executors to cause the same to be duly incorporated '. — held, that these dispositions were conditional, and as soon as the condition was fulfilled, hy incorporating those asylums, the capacity to take the legacies was then created.
    The direction of the testator to his executors to establish the asylums mentioned in the will, and hand over the legacies to them when incorporated, is riot in violation of the provision of the Code, which declares that substitutions and fidei conwiissa are abolished.
    Tho object of abolishing substitutions, &c., was to prevent property from being tied up in the hands of individuals, and placed out of commerce, but it was never contemplated to abolish naked trusts which were to be executed immediately.
    Appeal from the court of probates for the parish and city of New Orleans.
    This case comes before the court on an opposition made by the heirs at law to the application of the executors of Alexander Milne, deceased, for the homologation of their account of administration of his estate. '
    On the 9th November, 1839, the executors filed their account, and prayed that it he homologated. ^
    The attorney appointed to represent the absent heirs came forward and filed an opposition to said account, on behalf of the absent heirs and next of kin of the deceased, objecting to all the items of expenditure in the account made for the erection and establishment of the “Milne asylums for destitute orphan girls and destitute orphan hoys,” and opposed their homologation, on [47] the grounds that these institutions not being in existence at the death of the testator, and when his succession was opened, they have no capacity to take any legacy or bequest under said will; hut that these opponents acquired a vested right as heirs at law and next of kin to all such parts and portions of said succession as may have lapsed or fallen for want of capacity to take in all or any of the particular legatees, or of the legatees under a universal title. In this opposition the following clause of the will is attacked:
    “ It is my positive will and intention that an asylum for destitute orphan boys, and another for destitute orphan girls, shall be established at Milneburg, in this parish (of Orleans), under the name of the “ Milneburg Asylum for destitute orphan hoys,” and the “ Milneburg Asylum for destitute orphan girls;” and that my executors shall cause the same to be duly incorporated by the proper authorities of this Stateand to the said contemplated institutions, &c., I give and bequoathA [a tí(plai shares or interest of one fourth to each, of all my laiy^ on tpe Bayou gtt John, ana on Lake Pontchartrain, including the unsold lands of Milnebnrg. I institute for my universal heirs and legatees, in equal shares or portions, the said institutions, that is to say, the two intended institutions at Milneburg, to whom (with two other asylums) I give and bequeathe all the residue of all the property and estate, movable and immovable, I may possess at the time of my deoease, to ho equally divided and apportioned among them,” -■ - r-
    On the application of the executors, the legislature of Louisiana passed two acts of incorporation, the 27th February, 1839, incorporating two institutions by the style or name mentioned in the will, and giving to- each “ the general powers belonging to corporations, and all special powers where by law a special power is required to do an act, provided that all their acts shall he for the benefit of said institutions.” '
    These institutions have been organized, and administrators or direc- [48] tors appointed to conduct them. They claim the bequests under the provisions of said will. The executors allowed them, and have expended money for the buildings necessary, all of which items of expense are opposed by the heirs, who claim these bequests as lapsed legacies, for want of capacity to take, these institutions not being in existence at the time of the opening the succession.
    There was judgment dismissing the opposition, and the opponents appealed.
    
      Hoffman and Strawbridge, for the appellants,
    contended: 1. That the law expressly required in all bequests, legacies, or donations inter vivos et mortis causa, that the legatees or donees should he in existence,, and capable of taking or receiving the legacy at the moment of the opening of the succession or death of the testator; in case of donations inter vivos, the donee must have the capacity to take when the donation is accepted; he must he in existence. La. Code, 944, 947, 948, 949, 1459, 1469, and 1478.
    2. All legacies or donations mortis causa, given in trust, to he held for persons incapable of receiving, or not in existence at the time, are substitutions and fidei commissa, which are prohibited by law. Id. 1507, 1598, 1690, 1696; 5 Toullier, p. 100, No. 2.
    3. It is assumed as indisputable that corporations are entitled to equal rights with natural persons, but cannot be greater, even though they he charitable or benevolent in their object. The law knows no distinction, and in all cases the corporation or person, in order to he capable of taking a legacy, must he in existence at the time of the death of the testator. Suppose the legacy to have been given to a hank, to be hereafter created, under the title of the Milnebnrg Banking Company, and the executors charged with having it incorporated; or given to the eldest son of A B, wbo has no [49] son, could the hank, not in existence, or the son of A B, not horn or conceived, at the death of the testator, take the legacy, supposing the bank to be incorporated, or the son born seven years after the testator had died ? And yet such is the construction contended for that they can take at whatever time they come into existence.
    
