Atwood's Heirs v. Beck , 21 Ala. 590 ( 1852 )

CHILTON, C. J.

— Tbe prominent questions presented by tbe record before us, as brought to view by tbe cross assignments of error, may be thus stated :

1. Are the provisions in tbe will' of Henry S. Atwood, which vest tbe bondage, title and ownership of tbe slaves therein named in bis executors, for tbe purpose of their being taken to a free State so as to remain free, and directing certain sums to be invested in lands, and other sums to be loaned out, for their benefit, valid bequests according to tbe laws and policy of this State ?

2. Are tbe legacies to tbe two negroes residing in tbe State of Ohio, Alexander and Ann, legal and valid ?

3. Are the land warrants owned by tbe testator to be regarded as real or personal estate in a court of equity ?

4. Do tbe lands acquired by the testator between tbe date of bis will and tbe period of bis death pass under tbe will, or go to tbe heirs at law ?

Tbe counsel have confined their argument to tbe two inquiries first propounded, and as they alone involve any diffi culty, we propose making them the chief subject matter of discussion in this opinion.

The objections to tbe validity of tbe trusts created by tbe will in favor of the fiegroes, may be thus stated: 1. That tbe bequests are in violíítíion of the laws of this State; 2. That they are opposed to its settled policy as declared by several adjudications of this court; 3. That they are illegal and void, because the legacies do not vest upon the death of the testator, nor at any fixed future period; and 4. Because the court cannot execute the trusts, and the executors holding by a trust which cannot be enforced, it is insisted, should be considered as holding in trust for the next of kin of the testator.

The first, and main inquiry is, are the beqqests in violation of any law of the land ? It is argued, in opposition to them, that the right which a master has to manumit his slaves must be conferred by statute, or it does not exist, inasmuch as the institution of slavery, as it obtains with us, was unknown at the common law, and, as a consequence, the right of manumission, or of enfranchizing them, was unknown.

It has generally been conceded (and I have several times admitted it) that slavery, as it here exists, was unknown to the common law; but upon an examination of the subject, I am strongly inclined to think there was a time in England, when negroes, or heathens and infidels, were regarded as the subjects of property. This may be fairly inferred from British diplomacy and British legislation, as well as from elementary writers and several adjudications. In proof of this, I need only refer to the treaty of Assiento, concluded on the 26th of March, 1713, between the kingdoms of Spain and Great Britain, whereby the latter secured to the British South Sea Company the privilege of furnishing 4,800 slaves to the Spanish colonies in America, annually, for thirty years; to the statute of 5 Geo. II, c. 7, § 4, which declares that negro slaves in America shall be liable to all simple contract debts as well as specialties; to the 32nd Geo. II, c. 31, in the preamble to which it is recited, that the trade to Africa is advantageous to Great Britain, and necessary in supplying its colonies with negro slaves. According to Swinburn, p. 84, 6th Ed., there was a species of slavery in England distinct from villenage; and the author of the Mirror intimates that it was lawful to hold infidel slaves. Mir. c. 2, § 28. Mr. Justice Blackstone (though not altogether consistent with previous declarations of his own) says: “ Whatever service the heathen negro owed to his American master by general, not by local law, the same (whatever it may be) is he bound to render when brought to England and made a Christian.” He also ¡says: “With regard to any right which the master may have lawfully acquired to the perpetual service of John or Thomas, this will remain exactly in the same state as before; for this is no more than the same state of subjection for life which every apprentice submits to for the space of seven years, or sometimes for a.longer time.” 1 Bl. Com. 423.

In Butts v. Penny, 2 Lev. 201, decided in 29th Chas. II, and which was an action of trover for 200 slaves, (or as another report states, for 10 slaves, 20 Str. 51,) the jury found a special verdict, namely: that the negroes were infidels, subject to an infidel prince, and usually bought and sold in India as merchandize, by the custom amongst merchants, and that the plaintiff had bought them and was in the possession of them, and that the defendant took them out of his possession. The court held, that negroes being usually bought and sold amongst merchants in India, and being infidels, there might be a property in them sufficient to maintain the action. Judgment nisi was accordingly rendered for the plaintiff, and on the prayer of the defendant’s counsel to be further heard, leave was granted until the next term. It does not appear what was finally done in the case.

But in Gelly v. Cleve, decided by the Common Pleas in the 5th of Will. & Mary, and reported in 1 Ld. Baymond’s Rep. p. 147, it was adjudged “ that trover would lie for a negro boy, for they were heathens; and therefore a man may have property in them, and that the court without averment made, would take notice that they were heathens.”

