himself and his wife should be interred on his home stead at Nashville, called the '• Polk Place;" and to prevent the place from ever passing into the hands of strangers to his blood, he devised the same to the State of Tennessee in trust to permit the same to be occupied by the nearest of kin of the name of Polk, deemed worthy and proper, or in default thereof, by such other blood relation as the State may designate, such occupint to keep the house, premises, and tomb in repair, and preserve the tomb intact. The Polk family, says the " American Law Review," — "were mean enough in the aggregate to join together in a suit in chancery to set aside his will, on the ground that it was void as being contrary to the provision of the Con stitution of Tennessee against perpetuities. The names of these obscure persons, who could only become famous through this act of unmitigated littleness, will not be printed by us. Their names make a long column at the head of a bill in chancery. They claim various por tions of the estate, some of them as small as a one threehundred-and-thirty-seventh part. The infinitesimal mean ness of a person who will join in a bill in chancery to recover a one three-hundred-and-thirty-seventh part of the estate of a deceased President of the United States, who disposed of it by his will in the vain hope of being able thereby to perpetuate his memory, which estate cannot on any estimate be worth more than fifty thousand dol lars, and would probably not sell for half that sum, can be imagined, but can hardly be paralleled. Nevertheless the court, before whom this suit in equity was heard, found itself obliged to administer the law."
Chancellor Allison has set aside the trust. In his opinion he states the claims of the respective parties as follows : —
private person; and 3- the State cannot accept and exe cute the same, it cannot be executed at all. "The State of Tennessee affirms that the main object of the testator was to set apart a small lot of land for a tomb for himself and wife, as a charitable use, which he had the authority to do; and that the other matters of the devise were but incidents in the execution of this purpose, and cannot affect the lawfulness of his principal devise. "This will was written by the testator with his own hand, in the executive mansion at Washington, at a time when he was President of the United States. He was a lawyer of recognized ability, had filled many high public offices with distinction, and reflected great honor upon his State. His will was witnessed by a law partner and a senator in Congress, and named as executor one of the justices of the Supreme Court of the United States. It comes to us with the impression of having been carefully thought out before it was formally put down and pub lished as his last testament. Recently John Shakespeare made a bequest to establish a museum at Stratford-uponAvon in the house where Shakespeare was born. The bequest was assailed as void, because it established a perpetuity. When the case reached the Court of Chancery Appeals, the Lord Chancellor said, in substance, that the inclination of Englishmen to give effect to everything that contributed to the honor of Shakespeare was so strong that it was necessary for the judges to enter into a cove nant not to violate the fixed rules of law established for determining perpetuities."
The Chancellor considers the trust violative of the law against perpetuities, as it was not for public charity. On this he observes : — "Mr. Polk has made no reference to the public in his will; it does not become a factor, whether we consider the will as a provision for his family, or to provide a tomb, or to establish a fund to keep up the tomb. Every essential feature is bounded by his own interests, or that of his family. Those interests are private; the public are not concerned in them."
"The Polk family, descendants of the testator's brothers and sisters, maintain by their bill that the foregoing de vise in trust to the State of Tennessee is void, because : "(l) The State of Tennessee has no power to accept or And he concludes : — execute the trust. "As no one of the different intentions of the testator "(2) The trust is too vague and uncertain. There is no could be carried out without maintaining a perpetuity, the standard, nor are there any reliable means, whereby such whole will must be set aside so far as concerns Polk persons as the testator desires to enjoy Polk Place can be Place, and that property turned over to his heirs-at-law, designated or ascertained. Having reached this result for the reasons given in the "(3) The devise creates a perpetuity by the provision foregoing opinion, it becomes unnecessary to review the that the trust shall be kept there, and kept in repair for other grounds upon which the heirs have placed their ever, and that no building shall ever be erected on that right of action. Although the judiciary have reached this spot. conclusion by an adherence to well-established precedents, "(4) It establishes a perpetuity, in that it provides that the other departments of the State government, it is to be Polk Place shall be held by the State in trust for such persons of the house of Polk as may be designated by the! hoped, may yet find some ways and means to preserve for State from time to time forever, and thereby make said | all the people of Tennessee the tomb of her illustrious son." lands inalienable forever. "(5) It establishes a house of nobility, and secures, It has always seemed to us a pretty hard rule that through the instrumentality of the State, to a succession one cannot provide for the permanent preservation of persons related in blood, privileges and honors incon and care of the last resting-place of himself and bis sistent with the laws of the State. family. As for keeping up his earthly dwelling" (6) The said trust is personal and peculiar to the house, we have no sympathy with that. State, and plainly not committed for its execution to any
