Levy v. Levy.

forever inviolate, for the purpose of sustaining this institution"-the said school. 1. There is, therefore, no power of alienation of the estate in question, either during a life or lives in being, or in any other period during all time; but the property is to be locked up in mortmain forever. 2. The trustees of the estate, therefore, whoever they might be, must of necessity, by the terms of the devise, hold all the property in perpetuity, and can never in any manner alienate the same.

VI. The direction to the executors to invest the funds arising from said estate, "as fast as they accumulate,” in stocks, and "to hold the whole of the property," until the proper steps shall have been taken "by congress or the legislature of Virginia, or by the said Hebrew Benevolent congregations, to receive the same, and discharge the said executors," is manifestly void, as being in contravention of the statutes of this state in respect to accumulations. No accumulations are valid, except in behalf of minors.

VII. The construction of wills, and the validity of all devises and bequests made by any person domiciled in this state, or relating to lands in this state, are regulated by the lex domicilii, or the lex rei sitiæ, and not by the law of the state where such provisions are intended to be carried into material effect. (Bascom v. Nicholl's Ex'r, Gen. Term Sup. Ct. June, 1862.) First. As to personal property. (a.) The bequest of personal estate in a foreign jurisdiction does not disturb the operation of the rule that the lex domicilii governs the disposition of personalty. (Story on Confl. of Laws, §§ 38, 101, 479. Phillimore on Domicil, pp. 16, 19. Westlake, Private International Law, [Law Lib. N. S. 85,] 259, 314.) (b.) The bequest of personal estate to be applied to lands in another jurisdiction, is no exception to the rule that the law of the domicil governs the disposition of the personalty. (Wood v. Wood, 5 Paige, 596. Hill on Trustees, pp. 454, 468.) In Wood v. Wood, the testator, whose domicil was in the state of New York, directed that personal VOL. XL. 39

Levy v. Levy.

Story on Confl. of Att'y Gen. v. Stewart,

estate and the proceeds of real estate required to be converted into personal, should be invested in lands in the state of Ohio, upon trusts valid in that state, though invalid here; and it was held by the chancellor that the direction to invest "in the purchase of Ohio lands, upon trusts which are illegal here, cannot be sustained." (Id. 603.) Second. As to real estate. (a.) The devise of lands in this state is also governed by the law of this state, lex rei sita, though made to a foreign devisee. (Banks v. Phelan, 4 Barb. 88. Boyce v. City of St. Louis, 29 Barb. 653, 657. Laws, 428. Burge, Com. 857, 858. 2 Meriv. 143. Mayor of Lyons v. East Ind. Co. 1 M. P. C. 175.) In Boyce v. City of St. Louis, a devise for charity to the city of St. Louis, was declared void, under our statute, providing 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. p. 57, § 3.) (b.) Though by the law of the foreign country, where bequests or devises for charity are intended to be carried out, such bequests and devises are valid as charities, and though by that law, such bequests and devises are valid, notwithstanding they create perpetuities, still such charitable bequests and devises, if not valid by the law of the domicil, and by the lex rei sita, will not be valid at all. (Story on Confl. of Laws, § 479. Story's Eq. Jur. § 1184. Curtis v. Hutton, 14 Ves. 537; 8 Simons, 300. Phelps v. Phelps, 28 Barb. 127; 23 N. Y. Rep. 69. Boyce v. City of St.. Louis; Banks v. Phelan, as cited supra. Burns, Ex. v. Smith, 7 Verm. 241. Magill v. Brown, 1 Brightley, 369.) (c.) The converse of the last rule is true; that is to say, bequests and devises valid by the law of the domicil, or by the lex rei sitæ, are sustained, though to be performed in a foreign country. (Magill v. Brown, cited supra. President of United States v. Drummond, Rolls, 12th May, 1838, cited 7 Cl. &. F. 155.) The only exception to the rule in respect to personalty is, where the assets are situated in a

Levy v. Levy.

Story on Confl.

foreign country, and the disposition made, is against the law or policy of such country. (Skiff v. Solace, 23 Verm. 279. Mahomer v. Hose, 9 Smedes & Marsh, 247. of Laws, § 38. Westlake, Int. Law, 314.) In the present case, the domicil, and the assets, including the lands, except the farm at Monticello, are in the state of New York, so that the whole question must be governed by our law.

VIII. The first devise is a present devise, intended to take effect as a valid gift on the testator's decease, subject to be divested on failure of congress to act. The devise over to the people of the state of Virgrnia, is a future devise, intended to divest the first devise on a future contingency; and the same character attached to the devise to the religious corporations. There were no devisees or trustees at the testator's decease, competent to take, and the entire scheme depended upon legislation.

