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the will; and that the several incorporated churches named in the record have power, under their charters, to take as trustees under the said will
, and have full power to administer the trust,is all adjudicated by the decision of the supreme court of the state of Louisiana, found in the record, and reported in 39 La. Ann. 1043, 3 South. 227.
On the trial in the court below, the plaintiff objected to the admission in evidence of the record from Louisiana, and such admission is assigned in this court as error. Many objections are elaborated, but they are mainly as to the effect to be given to the record. In our view, the record was admissible to show that, as between plaintiff's grantors and the defendant's grantors, practically the matters above recited were duly litigated and decided, binding both plaintiff and defendant privies thereto as to all matters in connection with the will of Kaspar Auch within the jurisdiction of the Louisiana court.
“The nature, meaning, and interpretation of a will of immovable property, and the rights and powers arising under it, are to be determined by the law of the domicile of the testator, and not by the law rei situs." Crusoe v. Butler, 36 Miss. 150; citing Story, Conf. Laws, 262, 479a, 479h, 479m, 490.
As Kaspar Auch's domicile was in the state of Louisiana, and as the question in this case involves immovable property in the state of Mississippi, it seems clear that the nature and meaning and interpretation of Kaspar Auch's will, and the rights and powers arising under it, are fully settled for this case by the decision of the
, supreme court of Louisiana, supra.
“The term 'property' embraces both real and personal estate; and under it, when used in the general residuary clause in a will, the real estate of the testator, not attempted to be specifically disposed of, will pass.” Morris v. Henderson, 37 Miss. 492; citing Doe v. Langlands, 14 East, 370; Doe v. Morgan, 6 Barn. & C. 512, 13 E. C. L. 235.
"If the real estate be not attempted to be disposed of specifically by the will, it will pass to the general residuary devisee, unless restricted by other clauses of the will; for, not being disposed of, nor attempted to be disposed of, it must be taken to have been intended to be embraced in the positive disposition of the residuary clause. 1 Jarm. Wills, 588-590. In such a case it would be doing violence to the express disposition of the will to say that, as to such real estate, the testator intended to die intestate." Morris v. Henderson, supra.
These authorities dispose of the objections that the will of Kaspar Auch does not, on its face, purport to devise real estate in Mississippi, and must be limited in its operative effect to the state of Louisiana, and that the words "property and effects," as used in the residuary clause of Kaspar Auch's will, are shown by the context to apply only to personalty, or, at best, to the property and effects of the testator in Louisiana.
If the devise of all the testator's real estate to the Presbyterian churches of New Orleans, “to the end that the poor of said respective churches may be cared for,” is a valid devise, and operated to convey real estate in the state of Mississippi,—as to which more will be said hereafter,—then the question is presented as to when the said devise took effect. It is seriously contended, and the contention is supported by very plausible argument that the said de
vise took effect only when the will of Kaspar Auch was probated in Mississippi, and Rankin v. Scott, 12 Wheat. 177, and M'Cormick v. Sullivant, 10 Wheat. 202, are cited as authority for the position. An examination of those cases will show that they do not support the contention, but rather establish, what we think would hardly be denied, that the subsequent probate of an unregistered will will not be effective as against an innocent purchaser for value from the heir at law. In Williams on Executors (Am. Notes, p. 255) it is said:
"The probate is, however, merely operative as to authenticated evidence, and not at all as the foundation of the executor's title, for he derives all his interest from the will itself, and the property of the deceased vests in him the moment of the testator's death. Hence the probate, when produced, is said to have relation to the time of the testator's death."
In the case of Crusoe v. Butler, supra, the above proposition from Williams on Executors is quoted with approval, and the court, speaking of an Alabama will probated in Mississippi, under which the executors had made a sale of lands in Mississippi prior to probate in that state, said:
“When the will was probated in Alabama, the power granted had relation back to the death of the testator. The grant of letters was merely the establishment of the character of the executors, and operated as a sanction to their exercise of the said power, granted to them in their character as executors by the will. The power in them was thus complete upon the probate of the will and their undertaking the trust in Alabama; and when the will was admitted to record in this state, it was merely for the purpose of authenticating the evidence by which the special power was established, and of rendering the prior right available here; but it was clearly neither the source nor the foundation of the power."
If it were necessary, the proposition quoted from Williams on Executors, supra, could be supported on principle, and by the authority of many adjudged cases. But we do not understand that the case of Crusoe v. Butler is seriously denied as correctly declaring the law in Mississippi, and we therefore conclude that the rights of the legatees under the will of Kaspar Auch, if said will was otherwise valid, vested when Kaspar Auch died, in 1886, and that the rights of the defendant in error, claiming under said legatees, are unaffected by the failure to probate the will of Kaspar Auch in the state of Mississippi until the year 1893; and also that in determining whether the will of Kaspar Auch was valid, and passed the real estate belonging to the testator in the state of Mississippi, the constitution of the state of Mississippi declared and put in force in 1890 need not be considered, except so far as the provisions of the said constitution may aid the court in determining what was the policy of the state of Mississippi in the year 1886 in regard to devises to religious corporations in trust for charitable uses. So far as the will under consideration makes a devise for charitable uses, we understand that the rule against perpetuities cannot be invoked against it. Jones v. Habersham, 107 U. S. 174-. 185, 2 Sup. Ct. 336; Russell v. Allen, 107 U. S. 163, 2 Sup. Ct 327; Ould v. Hospital, 95 U. S. 303; 1 Perry, Trusts, 384.