      4. The maxim “ h mort saisit le vif? that tbc transmission of a succession is instantaneous, though unknown to the heirs; that the property Cl' I^CCy cannot remain in abeyance, appears to be overthrown by the doctrine advocated by the defendant, and a wide door opened for the evasion of those laws, restrictive of the right of locking up property and creating perpetuities. These are not technical objections drawn from provisions of law, perhaps not applicable to the case, They are drawn from a settled policy, discussed and determined upon by the redactors and revisors of our Code, and fundamental provisions.
    5. The first qualification of a legatee then is to exist at the time of the testator’s death. Did these asylums then exist? This is not pretended; neither is it urged that if they had never been incorporated that the legacies would not have lapsed and fallen. If they were not now in existence by subsequent creation, not even this suit would have existed. There is no condition annexed to these legacies as is contended. The testator states that “ it is his positive will and intention, that the orphan asylums shall be established ; ” and to these two contemplated institutions, &c., “ I give and bequeathe, &c.” It does not seem as if any condition is expressed, then there oan be no legacy given on the happening of a condition, when no condition exists. But, it is considered that existence of the legatee is necessary to take even conditionally. 5 Toullier, No. 92; 4 Id. No. 91; 9 Duranton, No. 311; 6 Id. No. 67; Delvencourt, 718, Note to page 239 ; H. P. Code, art. 906.
    [50] 6. Pothier on Testaments, chapter 3, sect. 2, art. 1, under the title oí absolute incapacities, declares that corporations not authorized at the time of making the will, cannot take as legatees; although authorized at the testator's decease. This rule .is however changed by our Code, which refers the capacity to take, to the time of his death.
    7. Will it be for a moment contended that a donation, null in itself, can by acceptance be made valid ? The case of the bequest to the son of A B unborn, is an example to show its impossibility. Would the acceptance by the parent render the bequest good? Certainly not. Argument appears useless to show that before the acceptance, there must be a valid bequest; a person for whom it can be accepted. Here there was no person in existence, in whom the legacies could vest between October, 1838, when Milne died, and Bebruary, 1839, when these corporations were created. In whom did these legacies vest eo instamti at Milne’s death? Who was le vif qui la mort saisit ? are questions more easily asked than answered.
    Preston, for the defendants,
    contended that he should take it for granted that the court would encourage the freest possible disposition by men of the property acquired by their industry, which is not prohibited by law. That since the legislature had incorporated and established the asylums in question, it must be taken as an expression of the approbation of that body of these bequests and of the validity of the testamentary dispositions in their favor.
    2. The provisions of the Oode so strongly relied on in the oppositions to these legacies by the plaintiffs evidently relate to natwral persons, as the very spirit and even letter of the articles cited show. See La. Oode, arts. 944, 947; 1459, 1478, 1469 and 1696.
    3. The cases in which legacies lapse or fall because the legatees are not in existence, are cases in which the testator supposes the legatees in existence, when in fact they are not, and he dies in this ignorance. In such cases [51] the legacies are given in error and their execution becomes impossible. In case of the incapacity, or unworthiness of legatees the legacy lapses or falls because in direct contravention of law, and so of legacies reprobated by law.
    4. The legacies in question were not made to natural persons or corporations incapable of taking in consequence of which they lapsed, and therefore the rules applicable to them have no bearing on this case. These legacies are given to institutions to be established capable' of taking; for the very purpose of establishing them and providing for their support.- This is not prohibited by law, but on the contrary results by implication from several articles of the Code. La. Code, 608, 870, 1563, 1564.
    5. The condition of these donations or legacies, was the establishment of the two asylums, which was fulfilled on the incorporation of them; and when the donation depends on-the fulfilment of a condition, it is sufficient if the donee is capable of talcing or receiving the legacy or donation at the moment the condition is accomplished. La. Oode, arts. 1460, 1465, 1459, 1536.
    6. The testator may make any disposition which the laws do not prohibit. Any thing that can be done and which it is reasonable to do, certainly the testator can direct to be done and the'executor must see it is done. The testator may direct a useful act to be done by his executor or heir ; the counsel for the opponents contends that he cannot. Would it be useful for a testator to direct a tomb to be erected over his body, or mass to be said for his soul ? if so he may direct a church to be built or an asylum to be established with provision or a legacy for its support.
    7. It is urged that an executory devise cannot be made in Louisiana. We say nothing ¡n-ohibits it. An executory devise of lands is such a disposition of them by will that thereby no estate vests at the death of the devisor, but only on some future contingency. 2 Blackstone, Oom. 172, 173. This [52] can be done in Louisiana, and it is a most useful and necessary disposition and power over property. Its exercise conflicts with, no law, and in this State is eminently useful as it prevents large successions from being abstracted from the country by cousins and other remote kin of a testator who had left their country for half a century.
    8. It is said the direction by the testator to his executors to establish asylums is prohibited by the 1507th article of the Code reprobating substitutions and forbidding fidei commissa, as they are prohibited. “ This article says that 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, áse.” Then every disposition of a will where the executor has the seisin is prohibited by this article, for he is directed to preserve it and hand it over to the legatee, donee, &c.
   Morphy, J.

