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

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

The judgment of the court (Rost, J. recusing himself on account of interest,) was pronounced by

In the first article of the will* the testator names three persons as his testamentary executors. In the second, he directs that in the event of their absence, resignation, or death, their places are-to be filled by one or two commissioners to be appointed by the Governor of the State, and any one of the Judges of the Supreme Court and the Judge of the First Judicial District Court, or any two of them. The commissioners are to have a yearly salary of fifteen hundred dollars each; they may be dismissed by any two of the judges for criminal conduct; they are to keep a set of books, to be examined and approved annually by any two of the judges. In the third article, he directs that his estate is not to go into court except for the purpose of probating the wills, and that every thing belonging to his estate is to be continued and conducted as it may be found at liis death. He orders the executors or commissioners to keep on each of his plantations a skilful and humane superintendant. He gives instructions for the food, treatment and discipline of the negroes. In the sixth, seventh and eight articles, he directs the gradual liberation of his slaves. In the ninth, he says: “The Destrehan estate is to remain forever asa part of my succession; and at the end of twenty-five years from my death, it must be laid out into a city to be named Destrehan.” In the tenth, he says : “Four acres, including the back and front garden, running back with parallel lines to the lakes, with all the dwellings, are to remain as one lot, with a good street and buildings on each side of the street.” In the eleventh, he says: “All *459my real estate in the city to remain upon ground rent, and no lease to exceed twenty-five years in time. All the stocks to be sold in ten years from my death.”

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

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

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

In the -fifteenth article he says: “ I wish a chapel or church to be erected *460■upon the upper corner of the four acres lot, and a Presbyterian minister to be sent for from Dunblane or its neighborhood, at a moderate salary; I also -wish a good house for the minister to be erected upon the lower corner of the four acres lot; there must also be a small house for the education of. the poor of the town, over which the minister must preside.”

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

The provisions in the will for laying out one of his plantations at the end of twenty-five years into a city to be called Dunblane, and establishing a manufactory in it, are, in my opinion, an attempt to perpetuate his succession and violate the policy of the law. It must be observed, that the future city was not to pass from his succession, but to remain forever a part of it. If lie had bequeathed the Destrchan plantation to a contemplated charitable corporation, not in esse, but thereafter to be incorporated, then the disposition would have been like that in Mylne’s case. But here the future city was to remain in his succession. What he says of an incorporation seems to me to be in quite another sense. It was, that an act of incorporation for the purposes of municipal government should be obtained. A number of villagers ask the Legislature to incorporate them as a cily, and the Legislature does so. What is the effect of such an incorporation? A mere provision for the purposes of municipal government. The lands and the houses remain the property of the respective villagers. So here, the succession of Henderson would still remain the owner of the Destrehan lands after the city of Dunblane was established upon them and incorporated. The rents of the tenements, the products of the contemplated manufactory, the fruits of the soil, would have still belonged to his succession, and been collected and gathered by his executors. There is not a word in the will that takes the ownership of the proposed city out of his succession. But that, *461if carried into effect it takes it out of commerce forever, is indisputable. He expressly orders, “it is to remain forever as a part of my succession.” The executors might lease, but could not sell. In this particular the provision is not peculiar. His intention was the same as to his real estate in the city. It was to remain upon ground rent, and “no lease to exceed twenty-five years intime.” The conclusion, indeed, from the entire will, is irresistible, that the testator deshed to perpetuate a large portion of his succession, and that this was the dominant idea under which it was composed.

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

As to the provision in the fifteenth article for the erection of a chapel, and a house for the minister, his salary, &c., it is clear that this provision is most intimately connected with the scheme of establishing on the Destrehan plantation the town of Dunblane, and populating it with workmen from Scotland, as directed in an antecedent part of the will. It is so interwoven with that portion of the will as to be dependant upon it and legally indivisible. The nullity therefore, of the one carries with it the nullity of the other. It is impossible to deduce from the will itself the conviction that the article in question would have *462been adopted, if the testator had known that his desire with regard to the town and manufactory could not be accomplished. On the contrary, the opposite conclusion is unavoidable.

