
    Wm. Franklin et al. vs. John Armfield et al.
    
    Charitable Uses. Statute of 43 Miz., eh. 4. Const., Art 1, § 22. What is a charity, and what a perpetuity. A charity is a gift to a general public use, the trustees whereof may sell the property in the proper and bona fide execution of the trust, and a court of chancery may decree such sale; while it is of the essence of a perpetuity, that the property is incapable, beyond the period prescribed by law, of being sold, freed from all limitations and trusts — by the use of all the means known to the law for affecting sales.
    2. Same. Same. Same. The maintenance of universities, colleges, academies and common schools, and other lawful educational institutions is a charitable use, without reference to the wealth or poverty of those who may take benefit therefrom; and gifts for such maintenance if good in other respects will be sustained by the courts of Tennessee.
    3. Same. Same. Same. Case in judgment. A devise of property to trustees for the erection in Tennessee of proper edifices and the establishment therein of a seminary of learning, for the permanency of which provision is made, in which are to be educated, and supported during the period of pupilage, the children of the testator and their descendants; the children of his brothers and sisters and their descendants, and such of the poor children of the county as the trustees might select, creates a good and valid charity, not inconsistent with the constitution and laws of Tennessee.
    4. Executors and Administrators. Chancery. Where an executor to exonerate property devised by will from an incumbrance pays a debt at the request of the devisee;'- such payment becomes a charge upon the property, and a court of equity will decree its reimbursement out of the same.
    FROM SUMNER.
    The matters in litigation in this case involve the construction of the will of Isaac Franklin, dec’d, late of the county of Sumner, and a proper adjustment of accounts between the executors, trustees, legatees and de-visees as to their rights, interests and obligations under the same, as fixed and declared, as well by the laws of Tennessee as by those of Louisiana. The will was executed in the State of Louisiana on the 24th of Hay, 1841, and disposes of a large estate, real and personal, in the States of Louisiana, Mississippi and Tennessee, estimated at nearly one million of dollars. The testator died in the State of Louisiana on the 27th of April, 1846, having his domicil at the time in the State of Tennessee, and leaving Adelicia his widow, and Victoria, Adelicia and Emma, three minor children of the marriage. Adelicia, one of the children, died on the 8th of June, 1846, and Victoria on the 11th of June, 1846, both in the county of Sumner, and both intestate. The will was duly admitted to probate in the proper courts of Louisiana and Tennessee, and the executors named therein, John Armfield and O. B. Hays, were qualified in both States and entered upon the execution thereof. The main question arises upon a bill filed in the chancery court at Gallatin, in 1851, by Wm. Franklin and others, trustees under the will, against the heirs and executors of the testator, and the answers and exhibits thereto, involving the validity of the eighth item of the will, by which the “Isaac Franklin Institute,” a seminary of learning, in the county of Sumner, was created and endowed. Adelicia Franklin, widow of testator, intermarried in 1849 with J. A. S. Acklen, both of whom, with Emma Franklin and the executors, were made parties defendant to the bill. Among tho property devised for the endowment of the seminary was the remainder interest in an estate in Sumner county, called “ Fairview,” the residence of the ■ testator, upon which the seminary was to be located. The usufruct of this estate being bequeathed to the widow so long as she should remain the widow of the testator. In 1848 the trustees, with a view to the more speedy performance of the trust, purchased the widow’s interest in this estate for the sum of $30,000, which was paid by the executors at the instance of the trustees, with other sums amounting to more than $40,000, necessary to remove incumbrances from the trust estate, and enable the trustees to proceed with the execution of the trust. ■ At the time of this payment, the executors had made their settlement with the courts of Louisiana and had their accounts allowed and passed, and in their answer to complainants’ bill claimed a reimbursement out of the Tennessee trust fund for the payment. The will of the testator is incorporated in the opinion of this court, and the facts of the whole case, which are very voluminous, sufficiently indicated therein to afford a full view of the several matters in controversy. It is, therefore, deemed unnecessary to amplify the statement contained in the •opinion. The cause was heard by chancellor Eidley, at the September term, 1854, who among other orders adjusting the accounts between the legatees and executors, made a decree recognizing the validity of the will, and directing the reimbursement of the executors for their payments on behalf of the trustees, out of the trust fund in Tennessee. The complainant, and respondents Aciden and wife and Emma Franklin, appealed.
    E. H. EwiNG and J. C. Guild, for the trustees,
    the latter of whom said:
    Isaac Franklin, a citizen of Sumner county, Tennessee, upon the 24th day of May, 1841, made his will. He died in 1846, and his will was regularly admitted to probate in the parish of Feliciana, and recorded in the county of Sumner. The trustees filed their bill in the chancery court of Sumner against the executors of the estate, Mrs. Acklen and husband, and Emma, the only child of the testator, to have the trust in the will declared, executed, to enable them to put the Seminaries of learning founded by the testator into operation, and for the trustees to be placed in the possession of all the property bequeathed to them, situated in the common law States, and one third of the reve-mies of tbe Louisiana estates. It cannot be controverted, that William Eranldin, tbe trustee and brother of tbe testator, was capable of receiving the title of the estate, and that tbe title is transmissible to bis heirs. Tbe leading question in this case is: are those bequests valid, and can such trusts as are specified in tbe will, be enforced by tbe courts of chancery in Tennessee. These trusts are of an eleemosynary nature and charitable uses in a judicial sense. Not only are charities for the maintenance and relief of the poor, sick and impotent, charities in the sense of the common law; but also donations given for the establishment of colleges, schools and seminaries of learning, and especially such as are for the education of orphans and poor scholars. So it is immaterial, whether or not, the statute of the 43rd of Elizabeth, which sustains bequests for charitable uses is in force or not in Tennessee, I admit that it. has been adjudged not to be in force. The charitable uses specified in Mr. Franklin’s will can be declared and enforced by a court of chancery in Tennessee, by virtue of its general jurisdiction.
    Our supreme court, in the case of DicTcson vs. Montgomery, 1 Swan, 362, hold that charities have been peculiarly favored by the courts from the earliest history of the law; donations of this sort are usually made for the advancement of education, morality and religion, and for the relief of the indigent, helpless and disabled objects, which meet with favor in every civilized and Christian community. And hence, devises and' gifts to charitable uses have been sustained in cases where, if the trust had been for other objects, they would have been void for uncertainty. See 1 Story, 403 and 12.
    
      Li England, a court of chancery, by virtue of its extraordinary jurisdiction, independent of its special jurisdiction by the warrant of the Ling, has a right to enforce all trusts, and especially charitable bequests. It is derived from its general authority to carry into execution the trusts of a will, or other instrument, according to the intention expressed in that will or instrument. 1 Story E. § 1187. The chancery court • possessed this power, and exercised this jurisdiction prior to the 43rd of Elizabeth, which statute, it is said, is not in force in Tennessee. 3 Atkins, 165. 2 Vesey, 327. 1st Chancery cases, 157.
    In the case of Girard’s will, the supreme court of the U. States, 2 Howard, 195, hold in accordance with the opinion of the great equity lawyer, Redsdale, that the statute of Elizabeth only created a new jurisdiction, it created no new law, and our supreme court, in 1 Swan, hold, the regulations for the proceedings under that statute, are not in force in Tennessee, for the want of the necessary machinery to carry it into effect; but the provisions of that statute existed as the law .previous to its enactment, and the creation of a new jurisdiction did not deprive a court of chancery of its general jurisdiction.
    I maintain that a court of chancery will enforce .the performance of a charitable bequest, when the charity is definite, is lawful, and is to be executed by trustees who are specially appointed for the purpose. Mr. Eranklin devises and bequeathes the property, real and personal, mentioned in his will, to his brothers, William ;and James Eranklin and their heirs to pass the estate. This charity is sufficiently definite in its objects, to wit: the establishing of seminaries of learning upon his Fair View estate in the county of Sumner, the employing of such teachers' or professors as may be necessary for the education, board and clothing of the children of his brothers and sisters, and their descendants, and such poor children of the county of Sumner, as lois trustees shall select.
    Our court, in 1st Swan, say: if trustees are interposed to execute and regulate the charity, and the objects are definite and its creation lawful,, the administration of it is given properly to the trustees, a court of chancery will enforce it. In this case the bequests were to the treasurer of the ErsMne college, and his successors in office; the objects of that charity were not as definite as those under consideration — one portion to the benefit of the home missions, another for foreign missions, and another to be applied under the directions of the Reform Synod of the south, for the education of indigent young men, who are preparing for the gospel ministry in the associate reform church. Our court held, that this was a good charity, its object lawful and sufficiently definite, and declared the bequests valid.
    It is not necessary that the beneficiaries of a charity shall be in esse capable of sueing and enforcing the charity, they need not be designated or known — if such an objection should be allowed to prevail, it would defeat all charities, for it is of the nature of a charity, that the public, or a portion of the public, are beneficiaries, and they are not specially designated or known. It is the object that must be definite, such as education, and not a particular individual to receive the benefit, that the law requires to be definite. The gift is in the nature of a power of appointment, and being controlled and administered by trustees, it is valid. Now tbe definite object of these bequests to the Eranldin trustees, is to encourage and promote education. Mr. Franklin definitely prescribes the place he requires edifices to be erected, at Fair Yiew, the employment of the necessary teachers and professors in those seminaries of learning that he founds. He directs that a particular portion of the public, to wit: his brothers and sisters’ children, and their descendants, as well as his own, and such of the poor children of the county of Sumner, as the trustees may select, shall be there educated.
    Now, here are various classes of the public pointed out by the testator, whom he desires should be educated at these seminaries. The trustees make the appointment or selection like unto the Girard and McDon-ough cases, in both of which the testators left the estate to trustees for the definite object of education and sup port, and they pointed out particular portions of the public, to wit: the poor children of Philadelphia first, of Pennsylvania second, of New York third, of New Orleans fourth — this was Girard’s will — Mr. McDonough designated the poor children of New Orleans and Baltimore, to be educated out of his estate devised. Those wills were sustained by the supreme court of the United States, and the charities declared valid and the trusts executed; in both of those cases, the children of those cities and States were entitled, as a class, to be there educated, but all could not be there educated for want of means, and the power of appointment on the part of the trustees exists, of course its abuses will be restrained by a court of chancery. See 2 Howard, 384. 15 Howard, 404.
    