delivered the opinion of the court.

The question presented for our decision in this case arises out of a clause in the last will and testament of the late Alexander Milne; it is in the' following words, to wit:

“ It is my positive .will and intention that an asylum for destitute orphan boys, and another asylum for the relief of destitute orphan ,girls, shall be established at Milneburg, in this parish, under the names of the Milne Asylum for destitute orphan hoys, and Milne Asylum for destitute orphan girls, and that my executors shall cause the same to be duly incorporated by the proper authorities of this State; and to the said two contemplated institutions and to the present institution of the Society for the relief of destitute orphan boys in the city of Lafayette and parish of Jefferson, in this State; and to the Poydras female asylum in this city, I give and bequeathe in equal shares or interests, of one fourth to each, in all my lands on the Bayou St. John, and on the Lake Pontchartrain; including the unsold lands of Milneburg.”

[53] I institute for my universal heirs and legatees in equal shares or portions the said four institutions, that is to say, the two intended institutions at Milneburg, and the two asylums aforesaid in this city, and in the city of Lafayette, to whom I give and bequeathe the residue of all the property and estate, movable and immovable, I may possess at the time of my decease, to be equally divided and apportioned among them.”

The testator died in October, 1838, and in February following the general assembly of this State wishing to enable the executors to carry into full effect his beneficent intentions, incorporated the two asylums mentioned in the will. When the executors filed their account, the absent heirs of the deceased, through the attorney appointed to represent them, opposed all such disbursements as had been made for establishing or maintaining the two institutions at Milneburg, on the ground that said disbursements were made by the executors without authority, and in their own wrong. They averred that the two incorporated asylums had acquired no right, title or interest, in or to the said succession, or any part of it; that at the death of the late A. Milne they were not in esse, and had no capacity to take under his will; that at the opening of the succession, the heirs at law and next of kin of the deceased, acquired a vested right to all such parts or portions of said estate as had lapsed or fallen, for want of capacity to take in any or all of the particular legatees, or legatees under a universal title, or from any other cause; and that the executors had full notice of the incapacity of these institutions to take, because an application previously made by them to he recognized as universal legatees, and put in possession of their respective positions, had been opposed on the same grounds. The court below dismissed the opposition so far as it contested the capacity of the Milne asylums to receive their bequests. The heirs at law appealed.

They rest their objections to the validity of these bequests, on all those ar[54] ticles of the Louisiana Code whichdeclare a legacy to be void if the legatee be not in existence, or be incapable of receiving it, at the opening of a succession. La. Code, arts. 944, 947, 948, 949, 1459, 1469, 1478, 1598, 1690, 1696. They contend that as these two institutions had no legal existence at the time of the death of the testator, they could not take under his will; that the nearest legitimate heirs became immediately entitled by law to these legacies, and that their title to the same being thus vested, could not be destroyed by the subsequent acts of incorporation obtained from the general assembly. This question does not. present itself to us surrounded by those difficulties which would attend its solution in those States whose statutes of wills exclude corporations as competent devisees. The statutes of mortmain and the reasons which produced them do not exist among us; and corporations are placed by our laws on the same footing as natural persons, as to their capacity to take by devise.

