Statement of the Case.

204 U.S.

IGLEHART v. IGLEHART.

APPEAL FROM THE COURT OF APPEALS OF THE DISTRICT OF

COLUMBIA.

No. 158. Argued January 15, 16, 1907.-Decided February 25, 1907.

In a general code such as that of the District of Columbia a later section does not nullify an earlier one as being the later expression of legislative will; the whole code should, if possible, he harmonized and to that end the letter of a particular section may be disregarded in order to accomplish the plain intent of the legislature.

Section 669 of the Code of the District of Columbia making it lawful for cemetery associations incorporated under the laws of the District to hold grants in trust without time limitations is not nullified by § 1023 limiting trusts to one life in being and twenty-one years thereafter. In pursuance of the general comity existing between States a trust permitted by the laws of the District of Columbia in favor of cemetery associations incorporated under the laws of the District will be sustained in favor of a cemetery association of a State which has power under the laws of that State to hold property under similar conditions. 26 App. D. C. affirmed.

THIS is an appeal from a decree of the Court of Appeals of the District of Columbia, affirming a decree of the Supreme Court of the District construing a will. 26 App. D. C. 209. The bill was filed by the executor of the will of Annie E. I. Andrews, who was a resident of the District at the time of her death, and whose will was there duly admitted to probate March 28, 1904. The Supreme Court held that all disputed provisions of the will were valid and entered a decree to that effect, which was affirmed by the Court of Appeals, on an appeal taken by these appellants separately from the other parties defendant, by leave of the Supreme Court of the District. All necessary persons were made parties to the suit. The deceased left an estate of about $10,000, of which $3,000 consisted of real estate in the city of Washington.

The disputed portions of the will are clauses one, ten and twelve, and they are set forth in the margin.1

1 First, I give, devise and bequeath unto the Greenwood Cemetery Company, of Brooklyn, New York, as trustees, my real property, consisting of a

J. Howard Iglehart, the executor, is the son of a deceased brother of the testatrix (mentioned in the first clause of the will), and the two appellants are, respectively, her brother and sister.

The executor, in his bill, alleged his readiness to distribute the estate as directed by the will, but he said that some of the heirs at law disputed the validity of some of its provisions, and hence his appeal to the court for a construction of those clauses.

The grounds of the dispute are stated to be that the trusts created in the first and twelfth clauses of the will are void, as in violation of the statute of the District of Columbia prohibiting perpetuities and restraints upon alienation. Sec. 1023, Code D. C. The devise of the real estate is alleged to be void on that ground, as is also the residuary bequest to the cemetery company, while the direction to erect a monuhouse and lot, known and designated as house No. 88 M. street, northwest, in the city of Washington, District of Columbia, to be held by them in trust for and to the use of my brother, J. H. Iglehart, and his wife, Jennie Iglehart, of Baltimore, Maryland, during their life or the life of either of them; provided, they shall keep the said property in repair and pay the taxes thereon. At their death, or upon their failure to comply with the condition to keep said property in repair and pay the taxes thereon, it is my will and desire that the said property shall be sold, and the proceeds of such sale shall be invested in United States securities, the interest or income from such said investment to be used by the Greenwood Cemetery Company, aforesaid, as trustees, for the purpose of keeping the Andrews cemetery lot in perpetual good order and condition.

Tenth, It is my will, and I order and direct that five thousand dollars be raised out of my estate to be expended in erecting a suitable monument at the grave of my dearly beloved husband E. L. Andrews, in Greenwood cemetery, Brooklyn, New York.

Twelfth, It is my will, and I order and direct that all the rest and residue of my estate, real, personal, and mixed, wheresoever it may be found, and of whatsoever it may consist, shall be converted into cash, and said cash invested in United States securities, the interest and income from such securities shall be used by the said Greenwood Cemetery Company, of Brooklyn, New York, as trustees, in addition to and together with the trust fund hereinbefore mentioned in clause one of this my last will, for the purposes and to the benefit of beautifying and keeping the aforesaid Andrews' cemetery-lot in perpetual good order and condition,

ment, as provided in section ten of the will, it is alleged, must fall with the destruction of the trust, as it is part of the general scheme of the will, and is inseparable from the trust provisions. The executor submitted the questions to the court and did not appeal from the original decree nor from the decree of affirmance by the Court of Appeals, and he now asks that this court should make proper provision for his protection and that of the estate, in regard to the costs involved by the contention between the defendant and the appellants.

Mr. Andrew Wilson and Mr. Noel W. Barksdale for appellants:

As the will creates a future estate, suspending the power of absolute alienation of property beyond life or lives in being and twenty-one years, it is in restraint of alienation and a perpetuity, and, therefore, void in its creation. Piper v. Moulton, 72 Maine, 155; McIlvain v. Hockaday (Texas), 81 S. W. Rep. 54; Corle's Estate, 61 N. J. Eq. 409; Sherman v. Baker, 20 R. I. 446; Kelly v. Nichols, 17 R. I. 306; Hartson v. Elden, 50 N. J. Eq. 522; Read v. Williams, 125 N. Y. 560; Coit v. Comstock, 51 Connecticut, 352; Fite v. Beasley, 80 Tennessee, 328; Detwiller v. Hartman, 37 N. J. Eq. 347; Church Extension v. Smith, 56 Maryland, 362.