      This charity would have been sustained under the decision of Oreen vs. Allen, 5 Humph., for there our court held, that where a trust estate is devised to a trustee capable of taking even those charities of a general character, there must be a cestui que trust, having sufficient capacity to take as a devisee, or there must be a feofee or trustee to support the use, both need not occur, it is sufficient that one or the other is capable of taking the estate.
    The case in 4th Wheaton, 1. was a case arising under the laws of Virginia, where, by legislative enactment, the statute of Elizabeth was expressly abolished, and the estate was left to the Baptist Association, which was not incorporated like the case of Oreen vs. Allen, they were incapable of taking the estate, and consequently could not support the uses, which were to a general charity.
    It is true, that at an early period the supreme court of the United States, in the case in 4th Wheaton, held, that a court of chancery had only jurisdiction upon the subject of charities by virtue of the prerogative of the king, and it did not arise out of its general jurisdiction. Yet the same court in the case of Tidal vs. ■Girard’s executors, overruled that decision, and decided that there is an inherent jurisdiction in cases of charity, and that cases of charity in courts of equity, in England, were valid, independently of and previous to the statute of Elizabeth. Bequests for .charitable uses are never void. 2 Story, 206. Trustees are not compelled to take for beneficiaries known and established, this is the case with many trusts of private property, where the estate is uncertain until certain issue are born, where there is a power to name some one of kin to take, a remote relation may be selected. 1 Atkins, 469.
    A power to appoint among poor relations, may be either a charity in the legal sense of the term, or an ordinary provision of kindness. Y Vesey, jr., 436. A power of appointment is sometimes vested in particular persons from special confidence, and sometimes it passes to heirs or corporations, haying perpetual succession. Charities are kept up for ever, and uncertainty is generally an element to all charities.
    The doctrine of perpetuities, either prohibited by the common law or by our Constitution, has never been adjudged as applying to charities; if so, all of our churches, hospitals, schools and colleges, founded by private munificence, would be cut down, for the great leading features of those charities are, that they have perpetual existence, and the property given by the founder, cannot be alienated. The great block of marble buildings upon the square in Philadelphia, and the forty-five acres of land near the city, upon which the college is erected for the education of the orphan poor, can never be alienated or diverted from the great charitable objects specified in Mr. Girard’s will. The supreme com’t of the United States adjudged such a charity was valid. So, Mr. Franklin, in establishing the seminaries of learning, specified in his will, and so richly endowing it, vesting the estate in trustees, and giving it perpetual succession for the charitable objects declared, does not thereby render it a perpetuity, such as is prohibited by our Constitution.
    This prohibition in our Constitution only applies to the restraint of the accumulation of wealth in individuals or families, tying up estates, preventing tbe alienation of property, and giving it in perpetual succession, thereby restraining commerce and building up an aristocracy, wbicb is contrary to the genius of our republican institutions. The Constitution of Tenn., art. 11, § 10, declares that knowledge, learning and virtue being essential to the preservation of republican institutions, &c., it shall be the duty of the general assembly in all future periods of this government, to cherish literature and science. It is the public policy of our State, evidenced not only by our Constitution, but various acts of the general assembly, that the children of the State shall be educated, and their morals cared for. It is certainly not against the policy of this State, that a portion of our children, to wit: the children of his brothers and sisters, and his own, as well as their descendants, shall be educated and qualified to become useful citizens of the government. And his will designating them as a class of the beneficiaries, certainly does not render it a perpetuity in the meaning of the Constitution. It is impracticable that any one individual can establish a charity for the education of the entire public. If a man has the means and the heart, as Isaac Eranldin had, to found one, had he not the power to designate the public that may be there educated. If he had not this power claimed, then all the charities founded by individuals from the existence of our government are destroyed, and a death-blow is given them for the future. The public hold their squares in cities, churches, levees, cemeteries, schools and libraries by such dedications. The supreme court, in 10th Peters, 662, say: that property may be dedicated to public use, is a well established principle of the common law. It is founded in public convenience, and has been sanctioned by the experience of ages. McDonough’s will, which restrained the alienation of his estate, devised to the trustees in opposition to the laws of Louisiana. Vet, as it was a charity, it was held to vest the estate in the trustees. The common law rule is, if the illegal, immoral or impossible condition prescribed in the will, is to be performed as a condition precedent to the vesting of the estate in the devisee, then the estate does not vest. If the estate vests in the devisee, and the illegal condition is subsequent, then the estate remains, because it cannot be defeated as a consequence of the fiilfilment of an illegal or immoral condition. 1st Roper, 754. Upon this principle, if the descendants of the brothers and sisters, cannot be regarded as beneficiaries under the will, the poor children of the county of Sumner would be entitled, but if neither class could take, upon the authority of Mr. Roper, the estate would vest in the trustees, and the heir could not recover. But as before argued, those bequests are valid, and there is nothing in the Constitution or laws of the country that forbids the execution of those trusts.
    This munificent dedication is a living and lasting monument to the fame of Isaac Franklin, and the courts of the country should sustain, and not annul such dedications.
    