So also, in the singular case of Sir Thomas Grantham, reported in 3 Modern Rep. 120, Sir Thomas, as (the report goes, “bought a monster in the Indies, which was a man of that country, which had the perfect shape of a child growing out of his breast as an excresceney, all but the head, and brought him to England and exposed him to the sight of the people for profit. The Indian turned Christian and was baptized, and was detained from his master, who brought homine replegiando for his recovery. The sheriff returned that he had replevied the body, but did not say the body in which Sir Thomas claimed a property; whereupon the sheriff was ordered to amend his return,” &c.

Indeed, it was not until the decision of the case of James Somersett in 1771-2 by the King’s Bench, which called forth the great argument of Mr. Hargrave, that this question appears to have been fully settled in England, at which time, the policy of England in respect to slavery and the slave trade, as well as to villenage, had undergone a change. See 20 State Trials, London Ed. pp. 1 to 81.

Without, however, going further into the old cases, those which I have cited may suffice to show, that it is at least very questionable whether at one period slavery, as it exists among us, was not recognized by the common law. But be this as it may, it is most unquestionably true, that slaves are now regarded by our law as chattels, and the owners thereof have an absolute unqualified property in them; and although such right might not have been recognized by the ancient common law, yet such is the genius and expansive nature of the common law, that it adapts itself to the necessities and exigencies of society, and when a new species of property is introduced, and the statute law is silent as to the rules by which it is to be governed, the common law embraces it, and its rules are applied to it, modified, of course, according to the nature of the property thus subjected to its governance. Navigation and transportation by steam were unknown to our common law ancestors; but no one will contend that, for this reason, the rules of the common law, which are adapted and suited to the nature of such improvements, do not apply. On the contrary, we have daily recurrence to the principles of the common law, to guide us in defining the rights and prescribing the duties of persons in reference to new inventions and improvements, which would otherwise be left to the arbitrary discretion of the judge.

The master, having an unqualified property in his slaves, may dispose of them in any way he pleases, unless restrained by some rule of law, or fixed and settled policy of the State. The jus disponendi, or right of disposing of his property, is an inseparable incident to its absolute and unqualified ownership. This general power which the master has over the slave, both in respect to his treatment and manumission, has been controlled and guarded by legislative checks, prompted alike by humanity for the slave and security for the State. In considering the rules which apply to, and regulate this pe-euliar species of property, we must look upon them in tbe double capacity of chattels and intelligent beings. Considered in this latter capacity, our law, pervaded as it is by the spirit of Christianity, and founded on principles of humanity and benevolence, throws around them its protection. This protection is not only secured by the fundamental law, the Constitution of the State, (Art. vi. §§ 2 and 3,) but many statutes have been enacted to secure the same end. The law punishes an assault or battery upon them by any third person, Digest, 545, § 41; prohibits the master, or any one by his permission or authority, from inflicting cruel or unusual punishment upon them, (ib. 431, § 1); secures to them, in trials for offences above petit larceny, the right of trial by jury, (ib. 474, § 18), and provides them counsel in certain cases at the public expense, (ib. 473, § 13); and the master is bound both morally and legally to supply the slave’s necessary wants, and he may not avoid this liability by voluntarily putting the slave away from him, without providing some one to occupy the relation of master to him. 4 Ala. 66. Subject to these, and other restrictions which we shall presently notice, the right of the master to his slaves is the same with his right to any other chattel. He may sell and dispose of them without writing; may convey, or bequeath them by his last will and testament, absolutely or in trust, precisely as other personal property; and but for the inhibition created by the statute laws, he might at pleasure renounce his property in them by manumission. If the written law was silent upon the right of emancipation, and no consideration of public policy was fairly deducible from it, what law would forbid the exercise of this right ? Certainly not the common law; for the counsel yield this, when they contend that the institution was unknown to that law; but if it were recognized by it, the same right which the lord had to enfranchize his villein would doubtless be awarded the master in respect of his slave. This right, by the ancient English law, the lord exercised at pleasure, by delivering the villein to the sheriff' and publicly proclaiming him exempt from the bond of servitude by manumission; then showing him open gates and ways, and delivering him a lance and a sword, he became a free man, Crabb’s His. of Eng. Law, 82; but after writing became common, they were manumitted or enfranchized by deed.

But, if it is said'the institution of slavery, as it exists here, is more analogous to that which obtained among the Romans, and that we should seek for analogies in the civil law, we reply, that the master, according to that law, could liberate his slaves at pleasure. Justinian’s Inst. Tit. Quibus modis manumittatur § 1;

In McCutchen et al. v. Marshall et al., 8 Peter’s Rep. 220, it was said with respect to the right of the owners of slaves to emancipate them: “As a general proposition, it would seem a little extraordinary to contend, that the owner of property is not at liberty to renounce his right to it, either absolutely or in any modified manner he may think proper. As between the owner and his slave, it would require the most explicit prohibition by law to restrain this right.” It was said, that “ considerations of policy, with respect to this species of property, may justify legislative regulation as to the guards and cheeks under which such manumission shall take place, especially so as to provide against the public’s becoming chargeable, for the maintenance of slaves so manumitted.” See, also, Furguson et al. v. Sarah, 4 J. J. Marshall’s Rep. 103, and cases collated in Wheeler’s Law of Slavery, pp. 279 to 388.