Having eliminated all the objections made to the introduction of Kaspar Auch’s will as probated in 1893, in evidence on the trial of the case in the court below, except the objections, stated in various forms, that the will is invalid and did not pass title to real estate in Mississippi because the devise of real estate to religious corporations in trust for charitable uses was contrary to the law and public policy of that state, we now proceed to consider that question, the main one in the case.
"For, besides the admitted incapacity of a corporation of one state to exercise its powers in another state, except with the assent and permission, expressed or implied, of the latter, it is a principle as inviolable as it is fundamental and conservative that the right to hold land, and the mode of acquiring title to land, must depend altogether on the local law of the territorial sovereign.' Runyan v. Lessee cf Coster, 14 Pet. 122; Lathrop v. Bank, 8 Dana, 114." Christian Union v. Yount, 101 U. S. 332–351.
The following propositions are declared in the headnotes of the case:
"In harmony with the general law of comity among the states composing the Union, the presumption is to be indulged that a corporation, if not forbidden by its charter, may exercise the powers thereby granted within other states, including the power of acquiring lands, unless prohibited therefrom, either in their direct enactments or by their public policy, to be deduced from the general course of legislation or the settled adjudications of their highest courts. This court cannot presume that it is now, or was in 1870, against the public policy of Illinois that one of her citizens owning real estate there situate shoula convey it to a benevolent or missionary corporation of another state of the Union, for the purpose of enabling it to carry out the objects of its creation, since she permitted her own corporations, organized for like purposes, to take such real estate by purchase, gift, devise, or iu any other manner."
There are no settled adjudications of the supreme court of the state of Mississippi declaring the public policy of the state to be for or against the power of religious corporations of the state to take, or take and hold, as trustees for charitable uses, any devises of property real or personal made by her own citizens or by foreigners. The only case we find, or to which we have been cited, in which the supreme court has at all considered the question, is Wade v. Society, 7 Smedes & M. 663. It was held in that case that the trusts created by the will of Isaac Ross in favor of the American Colonization Society, looking to the emancipation of slaves, were legal and valid, being sufficiently definite and certain for a court of equity to enforce them by virtue of its ordinary jurisdiction. In relation to charitable trusts, and whether the statute of 43 Eliz. was in force in the state of Mississippi, the court said:
"It is next contended that if these devises are invalid, either for want of capacity to take on the part of the donces, or of the trustees, then equity cannot enforce them as charities. To this we reply that if the trusts created by this will be valid, then there is no room and no necessity for the application of the doctrine of charities. It is only where the bequest or devise is too vague or indefinite for those intended to be benefited to claim any interest under them that the doctrine as to charities arises. It is clearly settled that 'definite charities are trusts, which equity will execute by virtue of its ordinary jurisdiction.' Gallego's Ex'rs v. Lambert, 3 Leigh, 450; Inglis v. Trustees, 3 Pet. 100. Charities begin where definite trusts end. It is therefore wholly unnecessary for us to inquire whether St. 43 Eliz. is in force in this state, and whether the court of chancery has any jurisdiction over charities to compel their performance, apart from and independent of that statute. It may not be out of place, however, to remark, as this point was urged in argument with great zeal, that in the late case of Vidal v. Girard's Ex’rs, 2 How. 127, that court modified very much, if it did not overrule, the case of Trustees v. Hart's Ex’rs, 4 Wheat. 1. The court there said that 'new sources of information, recently developed, established conclusively that, long before that statute, courts of chancery exercised jurisdiction over charities, not only where they were indefinite in their nature, but where either no trustees were appointed or where they were not competent to take.' The opinion was delivered by Judge Story, and must be regarded also as an abandonment of the opinion upon this subject expressed in his Commentaries upon Equity. But in this case it is matter of speculation rather than of practical use, because we see no reason to change the former opinion, that these trusts, so far as it is necessary now to determine them, are valid.”
