
    No. 8253.
    Succession of Robert Y. Charmbury.
    From a judgment recognizing tUe heirs and ordering them to he put iu possession, the testamentary executor has an appealable interest.
    The objection that the appeal hond filed is not such as required by law, must be made in this Court within the three days after the Transcript is filed.
    The objection that the surety on the appeal hond is himself one of the appellants, must he first raised in, and passed upon, l>r the lower court.
    It is no reason for the executors to refuse to pub the heirs iu possession, that the latter have not tendered tlie amount of the debts, fees and charges due hy the estate. The objection is frivolous. If the creditors make no opposition and require no security, the executors have no right to demand any. Tor the foes and charges, they must provide for them in their account.
    The consent of the legatees that the heirs he put in possession, is a waiver of the tender of the legacies.
    It is enough for the court to order the heirs to he put in possession that the constituted legatees consent to it. Whether such constituted legatees have the power or not to so consent, is not to he considered in the promises. The putting of the heirs in possession decides no issue as to the legality or validity of the legacies. All the. claims and rights that can he exercised under such legacies against the executors, can he equally exercised against the heirs, after they have been put iu possession.
    APPEAL from the Civil District for Lie Parish of Orleans. Bightor, J.
    
      .L IL Gh-over and Ellis & Ellis, for tlie Heirs, Plaintiffs and Appellees:
    One, whose interests are not affected, or who is not aggrieved hy a judgment, cannot appeal from it.
    In this case, the heirs accepting simply and-purely, sued the executors to he put in possession, under C. P. 1000, 1001, 1003. The legatees, all except one, who was an executor, consented in writing, that the heirs be put in possession. To creditor or claimant objected. On the contrary, the largest creditor and the largest claimant, both consented in writing, and asked that the heirs he put iu possession. The judgment granted the heirs’ petition, ordered the executors to account, and thereafter, to deliver possession to the heirs, provided the heirs first pay the legacy of the executor, legatee, who refused to consent. In such case it will be held, that the executors are without interest to appeal, and an appeal granted to them will he dismissed. R. C. C. 1012,1671; 30 A. 128 : 13 La. 3 (3d paragraph) j 9 La. 415; 19 La. 278; 11 A. 177.; 10 La. 499.
    The heirs, legatees, creditors and claimants compose the succession. R. pp. 871, 872,873, 874 When they consent that the heirs shall bo put in possession, the executors cannot object on the pretext that they must see the will executed. The law favors the termination of probate jurisdiction, and the possession of the heirs accepting, simply and purely, and it protects the rights of creditors and legatees. In such case the executors become mere stakeholders, and must account, receive thereon their commissions, and credit for payments made hy them, and surrender the estate to the heirs. They cannot ar>peal from a judgment which orders this. R. C. C. 1012,1671; C. P. 1000 to 1007; R.^C. G. 1465; 30 A. 128; 6 A. 63 ; R. C. C. 1422, et seq., 1444, et seq., 3275.
    In this case, the executors, under the circumstances above stated, were ordered to file tlioir account and deliver possession thereafter, to the heirs. They cannot champion the rights and overrule the consent of the legatees, creditors and claimants, that the heirs he put in possession, being wholly without interest or right to do so ; and hence, cannot appeal, as the judgment does not affect them (the executors) personally or officially.
    
      An appellant, condemned by the judgment, canDofebe Ms own surety on the appeal bond. 31* • he sign his own appeal bond as surety, being already liable for the judgment against him, it will he held that no surety has signed the appeal bond, and there being no other surety, the appeal will be dismissed. C. P. 575.
    The District Judge must first decide as to the solvency of the surety and the sufficiency of the bond, where a third person has signed as surety, and his ruling can thou be reviewed by the Supreme Court. But where the appellant, already condemned for the judgment, trifles with the law, and with the rights of the appellees, by signing his own hond as his own surety, and giving no'othor surety, the Supreme Court will hold that there is no appeal bond at all, and will dismiss the appeal on appellee’s motion, as an, absolute nullity, which can ho so declared at any time and in any proceeding.
    Where an appellant, already condemned by the judgment appealed from, gives no person as surety, but signs as the surety himself, the nullity of the appeal bond is so absolute that the Supreme Court will notice improprio motu, just as they would the absence of an order of appeal, and will dismiss the appeal. In such case, action on the pretended bond, by the District Court, is not requisite.
    Where there are three co-executors condemned to deliver possession to the heirs, and all three appeal, and sign a bond, with one of themselves as the sole surety, it will be held that there is no appeal bond, and the appeal will be dismissed.
    See Lafon vs. Testamentary Executors of Lafon, 2 E. S. 511; State vs. Judge, etc., 2Hob. 449.
    