We are, therefore, of opinion, that as between the master and his slave, aside from all statutory prohibition, the right of manumission does exist, and is deducible not only from the absolute ownership of the master in the slave as a chattel, but from analogous rules applicable to slavery as it has obtained in every civilized country, as far as our researches extend, and as sustained by numerous adjudications of our own country.

Let us next turn to the laws of our State, and see how far this right has been restricted.

The first act passed upon the subject, was in 1805, by the legislative council of the Mississippi Territory, entitled “ An' act to prevent the liberation of slaves only in cases hereinafter named, and for other purposes.” The act provides, that from and after its passage, “it shall not be lawful for any person or persons, holding or owning slaves, to liberate them, or any of them, unless tbey first prove, to tbe satisfaction of tbe General Assembly, that sucb slave or slaves bave done some meritorious act, either for tbe benefit of said owner, or-for tbe benefit of tbis Territoryand provides, that in sucb case tbe owner enter into bond and security against sucb slaves’ becoming a charge upon tbe Territory; and provided, also, that sucb slaves should be liable to tbe existing debts of tbe party emancipating them. Nothing -was said in tbis act respecting their removal without tbe limits of the Territory.

Thus tbe law, in respect to emancipation, stood for many years. Divers applications were made under it to tbe legislature, by tbe owners of slaves, for their emancipation. At first, tbey were granted without inserting their removal from tbe State as a condition, but tbe increase of free negroes doubtless suggested tbis provision as necessary, and we find it was generally added after tbe Constitution was adopted. From February, 1818, until December, 1822, there were some fifty slaves liberated by tbe legislative authority; and these frequent applications becoming inconvenient, it was deemed proper to vest tbe power in tbe judge of tbe County Court, which was done by statute in 1834.

By tbe sixth article of tbe State Constitution, title “ Slaves,” § 1, it is declared, that “ tbe legislature shall bave power to permit tbe owner of slaves to emancipate them, saving tbe rights of creditors, and preventing them from, becoming a public charge.”

By tbe act of 1834, it is declared, that “ whenever tbe owner or owners of any slave or slaves, shall be desirous of emancipating sucb slave or slaves, sucb owner or owners shall make publication in some newspaper printed in tbe county where sucb slave or slaves reside, (or, if there be no paper printed in said county, then in the nearest paper thereto,) for at least sixty days previous to the making of tbe application; in which shall be set forth tbe time and place that sucb application will be made, together with tbe names and description of tbe slave or slaves sought to be emancipated; and at tbe time appointed, tbe judge of tbe said County Court may, upon petition filed, proceed to bear and determine upon tbe application so made; and if, in bis opinion, said slaves should be emancipated, in consideration of long, faithful and meritorious services performed, or for other good aud sufficient cause shown, said judge may proceed to emancipate and set free such slave or slaves; and the clerk of the said court shall make record of the same, in a book to be kept for that purpose: Provided, That such slave or slaves shall remove without the limits of this State within twelve months after such emancipation,' never more to return, and that such emancipation shall not take effect until after such removal.” Clay’s Dig. 545, § 37.

