says: "I give it to him if he is capable of receiving it with a substitution over." Further, the matter is very fully discussed in the quotation, but it is not necessary to read it at greater length. Indeed, it was said that it is not to be applied in that way; that the thing itself was such a wicked violation of the law on the part of a testator, that the attempt to give is so bad that it was to be struck at more strongly than anything else— that it was a violation of the law at the beginning, just as if it were a gift to a person inducing him to commit a crime. Their lordships are unable to take that view of it. No doubt it was illegal and illicit; it was inoperative and ineffective, just as in this country it is perfectly illicit for a man to give his real property or his chattels real for the foundation of the most useful charity in the world. But nobody supposes that it is a crime in a man to express by his will the use to which this property should be so given. It would be very difficult indeed to suppose that it ever could be a crime in a testator, who is merely expressing his wishes as to what should be the devolution of his property after his death, to wish that his property should go in a particular direction, even although that direction should be in favour of the illegitimate or adulterine bastard-that it is a crime in him to wish it, leaving it open to the law to say that the wish shall not take effect if that be the view of the law. It is impossible to deal with it on that ground. It could only be void so far as it was inoperative and ineffective. Therefore it was a gift under a will to a person who at the time when the substitution opened was relieved from all incapacity by the intervening Canadian legislation; and their lordships therefore, on the whole, are of opinion that the decisions of the Canadian Courts ought not to be disturbed; and they will humbly recommend to her Majesty that the Appeal be dismissed, with costs.

THE FRASER INSTITUTE CASE.

Judgment 26th November, 1874.

Present: Lord Justice James.

Sir Barnes Peacock.

Sir Montague Smith.

Sir Robert P. Collier.

The questions in this Appeal relate to the validity of a devise in the Will of Mr. Hugh Fraser, a merchant of. Montreal, by

which he devoted the bulk of his property, moveable and immoveable, to the purpose of establishing at Montreal an Institution "to be called 'The Fraser Institute,' to be composed of a free public library, museum, and gallery."

The will bears date the 23rd April, 1870, and Mr. Fraser died on the 15th May in that year.

The devise in question is in the following terms:

"I give, devise, and bequeath, the whole of the rest and residue of my estate, real and personal, moveable and immoveable, of every nature and kind whatsoever, to the said Honorable John J. C. Abbott, and to the said Honorable Frederick Torrance, hereby creating them my universal residuary fiduciary legatees; and it is my will and desire that they do hold the same in trust for the following intents and purposes, namely, to establish at Montreal, in Canada, an institution to be called the 'Fraser Institute,' to be composed of a free publie library, museum, and gallery, to be open to all honest and respectable persons whomsoever, of every rank in life, witliout distinction, without fee or reward of any kind, but subject to such wholesome rules and regulations as may be made by the governing body thereof from time to time, for the preservation of the books and other matters and articles therein, and for the maintenance of order; and for that purpose to procure such charter or act of incorporation as my said trustees may deem appropriate to the purpose intended by me, namely, to the diffusion of useful knowledge by affording free access to all desiring it to books, to scientific objects and subjects, and to works of art; and to the procuring such books, subjects, and objects, as far as the revenue of my estate will serve, after acquiring the requisite property and erecting appropriate buildings, and after paying expenses of management, making always the acquisition and maintenance of a library the leading object to be kept in view. And it is my desire that three persons should be named by my said trustees, to compose with them the first Board of Governors of the

Fraser Institute,' which it is my desire shall always be composed of five persons, professing some form of the Protestant faith, with power to them to supply any vacancy caused by death or resignation, or by crime or offence, the conviction whereof shall vacate the tenure of office of the offender. And it is further my will and desire that my friend the Honorable John J. C. Abbott shall be the first President of the Fraser Institute,' and shall

retain that position during his life. And so soon as the requisite charter shall have been obtained, containing all the powers necessary to carry out my design herein contained, I desire that the residue of my estate and effects, after deduction of the expenses of the management thereof, shall be forthwith conveyed over to the Corporation, to be thereby formed, to be called, the Fraser Institute,' for the purposes herein declared. In order to prevent any difficulty arising in the conduct of the business of the trust hereby created, it is my will and desire that Mr. Abbott, as the senior trustee, shall have a second or decisive voice, in the event of any difference of opinion, between him and his co trustee; and in the event of a vacancy occurring in the said trust from any cause whatever, whereby the number of trustees is reduced from time to time to one, it shall be the duty of the other, and he is hereby authorized to name a trustee to fill the vacancy so occurring, by a notarial instrument to that effect, and thereafter the senior trustee shall have a second or decisive casting vote, in case of difference of opinion. And I hereby confer upon my executors herein before named, full power to settle and adjust all matters connected with my moveable property, and upon my trustees herein before named power to sell and realize such of my estate and effects as they shall deem expedient, to acquire property whereon to construct suitable buildings, and to construct such buildings, and to procced in all respects with all diligence in the carrying out of my desires hereinbefore expressed up to such time as the property and estate hereby devised to them shall be conveyed over to the 6 Fraser Institute.' I desire that the term of office of my executors be continued beyond the term limited by law, and until the duties hereby imposed upon them in the payment of special legacies be completed."

