Levy v. Levy. as this to be invalid. Nor do any of the cases cited in Mr. Bradford's Point No. 23. 38. Even if the devise of the Monticello farm was invalid, it would not make the other devises and bequests for the orphans invalid. Because it is not essential to the interests of the cestuis que trust, that the school should be there. Neither was it the great intention of the testator to make Monticello the chief object of his devise. His grand aim, and most earnest desire, was to benefit the orphan children. Monticello was but one incident towards it. If the legislature should refuse legal provision for such a school at Monticello, that would be no reason why the orphans should not have the rest of the commodore's intentions carried out. Because the state of Virginia wrongs them out of one part of the right, that is no reason why this court should take away the residue of it. If Monticello should burn down, it would not invalidate the devise. If any one forecloses a mortgage on it, or if the state should take it for public purposes, or if a rail road should be laid out through it, the devise would not be invalidated thereby. 39. But if there were any such statute of Virginia, it is not in evidence, and its existence has not been proved in this case. 40. Nor can the courts of this state, by any decision of theirs, make any construction of this will that will have any judicial effect in the state of Virginia. Our courts have no jurisdiction of the question. 41. The courts of the state of Virginia, and of the United States, are the only courts to decide whether the devise of the Monticello farm is valid or invalid. Alexander W. Bradford, for the respondents Joseph M. Levy and others. I. The devise and bequest of the residue. of the testator's estate, real and personal, to the people of the United States, or alternatively to the people of the state of Virginia, are void for uncertainty and want of capacity in the donees to take the property and perform the trust. Levy v. Levy. 1. At common law gifts both of real and personal estate by will to uncertain persons are void. The law requires, in all cases, a competent and definite donee on the testator's decease in order to change the course of succession, and exclude or disinherit the heir. 2. The people of the United States, or the people of the state of Virginia as described in this will, mean either all the people living in those jurisdictions at the testator's death, or else the political bodies known by those names, and having, as bodies politic, perpetual succession. (a.) If the former, that is, the people as individuals, the persons living when the testator died, the devises and bequests are clearly void. No single individual, nor any number jointly less than all, or a clear majority of all the people then living, including the heirs of those since deceased, can take the property and perform the trust. Such a disposition is manifestly impracticable, impossible and void. (b.) If the bequests and devises were intended to be made. to the United States and to the state of Virginia, as political bodies, then likewise they are void, because with us the state has no capacity to take by devise as trustee for the management of a charity. 3. By the original rule of the civil law. legacies to states and corporations were void for uncertainty. Such still remains the rule of the common law except where altered by statute. 4. But under our form of government, the functions of all departments are definitely limited and arranged; and it is not within the powers of the state or any of its departments to administer a charity. 5. It is manifest, therefore, that the trust imposed by the will cannot be performed, except by some congressional or legislative act, and such act has obviously been intended by the testator, for although the devise to the people of the United States is direct and immediate, it has also been made entirely conditional-namely, it is to the people "or such persons as congress shall appoint to receive it," and "should the congress of the United States refuse to accept it," he says, "I then devise and bequeath all the property," &c. "to the people Levy v. Levy. of the state of Virginia, instead of the people of the United States, provided they by act of their legislature accept it, and carry it out as herein described. And should the people of Virginia, by the neglect of their legislature, decline to accept the said bequest, I then devise and bequeath all of my said property to the Portuguese Hebrew Congregation;" &c. provided they procure the necessary legislation to entitle them to hold said estate," &c. II. The devise and bequest of the testator's residuary estate to the religious corporations named in the will are void. These congregations are not entitled to take and hold property, whether in trust or otherwise, for any other purposes than those appertaining to the objects for which they were incorporated. 1. They have no power to act as trustees of a fund designed for other purposes, or as managers of an institution to be founded under their direction, for the purpose of carrying out objects entirely foreign to those contemplated by the law under which they were incorporated. 