The constitutional provision, as well as the acts above referred to, may be regarded, (and indeed it has been so decided,) as a prohibition against the emancipation of slaves in this State, except in the mode pointed out. This question came before this court in the case of Trotter, Adm’r, v. Blocker and wife et al. 6 Por. 269, which was a bill filed b3r the administrator cum testamento annexo of William Butler, deceased, asking directions in reference to certain trusts created by the will. The bequest of freedom to certain slaves was as follows: “It is my will and desire, after my death, that all and every one of my negro slaves be free and emancipated, they and their heirs, forever. I give and bequeath unto my said negroes all my plantation utensils and my kitchen furniture, and give them one year’s clothing and one year’s provision out of my estate; and should the laws of my State be such, that the said negroes cannot remain in the limits of the State free, I give and bequeath the sum of one hundred dollars to the said negroes, to remove them to some other State in the Union.” And the court very properly held, that the bequest of freedom to the slaves was void, as it was to take effect in this State, and the slaves were made the legatees of their own freedom, and as slaves, they were incapable of taking. The marked difference between the bequest above copied and those under consideration in the will of Atwood, is this: In Butler’s will, the slaves were declared free in this State, and provision was made, if they could not remain in this State in that condition, for their removal; while, in the will before us, the slaves are to continue such in this State, and the executors are their owners, but for the purpose of taking them to a free State, where they may enjoy their freedom. In the case of Butler’s will, the bequest of freedom to tbe slaves was void, because tbe cestuis que trust were incapable of taking, and being void, tbe rights of tbe next of kin immediately attacked upon tbe death of tbe testator; but in this case, an executory trust is created by the will, not to vest in slaves, but in free persons — not to vest in this State and work tbe freedom of tbe slaves here, but to vest in them after they shall have been removed. The question, then, resolves itself into this : May tbe personal representative of the testator, in obedience to bis last will, remove the slaves to another State by the laws of which they become free? It is conceded that tbe testator might lawfully have done this, and in our opinion, this concedes tbe whole case; for if the policy of tbe law be opposed to every form of emancipation, and no slave can be emancipated but according to tbe mode pointed out, and it be true that this will is but a device to avoid tbe statute, by effecting the emancipation of tbe slaves through their removal to a free State, it would seem to follow, that if the testator, instead of appointing another to execute his will, had himself effected bis-desire while living, by a removal of these slaves, and tbe investment of moneys for them, he would have been guilty of a violation óf tbe laws of the State. It cannot for a moment be questioned, but that Atwood, while living, could have made the same disjDOsition of his property which he directs bis executors to make. He might have removed the slaves in person, or by bis agent, and there is no law forbidding it. Who is the executor ? He is but the representative of tbe testator, and is influenced by his will to do what he desires, if such desires be lawful: the means of rendering the testator’s will effectual. The testator, as respects the execution of his lawful desires as to the disposition of his property, and which he has expressed in due form, still lives in the executor in legal contemplation. Powell on Devises, 150.

In Alston v. Coleman, 7 Ala. 795, the testator bequeathed a slave to his wife for life, and at the death of his wife, said slave to be set free; and he gave to the use of said slave $1500, to be used subject to the discretion of his executors. The court were first inclined to the opinion, that the bequest was good, and fell' within the principle of the decision of Pleasants v. Pleasants, 2 Call 270, which was a bequest to liberate the slaves in future and at a given period, provided the laws of tbe State should at that time allow' them to be freed. But, as tbe will did not refer tbe bequest of freedom to a future time, so as to take effect or be defeated, according as tbe law might then warrant or forbid it, tbe court was of opinion that it must be construed with reference to tbe laws of tbe State existing at the time of tbe testator’s death, and by this law tbe bequest of freedom being void, tbe trust dependent on it fell to tbe ground. The argument of tbe learned judge who delivered tbe opinion in this case, and tbe reference made, with apparent approval, to tbe case of Pleasants v. Pleasants, is quite persuasive to show that tbe court was of the opinion, that, notwithstanding there was no person at tbe death of tbe testator capable of talcing tbe bequest, yet, if it was given to take effect at a future period, when the party for whose benefit it was created might be capable of taking, tbe trust would be supported.

Tbe trust in tbe will before us, as we shall hereafter endeavor to show, is not for tbe manumission of tbe slaves in this State. Tbe testator was apprised that this could not be done; but, being desirous of giving tbe slaves their freedom and making provision for them, he wills them to tbe executors, to be taken where they may enjoy freedom as well as tbe provision made for them. Such was unquestionably bis intention.

Tbe case of Carroll and wife v. Brumby, 12 Ala. 102, merely decides, that when tbe removal of slaves to a place where they may enjoy their freedom depends upon their election, tbe bequest is void for want of their capacity to elect.

It is very clear that none of the decisions of this court come up to tbe question now involved, and tbe statute law refers merely to tbe emancipation in this State. There is nothing said, either in tbe Constitution, statutes or decisions of Alabama, about tbe power of tbe owner to remove his slaves to a non-slaveholding State, either by himself, bis agent or bis personal representative; nor any attempt to forestall emancipation by such means.