      W. F. Coopeb, for Emma Franklin.
    In England, the courts favor charitable bequests, where they do not fall within their statutory prohibitions in relation to superstitious uses and mortmain; and they sustain such bequests where they would not if the trusts were private, and this, as they say, independent of the statute of Elizabeth. Under that statute, however, au enlarged jurisdiction, almost without bounds, resides in the chancellor as representative of the sovereign under his sign manual, to carry out charitable intentions, even where the specific objects prove impossible, or have failed. This peculiar jurisdiction has been repudiated by our courts, and forms no part of the American system. It is true, that in those States in which the statute of Elizabeth has been held to be in force, or where its provisions have been considered as forming part of the common law, the courts have exercised more unrestricted jurisdiction. Zimerman vs. Andrews, 2 Watts & Serg., 218. Moore vs. Moore, 4 Dana, 857. Gas & Bonta vs. Wilhite, 2 Dana, 170. Sanderson vs. White, ,18 Pick., 328. Griggs vs. Emery, 16 Pick., 107. Burbank vs. Whitney, 24 Pick., 153. Burr vs. Smith, 7 Verm., 241. Bcurtlett vs. Eye, 4 Met., 378. Potter vs. Ohapin, 6 Paige, 639. Amer, Bible Soe. vs. Wet-more, 17 Conn. Rep., 181. While other States, where the statute has been decided not to prevail, have been far more stringent in the requirements necessary to sustain charitable devises. JDashiell vs. Attfy. GenH, 5 Harr. & J„, 392. ■ Gallego vs. AWy Gend, 3 Leigh, 450. Janey's ex’rs. vs. Batane, 4 Leigh, 327. Green vs. Allen, 5 Humph., 170. Holland vs. Peek, 2 Ire. Eq., 255. In the latter class of cases, the court of chancery has been held to possess no more power in the case of charitable devises, than in any other matter of trust; in the other, it has been clothed with all the prerogatives of royalty, and vested with the unlimited power of the Lord Chancellor as keeper of the King’s conscience. The distinction is, to some extent, material, for, in this State, the statute of Elizabeth is held not to be in force. Oreen vs. Allen, 5 Humph., 170.
    The leading case in the courts of the United States, is that of the Baptist Assoeiation vs. Hart, in which the opinion was delivered by C. J. Marshall. It was there held, that a devise to an unincorporated association was void, and that no subsequent act of incorporation could affect the rights of those interested, as they existed at the death of the testator. That part of the decision which based the jurisdiction of the chancery court as to certain charities upon the statutes of Elizabeth exclusively, has been overruled, upon the ground of subsequently discovered evidences of a previously existing power. But the main point, that a devise in prcesenti to an incorporated body is void, is recognized, by that court as good law. Vidal and others vs. Girard and others, 2 How., 127. McDonough vs. Murdoch and others, 25 How., 367. And the decision, so far, has been' adopted by the courts of this State. Green vs. Allen, 5 Humph., 170. Dickson and others vs. Montgomery and others, 1 Swan, 348. It is equally conceded by both courts, that the intervention of trustees to hold the legal estate will not validate a charitable devise, where the beneficiary or cestui gue trust, is incapable of taking. See also Gallego vs. Atffy Gend, 3 Leigh, 466. The devise, in this case, is to trustees iq trust for an unincorporated institution, as was, admitted by all the judges of the supreme court of Louisiana when the construction of this will came before them in the Succession of EranHin, Y Lou. Ann. R., 395. Being a devise in prcesenti for the benefit ‘of an institution incapable of taking, it is void upon the principles laid down in the foregoing decisions.
    It may be conceded that if the devises under discussion were in all other respects unexceptionable, and the charity public and commendable, the objections here taken might be held to be too refined. The provision in Isaac Franklin’s will is, however, far from unexceptionable, and the charity more than problematical. The leading object of the testator is to provide for his own children, and the children of his brothers and sisters, and their descendants, and the incidental provision for-the poor of Sumner county is altogether subordinate. The members of his own family forever, no matter what may be their condition in life, are to be first “ boarded, clothed and educated,” “even to the higher and ornamental branches of education” before the public charity can Jake effect. The testator seemed to have a due appreciation of the good old economical maxim “that charity begins at home,” and if he had only added a provision for starting his descendants out in life, we should have had, beyond all question, as we have at any rate to some extent, an attempt to create a privileged order in our midst. The devise, we think, is no charity at all, but an attempt to create a perpetuity contrary to law, and the express provisions of our State constitution, by means of an unlawful trust, and is, consequently, void.
    Charity, as Sir "Wm. Grant has justly observed, in its widest sense, denotes all the good affections men ought to bear towards each other; in its more restricted and common sense, relief to the poor. In neither of these senses is it employed in the court of chancery. In that court it means such charitable bequests only as are within the letter and spirit of the statute of 43 Elizabeth. 2 Sto. Eq. Jur., § 1155. Ang. & Ames on Corp., 150. 2 Kent Com., 287. The charities which are within the letter and spirit of this act are enumerated, with particularity, in Com. Dig., Charitable Uses, and in Sto. Eq., § 1164 and note. See also the statute itself. Bac. Ab. Char. Uses C. They are summed up’ by Sir Samuel Bomilly in his masterly argument in the great case of Moriee vs. Bishop of Durham, 10 Ves., 532. To board, clothe and educate Isaac Franklin’s children, or his brother’s children, “not in a state of indigence,” may be liberality, prodigality, or family entailment, but it is not charity. The devise altogether, whether its object be public or private, for specific beneficiaries or otherwise, falls under no single head enumerated in the statute of Elizabeth, or embraced within its spirit.
    The argument thus far goes to the substance of the devise, as not falling within the legal sense of a charity. But the devise is subject to another exception equally fetal. The primary intent of the testator, manifestly, is to benefit a specific class of persons, easily identified, and having exclusive rights in the first instance to his bounty. Certainty of individual objects is necessary to a trust — uncertainty of individual objects is absolutely essential to a charity. 4 Bouv. Ins., 3982. White vs. White, 1 Bro. C. C., 12. Domat’s Civil Law, B. 2, T. 2, §vi. 2 Kent’s Com., 288. 2 Atk. 872. Binney arg., 2 How., 149. Gaston arg., Griffin vs. Graham, 1 Hawks, 121. The distinction goes, as is most obvious, to tbe very foundation of charities, and is of their very essence. Herein lies the difference between public trusts, or charities, and private trusts or property. The charitable use can only arise where the motive is utterly unconnected with a benefit to be conferred on particular legatees on their own account. A legacy for the education of poor children may be a pious use, while a legacy for the maintenance of the testator’s descendants is a private trust.
    But, it is insisted, although the devise for the benefit of the descendants of the testator and his brothers, is-•not a charity, and cannot, therefore, be sustained as a-perpetuity under the privileges conceded to that class of donations, if taken alone, yet its connection with a •charitable object, the board, clothing and education of the poor of Sumner county, makes the whole good. The simple question is, - does the good devise invalidate the bad, or does the illegal devise avoid the good. And about this, there could not be a particle of doubt, if the question were de novo, and had not been decided by a long line of English judges. The leading case on the subject, Attorney General vs. ' Whorwood, 1 Yes. Sr., 537, which came before Lord Hardwicke, on the 2d Aug., 1750, is remarkable as being directly in point, the devise containing among illegal objects, some that were confessedly good, and the arguments of counsel on both sides might be used in this very case. This case has been followed by a long list of other cases, involving the same question, and heard and determined by the most eminent English judges. The result is thus summed up by Hovenden in his work on Frauds: “When a bequest for charitable purposes, which if it stood alone, would be valid, is coupled with and dependent upon a void devise, the devise being the principal and failing, the accessory bequest must fail also. Ghajpmcm vs. Brown, 6 Yes;, 404. Attorney General vs. Davis, 9 Ves., 585. 2 Bro., 429. 10 Yes., 534. And where an undefined portion of a legacy is directed by the • testator to be applied for purposes which the policy of the law does not admit, • the. bequest, of the residue to a charity which the- law sanctions, Cannot take effect, for the illegal part of the gift being undefined, it is impossible to ascertain the amount of the residue, and the devise must, upon general principles, fail for want of certainty. Attorney General vs. Hiux-man, 2 «Tac. & Walk., 277. Yizey vs, Jamsen, 1 Sim. & Stu., 71. Griers ve. Case,, 1 Ves. Jr., 553.
    
    It may be added, that it is exceedingly doubtful whether the devise for the “poor children” of Sumner county, if it stood- alone, would be good. The statute of Elizabeth provides only for free schools, and orphan schools, so far as the subject of education is concerned, and only for particular classes of the poor as objects of charity. It does not make valid devises to the poor generally, for that would include the able bodied as well .as the impotent. It could never be the policy of any government to sustain donations which tend to produce idleness in the strong and vigorous, or diminish the stimulus .to exertion. The gift must -be for the benefit of a class of poor recognized by law as objects of charity — the aged and impotent, the orphan, or the disabled. Nor has it ever been held, so far as my reading goes, that a broad unqualified grant “ tp board, clothe. and educate poor children” of a particular locality, was-good; on the contrary, wo have decisions the other way, and a large number of adjudications settling principles incompatible with such a conclusion. A bequest to be applied towards “feeding, clothing and educating the poor children” of a certain parish, has been held void. DasMell vs. Attorney General^ 5 Har. & J., 392. See also 3 Leigh, 464. Attorney General vs. .Hewer, 2 Tern., 387. PoW. on Dev., 419. The devise in Griffin vs. Graham^ 1 Hawks, 95, contained a clear limitation of the donation to orphans, or children under fourteen, where parents were unable to support, and educate them. It is not like the devise before us, to the “poor children” irrespective of age, condition in life, or the capacity of their parents to furnish them with suitable education and maintenance.
    The foregoing argument is based upon the nature, hot the duration of the grant. If the use were charitable, and otherwise unexceptionable, it might nevertheless be void as a perpetuity. The subject is by no means free from difficulty, for the language of the constitution is very broad, and remains yet to be judicially construed. Tenn. Bill of Rights, 1796, § 23, and 1834, § 22. “Perpetuities and monopolies are contrary to the genius of a free State, and shall not be allowed.” See 10 Co. Rep., 113 5. Griffin vs. Graham, 1 Hawks, 96, The concession of a franchise forever would, it is assumed, be unconstitutional and void, no matter how desirable the objects of the incorporation might, at the time, be deemed. In the vicissitudes of human affairs, the highest object of policy to-day, may be the oppression of to-morrow. Gifts to pious uses, once the favorites of.the eivil and the common law, have fallen under the ban of modern legislation, and many of the charitable uses of the age of Elizabeth have ceased to exist altogether. An altered world requires a new order of affairs. Donations for the souls of the departed, for wax candles to be burned before the altar, for golden candlesticks and silver images, for the release of Turkish captives, and the redemption of slaves from Barbary corsairs, are numbered among the things that were; but it required the strong hand of England’s most despotic monarch, or the equally imperial power of the keeper of the Xing’s conscience, to annihilate them, or change them to other uses cy pres. It is a wise provision in our constitution that prohibits perpetuities, and limits morbid aspirations of immortality in this way, by some definite period of duration.
    Meigs, for the executors:
    1. The balance ascertained by the settlement in Sumner, with the clerk of the county court, in pursuance of the act of 1851-2, ch. 215, is $41,064 53.
    It cannot be disputed by the trustees of the seminary at all; nor by any one without a bill to surcharge and falsify. See the cases 1 Meigs’ Digest, No. 72, and particularly the Act of assembly.
    2. But the question is not as to the amount, but the place of payment. . The trustees contend that the personal estate must pay the testator’s debts, and there is about the sum of $58,510 38 worth of movables in Louisiana, which must pay their pro rata with the personalty in Tennessee.
    (1.) We answer, that the movables in Louisiana are discharged from the payment of the debts. See the •will, item 4, subdivision 7, also, last clause of said item, and Bootle, vs. Blundell, 1 Merivale, Id. Chancellor’s opinion, 218, 219, 220, 223. As to what are movables. See Code, § 4, 5, 6.
    (2.) We answer, that the trustees and all the other parties are estopped to throw us on the personalty in Louisiana, all of which is confounded with the immova-bles there, which was done with their consent, and the accounts therefor homologated.
    (3.) We answer, that the executors paid for the Fair-view place, and for the benefit of the seminary, out of assets that might have been applied to the payment of the debts, the sum of $40,403 23, most of it at the request of the trustees, and all of it for the benefit of the trust estate.
    And for these reasons, the executors ought not to be thrown upon the Louisiana movables for the payment of the balance due them.
    3. On the ground that the confusion of the movables in Louisiana with the immovables, was in accordance with the will, and was never questioned by the trustees at all, nor by Mrs. Aciden, until the 24th of February, 1851, it would not be equity to remit the executors to Louisiana; but if equality demands that the movables in Louisiana and the other personalty should contribute to the payment of the debts, let that be settled by a decree for proper accounts between the trustees and Mrs. Acklen and Emma.
    4. Inasmuch as the movables all belong to the seminary, according to the letter 'of the will, it would be a useless circuity to send the executors to Louisiana to get part of their demand out of movables there, when the seminary has movables here, sufficient to pay their demands.
    5. The executors being called on to account, are entitled to a decree, as actors, for the balance in their favor. 1 Story’s Eq., § 522.
    F. B. Fogg, for Aciden and wife.
    JohN J. White, for the executors,
    argued;
    This is a bill for an account in which both parties are actors, and although the executors are defendants, yet if the balance upon the account is in their favor, they are entitled to a decree. 1 Story’s Eq., § 522. Here there has been a final settlement of their accounts in Louisiana, and likewise in Tennessee, according to the act of 1851-2, p. 324, and a balance due the executors of more than $41,000, which we regard as final and conclusive between the parties.
    In the ease in Louisiana, the whole estate has been taken out of the hands of the executors and delivered over to Aciden and wife, in their own right, and as tutor and tutrix of Emma Franklin. The executors cannot now look to that quarter for indemnity, they must look to the property here.
    The various items constituting the indebtedness to the executors, including the $30,000 paid to the widow upon the compromise with William Franklin, of the 27th January, 1848, show that it has grown out of the proper administration of the estate in Tennessee. They have consequently a clear equity to be reimbursed out of the Tennessee property.
    