      A. J. Murphy and Thomas J. Semmes & Payne, for the Executors, Appellants:
    1. It is the duty of a testamentary executor to see that the will of the testator is faithfully executed and each and all of the provisions of the will carried out. C. C. Art. 1612.
    The executor has the right to appeal from any judgment which nullifies any portion of the will of the testator or in any manner interferes with the distribution of the estate by the executor in conformity to the dispositions of the will. Sue. of McKenna, 23d A. p. 369.
    2. A motion to 'dismiss an appeal for an irregularity on the appeal hond or for insufficiency or incompetcncy of the surety on appeal hond, must ho filed within three judicial days from the filing of the transcript of appeal, or the same will not he noticed by this Court. 2d A. p. 133; 6th A. p. 115; 21st A. p.329; 26th A* p.311.
    Any inquiry into the sufficiency or legal qualification of. a surety upon an appeal bond, must be first made in the lower court, otherwise the objection thereto will not he considered by this Court. 10 A. 318; 10 A. 485; 14 A. 61; 29 A. 597.
    One may he a surety in his individual capacity on an appeal hond furnished on an appeal from a judgment against him in a representative capacity when said judgment imposes no personal liability upon him and does not condemn him, individually, in any manner.
    Two or more persons, against whom judgment has been rendered, jointly, may become reciprocally sureties for each other upon a bond furnished'on appealfrom such judgment. 27 A. 248.
    
      Francis W..Balcer, for the Residuary Legatees:
    1. When a will in due form has been probated according to law, its provisions must he followed by the executors, and sustained by Court, until annulled in a proceeding instituted for that purpose C. C* 1644 et seq.; C. B, 930, et seq.; 18 A. 444 ; 24 A. 388.
    2. A will cannot be annulled unless all parties in interest to sustain its provisions, are parties to its proceedings or properly represented.
    3. An ex parte order of Court recognizing ‘one as agent for alleged heirs, does not prove heir-ship. 8 A. 27; 4 A. 87; 9 A. 100 ; 14 A. 35*4; 7 H. S.584; 17 La. 470 ; 5 A. 3.
    4. Ho one is hound by testimony not taken contradictorily with him. 7 A. 367; C. P. 428 434; 1 H. S. 187; 10 A. 766 ; 6 H. S. 301; 4 H. 152.
    5. The validity of a will made in Louisiana, the domicile of the testator; it is to he determined and interpreted by the laws of Louisiana. C. C. 9, 10; 2 H. 258.
    