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

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

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

*463We are of opinion, that even if we should come to the conclusion hereafter, , „ . . . ,, , . , , . - that the provisions concerning the slaves generally on the various plantations lett by the testator,are valid and can be carried into effect, DoyaVs share of the slaves cannot be affected by the dispositions of the will without his consent; and that so far the dispositions of the will must fail. Hence, if the disposition as to the testator’s interest in the Houmas slaves be hereafter declared valid and practicable, all the executors can do, will be to provoke a proceeding in the nature of a partition in kind of the slaves, and carry out the benevolent dispositions of the testator in behalf of those that may fall upon such proceeding, to the succession of Henderson.

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

The eighth clause of the will is considered by Judge Preston as indivisible; in other words, as authorizing a sale of the undivided half of the plantation to Doyal, only in case he should consent to sell his own half of the slaves. In this opinion we do not concur. Mr. Doyal was the owner of an undivided half of the land and slaves. He had been a faithful agent and partner; the testator appreciated his fidelity and the propriety of rewarding, it by indulging him in the payment of what he owed, and giving him an opportunity of buying the outstanding half of the land at private sale. He did not desire to expose a faithful agent and partner to the inconvenience of cutting up the land by a partition in kind, or the competition of a public sale of the whole by a decree of partition which might result in bringing in a stranger as co-proprietor with Doyal. But Doyal, being an owner, was not bound to sell his undivided half of the slaves. He might not desire to part with them, from feelings of attachment, or conside*464rations of interest. And to suppose that the testator desired to coerce him into such a sale of his slaves by withholding a sale to him of the land except upon those terms, is inconsistent with the indulgent and grateful disposition towards him which the will exhibits.

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

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

In the act of 7th April, 1839, these residuary legatees, who, in tho absence of a will, would have been heirs of the deceased, having extinguished, by compromises, the claims of other legatees, and thus become the owners of the entire property of the succession, subject, however, to such valid charges as the testator may have imposed upon it, made transfers, partly to each other, of various portions of the testator’s property, and among others of three plantations and the slaves attached thereto. But in order to secure to the slaves their ullimate rights, such as they might be, judicially ascertained under the wills, the transferrees of the respective plantations and slaves covenanted, that should the courts having jurisdiction in the matter decide that the slaves belonging to the respective plantations are entitled to be sent to Africa and receive one hundred dollars each, then they would comply with the directions of the will, and support the charges of its execution in that particular; and, on the other hand, would receive a deduction from the price of twenty per cent on the appraised value of the slaves. They also constituted' P. A. Most and Jonathan Montgomery their attornies, with authority to administer all the property of the succession undisposed of, to collect debts, settle accounts, pay creditors, and close the estate. They also authorized them to sell to Doyal the undivided half of the Mount Houmas plantation and slaves “for and in consideration of the sum of one hundred and twenty-five thousand dollars, payable in five equal installments from the day such sale shall have been made, and under the following conditions, to wit: That in case the Court of Probates for the parish and city of New Orleans, or the court having jurisdiction in the matter, should decide that the undivided half of the slaves belonging to the succession of the late Stephen Henderson, are to be sent to Africa, in obedience to the last will of the said late Stephen Henderson, and are entitled to receive each one hundred dollars, and in the event that the said Henry Doyal should, in such case, agree to receive a sum of money to consent that his own half of the said slaves shall also be sent to Africa on the same conditions, then the said Henry Doyal shall bind himself to comply with such part of the judgment of said court on the subject; and that in such case a deduction of twenty per cent on the appraised value of the slaves, as the same are appraised in the inventory, shall be made from the first installment of the purchase price of the said plantation and slaves. That in the event the said Henry Doyal shall refuse to purchase the undivided half of said plantation and *465slaves on the conditions herein specified, an action of partition shall be instituted against the said Henry Doyal, and the Mount Houmas plantation will be sold at public auction in order to effect said partition.”