      The executors should not be prejudiced by the instrument which they executed on the 27th January, 1848, for no controversy was then anticipated by/ them in regard to the estate either in Louisiana or Tennessee; nor could they have foreseen such a result, by which the whole estate in Louisiana would have been taken out of their hands, and they consequently deprived •of any reserves from that estate to reimburse themselves.
    The settlement shows that one of the executors is a large creditor of the estate himself, and having paid large debts and claims against his testator’s estate in 'Tennessee, he is entitled to stand in the place of such creditors, and to subject the property in Tennessee to the satisfaction of his debts. 1 Story’s Eq., § 90-1. .See 5 Haywood, 242-3.
    With regard to the movable property in Louisiana, which it is alleged the executors misapplied: This is exempted by the will from the payment of debts, if not by express words, by clear implication. See -3 Ye-sey, 107-9. 1 Ball & Beatty, 315. 1 Merrivale, 192.
   JohN Mabshall of Eranklin, Special J.,

delivered the opinion of the court:

The matters submitted to the judgment of the court, in this case, arise out of the last will of Isaac Eranklin •deceased, and' various ácts of his executors, devisees and heirs and distributees, after his death and before the exhibition of the bill of the complainants, as well as adjudications of courts in the States of Tennessee and Louisiana.

Isaac Franklin made and published his last will and testament in the parish of West Feliciana, in the State of Louisiana, on the 24th of May, 1841, and died on the 27th of April, 1846. His domicil at his death, as well as at the making of his will, was in Sumner county, in the State of Tennessee. At his death, he left surviving him his widow, the defendant, Mrs. Acklen, and three daughters, the defendant, Emma Franklin, and Adelicia Franklin, who died 8th June, 1846, and Victoria Franklin, who died 11th June, 1846, who were his only heirs and next of kin. Soon after the death of the testator, his will was proven and recorded in the county court of Sumner county, Tennessee, and in the probate court of- West Feliciana, Louisiana; and the defendants, Oliver B. Hays and John Armfield, two' of the executors nominated in the will, obtained letters testamentary, thereon from both courts.

William Franklin, the other executor in the will, has never qualified or acted as executor.

The testator at his death left estates in the States of Tennessee and Louisiana, Mississippi, and Texas. His-property in Tennessee consisted principally of the Fair-view plantation in Sumner county, and the slaves and other personal property thereon.

In Louisiana, he had several plantations, stocked with slaves and other property, employed in agriculture. His estate in Texas consisted exclusively of lands, and in Mississippi principally of ohoses in action.

The testator by his will, among other things, devised and bequeathed as follows:

First. All my just debts are to be punctually and speedily paid, and the legacies, usufructs and bequests hereinafter mentioned, are to be discharged and paid by my executors at the time and in the manner directed, and as soon as circumstances will admit.

II Item. To my dearly beloved wife, Adelicia Hays, daughter of Oliver B. and Sarah C. Hays, of Davidson county, State of Tennessee, I give and bequeath all the property of whatever kind or nature, together with the increase of the same, which has been or may hereafter be given to or inherited by her from her said father, Oliver B. Hays, to her and heirs forever. I also give and bequeath to my said wife my household and kitchen furniture, of every sort and kind, on my estate in Sumner county, State of Tennessee, known as my Eairview plantation, with the stock of liquors, groceries and provisions which may be on hand on that estate or plantation at the time of my decease, to be used and disposed of as she may think proper.

And I further give, devise and bequeath to my said wife out of the revenues of my plantations in Louisiana and Tennessee, and the dividends of my bank stocks and other interests coming to me, such sum or sums of money annually, as may be found necessary to support her and my child or children by my marriage with my said wife, in the best style, and also to educate my said child or children in such manner as she may deem proper, during and for the full term of the time that she shall remain my widow. It is my wish and desire that during the widowhood of my said wife, that she and my said child or children shall remain and reside upon my Eairview plantation in the county of Sumner, and State of Tennessee aforesaid. And for that purpose I hereby give her and them the use and profit and full benefit of that estate, including tbe dwelling house, out houses, buildings, fixtures, gardens, lands and improvements, slaves, cattle, horses, mules and other stock, personal property, &c., &c. And in case my said wife should marry again, before my present child, Victoria, or any other children that I may hereafter have by my marriage aforesaid, should arrive at the full age of majority, or lawfully marry, then it is my desire that my executors take possession of my said estate or plantation in Sumner county, Tennessee, together with the slaves, cattle, horses, mules and other stock, personal property, &c., &c., and hereby constitute my said executors, guardians of my said child or children; and direct them to make provision for the education and support of my said children, until they become of age or marry.

And in lieu of the use of said estate and said annual revenues, in the case of the second marriage of my said wife, either before my said child or children shall become of age or marry, or after my said children shall become of age or marry, I give to my executors in trust, for the seperate use and maintenance of my wife and any children she may have by a second marriage, the sum of one hundred thousand dollars, to be paid as follows, to wit: the sum of twenty thousand dollars within the year of the second marriage, and the residue in ten equal annual instalments thereafter; or at her election, the sum of six thousand dollars annually, during her life, in lieu of the payment of said one hundred thousand dollars. And said sum of six thousand dollars annually to my said wife during her said life, or the payment of said one hundred thousand dollars, shall be in fall for all her rights of dower or any other rights, that she may have in my estate.

Ill Item. To my daughter Victoria, the only child born of my marriage with- my said wife np to the present time, and all such other of my children as may hereafter be born of said marriage, and the heirs of their bodies, I give and bequeath the following portion of my estate, to wit: in case there should be no other child born of said marriage except my said daughter Victoria, then I give and bequeath to her and her heirs, the undivided one third part of all my estate, real and personal, movable and immovable, rights, and credits, situated, lying and being within the State of Louisiana; in case of another child born of said marriage, then I give and bequeath to my said daughter Victoria and the other child of said marriage and their heirs, the undivided one half of all of said property and estate in Louisiana, to ’ be divided by them when they become of age or marry, share and share alike in equal portions, and in case of two or more children born of said marriage, beside my said daughter Victoria, then I give and bequeath to my said daughter Victoria, and my said other children to be born of said marriage and their heirs, the undivided two thirds part of all my said property and estate in Louisiana, to be divided by them, when the youngest of my said children shall become of age or marry, share and share alike in equal portions.

And it is my desire and wish that my said children shall aid and assist my executors and trustees in carrying into full effect the intentions manifested by me in this will, and particularly the establishment of the seminary on my estate in Tennessee, and the faithful payment and discharge of the sum devised to their mother, or the annual usufruct in lieu thereof.

IV Item. It is my wish and desire, after my death, aud I so order and direct, that the whole of my estate, wherever situated, be placed in the hands of my executors, hereinafter named, and for that purpose grant them and the survivors of them, the seisin of aR the property of my estate, and authorize them or the survivors of them to take possession of the whole of my said estate after my death, to be held and possessed by them for the following purposes, to wit:

First. Eor the payment as speedily as possible of all my just debts.