      (>. A bequest in such a will in favor of a foreigner will be held valid when the laws of such foreign country do not prohibit similar dispositions from being made in favor of a citizen of Louisiana. C. C. 1490; Code Napoleon II. 726, 912; 12 R. 584; 17 L. 312; 7 An. 395
    7. Foreign laws must bo proved as facts, and in the absence of such proof, will be presumed to be the same as tbe laws of Louisiana. 17 A. 73; 8 A. 124; 14 A. 391; 9 B. 151; 7 A. 395; 24 A. 387; 15 A. 491. ■
    8. In interpreting wills, the intention ot the testator must principally be endeavored to be ascertained. C. C. 1712 (1705).
    9. The intention of tbe testator in this case, as shown by tbe will, was that the u aged poor of both sexes of both Longfleet and Poole Dorset, England,’’’should be the legatees and sole beneficiaries. 12 A. 319.
    10. A bequest to the poor of a community is valid under the laws of Louisiana. C. C. 1546; Code Napoleon, 910, 937; 12 A. 301.
    11. Grounds of nullity against a will, not specifically set forth, should not be considered. 18 A.444.
    32. The objection that there was no person in being, capable of receiving at the time of the testator’s death, has no force as against a donation to the poor of a community., 12 A. 320.
    13. Such a bequest, to the poor of a community, does not create a prohibited perpetuity. Same.
    14. Such a bequest is not open to the objection of vagueness or uncertainty. 12 A. 320; 2 B. 438.
    15. Donation to pious uses, to the poor of a community, are encouraged and favored by the law. Same, and 8 A. 171.
    16. The will in this case contains no prohibited substitution or fidci commissa. < Same, and 5 N. S. 302; 17 L. 57; 2rR. 372.
    17. All impossbiie conditions, or those which are contrary to the laws or to morals, are reputed as not written. C. C. 1519, and authorities above.
    18. The Mortmain Act, 9 Geo. IL, Chap. 36, would not render null this will in England, or prevent its execution there. Shelford on Mortmain, pp. 118, 120.
    19. The principal evil desired to be remedied and prevented by the Mortmain Act, was the disposition and tying up of lands whereby they became unalienable, and were taken out of commerce. Same, Sorresby vs. Hollins, 9 Modern, 223; 1 Yesey, Sr., 223Ambler, 20; Ambler, 210.
    20. The Mortmain Act has no reference to lands out of England. 14 Yesey, Jr., 537,
    21. Where the trustees are vested with a discretionary power to lay out in lands or other* wise, the bequest will be valid. Williams on Executors, Yol. 2, p. 922.
    22. Where the trustees might, under the discretionary power of the will, hire, instead of purchase, the bequest will be held valid. Same; 3 Maddox, (Y. C. R.) 457; 5 Simon, (Y. C. B.) 661; 7 Price, 221; 2 Yesey, Sr., 185; 2 Yesey, Sr., 189; 4 Brown, C. C. 527,
    23. Even if void, so far as the proceeds of the real estate in Louisiana* it would be valid so far as the personal property. 3 Brown, G. C. 373; 14 Vesey, Jr , 537,
    24. Trustees who have once accepted the trust, cannot afterwards renounce the trust. The trust •will not fail or he prejudiced thereby. 1 Yesey, Jr,, 464, not©; 1 Yesey, Jr-, 270, note 2; 6 Yesey, Jr., 663 and note; 8 Yesey, Jr., 570 ; 1 Smith Leading Cases, 382, 4bh Ed.; 3 Wait, Actions and Defenses, 140; Smith’s Manual of Equity, 190, 191; 2 Spence Equity Juris. 51, 52, 876; 2 Fonblanque on Equity, 171; Willis on Trusts, 121, Note A. and p. 125, p. 167; Lewin, Law of Trusts, 495; 10 Yesey, Jr., 468,
    25. Charities and donations to pious uses are favored both by the laws of, England and America. Girard Will Case, 41; 28 Penn. (St.) 35; 14 Allen, (Mass.) 539,' 556; 1 Brown, O.C.12; Statute 43 Elia. Chap. 4; 8 Blackford, (Ind.)22; 3 Cushing, (Mass.) 365; 14 Allen, (Mass.) 539; 42 111. 425; 45 Me. 552; 7 Yesey, Jr., 69; 1 Merivales, 55; 9. Yesey, 405; 5 Bussell, 112, 113; 2 Beavans, (Bolls Courts,) 81; 1 Turner and Bussel, 270; 2 Mylne and Beene, 576.
    
      26. Cbarmlrory having no forced heirs, had a right to dispose of all of his property as he saw fit, not contrary to law or morals. C 0 1470, 1496.
    27. It was the duty of the executors to endeavor to carry out the wishes of the deceased. ('♦ C. 1672 j 7 IT. S, 615.
   On Motion to Dismiss.

The opinion of the Court ivas delivered by

Fenner, J.

The deceased, E. Y. Charinhury, left a will, containing numerous legacies, and naming the Mayor and Council of Dorset, England, together with the ministers of the Established Church of both Long-fleet and Poole, forming a committee, to manage this charity in trust,” as residuary legatees for certain charitable purposes therein designate,d, and appointing certain persons as testamentary executors.