2. The Hebrew congregation in the city of New York, designated as one of the trustees, was incorporated under the act of 1813, authorizing the creation of religious corporations. (Laws of 1813, ch. 60, § 3. 3 R. S. 2d ed. p. 207.) (a.) Under said act they can only take property devised "for their use.” (Id. 208, § 4.) (b.) Or "purchase and hold" other property, for their use, "or other pious uses." (c.) To "purchase" means to buy and take by grant, and not by devise. (Downing v. Marshall, 23 N. Y. Rep. 366.) (d.) Power to purchase confers no authority to take by devise. (Id.) (e.) But the statute of wills expressly provides that "no devise to a corporation shall be valid, unless such corporation be expressly authorized by its charter, or by statute, to take by devise." (2 R. S. 57, § 3.) (f.) The only authority given to this congregation by the statute is to take by devise for their own use, and, therefore, they cannot take for any other use. (g.) But the provisions of the general statute which defines and regulates the powers of all corporations Levy v. Levy. do not authorize corporations to take by devise or bequest, and whilst enumerating the powers which corporations possess, expressly declare they shall not have any other powers than those enumerated, or which are necessary to carry out the same. (1 R. S. 602, § 3.) (h.) It follows clearly that neither under the statute of 1813, nor under the general law relating to corporations, is there any exemption in favor of this religious corporation from the prohibition contained in the statute of wills, or from the prohibition contained in the statute defining the powers of corporations. 3. As to the religious corporations out of this state, named as trustees in the will, it is manifest: (a.) That they cannot have, by comity, a greater or better title to take, than our own domestic corporations. (Angell & Ames on Corporations, § 161.) (b.) That as they are artificial beings created by some sovereign power, they have no absolute rights beyond the jurisdiction of the sovereignty which created them. (c.) And consequently have no title, at all, as devisees of land or personalty within this state. (d.) For if they could hold property in this state, by virtue of the sovereign power of another state, then the rules which govern the devolution. of property here by our law, may be controlled by a foreign power, to the subversion of our own law. (2 R. S. 458, § 2.) III. The devises and bequests to the people of the United States, the people of the state of Virginia, and to the religious societies, mentioned in the testator's will, were intended to be "in trust." 1. By the revised statutes all express trusts of lands are abolished, except those enumerated in the statute. (1 R. S. 728, § 53.) 2. The trust directed in this case is not among those enumerated. 3. It cannot be sustained as a power in trust, because it does not authorize the performance of any act lawful under a power, as powers are regulated, defined, and limited by our law. (Id. 732, § 58.) It is neither a general nor a special power, under the statute, because it does not contemplate the alienation or disposition of lands. (Id. §§ 77, 78.) Levy v. Levy. IV. Whether the devises and bequests were in trust, or effected a power in trust, they were in contravention and violation of the statute in respect to the alienation of estates. 1. The power of suspending the alienation of estates in land, and the absolute possession of personalty, is expressly limited by statute upon life. It cannot be exercised by any other limitation than upon life. Any other term of limitation, however short, even one day, is unlawful. 2. In the present case, the period during which the congress of the United States, or the legislature of the state of Virginia, shall signify an acceptance of the trusts attempted to be created by the will; or the period during which the legislatures of the states of New York, Pennsylvania and Virginia, may create corporations to perform such trusts, or authorize the religious corporations in question to perform such trusts, is not defined or limited. (a.) In the first place, it is not limited upon life. (b.) It is not limited upon any definite period. (c.) The legislative power may never be exercised. (d.) If it were exercised at any period after the death of the testator, say within a year, and in that case would be valid, it would be valid, if exercised at the termination of one hundred years. (e.) The suspension of the estate would therefore, in such case, depend, not upon the statutory limitation, a life or lives in being, but upon the volition of some legislative body, to be exercised at some indefinite time, or perhaps never to be exercised. The estate might thus be suspended forever. V. The trust intended was, by its own express terms, a trust in perpetuity. This is not left to inference and construction, but is so absolutely declared and particularly provided. The testator designed that there should be no doubt or uncertainty on this point. He says in the most explicit manner, that "under no circumstances can any part of the real or personal estate hereby devised be disposed of," meaning that the corpus or principal of the estate shall never be disposed of, that is to say alienated-"but the rent and income of all said estate, real and personal, is to be held |