Second. The placing my said wife in possession of all the property and its increase, which had been given to or inherited by her from her father, Oliver B. Hays, together with my household and kitchen furniture on my Eairview estate, in Tennessee, with the liquors, groceries and provisions on that estate, which may be on hand at the time of my decease.

Third. To pay such annual sums of money to my wife, during her widowhood, out of the revenues of my plantation in Louisiana, the dividends of bank stock, and interest on debts due, &c., as she may deem necessary for the support of herself and my children, and their education in the best style of the country where ehe resides, leaving to her the exclusive direction of the education of my children, and the expenditure of such annual allowance during said widowhood as she may think proper.

Fourth. The placing of my wife and children in full possession of all tie property of my said plantation and estate, called Fairview, in Sumner county, State of Tennessee, as a residence for 'and during the time she shall remain my widow, with the use and benefit for said time of the dwelling house, out houses, buildings, fixtures, lands, gardens and. improvements, and slaves belonging to said plantation, with the cattle, horses, mules, sheep and other stock, carriages, personal property, &c., &c. ■

Fifth. And in case of the second marriage of my said wife (in lieu of the sum of money she may consider necessary for the support of herself and his (my) children, and their education, annually during her-widowhood, and the use of the property of the estate in Sumner county, State of Tennessee) to give her the sum of one hundred thousand dollars, in trust for the separate use and maintenance of her and any children she may have by such second or any subsequent marriage, to be paid, twenty thousand dollars in cash’ within the year of marriage, and the residue in ten equal annual in-stalments thereafter, or at her election the sum of six thousand dollars annually, during her life, the payment of either..to be in foil for her rights of dower, or any other - rights that she may have on my estate.

Sixth. In case of the second or subsequent marriages, of my said wife, to receive again into their possession all the property of my said estate, in Fairview, in Sumner county, State of Tennessee, and the same to keep and possess, and the revenues thereof, for the purposes hereinafter named and particularly specified, which they are strictly to carry out, and as guardians, in that ease of my children, to educate them and support them until tlie youngest of them Recomes of age or marries, which education and support I wish to -he in a suitable and proper manner, and at such places as may be thought most advisable, at all times consulting and advising with their mother.

Seventh. For the purpose of increasing and improving my lands and plantations and estates, and particularly the lands and plantations in the State of Louisiana; to cultivate on the three plantations already opened in Louisiana, corn and cotton, and such other crops, as may be found profitable, adding to the Loehlomond plantation twenty additional hands; to the Killarney plantation twenty additional hands; and to open three new plantations on said lands in Louisiana, two of sixty hands and the other thirty hands; which are also to be cultivated in com and cotton,, and such other crops as may be found profitable, until my aforesaid children shall all of them arrive at the full age of majority or marry, when my said executors shall deliver up said plantations, lands, slaves, movable property and their increase, together with such other slaves, inmovables and movables, with their increase, as may have been added to said lands and plantations in Louisiana, to my said children or their heirs, and the trustees hereafter named, for the purpose of division between my said children and my said trustees, and to carry out the intentions of this my will, the particulars of said improvements, purchases of hands or slaves, and the trusts hereafter to be particularly mentioned.

Eighth. The placing of the slaves Brutus, Fanny his wife, Marcus, Georgiana and any other house servants, not belonging to the Louisiana plantation, on the Fan-view plantations, Sumner county, State of Tennessee, as part of the domestic establishment for that place.

Ninth. The payment of the legacies hereinafter mentioned, and

Tenth. The building of a tomb and family vault, 'hereinafter mentioned, on my said plantation in Sumner county, Tennessee.

Eleventh. And the placing of my trustees, hereinafter mentioned, in full possession, at the times designated, of all my property situated in the States of Tennessee and Mississippi, or any other common law States, where trust estates can be created, and one-third, one-half or two-thirds of all of my movable and immvea-ble property, effects and credits, as the case may be, by the birth of children, of my estate in Louisiana, together with all my bank stock and effects and credits, to be laid out in the establishment of a seminary or academy, on my said plantation in Sumner county, State of Tennessee, as will be particularly designated and mentioned in this will. And my executors are particularly directed to lay out the balance of the revenues of my Louisiana plantations, my Tennessee plantations, the dividends of my bank stock and interest on debts due me, over and above the annual expenditures which they have been heretofore directed to make in this will, from time to time, in the purchase of good, effective, young and healthy slaves, to be placed on my said lands and plantations, as they may be wanted. And in particular, to place twenty additional hands on my Lochlomond plantation, situated in the parish of West Feliciana and State of Louisiana, with such additional horses, mules, teams, plows, gearing, farming utensils, &c., as may be found necessary to a successful and proper cultivation of that plantation. Also to place twenty additional hands on my Killarney plantation, adjoining said Lochlomond plantation, in said parish of-- West Feliciana, with such additional horses, mules, teams, plows, gearing, farming utensils, &c., &c., as may be found necessary to a successful and proper cultivation of that plantation. And also to build on •my lands in said parish, as soon as the same can conveniently be done, with my own hands, three additional negro quarters, or sets or clusters of houses, in the same style and plan as those on my other plantations, called Belleview, Killarney and Lochlomond; the aforesaid quarters to. be built at the following places, to wit: one near the wood-yard, fronting on the Mississippi river, sufficient for sixty hands, to be called the Angora plantation; another at or near Foreman’s old fields, fronting also on the Mississippi river, sufficient for sixty hands, to be called the Loango plantation; and the other above Bow’s bayou, fronting on the Mississippi river, sufficient for thirty hands, to be called the Pa-nola plantation. And my executors are further directed to erect on each of said new plantations, suitable gin houses, mill houses, stables, corn houses, overseer’s houses, out houses, and other fixtures and improvements, with gins, millstones, gearing, &c., &c., in a good and substantial manner, with such approved gins, &c., as may be considered the best; the buildings, &c., to be as near as can be like those on my other plantations, Belleview, Killarney, Lochlomond; and they of course will furnish such horses, mules,' oxen, teams, farming utensils, gearing, &c., &c., as may be wanted on each, of said new plantations. And for the purpose of carrying my intentions into full effect, I hereby authorize my said executors to purchase the aforesaid additional hands or slaves for my estate, from time to time, as well as horses, mules, oxen, personal property, &c., for the use of said plantations; and if it should become necessary, by any decision of the courts of law, to have any of my said lands, plantations, slaves, moveables or immoveables, or from- any other cause, sold again, to pay judgment creditors and privileged claims, or for any other purpose, I hereby expressly authorize my said executors, or the survivors of them, to purchase any such property for my estate, to secure the titles or other interest, if it should be deemed advisable for my interest. I also authorize my said executors to dispose of and sell any refractory slaves, or those of little use or value, (except from old age,) on either of my plantations in Louisiana or Tennessee, and also, to dispose of and sell any surplus horses, cattle, sheep, hogs, or other stock, on either of those plantations, if they should deem the same advisable. And as my said executors, neither of them reside in the State of Louisiana, and it will be very inconvenient for them or either *of them, to give their personal attention to my planting interest in that State, I hereby authorize them to employ a general agent, to superintend the several plantations in Louisiana, with a reasonable and competent salary; and in the absence of the executors, that he be charged with the purchasing and furnishing supplies for those plantations, the shipping and direction of the sales of the crops, with authority to employ and discharge overseers, and mechanics and workmen, as it may be found necessary, giving, however, to the executors, full power and .control over said agent.

VII Item. After the aforesaid improvements are made on my said plantations in the parish of West Feliciana and State of Louisiana, it is my desire that my said executors, or my said childen, (if they should have become of age, or marry, and placed in possession of their shares of my said property in Louisiana,) should pay, or cause to be paid, out of all of the revenues of those plantations, the portions of my said children, and my trustees hereinafter mentioned, each their resjíective pro rata proportions of the following legacies, to wit: 1. To Isaac Franklin Purvis, the son of my sister Margaret Franklin and her husband Allen Purvis, deceased, late of Sumner county, State of Tennessee, the sum of five thousand dollars. 2. To Isaac Franklin Wood, the son of my sister Jane Franklin, the wife of John Wood, of the State of Missouri, the sum of five thousand dollars. 3. To Isaac Franklin Cantrell, the son of my niece, Mary Franklin, the late wife of Zeb-ulon Cantrell, of Sumner county aforesaid, two thousand dollars. 4. To Isaac Franklin Greene, the son of James Greene, of Sumner county aforesaid, .one thousand dollars. And 5. To my brothers James and William Franklin, of Sumner county aforesaid, each the sum of five thousand dollars.