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

Doyal then proceeds to declare, that he has taken cognizance of a deed of compromise made between the residuary legatees John Henderson and others, with certain other legatees of the deceased, and the extinguishment of the interest Of the latter; also of a compromise between the residuary legatees their agreement for the disposal of the remaining property, stocks and credits of the succession, and the powers granted to Henderson and Rost; their agreement to sell the undivided half of the Houmas plantation and slaves to him, and the grant of power to Rost and Henderson to sell to him ; and he declares that he consents to accept the sale proposed to be made to him as aforesaid. “Wherefore,” says the act, “ by reason of the foregoing, and in conformity with and by *466virtue of the powers granted to the said parties of the first part (Rost and Montgomery,) the said Rost and Montgomery sell to Royal the undivided half of the plantation and slaves.” After fully describing the land and slaves, reciting the titles under which Henderson and Royal respectively held by undivided moieties, stating the price, $125,000, the promise of Royal to pay it in conformity with the terms and conditions fixed by the said legatees in the aforesaid compromise, and in the powers conferred unto their said attornies, describing the notes given by Royal, &e., the act concludes with the following clause: “It is further agreed and understood by and between the said parties hereto, that the present sale is made and accepted under the condition that in case the Court of Probates for the parish and city of New Orleans, or any court having competent jurisdiction in the matter, shall decide that the undivided half of the slaves attached to the said plantation and belonging to the estate of the said late Stephen Henderson, are to be sent to Africa in obedience to the last will of the said late Stephen Henderson, and are entitled to receive each one hundred dollars, the said Henry Royal shall, as he does hereby bind himself, comply with such part of the judgment of said court on the subject, and that in such case a deduction of twenty per cent on the appraised value of the said slaves as the same are appraised in the inventory of the said plantation and slaves made by the Hon. Edward Ruffel, parish judge, in and for the parish of Ascension, on the 6th day of April, 1838, shall be made from the first installment of the purchase price of the said plantation and slaves, or from any other installment of the said purchase price as the said parties may agree upon.”

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

The true test of the legal effect of the act of sale to Royal is, to enquire whether upon that act the residuary legatees, or the executors, or any one else could, by suit, compel Royal to give up the whole of the slaves upon receiving either the twenty per cent of the appraised value in the inventories, or an estimated value of one-half of the slaves with a deduction of twenty per cent upon the purchase price of the other half. After the most careful investigation which I *467have been able to give to his contract, I am unable to say that I could consent to a judgment taking the whole of the slaves from him without his consent.

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

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

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

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

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

It is therefore decreed, that the ninth, tenth, thirteenth, fifteenth and seventeenth .clauses of said will, as set forth in the schedule annexed to this decree as *468part thereof, are, and they are hereby declared null and void. And it is further decreed, that the provision in the said will contained, touching the liberation of the slaves attached to the Houmas plantation, if they should hereafter be decreed valid, can only operate upon su.ch portions of said slaves as may on a proceeding in the nature of a judicial partition in kind fall to the succession of said Stephen Henderson the testator, and not upon the portion of said Hoyal. And it is further decreed, that this decree shall become final within the usual delay without reference to such portions of the cause as, under the agreement of the parties on file in this cause, are reserved for further consideration and decree.

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

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

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

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

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

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

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

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

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

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

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

By subsequent clauses of the will, he declares that Destrehan city must be incorporated by an act of the Legislatui’e ; changes its name to Dunblane ; directs that four acres, including the back and front garden, running between parallel lines to the lakes, with all the dwellings, to remain as one lot, with a good street; *470and buildings upon each side of the street; that a church shall be erected upon the upper corner of the lot; that a Presbyterian minister shall be sent for from the town of Dunblane or its neighborhood, and employed at a moderate salary ; that a good house shall be erected for the minister on the lower corner of the lot, and that there must be a small house for the education of the poor, over which the minister must preside.