There is some discussion in the briefs of counsel as to whether the court in that case approved of Gallego's Ex’rs v. Lambert, 3 Leigh, 450, or of Vidal v. Girard's Ex’rs, 2 How. 127, as to the effect of the repeal of 43 Eliz., and in regard to the power of courts of equity to enforce charitable trusts. As we read the case, we incline to the opinion that the court cited Gallego's Ex’rs v. Lambert only for the proposition that “definite charities are trusts, which equity will execute by virtue of its ordinary jurisdiction,” and that, as to whether courts of chancery have any jurisdiction over charities to compel their performance apart from and independent of 43 Eliz., the court leaned to the doctrine declared in Vidal v. Girard's Ex’rs. But it is not important to be accurate in regard to this matter, because it is certain that Wade v. Society cannot be held as declaring any public policy of the state in relation to charitable trusts. So far as the laws of the state of Mississippi are concerned, our examination leads us to the conclusion that in relation to devises in favor of religious corporations in their own right, or to such corporations as trustees for charitable uses, the public policy of the state of Mississippi has not been uniform. In the early days, and up to 1838, the legislature incorporated some 46 different churches. Hutch. Code Miss. 335, 336. So far as we have been able to examine these charters to ascertain the power generally given the respective churches to take and hold real estate we find generally that the power is ample, and that the churches: were highly favored. Rev. Code Miss. 1824, pp. 596–603. In 1838 an act was passed granting certain powers and privileges to the officers of organized religous societies, in which it was enacted that;
"Hereafter when any body of people shall organize themselves as a religious sect, and shall establish a place of worship, it shall be lawful for the officers of such body, so organized, or such trustees as shall be duly elected, or appointed by said body, to receive by gift, grant, or purchase, any lands, tenements, or other property, for the use and benefit of said body, or their successors, to be used and enjoyed by them, so long as they or their successors shall continue to worship at such place so established.” See Hutch. Code Miss. p. 324.
So far as we are advised, this remained the law until the Code of 1857, which provided a general law for the chartering of corporations by the governor, with the approval of the attorney general,
and declared that thereunder charters may be granted for the following purposes only, to wit:
“For the incorporation of cities, towns, Masonic and Odd Fellows' lodges, temperance societies and associations, charitable associations, literary institutions or associations, religious societies, fire companies, mechanics' societies, manufacturing companies, agricultural societies, associations formed for the building of theatres and hotels, and telegraph companies." Code 1857, c. 35, $ 1.
Section 10 of said chapter contains the following provisions as to religious societies or congregations:
"Art. 53. Any religious society or congregation, or ecclesiastical body, may hold at any one place, a house or tenement for a place of worship, with proper and reasonable ground thereto attached; a house or tenement as a place of residence for their pastor or minister, with proper and reasonable ground thereto attached; a house or tenement to be appropriated and used as a male school or seminary of learning, with proper and sufficient ground thereto attached; and another house or tenement to be appropriated as a female school, or seminary of learning; and a cemetery of sufficient dimensions, and no more. Provided, that any religious society or denomination may own such colleges, or seminaries of learning, as it may think proper, if used for such purposes.
"Art. 54. All lands, tenements, or hereditaments, or any interest or benefit therein, or therefrom, except for the purposes provided in the foregoing article, which may be given, granted, conveyed, leased, or released, to any religious society, denomination or congregation, either directly or indirectly, or in trust or confidence for the use or benefit of such society, either express or implied, or secret, or by the judgment of any court, or by way of lien, mortgage or pledge, shall be ipso facto, by such alienation, forfeited to the state; nor shall such society, denomination, or ecclesiastical body, by any act or ingenuity, appropriate, or have appropriated, to its use, or for its benefit, or to its disposition, any present or future interest in lands, tenements, or hereditaments, other than to the extent above mentioned; nor shall any such society evade this provision, by any device or subterfuge, in taking or holding more land for any of the purposes above mentioned, than is necessary.
"Art. 55. Every devise or bequest of lands, tenements, or hereditaments, or any interest therein, of freehold, or less than freehold, either present or future, vested or contingent, or of any money directed to be raised by the sale thereof, contained in any last will and testament, or codicil, or other testamentary writing, in favor of any religious or ecclesiastical corporation, sole or aggregate, or any religious or ecclesiastical society, or to any religious denomination, or association of persons, or to any person or body politic, in trust, either express or implied, secret or resulting, either for the use and benefit of such religious corporation, society, denomination, or association, or for the purpose of being given or appropriated to charitable uses or purposes, shall be null and void, and the heir at law shall take the same property so devised or bequeathed, as though no testamentary disposition had been made.
"Art. 56. Every legacy, gift, or bequest, of money or personal property, or of any interest, benefit or use therein, either direct, implied, or otherwise, contained in any last will and testament, or codicil, in favor of any religious or ecclesiastical corporation, sole or aggregate, or any religious or ecclesiastical society, or to any religious denomination or association, either for its own use or benefit, or for the purpose of being given or appropriated to charitable uses, shall be null and void, and the distributees shall take the same as though no such testamentary disposition had been made.” See Hutch. Code Miss. pp. 302, 303.
The foregoing provisions are reproduced in sections 2438–2441, C. 55, art. 7, Code 1871. Under the provisions of these two Codes, there can be little doubt that the power of religious corporations in the state of Mississippi, so far as they could be controlled by statute, were restricted so that no religious corporation could take a devise