The validity of the bequest and devise is to be determined by the laws of the District of Columbia.

The validity of a devise, as against the heirs at law, depends upon the law of the State in which the lands lie, and the validity of a bequest, as against the next of kin, upon the law of the State in which the testator had his domicile. Jones v. Habersham, 107 U. S. 174-179; Vidal v. Girard, 2 How. 127; Wheeler v. Smith, 9 How. 55; McDonough v. Murdoch, 15 How. 367; Fontain v. Ravenel, 17 How. 369; Perin v. Carey, 24 How. 465; Lorings v. Marsh, 6 Wall. 337; United States v. Fox, 94 U. S. 315; Kain v. Gibboney, 101 U. S. 362; Russell v. Allen, 107 U. S. 163.

204 U. S.

Argument for Appellants.

Even though there is equitable conversion from realty to personalty, yet the bequests will nevertheless fall within the prohibition of the statute. Cruikshank v. Home, 113 N. Y. 337; In re Walkerly, 108 California, 627; Underwood v. Curtis, 127 N. Y. 537; Penfield v. Tower, 1 N. Dak. 216; Fifield v. Van Wyck, 94 Virginia, 557; Harrington v. Pier, 105 Wisconsin, 485; Read v. Williams, 125 N. Y. 560.

The doctrine of comity has no application, because to recognize the foreign cemetery company would violate the settled policy of the District of Columbia distinctly marked by Congressional legislation.

The courts seem to be of one accord that comity will not be extended when to do so would violate the public policy as indicated by statute. Comity gives way where the established policy of the legislature indicates to its courts a different rule. Walworth v. Harris, 129 U. S. 364. Comity does not permit the exercise of a power by a corporation when the policy of the State, distinctly marked by legislative enactment or constitutional provision, forbids it. McDonough v. Murdoch, 15 How. 113; Paul v. Virginia, 8 Wall. 168, 181. Courts out of comity will enforce the law of another State, when by such enforcement they will not violate their own. laws or inflict an injury on some one of their citizens, as these courtesies are extended when they are not prevented by some positive law of the State. Franzen v. Zimmer, 35 N. Y. Supp. 612. Mere comity can never compel courts to give effect to laws of another State which directly conflict with the laws of their own State and are contrary to its known public policy. Wharton on Conflict of Laws, § 598.

A state statute granting powers and privileges to corporations must, in the absence of plain indications to the contrary, be held to apply to domestic corporations only. United States v. Fox, 94 U. S. 315; Vanderpoel v. Gorman, 140 N. Y. 563; White v. Howard, 46 N. Y. 144; Matter of Balleis, 144 N. Y. 132; Whitcomb v. Robbins, 69 Vermont, 477; Falls v. Savings Ass'n, 97 Alabama, 417; Holbert v. St. Louis R. R. Co., VOL. CCIV-31

45 Iowa, 23; South Yuba v. Rosa, 80 California, 333; Rumbaugh v. Improvement Co., 106 N. Car. 461.

Section 669 of the Code, being inconsistent with Section 1023 and irreconcilable, the former is absolutely void.

The two sections cannot be harmonized, and the authorities on statutory construction say that where there is an irreconcilable conflict in different sections of a code or of parts of the same act, that the last in order of arrangement must prevail. Sutherland's Statutory Construction, § 268; 26 Am. & Eng. Ency. of Law, § 619; Hand v. Stapleton, 135 Alabama, 156, 162. The will embodied one entire scheme composed of two interdependent parts: (a) The erection of a monument; (b) its care and preservation. If the latter is invalid, the former must fall with it.

The rule is that if some of the trusts embodied in a will are valid and some invalid, if they are so taken together as to constitute an entire scheme so that the presumed wishes of the testator would be defeated if one portion was retained and the other portions rejected, then all the trust must be construed together, and all must be held illegal and fall. Tilden v. Green, 130 N. Y. 29-50; Lawrence v. Smith, 163 Illinois, 149, 165; In re Walkerly, 108 California, 627, 644; Matter of Will of Butterfield, 133 N. Y. 473, 476; Holmes v. Mead, 52 N. Y. 332, 345; Knox v. Jones, 47 N. Y. 389, 398.

Mr. Walter V. R. Berry and Mr. Hugh B. Rowland, with whom Mr. Benjamin S. Minor and Mr. Charles H. Stanley were on the brief, for appellee:

Under the statutes in force in the District of Columbia and in the State of New York, and under the general doctrine of comity obtaining among the States, clauses one and twelve of the will are valid. D. C. Code, Chap. XVIII, sub-chap. VI, sec. 669; Chap. 156, Laws 1839, N. Y.; Christian Union v. Yount, 101 U. S. 352; McDonough's Exrs. v. Murdoch, 15 How. 367.

The Greenwood Cemetery takes the interest in the real