IX. It is well settled by decisions in the supreme court of the United States, that a present devise to persons incompetent to take, namely, an unincorporated association, is void, and cannot be helped by the statute of 43 Elizabeth, as to charitable uses. (Baptist Association v. Hart's Executors, 4 Wheat. 1. Inglis v. Trustees Sailors' Snug Harbor, 8 Peters, 99.)

X. By parity of reasoning, no future devise to persons incompetent to take at the testator's decease, can be made good by legislative act creating such competency-for it is not the case of a devise to a corporation to be created—but the devise is immediate to the people of the United States, or future to the substituted devisees; and the intended acts of legislation in question were for the purpose of working out the objects of the testator, and not to create a corporation to take and hold the property. This conclusion is subject to an exception in respect to the Hebrew Congregations, who were expected "to hold" the estate; but if they were incompetetent on the testator's decease, no future act of legisla

Levy v. Levy.

tion could render them competent, to take the property from the heir.

XI. But it is well settled, by repeated decisions in this state, whose laws regulate the whole subject matter of the will, that the gift of real or personal estate to charitable uses, without interposing trustees, competent to take and administer the trust, or to an unincorporated association, or to a future corporation, whose coming into existence is not limited on lives, is void, both at law and in equity; and cannot be sustained by any exercise of the ordinary judicial jurisdiction of the court of chancery. The statute of Elizabeth does not, and never did exist in this state. (Jackson v. Cory, 8 John. 388. Hornbeck v. Westbrook, 9 id. 73. ary Association, 14 N. Y. Rep. 381. id. 69. Beekman v. Bonsor, Id. 298. shall, Id. 366.)

Owens v. MissionPhelps v. Pond, 23 Downing v. Mar

XII. Devises and bequests to corporations to be created, though at one time supposed to be valid as executory devises at common law, cannot be supported in this state, since the revised statutes, unless limited to take effect on lives.

XIII. Lands were not devisable at common law, nor until the statute 32 Henry VIII. Corporations were expressly excepted from the benefit of this statute. That which was simply an exception under that statute, has been changed to an express exclusion in this state, and no corporation can take by devise unless authorized by its charter or statute. (2 R. S. 57, § 3.) The general statute excludes all corporations from taking real estate by devise or bequest. (1 R. S. 602, § 3.) A devise in trust for a corporation is invalid. (Theological Seminary of Auburn v. Childs, 4 Paige, 423.) A devise to a corporation in trust for an unincorporated church has been held invalid, though an act of the legislature was urged as ground for giving a capacity to take by devise, back by way of relation to the testator's death. (Jackson v. Hammond, 2 Caines' Cases in Error, 337. 1 Greenleaf's Laws, 71. McCartee v. Orphan Asylum, 9 Cowen, 437.)

Levy v. Levy.

XIV. If it be admitted, as it must be, that at the testator's death there was no competent devisee or legatee, and that some legislation was necessary to effectuate the purposes of the disposition, that legislation must necessarily be foreign, viz: by congress, or the state of Virginia. The devolution of property in this state cannot possibly be affected by the action of the legislatures of other states, or of the congress of the United States. 1. The rights of the heirs and next of kin vested immediately on the testator's death. They cannot be divested by an act of legislative authority. No acts have been passed by congress or the legislatures of Virginia and New York, nor is it likely any ever will be passed; for the reason, that on the testator's decease there was no corporation existing, nor any definite devisee to take the estate, and the property therefore vested instanter in the heirs at law and next of kin, and cannot be divested by any ex post facto exercise of legislative authority. 2. All any legislature could do, would be the creation of some body, which could take the property under the testator's will. 3. So that if the validity of the devise depended on such a creation, then the act would answer the purpose. 4. But if the validity of the disposition depended upon there being a competent devisee at the testator's death, then it is clear: That a title by succession, for want of interruption by a present valid gift to parties having a present capacity to take, cannot be affected by statute, so as to give a retrospective effect to a corporation which did not exist when the succession devolved. How can there be a present valid vested title in the heirs and kin, for want of other persons competent to take, and yet this title depending on the volition and future action of a foreign legislature? The right of succession can be interrupted only by the act of a competent testator substituting instead of the heir, a competent donee.

XV. Even where the devisee selected as a trustee is competent, the beneficiaries being uncertain, the court of chancery has no jurisdiction to enforce the charity, and the trust