
    Girard et al. v. City of New Orleans et al.
    A testator bequeathed to the corporation of a city “ a settlement consisting of one thousand arpante of land, with tho appurtenances and improvements thereon, and all tho personal estate thereto belonging and thereon remaining, including thirty slaves and their increase ; directing that no part thereof should he sold or disposed of for twenty years after Ms death, should B-survive him and live so long, bat said settlement to be kept up by Br for said term of years as if it were his own,- that is, to remain under Ms sole care and control, all the nett profits thereof to bo enjoyedby B for his own use; he rendering annually an account to the city of tho state of the settlement, showing its income and expenses, the number and increase of the slaves, and its nett profits; the testator further directed that,at the end of said twenty years, or at tho death of B should he not live so long, the land, improvements, slaves, and other appurtenant personal property, should be sold as soon a» tbe corporation deemed it advisable; tho proceeds to be applied by the corporation to such uses as it might deem most beneficial to the inhabitants"Held, that the ownership of tho property was given to the city, and tho usufruct to B ; that the occurrence of circumstances' preventing tho establishment from being kept together, will not terminate th® usufruct; that the language of the will is merely descriptivo of tnc property, and not restrictive of its future nso, pre-supposing the employment of tho slaves on tho land, but not imposing it as a condition of the usufruct; and that the fact of such employment becoming impossible, or so onerous and inconvenient as to make it unreasonable to exact it, could not deprive theusufruotuary of the fruits of the ordinary labor of the slaves-elsewhere than on the land.
    The 1st sec. of the stat.of 17 February, 1805, restricting the right of tho corporation of New Orleans to hold real estate, to such as is situated within- tho limits of the city, does not include slaves.
    Slaves are not real estate. They are declared to be immovables by a positive provision of the Code (art. 4G1); hut neither in common parlance', nor in law, arc they designated by the term real estate.
    
    The owner of property subject to an usufruct has alone the right to call the usufructuary to-account.
    APPEAL from the District Court of Ouachita, Curry, J.
    
      McGuire and Say, for the appellants. Garrett, for the defendant Bry.
    
   The judgment of the court was pronounced by

Eustis, C. J.

This suit is instituted for the rocovory of certain lands and slaves which formed part of the succession of tho lato Stephen Girard1 of Philadelphia, ®f whom the plaintiffs are the heirs at'law. It- involves the validity and effect of certain dispositions of his last will, and particularly of one by which ,, 4 the testator gave a-tract of'one thousand acres of land in the parish of Ouachita, established as a plantation, including the slaves, to the city of New Orleans, and disposed of the usufruct of the land and slaves to Henry Bry, for the term of twenty years from the decease of the testator, provided the usufructuary should survive him so long.

A question has-been raised by the pleadings, and argued-at length, as to the' city of New Orleans boiug properly cited and made a party to this suit. After-the argument of the case-at the last-term, we directed the record to be taken to-New Orleans, in order'that the corporation might become a party to the suitf. and have the important interests dependent on it examined and discussed before us. We caused notice to be given to the proper authorities to that effect; but our efforts were cot successful; and. as the case stands before us, we are bound to decide the technical question as the corporation being properly in court, and thus leave the material points of controversy, so far as its interests are concerned, to be the subject of future litigation.

The citation is addressed to Henry Bry, as attorney in fact of the city of New Orleans, and was served on him in person, at his domicil in the parish of' Ouachita. Bry expressly, disavowed his authority to appear for the city of New Orleans, and excepted on behalf of the corporation to the sufficiency-of the citation as in any manner binding on the corporation. This exception was overruled, and it is on the validity of this means of bringing the corporation into court that we must first decide. There was no impediment to citing,the corporation regularly in this suit; it could have been sued as a party defendant, and ought to have been -cited by its proper officers^ C. P. 163.

We are not at all’disposed to recognise the propriety of citing an attorney in fact, though he may have authority to appear in a court of justice, when the principal is present; and it is, to say the least, questionable, whether a municipal corporation can delegate such an authority. C. P. arts. 112, 198. Civil Code, arts-. 429, 420. But this suit was instituted in 1841, and the power to Bry was given in 1832;-before the division of the city, which took place- in 1836, and the disavowal of his authority on the part of Bry to appear for the old corporation, is conclusive as to the power of the court to act. on any matter exclusively appertaining.to its interests, without having its representatives under the new municipal-organisation cited according to law.

Asa matter of- practice it is too clear to admit of doubt that the old corporation of the city of New Orleans; not having been properly cited, was notin court; and that the judge erred in overruling the exception to that effect. This being the state of the case, and the parties representing the residuary interests under the-will not being before the court, as the plaintiffs insist on a decision of the cause as it is before us, it is obviously our duty to confine our decision to those questions exclusively, by the determination of which the rights of the parties not represented will not be adversely affected, to wit: the ownership and usufruct of the slaves.