The succession was opened, the executors qualified and entered upon their trust.

Subsequently, the sisters of deceased filed their petition, alleging that they were the solo legal heirs of deceased, that the residuary legacy was null and void, and had also lapsed liy the express renunciation and refusal of the residuary legatees to accept the same; alleging that all the particular legatees, except one, had consented to their being put into possession; expressing their willingness to accept the succession, purely and simply, and to comply with all the obligations imposed on them by law; and praying that the executors he cited, and for judgment recognizing and putting them in possession as heirs, and ordering the executors to render an account of their administration to them within reasonable delay, etc. To this petition, the executors filed answer, pleading the general denial and sundry special defenses. After trial, judgment was rendered in favor of the petitioners, substantially in accordance with the prayer of their petition, from which the executors took their appeal.

The present motion to dismiss is based substantially on two grounds, viz:

1st. That the executors have no appealable interest.

The petition of the alleged heirs is based on, and framed in accordance with, the Articles 1000, et set/., of the Code of Practice, which expressly require citation of flic executors and permits the latter to answer and contest the application of the heirs. Aside from their special defenses, the general denial, contained in the answer of the executors, puts at issue all the facts set up in the petition, including the actual heirship of the petitioners. The Code of Practice contemplates a eontestatio litis, in which the petitioners were hound to prove, and the executors had the right to contest, the claim set up. From this fact alone, it results that, the case being appealable in amount, both parties have an interest in the correctness of the judgment and have the right to test the same by appeal. The argument of the counsel for the heirs is based entirely on the merits of the case. These we have no right to inquire into. Hon constat that it may not appear from the evidence in the case that the petitioners are not heirs, that the legatees have not consented, that the residuary legatees have not renounced, or that the renunciation is incomplete and invalid. These questions can only arise on the trial of the merits. The executors’ right and duty to execute the will and to prevent the property from being diverted in any way which may prevent or jeopardize its execution, give them an appealable interest, whether the parties interested complain or not, because the executors represent the deceased and are bound to see that his wishes are carried out. Rev. C. C. 1672; Succession of McKenna, 23 A. 369.

2d. The other ground of the motion is that the bond of appeal, filed by appellants, is not such as is required by law.

There are two fatal objections to this ground of the motion :

1. The motion was not filed within three days, after which such an objection cannot be considered. 2 A. 138 ; 3 A. 326 ; 11 A. 613 ; 21 A. 329; 26 A. 311.

2. The objection to the bond is, that W. S. Benedict, who signs as surety, was, himself, one of the executors and appellants.

Such objection cannot be considered by this Court, without having-first been raised and passed on by the lower court. 10 A. 318, 485; 14 A. 61; 26 A. 311.

The motion to dismiss is, therefore, overruled.

Rehearing refused.

The Chief Justice recuses himself, having- been of counsel.

On the Merits.

Robert Y. Charmbury died in 1879, leaving a will, by which, after bequeathing sundry particular legacies, he bequeathed the balance of his estate “ to the Mayor and Council of Poole, Dorset, England, together with the Ministers of the Established Church, of both Long-fleet and Poole, forming- a committee to manage this charity in trust, as the monies are realized, to invest the same in British Consols, the interest only to be applied for a suitable building for the aged poor of both sexes, and for their support, and to be known as the Oliarmbury Institute,” etc.

He nominated three executors, who qualified in the proper Court in this city, and entered upon the administration of the estate.

This administration had continued from July,.1879, until November, 1880, without any account haying been filed or distribution made, when tlie three sisters of the deceased, alleging themselves to be Ms sole legal heirs, and announcing their willingness to accept the succession, purely and simply, cited the executors, and prayed to be put in possession, and for an order directing the executors to file their final account and to deliver the succession to them.

Their proceeding is taken in accordance with Articles 1000 to 1007 of the Code of Practice.

They present complete proof of their sole heirship, and file, also, the formal consent of every legatee (except one) named in the will, including the Mayor and Council of Poole, and the Ministers of the Established Church of Long-fleet and Poole, named as the residuary legatees for the charitable trusts recited. The excepted legatee-is one of the executors, who is a particular legatee only. They present, also, the consent of the only important creditors or claimants against the estate; and no other creditor or claimant makes any opposition to their demand.