VIII Item. I give. and bequeath all my property, real and personal, of whatever kind or nature, that is situated in the States of Tennessee and Mississippi, or any other common law State, where trust estates can be created, together with my bank stocks and effects and credits, and in case I should have no other children by my said marriage, except my said daughter Yictoria, then two-thirds of all my property, movable and immovable, that is situated in the State of Louisiana; hut if there should he two children born of said marriage, then only an undivided one-half of all of my said property, movable and immovable, slaves, &c., that is situated in the said State of Louisiana; and if there-should be three or more children born of said marriage, then I only give an undivided one-third part of all my said property, movable and immovable, slaves, &c., that is situated, lying and being in said State of Louisiana, and also the rest and residue of' my estate, wherever situated, in trust, to my two brothers, James and William Franklin, of Sumner county aforesaid,- for the following purposes, to wit: The revenues arising from said property, bank stock, and such money funds or credits due me, as may remain after the payment of the several devises and legacies, annuities, increase and amelio-rations of my said plantations in Louisiana, and other purposes, as directed by this will, together with the revenues arising from my plantations in Tennessee, and other property in Tennessee and Mississippi, and other common law States, together with the dividends of my bank stock and interest on money and debts due me, and the revenues • of the one-third, one-half or two-thirds of all my property situated in the State of Louisiana, as the case may be, by the birth of children of my said marriage, after the payment of said several devises and legacies, annuities and expenditures, increase and ameliorations, of said. plantations in Louisiana, &c., to le laid out in building proper and suitable edifices on my said Fairview plantation in the county of Sumner and State of Tennessee, for an academy or seminary, the furnishing the same with fixtures and furniture, and the employment and payment of such teachers and professors, male and female, as may he considered- necessary by my said trustees, for the education, board and clothing’ of the children of my brothers and sisters, and their descendants, as well as my own children and their descendants, in the best and most suitable and proper manner for American youths-, having a particular regard to a substantial and good English education, and such other higher and ornamental branches as the aforesaid revenues, &c., will enable my said trustees to accomplish; and if the revenues, &c., should be sufficient therefor, I also wish that the poor children in said county of Sumner, of unexceptionable character, and such as my said trustees may select, should likewise be educated and supported, during the time, at the same seminary.

And after the death of my aforesaid brothers, it is my will and desire, that the aforesaid trust be continued and pass over forever, in the heirs of my said brothers, to pass the estate, and that the magistrates of the county court of said county of Sumner and State of Tennessee, and their successors in office, be thereafter the perpetual superintendents of the aforesaid seminary, to see that my intentions be folly carried into effect.”

The widow, from the death of the testator, occupied and enjoyed the Fairview plantation and property under the will, to the 27th January, 1848, when she sold her interest in this property, under the 2d item of the will,, to the complainant, William EranMin, surviving trustee under the 8th item of the mil, at the priee of thirty thousand dollars : which sum the executors paid to her at the instance of the trustee. The trustee has had possession of this property ever since the purchase, and has enjoyed the profits thereof. ■ The widow married the defendant, Joseph A. S. Acklen, on the 8th May, 1849, -and on the 9th day of January, 1850, elected to take, under the 2d item of the will, the sum of one hundred thousand dollars, instead of the annuity of six thousand dollars during her natural life. This sum of -one hundred thousand dollars has been paid in part only, by the executors, to Mrs. Acklen.

In a suit between the complainants and the widow, ■and the heir of the testator, in the supreme court of the State of Louisiana, in which the validity of the devise to the complainants as trustees, under the 8th item ,of the will was in question, it was decided by that ■court, that so much of the will, as undertook to devise real estate or immovables, as designated by the law of Louisiana, was void and inoperative, and they coustrued the will as if said disposition had not been made or written in it.

The exeeutors had the possession of the Louisiana estates and revenues from the death of the testator to the 21st of March, 1851, when they, in the execution ■of an order made by the district Court of the 7th judicial district in the State of Louisiana, in a litigation then pending in that court, delivered to the defendant, Mrs. Acklen, in her own right, and to - her as tutrix, and her husband as co-tutor of the defendant, Emma, the entire property of the testator in the State of Louisiana, whether the same consisted of movables or im-movables. The court declaring that Mrs. .Aciden was entitled, as heir to her two deceased daughters to nineteen ninety-sixths, and Emma, in her own. right and as heir to her two deceased sisters, to seventy-seven ninety-sixths thereof.

The executors have passed their Louisiana accounts, and the same have been allowed by the tribunals there, and their administration in that State has closed in the manner indicated.

The executors, upon a final settlement with the county court of Sumner, of their Tennessee administration, &c., were found to be in advance on the 10th day of August, 1853, as follows: the defendant, O. B. Hays, in the sum of two thousand and five .dollars and thirteen cents, and the defendant, John Armfield, in the sum of thirty-nine thousand and fifty-nine dollars and forty cents. These balances are admitted by complainants to be correct, and are the results of advances made by the executors to the complainants as trustees under the 8th item of the will, under the belief that .the will was valid, and with the intention of both parties, to put the seminary contemplated by the will into operation, in advance of the time provided in the will. This appears to have been- the understanding of Mrs. Aciden, when she sold her interest in the Eairview ■property; and all parties then contemplated that that .property should not return to the executors on the marriage of the widow, but should remain with the trustees, as it had done.

The first and most prominent question to be determined is, as to the validity of the devises and bequests made in the 8th. item of the will, under the constitution and laws of the State of Tennessee.

The arguments presented on both sides have been marked by ability and learning, .and it must be admitted, that there is a conflict between some of the decisions of the courts referred to in the briefs. Such a conflict, however, is to be expected, upon a question involving State policy to some extent, rather than a mere right exclusively, especially where the decisions in England are referred to, as well as the decisions of the different States of this Union.

When wills are brought before the courts to be executed, the general rule is, “that the intention of the testator, to be collected from the whole will, is to govern, provided it be not unlawful or inconsistent with the rules of law,” 4 Kent’s Com., 534-5.

This rule is based upon all the reasons favoring the power to make wills, and results from the intrinsic nature of that mode of disposition.

The intention of Isaac Eranklin, to be .collected from his whole will, in reference to the devises and bequests in hand, admits of neither doubt or cavil. Although he lived near five years after he made his will, he made no alterations in it. He evidently, before he made his will, had reflected much, both as to the bounty, and as to the machinery he would put in play to give it effect. He felt that he was able, without intrenching upon the just- claims of his family, to bestow a bounty sufficient to do much good, and it may be to perpetuate his name, and he made a princely donation, and not content with the donation and the designation of the beneficiaries, he presents, in the foil-est relief, a scheme or plan, by which Ms intentions are to be carried into practical effect. We Rave not only the donation, beneficiaries and plan given in the clearest forms of expression, but have in the will, an injunction, by the testator, upon his children, bom and unborn, to aid and assist in carrying into full effect, his intentions in relation thereto.

It is the duty of the court to give full effect to these clearly expressed intentions of the testator, if not unlawful, or inconsistent with the rules of the law, as to the property of the testator within its jurisdiction.

Several grounds of objection to the validity of the provisions of the will in question have been taken in the argument presented on behalf of the defendants, Mrs. Acklen and Emma Franklin.

It is urged, that the provisions under consideration, can be sustained, if at all, only upon the ground that they are devises to charitable uses. And of this opinion is the court. It is evident that the testator did not intend a simple gift to his own and his brothers’ and sisters’ descendants, or to the poor children of Sumner county. The benefit given, as well as the plan of the testator demonstrate this, and show that the design of the testator was to create a charity.

It is urged, that if testamentary gifts to charitable uses, can be supported by the laws of this State, the attempted gift by the testator was invalid on some or all of the following grounds : That the gift was made to his seminary, which had no real existence, was a phantom of his -brain, and therefore incapable of taking; that if the seminary was not the donee, by thé intention of the testator, the descendants of the testator and of Ms "brothers and sisters were too certain a designation of beneficiaries to authorize the gift to he denominated a charity, while the poor children of Sumner county was too uncertain a designation of beneficiaries, to authorize the court to establish the charity as to them. That if this is a charity at all, it is such a one as could have been established by the chancellor in England, only as a delegate of the crown, and could not have been established by the chancellor in that Mngdom, under his extraordinary jurisdiction, as it existed anterior to the statute of 43 Eliz., ch. 4. So that a court of chancery in Tennessee has no jurisdiction.

If there were no laws on the subject of charities, in the sense we are considering them, doubtless there would be opponents to the passage of a statute authorizing gifts to charitable uses, on the ground of the abuses to which every system of charities is liable; abuses consisting partly in the administration of them, and in Christian countries, resulting from a misapprehension of the will of the' Creator, as to what constitutes meritorious Christian conduct.

But it cannot be disguised, so long as charity, in its popular sense, shall be a duty, temporary, limited and fleeting as it is, that when it assumes the form of permanence and extensive diffusion, it will receive the public favor. Indeed there is no civilized country, perhaps, where the State has not availed itself, in some form, of the aid of the donations of the benevolent, in the exercise of the proper charities of the government, and has through its executive or judiciary, taken charge of their administration. These considerations, however, as well as the condition of the country, on the one hand, and the danger of placing large amounts of property out of general commerce, on the other, are properly matters for legislative deliberation, and not for judicial decision. It is the business of the judiciary to ascertain and declare what is the law of the land in a case submitted, and not 'to make a new law, or repeal an old one.

In adopting in this State many of the laws of England, have we adopted the doctrines of the chancery court of that country, in respect to charities?- and to what extent?