The plaintiffs contend that the testamentary disposition, in favor of the city of New Orleans and Henry Bry, of the land and slaves in the 19th clause of the will, is void, for want of a capacity to receive it on the part of the city, which by law had no right to hold lands except within its limits; that the usufruct falls with the failure of the legacy of the ownership; that there has been such a change in the property that it can no longer be used in the manner directed by' the will, and that the usufruct has thereby terminated, it being, as constituted by the will, of an entire thing, to wit, of a plantation and slaves to be worked together, and indivisible; and that, for each of these causes, the land and slaves belong of right to the plaintiffs, as heirs at law.

If it be conceded that the plaintiffs’ position, in these respects, be-correct, another question presents itself, and that is, whether, under the will, the proXrerty would in that event belong to them, or fell within the 1 esiduary clause, which is in favor of the mayor, aldermen, and citizens of Philadelphia. This question was ai'gued before the Supreme Court of the United States in the case of Vidal v. Girard's Executors, 2 Howard’s Rep. 128, but was not decided, the court considering the devise, which was contested, to be valid. It appears to rest upon authorities which are conflicting, and as it is not necessary to be decided now under the view which we have taken of this case,-we proceed to examine the grounds on which the legacy of the usufruct in -favor of JBry .is sought to be defeated. The clause- constituting it is- in- these words:

“ AH that part of my real and personal estate near Ouachita, in the State of Louisiana, the said real estate consiting of upwards- of two hundred and eight thousand arpents, or acres o:f land, and including the settlement hereinafter mentioned, I give, devise, and bequeath, as follows, namely: 1. I give, devise, and bequeath to the corporation of the city of New Orleans, their successors and assigns, all that part of my real estate, constituting the settlement formed on my behalf by my particular friend, Judge Henry Bree, of Ouachita, consisting of upwards of one thousand arpents or acres of-land, with the appurtenances and improvements thereon, and also all the personal estate thereto belonging and thereon remaining, including upwards of thirty slaves now on said settlement, and their increase, in trust, however, and subject to-the following reservations: I desire, that no part of the said estate or property, or the slaves thereon, or their increase, shall be disposed of, or sold, for the term of twenty years from and after my decease, should the said Judge Henry Bree, survive mo and livo so long, but that the said settlement shall be kept up by the said Judge Henry Bree, for and during said term of twenty years, as if it was his own; that is, it shall,remain under his sole care and control; he shall improve the same, by raising,.’such produce as ho may deem most advisable: and, after paying taxes, and all expo jses in keeping up the settlement, by clothing the slaves and otherwise, he shall have and onjoy for his own use, all the nett profits of said settlement: Providod, however, and I desire that the said Judge I-Ienry Bree shall render annually to the corporation of the city of New Orleans, a report of the state of the settlement, the income and expenditure.thereof, the number and increase of the slaves, and the nett result of the whole. I desire that, at the expiration of the said term of twenty years, or on the decease of the said Judge Henry Bree, should he not live so long, ..the land and improvements forming said settlement, the slaves thereon or thereto belonging, and all other appurtenant personal property, shall bo sold, as soon as tho said corporation shall deem it advisable to doso, and the proceeds of the said saleorsales shall be applied by the said corporation to such uses and purposes as they shall consider most likely to promote the health and general prosperity of tho inhabitants of the city of New Orleans. But, until tho said sale shall be mado, tho said corporation shall pay all taxes, prevent waste or intrusion, and so manage ihe said settlement and tho slaves, and their increase thereon, as to derivo an iucome, and the said income shall bo applied, from time to time, to tlie same uses anc* PurPosesi f°1- the health and general prosperity of the said inhabitants.

“ 2. I give, devise, and bequeath to the mayor, aldermen and citizens of Philadelphia, their successors and assigns, two undivided third parts of all the rest ,and residue of my said real estate, being the lands unimproved near Ouachita, Jn the said State .of Louisiana, in trust, that, in.common with the corporation of the city of New Orleans, they shall pay the taxes on the said lands, and preserve them from waste or intrusion, for the term of ten years from and after my decease, and at the end of the said term, when they shall deem it advisable to do ■so, shall sell and dispose of their intei’est in said lands gradually, from time to time, and apply .the proceeds of such sales to the same uses and purposes hereinafter declared and directed of and concerning the residue of my personal .estate.