Two things must concur to enable a legatee to take under our laws; 1st. He must be in existence at the time of the opening of the estate; 2d. He must have capacity to receive at that time, if the legacy be absolute; if it be conditional, it is sufficient if the capacity to receive exists at the time of the fulfilment of the condition. La. Code, art. 1460; 5 Toullier, p. 99, No. 91. Pothier des Donations Testamontaires, p. 361, and Traite des Oblig. Nos. 203, 208 and 222.

It is in general true that the person of a legatee must be designated in terms not to be mistaken; if the designation is so vague and indefinite that the intention of the testator cannot be ascertained, the legacy falls for want of sufficient certainty. But this precision is required only as to individuals in regal'd to whom the will cannot be executed if their identity cannot be established ; when a legacy is made to a certain class or collection of persons, and is not dictated by caprice, but by charitable and meritorious motives, although the individuals are unknown to the testator, such a legacy will not under our laws bo considered void for uncertainty. Pothier des Testa- [55] ments, chap. 1, art. 5; Domat, Lois Civiles, book 4, chap. 11, sect. 6, sects. 4 and 5. Our Code, art. 1536, provides that “ donations made for the benefit of an hospital, thepoor of a community or of establishments of public utility, shall be accepted by the administrators of such community or establishments.” In the Hapoleon Code which contains provisions similar to ours, as to the necessity of a legatee being in existence at the death of the testator, we find an euactinent recognizing the validity of such donations, but providing that they shall not be carried into effect unless approved of by the government. N. C. art. 910. Such donations are there made conditional; the capacity to receive is made to depend on the fulfilment of a condition, to wit, the sanction of the sovereign; until that is obtained, the poor or other class of persons intended to be benefited are without capacity to receive. Had the deceased made a legacy to the destitute orphans of this parish, without providing that they should be incorporated, the question would have presented itself whether under article 1536, above quoted, the police jury of the parish would not have been competent to accept it on behalf of the intended objects of his benevolence. There appearing to be some doubt on this subject, we have seen, on former occasions of this kind, the general assembly of the State acting as the purrem patrice in the carrying into effect charitable dispositions in the wills of public benefactors. 2 Moreau’s Dig. p. 208; Laws of 1837, p. 24. They authorized the acceptance by the police juries of Points Ooupée and West Baton Rouge, of three legacies, by the late Julien Poydras, two of $30,000 to each parish, to be appropriated as dowries to the young ladies of the parishes to encourage their marriages, and one of $20,000 to be appropriated to the maintenance of an academy in the parish of Pointe Ooupée. In the will of Poydras the legacies were absolute, and the difficulty laid in the absence of any capacity in the legatees to take. at the moment of the [86] opening of the succession. In the case under consideration, the testator appears to have been aware that unless incorporated the two asylums had no capacity to .receive, and to have intended that his dispositions in their behalf' should not be carried into effect until after their incorporation. This intention is not expressed in positive terms, but can and must, we think, be fairly inferred from the wording of the will. The Roman law informs us that one who is incapable may be instituted as heir, for the time when his incapacity shall cease. “ In tempus capiendse hereditatis instituí heredem posse benevolentias est.” Veluti, Lucius Titius, cum capero potuerit, heres esto; Id. et in legato, book 28, tit. 5, law 62, de Insti. Hered; 5 Toullier, p. 99, No. 91. Dispositions of this kind are conditional in their nature, and the condition is fulfilled by the creation of the capacities to receive: thus in this case, it was intended, we think, that the legacies should be delivered to these institutions upon their becoming incorporated; the implied condition was that they should be rendered capable of receiving, and that condition was fulfilled by the subsequent acts of incorporation. Somewhat analogous are the cases of a legacy to a feme sole upon her marriage, or to an infant in ventre sa mere, the marriage or the birth which fulfils the condition creates the capacity to receive which did not exist at the time of the opening of the succession.