The suit which gives occasion to this Appeal was brought by the Respondents, as the heirs and representatives of the testator, to set aside the above bequest. The Judge of the Superior Court, Mr. Justice Beaudry, dismissed the suit, but his decree was by a majority of three judges to two, reversed on Appeal by the Court of Queen's Bench.

The principal objections to the validity of the gift, relied on at the bar, were:-

1. That dispositions by will made to found a Corporation were prohibited by law, and the whole devise, therefore, failed.

In support of this objection, the 2nd Article of an Edict of Louis XV, published in 1743, which, it was contended, has still the force of positive law, was relied on.

2. That if this were not so, the devise of the immoveable property was void, as being a gift in mortmain.

3. That the gift was to a society of persons, the "Fraser Institute," and that the Society not being in existence at the death of the testator, the whole gift failed.

The Civil Code, (which was promulgated before the date of Mr. Fraser's will) is the primary source from which the law of Lower Canada is now to be drawn. When this Code contains rules on any given subject complete in themselves, they alone are binding, and cannot be controlled by the pre-existing laws on the subject, which can then be properly referred to only to elucidate, in cases of doubftul construction, the language of the Code. On the other hand, when the Code refers to existing laws, not formulated in its Articles, or in so far as on any subject it is silent, inquiry is permissible into the old law, and it will in many cases become a question of construction what and how much of that law remains in force, or is abrogated as being contrary to or inconsistent with the Code. (See Article 2613.)

The general power of testamentary disposition is found in Article 831 of the Code.

"Every person of full age, of sound intellect, and capable of alienating his property, may dispose of it freely by will, without distinction as to its origin or nature, either in favour of his consort, or of one or more of his children, or of any other person capable of acquiring and possessing, and without reserve, restriction, or limitation, saving the prohibitions, restrictions, and causes of nullity mentioned in this Code, and all dispositions and conditions contrary to public order or good morals."

The restriction mentioned in the Code relating to Corporations is contained in Article 836.

"Corporations and persous in mortmain can only receive by will such property as they may legally possess."

The capacity of persons to acquire by testamentary disposition is subsequently defined in a series of Articles under the head, "Of the capacity to receive and give by Will." [Title 2, cap. 3, sect. 1]

The Code appears to embody the legislation, having for its object the freedom of testamentary disposition, which was con

tained in the Quebec Act, 14 Geo. III, c. 83. and the Provincial Statute 41 Geo. III, c, 4. It was held by this tribunal in a late case (King v. Tunstall and others), that the combined effect of these statutes was to abrogate the old law which prohibited gifts by will to adulterine children.

Article 860 was also strongly relied on by the Appellants, as being specially designed to meet such a bequest as the present. It is as follows:

"A testator may name legatees, who shall be merely fiduciary or simply trustees for charitable or other lawful purposes within the limits permitted by law. He may also deliver over his property for the same objects to his testamentary executors, or effect such purposes by means of charges imposed upon his heirs or legatees."

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It could not be denied that the establishment of a public museum, library, and gallery, was in itself, and apart from the manner of its foundation, a lawful purpose." But it was contended for the Respondents that. as the disposition of the property in favour of the Institution was ultimately to be carried into effect by means of a Corporation to be thereafter created, the purpose to be thus carried into effect was not "within the limits permitted by the law."

It is to be observed that the testator does not attempt to create or found a Corporation, but having devised his property to trustees to establish the Institute, directs them to procure for that purpose legal incorporation by means of a Charter or an Act of Parliament.

Now there is no express prohibition to be found in any Article of the Code against such a testamentary disposition; although there are express provisions defining the restrictions and disabilities to which Corporations are subject with regard to acquiring and holding immoveable property.

Thus Article 836, already cited, which is found in the chapter on Wills, allows Corporations to receive by will only such property as they may legally possess.

Then, under the head of "Disabilities of Corporations,” is— "Art. 366. The disabilities arising from the law are— "1. Those which are imposed on each corporation by its title, or by any law applicable to the class to which such corporation. belongs.

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2. Those comprised in the general laws of the country res