“3. And I give, dovise, and bequeath to the corporation of the city of New ■Orleans, their successors and assigns, the remaining one undivided third part of the said lands, in trust, in common with the mayor, aldermen and citizens of Philadelphia, to pay tho taxes on said lands, and preserve them from waste and intrusion, for the term of ton years from and after my decease, and, at tho end .of the said term, when they shall deem it advisable to do so, to sell .and dispose ■of their interest in said lands gradually from timo to time, and to apply the proceeds of such sale to sueh uses and purposes as the said corporation may consider most likely to promoto the health and general prosperity of .the .city of New Orleans.”

We think by these terms the ownorship„of tho property is given fo .the city ,of New Orleans, and tho usufruct to Henry Bry, during the period ofand on the condition specified; and we do not find that the right appertaining to .either .ownership or usufruct are .restricted, except as to the limitation of the latter as to time, to wit, the term .of twenty years, or the survivorship of the .usufructuary for that term. We do not perceive that there is any ground -for circumscribing tho rights of the usufructuary, as is contended for by the plaintiffs, or for confining the usufruct unqualifiedly to the state the property was in at the time of making tho will or the decease of the testator, and for holding the usufruct to be determined by the change which prevented the establishment from being kept together. The words made use of in the will are descriptive of tho property as it is, and not restrictive of its future use. There is no attempt made to attach, by a condition, tho slaves to the land, or to render it obligatory that they should be employed on it, and in no other way. Indeed, so far from the testator having any disposition to change or modify the condition of the slaves, their sale is expressly ordered by the will on the termination of the usufruct by the death of Bry, or on tho expiration of the term of twenty years. The slaves had all been purchased and held in tho name of Bry, because the latter very judiciously refused to have anything to do with their management unless as their absolute owner. He was for many years the agent of -the testator, and had the entire control of his property in Louisiana, and had conducted his business to the entire satisfaction of his principal. Hence the provision of the will that the settlement should be kept up as if it was his (Bry’s) own. It appears that the greater part of the settlement mentioned in the will was upon lands to -which the testator had uo title; it had been made outside of his limits, and upon the lands appertaining to tho public domain, which had been since purchased by .other .persons. The slaves became insubordinate, and Bry, believing that they had sel; lire to their cabins, which had been destroyed, and that the establishment could not safely be continued, removed the hands from the place. The land was then leased ; the gin was afterwards destroyed ; and, it being known that the settlement was upon the lands of the United States, it does not appear to have been afterwards cultivated.

This contingency was far from being foreseen or provided for by the testator, and the rights of the parties depend exclusively on the legal effect of the clause by which the usufruct was constituted. Restrictions on the right of property are not to be left to implication, and we do not feel ourselves authorised to modify the light of usufruct which Bry possesses under the will, or to impose on it any penalties or conditions other than those which the law imposes. The will gave him the usufruct of the slaves; it directed or presupposed their employmonton a certain estate, but did not impose it as :a condition of the usufruct. Their employment as directed has become impossible, or so onerous and inconvenient that it would not be reasonable to exact it, by reason of the principal pant of the land belonginging to a third party, and the improvements being destroyed. We aro at a loss to perceive on what principle these causes can defeat the usu=fructof the slaves, or deprive the usufructuary of-the fruits of their ordinary-labor elsewhere. There is no such condition in the will, and the law implies none.

If the usufruct of the slaves is therefore to be considered separate and apart from that of the remaining portion of the land, what is there to prevent the city of New Orleans from taking the legacy of the ownership of the slaves 1 The provision of the act of 1805, which .the plaintiffs rely upon as restrictive of ■the right of the city to hold property, has no reference whatever to slaves. The corporation could hold and conyey any estate, real or personal, for the use of the corporation, provided sueh real estate .be within .the limits of said city. Slaves are in no sense real estate ; they are ¡considered as immovables by a positive article to that effect; but neither in common parlance, nor in law, are they designated by the term real estate. The right o.f the city to take by will or. donation, so far as it relates to slaves, rests on the general provisions of the Cofie relating to corporations. Civil Code, art. 424.

The corporation of the city,of New Orleans is therefore the owner of the slaves, and alone competent to.call the usufructuary .to an account for the causes set fqrth in the plaintiffs’ petition, and alone has the benefit of the termination of the .usufruct.

So far .as relates to the claim of the plaintiffs to the land which is the subject of the legacy, it can only be determined in a suit in which proper parties are made; and we desire tliatthe questions involved in it should be considered as entirely unaffected by the decision w7e make in this case, which is final only in relation to the usufruct of the slaves, which is the only interest represented by a party in court antagonist to that,pf the plaintiffs, and on which we have decided at the instance of both parties.

The suit against the city of New Orleans is therefore dismissed ; and the judgment in favor of .Henry Bry is affirmed, with costs in both courts.  