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

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

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

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

*471It is urged, that the testator has attempted to perpetuate his property in his succession, and, in violation of law, to make that inalienable which the policy of all civilized nations has declared shall, under various modifications, be marketable. Thus, he declared, that the Destrehan plantation, which was to be the site of the town of Dunblane, should forever remain a part of his succession. But this provision is to be construed-with reference to its establishment as a city, and incorporation by the Legislature, which he subsequently directs. The obvious meaning of the whole is, that it is dedicated to public use forever, under such regulations as the Legislature should, by an act of incorporation, prescribe. The establishment of a city necessarily implies the division of the site into squares and streets, and the sale of the squares, by authority of law, would be in pursuance of, and not in violation of, the dedication of the whole to the public. The sovereign power might even dispose of the avenue reserved if the interest of the city required it; because the testator, by directing its incorporation for the benefit of those who might inhabit it, giving them no rights or property but what might be derived from the act of incorporation, evidently subjected the whole to the wisdom of the Legislature. He directs that every thing belonging to his estate is to be continued and conducted as it may be found at his death. This is evidently a temporary provision, subject to the three great objects of the will. So, with regard to his city property and plantations, there is no prohibition of their sale. There are directions to make leases of his city property, which may extend to twenty-five years, but not perpetually. It has never been questioned, that perpetual annuities may be created, in favor of institutions or classes of society capable of enjoying them. The property or fund belongs to- the institutions or classes of society to which it is donated, and may be kept and used by them and their successors, so long as no law is violated in the last case, or as long as the act incorporating the institution in the first case, authorizes it.

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

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

This opinion of the district court conflicts directly with the decision of the Supreme Court of the State, in the case between the Executors and Heirs of the late Alexander Milne, 17 L. R. 52. The testator devised half his estate in favor of two charitable asylums, not in existence at the time of his death, but to be incorporated after his death, with power to receive his legacies irs *472their favor. The general assembly of the State, at its first session after his death, incorporated the asylums ; and the courts of this State, after able and elaborate arguments on behalf of the heirs, maintained the dispositions of the will.

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

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

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

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

*473Executors are sworn officer's of law, peculiarly under the control of the courts; and there is no danger of their exercising unlawful trusts, Or of the creation in their hands of perpetuities inconsistent with public policy.

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

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

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

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

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

The parties referred to the following clause in an act of compromise and division among the heirs and executors of Henderson, made on the 11th of April, 1839, “that in case the Court of Probates for the parish and city of New Orleans, or the court having jurisdiction in the matter shall decide, that the undivided half of the slaves belonging to the succession of the late Stephen *474Henderson are to be sent to Africa, in obedience to the last will of said Stephen Henderson, and are entitled to receive each one hundred dollars, and in the event that the said Henry Doyal should in such case agree to receive a sum of money to consent that his own half of said slaves shall also be sent to Africa, on the same conditions; then the said Henry Doyal shall bind himself to comply with such part of the judgment of said court on the subject; and that in such case a deduction of twenty per centum on the appraised value of the slaves, as the same are appraised in the inventory, shall be made from the first installment of the purchase price of said plantation and slaves,”

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

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

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

Doyal understood that he was purchasing upon the condition that his interest in the slaves should be subjected to the conditions of the 8th clause of Hender*475son's will, because he claimed the right to purchase at private sale Henderson's undivided half of the slaves, by virtue of that clause in his will, and thereby made that clause and all its conditions a part of his contract, as muchas if it had been incorporated in the bill of sale made to him. He accepted the conditions of the clause to avoid an action of partition and a public sale at auction, in which the executors of Henderson would have had greatly the advantage of him, as the estate was immense, and he, as appears by the will, was already indebted to it.

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

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

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

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

It is said, that the executors .of Henderson would have a right, in case the court should decide that his slaves held with Royal were entitled to be sent to Africa, to sue Royal for a partition, and thus extend the beneficence of their -testator to the slaves that might fall to them. Neither the executors, nor Henderson's *476estate have any longer a title to the undivided half of the slaves; and, therefore, cannot sue for a partition. Besides, the heirs and executors, to exonerate themselves from the necessity of sqch an action,, provided in the contract by which they gave power to sell to Boyal, ¿‘that in the event the said Henry Boyal shall refuse to purchase the undivided half of said plantation and slaves, on the conditions herein specified, ¡(that is, that his own half of the slaves shall be sent to Africa,) an action of partition shall be instituted against him, and the Mount Houmas plantation sold at public auction, in order to effect a partition.”

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

If, therefore, this court should determine, that Idenqlerson’s slaves should be emancipated and sent to Africa, in my opinion Henry Boyal has obliged himself to permit all the slaves on the Mount Houmas plantation, at the death of Stephen Henderson, and their issue, to be sent to Africa, upon the same conditions prescribed by the testator for those upon the other plantations ; and that .the judgment of the district qoprt on the questions submitted to us should be .affirmed.