Portions of the doctrines of the chancery court in England, on the subject of charities, have .been adopted in this country, and in this State. The cases are so well considered and so numerous, that no court, regarding precedents, can doubt that gifts to charitable uses may be sustained. Vidal vs. Girard, 2 Howard, 56-127. 15 Howard Rep., 367. 14 Pickering, 240. 7 Vermont Rep., 241. 12 Conn., 113. 7 Paige Ch. Rep., 241. 1 Hawks, 96. 2 Iredell Oh. Rep., 9 and 210. 9 Porter’s Rep., 527. Dickson vs. Montgomery, 1 Swan, 348.

The cases cited, (and many more, cases in this country, might be added to the list) show that the sustaining of gifts to charitable uses by our courts of equity, is placed upon too firm a basis to be changed but by the interposition of the legislature. Upon the jurisdiction of the courts of chancery in this State, the cases of Green vs. Allen, 5 Humph. Oakley vs. Long, 10 Humph., 254, and Dickson vs. Montgomery, 1 Swan, 361, have affirmatively settled, that such jurisdiction exists in the chancery court in this State, in cases where the charity is created in favor of a “person having sufficient capacity to take as devisee or donee, or if it he not to such person, where it is definite in its object, lawful in its creation, and to be executed by trustees.”

This court is not disposed to disturb the decisions just referred to, and deems it unnecessary to trace the steps by which the court, in those cases, arrived at the conclusions to which it came.

As to the devise under consideration being a charity, it is insisted that as the .statute of 43 Eliz. ch. 4, is not in force here, it cannot be looked to, to ascertain what a charity is. This objection is answered in the opinion of Greene, J., in the case of Dickson vs. Montgomery. But this court by no means desires to be understood as intending to say, that donations to promote education in this country, are charities, because the statute of Elizabeth, referred to, enumerates as general charitable uses, gifts for the maintenance of schools of learning, free schools and scholars of universities, and for the education and preferment of orphans. Charity is defined to be a general public use. Ambler, 651. Ro use or purpose is more general, public or important in a republic, than education; and no subject, in these States, has been looked upon with more favor by the legislatures and courts.

It is the opinion of this court, that the maintenance of universities, colleges, academies and common schools, and other lawful educational institutions, is a charitable use, without reference to the wealth or poverty of those who may take benefit therefrom; and that gifts for such maintenance will be sustained, if good in other respects. Shelford on Mortmain, 68. A devise to Jesus college, Oxford, and to their successors to find a fellow there, which should be of the testator’s blood and alliance, was held to be a charitable use. Shel-ford, JO.

The institution of a school for the education of the sons of gentlemen, is not, in popular language, a charity, but in the view of the statute, 43 Eliz., ch. 4, all schools for learning are so to be considered. Attorney General vs. Earl of Lonsdale, 1 Sim. Rep., 109.

Upon the point that this was a gift to an ideal being, the academy or seminary which had no existence, it is manifest that the design of the testator was not to make the institution his devisee or donee; the institution was one of the means by which his gift for the advancement of learning, is to be carried into effect.

By the will, the testator appoints his brothers, James Franklin and William Franklin, trustees for the charity, and prescribes their duties. It is scarcely necessary to say, that these persons are capable of taking as de-visees in the language of Judge Turley. The will proceeds in these words: “And after the death of my aforesaid brothers, it is my will and desire, that the aforesaid trusts be continued and pass over forever in the heirs of my said brothers, to pass the estate, and that the magistrates of the county court of said county of Sumner, and State of Tennessee, and their successors in office, be hereafter perpetual superintendents of the aforesaid seminary, to see that my intentions be fully carried into effect.”

The intention of the testator, in the portion of his will just recited, is obvious. Upon the death of his brothers, the charity is not to cease, hut the naked legal title of the property of the charity is to remain in the heirs of the brothers forever, and also upon their death, the body of the justices, and their successors, are substituted into the place of the brothers, with the powers and rights of the brothers, except that they are not clothed with the legal title. It cannot be controverted, that the legal title is well disposed of during the period of the charity, if an unlawful perpetuity is not created, and that the magistrates of Sumner county, as well as the two brothers of the testator, are capable of executing the powers, and performing the duties imposed on them in the will.

Objections are taken, in argument, to the beneficiaries of the charity.

We will first notice those beneficiaries, designated as the poor cJiilclren of Sumner county. It is contended, that this designation of beneficiaries would be indefinite and uncertain, and would not constitute a good charity, but for the appointment of trustees. But the appointment of the trustees, with the powers conferred on them in the will, removes the objection under examination.

The other beneficiaries are brought to our notice by the provision of the will, which directs that the donation is “to be laid out in building proper and suitable edifices, on my said Eairview plantation, in the county of Sumner and State of Tennessee, for an academy or seminary, the furnishing of the same with fixtures and furniture, and the employment and payment of such teachers and professors, male and female, as may be considered necessary by my said trustees, for the education, board and clothing of the children of my brothers and sisters, and their descendants, as well as my own children and their descendants, in the test a/nd most suitable and proper manner, for American youths, haying a particular regard to a substantial and good English education, and such other higher and ornamental branches, as the aforesaid revenues, &c., will enable my said trustees to accomplish.”

Much criticism has been expended on the clause of the will just recited. In the first place, the motives of the testator have been attacked — it is said that the ground-work of his donation was to perpetuate his name, and to build up an aristocracy in his family. A fair reading of the-paper will justify no such conclusions.

The association of the testator’s name with the donation, is not a weak vanity, nor is it inconsistent with modesty, in the manner in which it is done, and no one can suppose that the education of a class of persons, during the time of their pupilage, “in the best and most suitable and proper manner for American youths,” has any tendency to make an aristocracy of the class, or that such an education is not favored by the laws and policy of this State.

The testator’s main object was to provide for a good and substantial English education for his beneficiaries: he supposed however, that there were higher and more ornamental branches of learning, than a good and substantial English education, and made these branches a secondary object of the donation.

These provisions of the will mark the good sense and the sincerity of the testator, and interpose no obstacle to the validity of the gift.

The board and clothing of the beneficiaries during the term of their pupilage in the seminary, is made a matter of objection. It is scarcely necessary to say, that the board and clothing of a pupil at school, is a part of the proper expenses of an education, and as much so as tuition fees, or other expenses, and may well be provided for in a devise of the description under consideration.

It is urged, that the provision made in the clause under consideration, is a simple gift to the children of testator’s brothers and sisters, and, their descendants, as well as his own children and their descendants, and is not a charity, for the reason that there is no uncertainty as to the persons who should take benefit under it.

It certainly has been said, that “uncertainty of individual object is a characteristic of charity,” and it has been said that this “uncertainty is indispensible to all charities,” and “if any one has a right to claim by law, it ceases to be a charity.”.

It is true that uncertainty of individual object is generally characteristic of charity, and that if the beneficiary has a right to claim by law, it ceases to be a charity.

The question on any devise of the- kind is, whether the donation is a simple gift, or a gift to charitable uses ? And to dispose of this question, we have to look to the intention of the testator, his object and plan to effect it, the beneficiaries, the donation and its administration, and the interest or benefit the beneficiaries take. If we gather, that it is a simple gift, or one that the beneficiaries may assert at law, it is not a charity.

In looting to tbe will of Isaac Franklin, it is manifest that his intention was to create a charity for the advancement of education- — -in all time to come. This is shown by the amount of the donation, and the mode of its administration by the trustees, as well as the discretionary powers vested in the trustees, as to the employment of the property and its investments, the employment of teachers, the admission of pupils, and the mode of teaching, &c. No interest in the property, or control over it, or over any part of the machinery of the charity, is given to the beneficiaries, singly or in the mass. The beneficiaries are youths, or persons, when they take benefit under the will, who are in pu-pilage, subject, to some extent, to the powers of the trustees, among which is the right to select the children or descendants, who should be educated, in case they should become too numerous to be all educated; a right which, at once, makes the beneficiaries uncertain within the authorities cited, if such uncertainty is indis-pensible. This uncertainty of individual object is also effected by the facts, that the benefit is unassignable, and can be taken by such of the children and descendants of the description given, as shall be selected by the trustees, in a fair execution of the will, and shall personally attend the seminary, and submit to its legitimate rules. The beneficiaries are subject to perpetual fluctuation, and are, in this sense, uncertain. In a legal sense, this devise is made to education, and the devise is made good by the designation of the class to be educated, and the powers given to the trustees.

It is said that a motive of the testator, personal to the beneficiary, would vitiate a donation to a charitable use. This must be taken with much allowance. It is certainly untrue as to the motives personal to classes, as shown by the cases of Murdock vs. McDonough, and Vidal vs. Girard.

If a devise, by a testator, for the education of the children, or the orphans, or poor born in his native city, should be good, as a charity, we cannot see why a devise, for the education of the children born of certain designated ancestors, should not b$ good as a charity. Yiewed philosophically, the uncertainty is the same.

In the opinion of the court, the devises and bequests of Isaac Franklin, to his brothers, William and James, as trustees, are good, and should be sustained as a charity, unless avoided by the constitution of Tennessee, prohibiting perpetuities.

Article 1, Section 22, declares that perpetuities and monopolies are contrary to the genius of a free State, and shall not be allowed.

This of course is the paramount law of the land.

