Hooper v. Hooper , 32 Ala. 669 ( 1858 )

RICE, C. J.

The law, as declared in Atwood’s Heirs v. Beck, adm’r, 21 Ala. 590, puts emancipation by the owner of a slave, and by the owner’s executor under the direction of the will, exactly upon the same footing, except as to the executor’s liability to creditors. It proceeds upon such reasoning as the following: that as the owner, during his life, may lawfully carry his slave to a non-slaveholding State, for the purpose of there granting him his freedom, so, after his death, his executor may do the like thing, acting in autre droit, in execution of a trust declared by his will. — See Thompson v. Nowlin, 8 Iredell’s Eq. Rep. 32.

From that position and reasoning it plainly follows, that in the case of a trust in a will, that a slave should be taken out of this State to a non-slaveholding State, and be there set free, the rule cy fres is not adopted or applied; that the court cannot order him to be carried abroad, for the purpose of emancipation; and that until he is carried, in execution of the trust, to the State to which the will directs him to be carried, he does not acquire the capacity of a free man, but remains subject to the disabilities of a slave. As the rule cy pres would not be adopted as against the owner, nor he be compelled by the court to carry his slave to another State for the purpose of emancipation, although he had declared in writing that he would so do; so, that rule will not be adopted as against the owner’s executor, nor will he be compelled by the court, at the instance and suit of the slave, to carry him to the State to which the will directs him to be carried for the purpose of emancipation. The court of chancery will recognize the authority of the executor to execute the trust, and, if by his bill he submits the administration to that court, it might possess the power to enforce its execution, as a condition of giving its aid and relief to him. But the slave cannot enforce its execution by suit. — Abercrombie v. Abercrombie, 27 Ala. 489. The trust is one of that class which may be valid, and yet not capable of being enforced against the trustee, by judicial tribunals. — Atwood v. Beck, supra.

It must be borne in mind, that “ourlaw recognizes no other status than that of absolute freedom, or absolute slavery,” (Abercrombie v. Abercrombie, supra;) aud that the emancipation of a slave cannot, by will, be consummated in this State. Notwithstanding the direction in the will, that the slave be removed to a non-slaveholding State, and be there set free, the disabilities of the slave continue, until he is removed from this State. Such direction in the will confers no right whatever on the slave, until he is removed from this State to the non-slaveholding State, in the execution of the trust declared by the will. Until such removal, the trust as to his emancipation is inoperative ; and a bequest of money to him, or in trust for his benefit, cannot vest in him, nor be enforced by suit in his name. — Graves v. Allan, 13 B. Monroe, 190; Jones v. Lipscomb, 14 B. Monroe, 296.

The complainants in the case at bar were the slaves of John Hooper at the time he executed his will, and at the time of his death. At both those periods, they were in the State of Alabama, and remained in Alabama, as slaves, until after the will of said Hooper (who died in 1848, in Dallas county, Alabama) had been duly admitted to probate in the probate court of said county of Dallas, and until after the estate of said testator had been finally settled, his entire property, except the complainants, had been divided and distributed, and the executor discharged from his office, by the decree of said probate court.

It was by virtue of an agreement made between the free white legatees, at or shortly before said final settlement of the estate of the testator, that the complainants were not divided with the other property of the testator, but were removed from this State to Ohio.

Upon the facts as presented by the record, it is clear that, if the complainants are “free persons of color in the State of Ohio,” as they allege in their bill, they did not obtain their freedom under the will of the testator; nor until after the final settlement of the estate, and the discharge of the executor from his office, by the decree of the probate court having jurisdiction to decree that final settlement and that discharge. Their removal from Alabama to Ohio was not by the executor as executor; for he had, before that, duly ceased to be executor; nor was it under or by virtue of the. will of the testator; but it was after, and under and by virtue of the aforementioned agreement made between the free white legatees; and in making that-removal, the former executor acted not as executor, but as the mere agent or servant of the parties to that agreement. Conceding, then, that the complainants are free, as they allege, they derived their freedom from that agreement. They have no other ground uponwhieh to rest their claim to freedom. When they claim it under that agreement, as they must if they claim it at all, they must take it upon the terms therein specified, and not upon the terms of the will. And the terms of that agreement do not give any support to the claim to the $10,000, or to any other claim asserted here by their bill, but are inconsistent with such claim.

Before the complainants acquired their freedom or any civil rights, and whilst they and their incapacities as slaves were continuing in Alabama, the fund in which they here claim to participate was distributed amongst the free white legatees by the final decree of said probate court in the exercise of its jurisdiction. That final decree was made in February, 1850. The bill was not filed until March, 1853, — more than three years after said final decree. No fraud or mistake in obtaining or rendering that final decree is shown. "Upon the facts as they appear in the record, we deem it clear, that .even if the complainants, under the aforementioned agreement, acquired their freedom after such final decree, such subsequent acquisition of freedom cannot confer on them a right to enforce the claim they here make to a participation in the fund or property which was distributed by final decree as aforesaid before they became free, and more than three years before they filed their bill to enforce their claim.

The decree of the chancellor is erroneous, and is reversed; and this court, proceeding to render such judgment as the chancellor should have rendered, doth order, adjudge, and decree, that the complainants’ bill be dismissed, and that Harriet Hooper and her security for costs pay the costs of the court below, and that Harriet Hooper pay the costs of the appeal to this court, for which execution may issue.