But it is argued that these bequests are opposed to tbe settled policy of this State. Now we have seen, in tbe language of tbe Chief Justice (Collier) in Trotter v. Blocker, 6 Por., 292, that “independent of legislative grant of power, it was permissible at common law for the master to set at liberty bis slaves.” This he might have done in this State, the statutes which prohibit him aside. Much more then might he have sent them out of the State, to be manumitted under a foreign jurisdiction; and we are called upon to restrain, or rather to deprive, the master, or which is the same thing, his personal representative, acting in accordance with his declared will, of this clear common law right. We can only ascertain the policy of the State from the laws which have been enacted by the legislature, or set forth in the Constitution; for, were we to go outside of these for a rule of decision, and look to the conflicting views of politicians, as to what line of policy is most prudent to be pursued by the State; or disregarding these, should ourselves determine that it is wise and politic, as tending to guard the institution of slavery, that no slaves should be permitted to be taken from the State for the purpose of emancipation, we should manifestly assume the functions of legislators, and not judges. The legislative authority has said, that slaves in this State shall continue such while they remain here, unless for good cause shown to the Probate judge, upon the petition of the master, after due publication made, they are set at liberty by the decree of such judge, and then on condition of their removal without the State in twelve months; but the right of the owner to take or send them off as slaves so long as they remain in this state, but for the purpose of emancipation in a State where, by the law, this may be effected, has not been prohibited. Can this court superadd this inhibition? However much we might desire the law to be different, however much we might suppose sound policy requires that a restraint should be imposed upon this natural right of causing one’s property to be removed to another State where it may be dealt with injuriously to our institutions, still, it is not for us to change or make the law. Our solemn duty is to administer it as we find it. It is not for the court, but for the legislature, to determine whether there is too great a disproportion between the white and slave population of Alabama, or what number of slaves would best contribute to the security of the institution, and to the development of the wealth and agricultural resources of the State. If, influenced by our views as to what is the policy of this State with respect to manumission in another State, we should bold that the personal representative of Atwood shall not take the slaves mentioned out of this State, because it would to this extent lessen the number of slaves, and, consequently, the wealth of Alabama, and would be adding to the free negro population of some sister State persons who may contribute to incite our slaves to insubordination or insurrection, upon the same principle we must hold every bequest of a slave to a person residing in a free State void, because, if the executor delivers the slave to the legatee in such State, it works his manumission. Indeed, it is difficult to calculate the results to which such a principle of decision might lead. In this case, the distributees all reside in non-slaveholding States; so of the residuary legatee. Now, although we might hold the will void so far as it directs the removal of the slaves, because its effect would be to emancipate them; it is clear the same result might follow, unless we could also say, that the parties entitled, under the will, to them, should not remove them to their places of residence; for if they should do so, emancipation would follow. But is any such power vested in the court ? Could we declare a bequest of slaves to one whose known feelings upon the subject would prompt him to remove and thus to emancipate the slave, void, as an evasion of the statute against emancipation ? Or can the court hold that, because an abolitionist is next of kin to the slaveholding intestate, the law of succession in such case must yield to the policy of the State against emancipation ? Most certainly not. We must not suppose the legislature of the State unapprised of the condition of the institution, and the history of emancipation by removal of slaves, which has frequently been effected for years past. And it is altogether reasonable to infer that, had such removal been opposed to the policy of the State, laws would have been passed prohibiting it. How far the legislature may go in imposing restrictions on the power of transporting slaves from this to a free State, is not a question now before us, and of course we express no opinion concerning it.

There have been several adjudicated cases referred to by the counsel for the bequests, to be found in the reports of our sister States, fully sustaining the validity of the trusts created bj tbis will. The case of Pleasants v. Pleasants, 2 Call’s R., 270, decided by the Court of Appeals of Virginia in 1799, bas already been incidentally referred to, but deserves a more particular notice. At the time of the execution of the will of John Pleasants, which was under consideration in that case, it was not lawful to emancipate slaves in that State, but the testator being desirous of freeing his slaves, and supposing doubtless that the law would be changed, inserted in his will a provision, that whenever the laws of the country should admit of it, he desired all the slaves of which he was possessed to be immediately free upon their arriving at the ages of thirty years, together with their increase, subject to certain discretionary powers vested in his executors. A law Avas afterwards enacted in Virginia, authorizing emancipation; and the son and heir of the testator brought the bill against the persons to whom the slaves had, in the meantime, been bequeathed, to have them delivered up to him, and to have the aid of the court in directing the mode of emancipating them, &c. The Chancellor held the bequest valid, notwithstanding Avhen the trusts were created the statute forbid emancipation, except for meritorious services to be judged of by the executive; and the Court of Appeals affirmed that view of the decree. They Avere considered executory bequests to vest upon a future contingency, and to be rendered effectual Avhen the trustees might lawfully execute the trust. See also Elder v. Elder’s Executors, 4 Leigh’s Rep., 252. The case of Fisher’s negroes against Dobbs et al., 6 Yerg., 119, goes strongly to support the bequests in • this. It appears in that case, that before any provision was made by the statute law of Tennessee for the emancipation of slaves by will, Peter Fisher, in July, 1827, made his will, containing a provision that all his slaves should be free. The act then in force, authorizing emancipation, required that it should be effected by petition to the County Court or Chancellor, “ and if the court, upon examining the reasons and motives set forth in the petition of the owner, should be of opinion that acceding to the same would be consistent with the interest and policy of the State,” then the court was authorized to sanction such emancipation. Some two years after the making of this will, the legislature of Tennessee passed an act, providing “ that where any person shall, by his last will and testament, have directed any slave or slaves to be set free, it shall be the duty of the executors or administrators with the will annexed, to petition the County Court accordinglyand it further provided, that if they fail or refuse so to petition, the slaves by their next friend may do so, and if the Chancellor is of opinion they ought to be set free, he may so order, requiring bond to indemnify the county as provided by the previous laws.