The executors answered, pleading the general denial, and setting up' the following special objections to the demand of the heirs, viz:

1. That no tender has been made by petitioners of the debts, fees, charges and expenses of the succession. This objection is frivolous. As to fees, charges and expenses, the executors may provide for them in their account. As to debts, creditors may require the heirs to give security, under Article 1012 of the Civil Code. If they do not ask it, the executors have no right to require it. The remedy of the creditors is perfect agaiust the heirs. C. C. 1013,1423, ct seq., 1444, etseq. See 30 A. 128; 13 La. 3; 7 La. 389.

2. That no tender of the legacies under the will has been made. The necessity of such tender is, of course, waived by the consent of the legatees. As to the legacy to Davis, who has not consented, he being an executor, with seizin, has full authority to retain his legacy out of the funds in Ms hands, which, it is not disputed, are ample to pay:.

3. That the Mayor and Council of Poole and the ministers named as the “committee” in the will, have no right to reject the legacy made to them for charitable purposes. It appears that the said committee, acting Under the advice of Mr. J. P. Benjamin, an eminent Queen’s Counsel, of Great Britain, to the effect that the legacy was void, and could not be executed, under the Mortmain Act of that country-, determined to refuse and reject it.

We are presented with a most learned argument to show that the opinion of Mr. Benjamin, given to the committee, was unsound and not sustained by- the law of either Great Britain, or of Louisiana, that the legacy- is valid under the law of both countries ; that the trustees have no right to renounce the legacy; and that, notwithstanding their renunciation, tlie Court may enforce the execution of the trust through other appointments for the purpose.

With all these questions, we have, as we conceive, no concern in the present case. It is sufficient for us that the legatees constituted under the will have, through an agent vested with the fullest power to represent them, filed a written consent that the seizin of the succession should be delivered to the heirs, accepting purely and simply. Such delivery concludes no rights whatever of the residuary legatees. It involves no adjudication whatever upon the validity of the bequests. It simply transfers the seizin from the executors to the heirs, and against the latter, all parties interested may urge every claim which they could urge against the executors.

We have certainly no jurisdiction over either the Mayor and Council, and Ministers, nor over the aged poor of both sexes,” of Long-fleet and Poole, England. We can neither compel them to accept this legacy or to execute this trust, nor have we power to appoint others to execute it in their stead, the place in which alone it can be executed lying out of our jurisdiction.

If they will not accept it, it does not follow that this estate must remain forever in the hands of executors without bond, and -who have no title whatever to it.

It is the duty of executors to execute the provisions of the will, but that duty does not extend to the point of compelling legatees to accept, or of controlling them in their conduct, with reference to property bequeathed to them. The consent of the residuary legatees to transfer the seizin of this estate from the executors to the heirs, is conclusive upon the executors, who have no right to oppose it.

The appellees have prayed for amendment of the judgment in two respects:

1. By casting the costs upon the executors, individually, instead of on the succession. We have no reason to doubt that the executors, in resisting this demand, have acted in the discharge of what they believed to be their duty, and they should not be mulcted in costs.

2. In the judgment appealed from, the heirs were required, before receiving- possession, to give security for the payment of the legacy to Davis, or, if required by the executors, to advance a sum sufficient to pay said legacy.

These conditions would be unreasonable if Davis, being- liimself an executor, had in his hands sufficient ready money of the estate to discharge his legacy. We are asked to amend by authorizing him to retain the amount of his legacy out of the funds of the estate on making-delivery — and we consider such amendment proper.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from bo amended, so as to authorize Wm. T. Davis, one of the executors, to retain the amount of the legacy to himself, under the will, out of any ready money which may rest in the hands of the executors after accounting ■, and by providing that the heirs shall only be required to give security for, or advance the amount of, his said legacy, in case of deficiency of ready money in the executors’ hands to pay the same; and that, in all other respects, the judgment be affirmed — costs of this appeal to be paid by the executors.

Rehearing refused.

Chief Justice recuses himself,, having been of counsel.  