But to take a less limited view of this matter, must not every disposition in a man’s will not reprobated by law, be carried into effect ? such is the rale universally laid down for the construction of wills. Here a testator who has acquired his wealth in this country and has no forced heirs wishes to create with the aid of the legislature two institutions of manifest public utility; as soon as this desire of the deceased is made known to the general assembly, they grant the necessary acts of incorporation and the executors discharge the trust committed to them. We can see nothing in the law to prevent this be-[57] ing done. After the strong and positive declaration of Milne with respect to the disposition of his property, shall a technical objection drawn from provisions of law, not perhaps applicable to cases of this kind, defeat his purpose? nothing short of an express prohibition in the law should, we think, have such an effect. It is supposed that the direction of the deceased to his executors to establish these asylums and hand over to them a part of his estate is a violation of article 1507 of our Code, which declares that substitutions and fidei eommissa, are abolished. In the language of this court in Mathurin v. Livaudais, 5 Martin, N. S. 302; “ the object of this change in our jurisprudence was 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. The framers of our Oode certainly never contemplated to abolish naked trusts, uncoupled with an interest which were to be executed immediately. If they had, they would not have specially provided in a subsequent part of the work for testamentary executors, described their duties and recognized the validity of their acts.” Here in the discharge of their trust the executors were to apply to the legislature to have the asylums incorporated, and as soon as this was done, they were forthwith to deliver, and did deliver over to them the bequest made in their behalf. In this we can see no substitution or fidei commissum ; it is nothing more than a conditional disposition. The case of the Baptist Association v. Hart's executors, 4 Wheaton, p. 27, has been pressed upon us as having a strong bearing upon the present. There the bequest was “ To the Baptist Association that for ordinary meets at Philadelphia." It was an absolute devise to take effect on the death of the testator. The association described not being incorporated was incapable of executing the trust. The individuals composing it could not take the bequest because no private advantage was intended for them, and the will of the. deceased did not contemplate the event of the association becoming a body corporate. The court considered that the bequest was gone for uncertainty as to the devisees; [58] no one having capacity to take at the death of the testator. More analogous to the present case is that reported in 3 Peters, 112 ; the object of the devise was to build an asylum to be called “ The Sailor’s Snug Harbor," for the purpose of maintaining and supporting aged, decrepid and worn out sailors. It was held that a devise to a corporation to be created by the legislature, composed of several officers, designated in the will as trustees, was valid, and this decision was made after considerable research and deliberation, growing out of a division of opinion in the court. Judge Story, who delivered in the case a dissenting opinion, rests it on grounds, not incompatible with the views we have expressed. He says, page 147,'“ But the difficulty is in arriving at the conclusion upon the terms of the will, that the testator did mean any devise to them (the officers) in their private capacities. It is manifest from his language that he did not devise to the then chancellor, mayor and recorder, &c., in their private capacities, because the language is that it is to the chancellor, &c. &c.,for the time being, and their respective successors in the said offices for ever. It is then a devise to them as officers, during their continuance in office, and the estate is to go to their successors in office for ever; so that none of the devisees are to take any certain estate to themselves, but only while they continue in office.” “ His intention is clearly that the charity shall be a perpetuity. He devises to the successors in office for ever. They are to be the administrators of the charity for ever. Upon what ground can the court exclude the successors from .the administration of the charity, when the administrator has so designated them ? Why may we not equally well exclude the present incumbents as the future ? Both are named in the will; both are equally, in the view of the testator, of equal regard.” In another place, page 149, he says, “ If the devise was void at law at the time it was to have effect, to wit, at the death of the testator, the subsequent act of the legislature of New-York, could not have any effect to divest the vested [59] legal title of the heirs of the testator. Tire devise was not a devise to a corporation not in me and to be oreated in future. It was a devise in presentó to persons who should be officers at the death of the testator, and to their successors in office. The vesting of the devise was not to be postponed to a future time, until a corporation could be created. It was to take immediate effect, and if the trustees could not exercise their powers in the manner prescribed by the testator, they were to apply to the legislature for an act of incorporation. Assuming, then, that a devise per verla de futuro, to a corporation not in esse, which is to take effect when the corporation should be oreated would be good, and vest, by way of executory devise, in the corporation when created, as seems to have been Lord Chief Justioe Wilmot’s opinion; it is a sufficient answer that such is not the present case.” Thus it is seen that the dissent of this learned judge proeeedod on the ground that the will of the testator was not complied with by oonfiding the management of the trust to the corporation created by the legislature of ÍTew-York, to the exclusion of the successors in office of the officors designated in the will; but no opinion is expressed against the validity of a devise to a body corporate to be created subsequently to the death of a testator. But without adverting to a number of decisions made in England and in our-sister States, under the doctrine of charities, which has grown up from the civil law, we must determine this controversy by the provisions of our own statutes, and in them we find nothing which makes it our duty to reverse the judgment under review.

It is therefore ordered and adjudged that the judgment of the court of probates be affirmed, with costs.  