After the passage of the last named act, the slaves by their next friend filed their bill; but while it was pending, in 1831, the legislature passed an act to explain what they meant by the act of 1829, and in which it was declared, that said last named statute should in no wise be construed to extend to wills which were executed before the passage of said act, and requiring that all suits instituted under said act upon wills made before its passage, should be striclcen from the docket, and the papers were ordered to be transmitted to the clerk of the County Court. The court, held, that the bequest was valid ; that the bill was well filed, and that the subsequent act was unconstitutional, as an unwarrantable interference by the Legislature with the duties devolved by the Constitution on the Judiciary.

Catron, 0. J., said: “ By the common law, the owner of a slave might manumit him at pleasure. The acts of 1777 and 1801 prohibited this, unless the Government consented to the contract of manumission. To give this assent, the County Courts were vested with authority. A deed or will of manumission is not valid, but binds the owner or represesentative of the testator, as between him and the slave. Before the act of 1829, the master or his representative was to do the first act; namely, petition the court for the Government’s assent. The slaves had no power to cause their rights to be enforced in the courts of j ustice.” He then refers to the subsequent act, giving them this power, and says that before its passage the negroes took a right, a common law right, binding on the executors as trustees, but their remedy rested with the executors. He might petition the County Court or not, at his pleasure. If he did, the distributees of Fisher could not complain; citing 2 Yerg., 563. Here, then, was a trust which the trustees might lawfully have carried out. Yet, when it was created, there were no means provided for its enforcement. The case of Elder v. Elder’s Ex’r., supra, furnishes a strong example of an executory trust of freedom, dependent upon removal to a free State, and which removal (to Liberia) was there said not 4o be contrary to any policy of the law. Per Tucker, President, 4 Leigh, 261.

In the case of James Frazier et al. v. The Executors of John Erazier, deceased, reported in 2 Hill’s Ch. R., 304, the testator, by his will, after giving directions as to the disposition of his personal estate and the hiring of his slaves, and making provision for his wife, declared — “ And after the decease of my wife, Nancy Erazier, it is my will and desire that the whole of my negroes be set free by my executors, and the amount of money arising from their hire, be equally divided among said negroes; and if the hire does not amount to one hundred dollars each, it shall be made up to them but of the other part of my estate before mentioned; the interest of the money is to enable them, with the assistance of the G-overnment, to go to Domingo to be colonized, or to any part that "they with Government may choose.”

The bill was filed by the next of kin of the testator, claiming, amongst other things, the negroes and an account of their hire, on the ground that the provisions of the will for their freedom, &c., were void, as being contrary to the policy of the laws of the State of South Carolina. And the Chancellor (Desáussure) who tried the cause in the primary court, was of the opinion that the statute of that State against emancipation, and which declared that “no slave shall hereafter be emancipated but by act of the legislature,” rendered the bequests relating to the slaves absolutely void, and so decreed. Upon appeal, and after able argument, the Court of Appeals held the trusts valid; and O’Neal, J., in delivering the opinion, said: “ As a general rule, to which there is no exception, unless it be by express statutory provisions, it may be laid down, that the owner of property may direct his executor to dispose -of it in any way which he could.” He maintained that, while the act prevented emancipation within the State, it did not deprive the executor of the power of doing what the testator might have done; and as it was clear the testator might' have removed tbe slaves in his life time to a free State, and have thus emancipated them, it followed that his executor could be empowered by Mm to do the same thing.

Perhaps the principle thus broadly laid down by the learned Judge, could not be maintained as of universal application;, nevertheless, we esteem it a general rule, and fully recognize its application to the case before us.

It was argued in the case last referred to, as in this, that there was no means of enforcing the trust, and that it was-consequently void. Upon that point the court say: “ It is said, how can the court compel the executors to carry such a trust into execution ? For the slaves themselves cannot, nor can any other person, for them, file a bill to compel the executors to execute a will in this respect. But I apprehend there is in this case, and others like it, no difficulty. For on a bill filed by the heirs to partition the slaves, the court, if on looking into the will they should find the executors could execute it, by sending the slaves out of the State and there setting them free, would order them so to discharge the trust reposed in them by the testator. In other cases, the executors’ oath to execute the will, and the fair claim which they have to' the confidence of the court by the confidence reposed in them by the testator, are sufficient guaranties that such a bequest will be faithfully executed.” And the slaves in that case were ordered to be forthwith removed by the executors beyond the limits of South Carolina, to some place where it would be lawful to emancipate them, and to be there emancipated, and the provision for such removal was held to be valid. The question, as it is substantially presented before us, has undergone a most thorough and elaborate investigation and discussion in an adjoining State, Mississippi, whose laws upon the subject of emancipation at the time the controversy arose, were not essentially different from our own, save that the legislature, instead of the court, was to judge of the meritorious cause for the emancipation.