But what is the perpetuity that is not to be allowed?

The Constitution neither defines, nor describes ¡Ü4 but assumes that what it is, is known. We'i'jaip d.efl$ then, to enquire into the commonoftaryi fQiiu&xpsropeA understanding of the term. ■-í'já[hd^*hWeJiW6|íai(é<}3tiq|j2:jB7Jítei!-rious definitions, deseifi^ti&fig^'taid tepíes^átatóon’^'iodfroa perpeM^'^xá^f ffelfridou^/^iMséljisénc^i'iwJii'c^, ijwáfh ^Te'W^^eálió^tFónáf^ardtlé'ffl&frlatftl ítfri mítóéadotlié) euqr&áq. rá- It i&>-Lfe8S31J tMi plp&íffegsfi í';eliá»M'-'fcpf ^incórpoTafioii^ ^düd^feeX'ánP fí&fpbtui^íjd'Abe’ca'as^Jiitíilasfs c&ri-‘c^r.0' %üt^hisLl#íi1ííd[ f5?év§) ifiJáéi/i'thMbéver^ ‘gfentuof Iáírd>JI'fey^;)th:éPrSthf^-ífíáai&,i^ve¿^iv/gfapt>xan^ntístetófet‘i ofopÍB$-perty would be perpetuities, because the titles pass forever from the grantors, and the yield of the sales is a perpetual fund, if it may be so called, in the hands of the grantors or those claiming under them, to be used or abused. These are not unlawful perpetuities.

Again: It has been said, that |>roperty held by corporations with the right of perpetual succession in mortmain, is a perpetuity, as well as property held by corporations fis trustees for charitable uses. It must be noted, however, that when this is said, it is generally meant, that when property is so held, it is practically inalienable, though not really so, if the corporation or trustees were inclined to sell, or if the proper tribunals were appealed to, to effect the sale.

It is true'1 that the reason of the rule against perpe-tuities and the reason of the policy of the law, in this country, to destroy the entailment of estates and to pre-L vent property from falling into dead or unserviceable hands, is the same, viz: “To prevent property from being withdrawn from commerce and rendered inalienable.” Property may be held by a man himself and his heirs forever, without making the slightest approach to a perpetuity.

A perpetuity is defined (Lewis ou the Laws of Per-petuities, 164) to be — “a future limitation, whether ex-ecutory dr by way of remainder, and of real or personal property, which is not to vest until after the expiration of, 'or will not necessarily vest within the period fixed and prescribed by law for the- creation of future interests, and which is not destructible by the persons for the time entitled to the property, subject to the ■future/ limitation, except with the concurrence of the individual interested under that limitation.” This definition is doubtless correct, and shows what is an unlaw-fid perpetuity.

It is manifest that no settlement of property, not-made inalienable by the terms of the limitation is a perpetuity, however likely it may be, that it will never be abused.

It is of the essence of a perpetuity — that the property is incapable, beyond the period prescribed' by law,, of being sold freed from all limitations and trusts — by the use of all the means known to the law for effecting sales.

If the charity created by Isaac Eranldin shall be established, will the property given by him be in this' condition ?

There are no expressions in the will that render the property inalienable. See 8 Term E., 61. And unless-the trust itself implies that the property should be inalienable, it is alienable. It is conceded that an improvident or prejudicial alienation by the trustees, would be a breach of trust, for which the trustees would be held responsible, and in some instances the purchaser would be made trustee in invitum.

The trustees of a charity may sell the property in the proper and bona fide execution of the trust — and the court of chancery may decree the sale. Attorney General vs. Warren, 2 Swanston’s R., 291. Griffin vs. Graham, 1 Hawks’ R., 96. 7 Paige’s R., 82-3. Hill on Trustees, 463, and authorities cited. Shelford on Mortmain, 677, et segr., and authorities cited.

At common law, charitable uses are exempted from the rules against perpetuities. Lewis on Perpetuities, 663, et. seqr. Attorney General vs. Hungerford, 2 Clark and Finn. 357, 374. Cited in 2 Kent’s Com., 288, note. Griffin vs. Graham, 1 Hawks’ R., 120. This point again came before the supreme court of North Carolina in 1842, in the case of The State vs. Girard, 2 Iredell’s Eq. R., 210. Judge Gaston delivering the opinion of the court, says: “The objection that the declared trust would establish a perpetuity, and is therefore forbidden by the Constitution of North Carolina, is untenable — the perpetuities thereby contemplated are estates settled for private uses, so as to be inalienable. This is a public charity.”

The devise in that case was to the poor of Beaufort county, upon the condition that the lands should never be sold, but leased not exceeding seven years, &c.

The court is, therefore, of opinion that the devises .and bequests of the testator to Ms brothers, are valid.

Upon the balances due to the executors of Isaac Franklin upon their Tennessee administration, as showxr in the record, there can be but little difficulty. It appears that the entire Louisiana estates have been taken from their hands, and that their accounts, as executors, have been passed and allowed by the courts in that State. It does not appear that there is any balance in their hands derived under the administration in Louisiana. If' the amounts admitted to be due to the executors had arisen from an ordinary execution of the will, after the delivery of the Tennessee assets to the trustee as legatee, it would be but a common exercise of the jurisdiction of a court of chancery to compel the trustee as legatee to refund a sufficiency of the assets to discharge the demand. The record, however, shows, 'that the balances due the executors result principally or 'entirely from advances made by the executor to the trustees, in the payment of the purchase money, for the interest of Mrs, Franklin during her widowhood, in the Fail-View property. This would constitute a debt from the trustees to the executors, and the executors have an equity to recover it. This equity is made stronger by the consideration, that at the time these advances were made, the executors relied upon, and had good reason to rely upon the Louisiana revenues for their reimbursement. The deprivation of these sources of reimburse ment, without their consent or negligence, itself furnishes a ground of equity to the executors to recover these demands against the trustees. It is the opinion of the court that the trustees ought, in equity, out of the trust property in their hands, to pay to the executors, the, sums of money due to them respectively.

As to the mode by which Mrs. Aciden shall be paid the balance of the one hundred thousand dollars, owing to her by reason of her election of it, after her marriage with Col. Acklen in lieu of the annuity, under the will of Isaac Franklin, there is some difficulty. The arguments of counsel have been mainly directed to the other points in the cause, and but faint views if any have been presented to the court on this branch of it.

The difficulties suggested would probably disappear upon a clearer view of the laws of Louisiana, by the writer of this opinion. It is certainly a general ,jple, that a will, valid in the country of the testator’s domi-cil, passes his personal estate, wherever located. Story on the Conflict of Laws, 464, 465, 467, 46,8. Louisiana Code, Art. 1589,

It l-js therefore concluded, that so much of Isaac FranHin’s movable property located • in tbe State of Louisiana at Ms death, as was bequeathed to the charitable use, created by the will, passes by the bequest.

It has been decided by the supreme court of Louisiana, that the devises' in the will of immovable property, situate in that State, to the charitable use, are void, and that the will shall be construed as if such devises and bequests had not been written in the will. This decision by no means impairs any of the other gifts or charges made in the will, upon the testator’s immovable property situated in the State of Louisiana, which the testator was competent to make by the laws of that State.

It appears, Louisiana Code, Articles 1480, 1481, 1482, that Isaac Franklin at his death, by his will could only dispose of one-third of his property in Louisiana. His children, as forced heirs, took two-thirds as their legitime.

Any disposal of property whether inter vivos or ccmsa mortis, exceeding the quantum of which the person may legally dispose, to the prejudice of the forced heirs is not null, but only reducible to that quantum. Code, Article 1489.

If the disposition made by donation ocmsa mortis, be of an usufruct or of an annuity, the value of which exceeds the disposable portion, the forced heirs have the option, either to execute the disposition or to abandon to the donee the ownership of such portion of the estate, as the donor had a right to dispose of.

In Louisiana, the heir, as soon as the succession shall be opened, has the right to renounce or accept it. The acceptance may be express or tacit, and tbe effect of tbe acceptance if unconditional, is to bind tbe beir personally to pay tbe debts of tbe succession. Code, Arts. 1006, 1049, 1379.

Tbe same rule applies with some qualifications as to tbe payment of legacies. Code, Art. 1618 et seq., and see Article 1623. If tbe testamentary executor bas not tbe seisin of tbe estate, or bis functions have 'expired, tbe legatees must apply to tbe beirs for tbe payment of tbe legacies.

It appears that tbe beirs of Isaac EranMin baye possession or seisin of tbe entire succession including the disposable portion, as well tbe legitime and movable as immovable property, and that tbe testamentary executors have no seisin of tbe succession, and that tbeir functions have expired. It is concluded that tbe defendants, Mrs. Aciden and Emma Eranklin, are bound for tbe payment of all valid and unpaid charges on tbe Louisiana property under said will.

Tbe court is of opinion that tbe equities of tbe parties to this suit ought to be adjusted, and that this court bas jiu'isdiction to mate such adjustment in this cause.

In order to enable tbe court to adjust these equities intelligently, proper enquiries and accounts will be made and taken, and reported upon, reserving all questions of law arising.

A decree will be entered in conformity with this ■opinion.  