In Ross & Ross v. Duncan et al., and the same v. Vertner et al., 1 Freeman’s Ch. Rep., 587, it was held, thatg^ trust created by will for the removal of slaves to Liberia or elsewhere, there to remain free, was not invalid; also, that a trust may be created, which may be perfectly consistent with tbe law, and yet tbe law may bave pointed oat no mode of enforcement; still, it would not interpose to prevent its enforcement, but would leave its execution to tbe voluntary action of tbe trustee, and tbe doctrine, as asserted by Judge O’Neal in Frazier v. Frazier supra, was affirmed, that “tbe right to dispose of property by will is as broad and comprehensive as tbe right of disposition by tbe testator while living.”

Tbe same case afterwards came before tbe High Court of Errors and Appeals of that State, by appeal from tbe decree of tbe Chancellor, (see 5 How. Rep., 305,) and after very able argument by learned counsel, that court affirmed tbe decree, bolding that it was not against tbe policy of the State of Mississippi for tbe owner of slaves to send them out of tbe State for purposes of manumission,' and that a will requiring the executors to send tbe testator’s slaves to Liberia, there to remain free, created a valid trust.

Tbe question again came up in a recent case (1846) before the same court, Wade et al. v. The American Colonization Society, 7 Smedes & Marshall’s Rep., 663, and tbe doelrine as previously asserted, was re-affirmed; and it was held, that tbe Court of Chancery might well entertain a bill at tbe instance of tbe trustee who was charged with tbe duty of removing tbe slaves, so as to enable him to execute tbe trust; that tbe slaves, by tbe will requiring their removal, acquired an inchoate right to freedom, which became perfect upon their removal, and that consequently tbe trusts were not void for want of capacity in them to take. It was, however, stated as a quere, whether, if tbe testator bad required bis slaves to be sent to Africa, and bad appointed no trustee to take them, tbe slaves would have possessed any remedy to enforce tbe trust.

In Leech v. Cooley, 6 Sm. & Mar., 93, tbe testator by bis will directed “ his slaves to be set free and sent to Indiana or Liberia, as they might prefer,” and directed a sale of certain other property, and part of tbe proceeds to be paid to tbe slaves thus liberated.

It was held, that tbe bequests were valid; that tbe executor might proceed in their execution; that tbe bequests to the slaves were not void for want of capacity in them to take; that if they complied with the terms of the will, then the legacy was valid; otherwise, void. It was further held to be the policy of the State of Mississippi to prevent free persons of color from remaining in it, and that such policy did not conflict with the provision in the Federal Constitution which declares “that the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States,” as no person of color could become a citizen within the meaning of this clause. ,

In the State of Georgia, where emancipation within the State is forbidden, it was recently held by the Supreme Court in the case of Vance v. Crawford, 4 Georgia Rep., 445, that.it was not against the policy of that State for the- owner to remove his slaves out of it for the purpose of manumission, and that having this power, he could direct it to be done by will and a bequest to executors for the purpose of manumission by removal, and directions to pay certain sums to the freed persons, were held valid. To these other authorities might be added.; but if any point may be considered as settled by the consistent decisions of our sister States, the cases above cited establish the proposition that, unless restrained by positive enactment, a testator may, by his will, eifect the manumission of his slaves, by vesting the title to them in trustees for the purpose-of their removal to a free State, there to enjoy their freedom.

It is, however, contended by the learned counsel, that it. was the testator’s intention to free his slaves in this State, and the direction to remove them was given merely to enable them to remain in that condition. It is true, the will is inartificially worded, and the construction contended for would appear correct when applied to isolated clauses of it. But it is our duty to arrive at the intention of the testator to be gathered from the whole will, and to give effect to that intention if lawful. Looking to the whole instrument, it is impossible, we-think, to mistake the intention. It is clear that the testator was fully apprised of the impracticability of liberating his slaves, so as to entitle them to freedom in this State. This is shown by the fact, that he vests their bondage, title and ownership in his executors for the purpose of their removal to,, and permanent settlement in a free State, no more to be removed into a slave State, tbe declared object being to enable tbem to enjoy tbeir freedom. He makes provision for their removal, and for their status as slaves to continue until they shall be removed, “ knowing full well,” to use his own language, “they cannot be given their freedom to remain in this State.” The intention also with respect to the legacies we think is clear. The executors were to invest the money bequeathed for the benefit of these slaves in lands, in some one of the States of Indiana, Illinois or Michigan, in part, and the balance to be loaned on interest, which interest is to be paid annually and reloaned; and the titles to the lands and bonds for the money are not to be delivered to them, until after they are removed to á free State and provided for as is required by the will. Here is a future period fixed by the will, when they are to come into the possession of these legacies ; a period at which they shall have acquired the capacity to take. Until then, the executors hold the funds, as they do the bondage and title to the slaves, in trust, upon a use to spring up or attach upon the condition of removal, when the intended beneficiaries shall be capable of taking. Words in praesenti will be taken in a future sense in order to serve the manifest intent. 1 Powell on Dev., 263-4.

Nor is it any valid objection to the validity of the trusts, that no mode has been provided for the enforcement of their execution. Many trusts and conditional bequests may be valid, and yet not capable of being enforced by judicial tribunals. Property may be granted on any condition which is not against the law; as “ an estate, upon condition that the grantee shall go to Rome, and for breach of that condition, the heir may enter, but there are no means of compelling a journey to Rome.” 1 Co. 22 b; 4 Wheat. 35. So, also, in cases where there is a condition precedent to a gift of a legacy, or some act required to be performed by the trustee, and the performance of the act or condition is discretionary with the trustee, there the interest does not vest, until the precedent act or condition is performed; but although the court will not compel the performance of a purely discretionary power, j'et when performed the estate or interest vests. Hill on Trustees, 490, and authorities cited in note o.

Conceding in this case, that there is no one who could compel tbe executor, or the administrator with the will annexed, to carry this trust into execution, and that he must be left to his own conscience, and to the obligation imposed by his official oath, yet, as we have seen that the trusts are not illegal, and the removal may lawfully be made by the representative of the deceased, it is clear the court will not interfere to prevent the trustee from complying with and carrying out the lawful desire of the testator. Whether it is such a trust as the court may compel the execution of, against the will of the trustee, is not now presented before us; it is sufficient that the trustee is willing and proposes to carry it into execution. It is he who interposes these trusts and asserts their validity; and it remains only for the court to direct him to do what, by his answer, he avers his willingness to perform.

The rule, that a court of equity subjects trust estates to the same rules to which a court of law does the legal title, does not affect the validity of these trusts, since it is well settled, that future contingent interests may be limited by will, if they be not too remote, to spring up and attach upon the happening of some subsequent event. And in respect to personal property, it is said, that no intermediate estate is required to support such future contingent interest; but an interest created by executory bequest will be valid, in the absence of such intermediate estate. Williams on Personal Property, 194.

As to the argument that the States whose courts have decided according to the view we have taken of this will, have, by statute, subsequently forbidden the manumission of slaves by directions in wills for their removal to free States, we have only to say, it proves that those States deemed an amendment to the law necessary; but until it is so amended, it is the duty of the courts to give it effect.

2. It follows, from what we have already said, that the legacies to Alexander and Ann, who have been residing in the State of Ohio for many years, are valid. These negroes have not escaped from labor or service, but have been placed in Ohio that they might enjoy their freedom, as is evident from the tenor of the will of their late owner, according to which, they are never more to be taken to a slave State. They must, therefore, be regarded as free persons of color residing in tbe State of Ohio, and as such, are capable of taking. See Tannis v. St. Cyre, at present term; Josephine v. Pantney, 1 La. Ann. Rep. 329; Davis v. Tingle, 8 B. Monroe, 589; see, also, cases cited on the brief.

8. The land warrants, authorizing the selection and location of certain amounts of land out of the unappropriated lands belonging to the Government of the United States, must be regarded as land, and pass to the heir at law, unless specifically devised. They cannot, so far as the rules of descent are concerned, be distinguished from bonds for title to real estate, which go to the heir, unless devised by the will.

4. It is too well settled to require argument in support of the proposition, that only such real estate as a testator had at the time of the execution of his will, passes under it; for, unlike a will of personal estate, a devise operates on real estate owned at the date of the will. It is considered as a conveyance, having its inception at the time the will is executed, and is confined to the particular estate which the devisor then had to dispose of. Lovelass on Wills, 245.

It results from what we have said, that the Chancellor erred in the decree which he made. His decree is, therefore, reversed, and the cause is remanded, that further proceedings may be had in accordance with the views expressed in this opinion.

The course pursued in the case of Frazier v. Frazier’s Ex’r., by the Court of Appeals of South Carolina, and which meets our approbation, will constitute a sufficient guide for carrying the trusts into execution.

As it was proper to obtain the opinion of this court for the direction, as well as protection of the administrator in the discharge of his duties, we think he should pay the cost of this case which have accrued in this court, to be allowed him on final settlement out of the estate he represents. Decree accordingly.