Green v. Anderson , 38 Ga. 655 ( 1869 )

Brown, C. J.

1. The testator, by his will, directed that the boy John be removed to a free State, and there emancipated, and that the expense of his removal, and of his reasonable support and schooling, till he was put to a trade, be paid out of the estate by the executors, and when he arrived at the age of twenty-one, the executors were directed to invest and secure for his benefit, the sum of $3,000 00, to be raised out of the estate of the testator. We hold that this was a legal bequest, and that it constituted a legal trust, which in no way contravened the policy of the State of Georgia at the time the will was made, or at the present time. I will not enter into a discussion of this question. It has been so ably discussed, and the rule so firmly established by this Court in a number of previous cases, as to render it a work of supererogation on my part. See Vance vs. Crawford, 4 Ga., 445; Cooper vs. Blakey, 10 Ga., 263; Sanders vs. Ward, et al., 25 Ga., 109. And see Cobb on Slavery, secs. 282-3-4-5, 353-5-6, 364-5-6-7.

2. The position being established that this was a legal trust, it follows that it was the duty of the qualified executor to execute it. Indeed, it was his sworn duty to execute it. Ilis oath, as executor, bound his conscience to its faithful performance, and I have the authority of the late learned Chief Justice of this Court for saying, that this is a rare exception to the rule, which is, that executors or trustees have been faithful to their oaths in the execution of similar trusts. In Sanders vs. Ward, et al., 25 Ga., 121, Judge Lumpkin, in replying to the objection that such trusts could not be enforced, as slaves, as such, could not sue to have them executed, says: “ This suggestion has been urged again and again, in connection with the point under consideration, in all the slave States — in Alabama, Mississippi, South Carolina, Virginia, as our own past decisions show — and has been invariably overruled. Trustees are selected by the testator, on account of the confidence reposed in them, and usually they will discharge their duty. And if there be doubts, they will apply to the courts for direction. However faithless we may be to the living, we are rarely so to the dead. If the heirs move in the matter, this will give the courts jurisdiction, and they will compel, by their decree, an execution of the trust. How many trusts of this sort all over the slave States, and in this State, have been executed ? Have any failed for want of fidelity in the trustee? This objection is imaginary.” Had the learned Chief Justice lived to try this case, he would have been compelled to admit that at least one exception to the rule that we are not faithless to the dead exists, and that the objection is not in every case imaginary.

But, did the failure of this executor to execute this will, in compliance with the solemn oath which he had taken, and his conduct in retaining John as a slave in this State, in palpable violation of what he knew to be the wish and will of his father-in-law while in life, destroy the trust, and leave the cestui qui trust after he came of age, and became free, without a remedy ? We think not. Equity considers that done which ought to be done, and directs its relief accordingly. Revised Code, section 3031. This trust was a legal one. It ought to be executed, and a Court of Equity will so direct its relief as to enforce its execution.

3. But it is insisted that the changed condition of the country, renders it impossible to execute the trust, as John has become free in Georgia, and no one has the right to compel him to go to a free State, as directed by the will. And it is further urged, with great earnestness, by the learned counsel for the plaintiff in error, that John has the right to sue in the Courts of Georgia, for any legacy given to him while a slave, or for the execution of any trust that was created in his favor while he was a slave. While we admit the ingenuity of the argument, and admire the ability with which it was urged, we can not subscribe to the proposition as a sound one. It is true, the will can not now be literally executed. By the neglect of the executor, to use the very mildest term, John was not permitted to go to a free State while a minor, as directed by the testator. But soon after he came of age, the free state, by the results of the late unfortunate civil war, came to him. He not only became a free man, but he acquired a status in the Courts of the State. He acts for himself, and has the right to litigate with the executor on terms of equality before the law. And, we hold that he now has the right, in a Court of Equity, to call the executor to account, and to compel the execution of the trust in his favor in accordance with the will, or as nearly so as the changed condition of the country will permit, and to recover, not only the legacy left him by the will, but such reasonable and just compensation for the support and education which the will directed that he should have, as may be found to be due and unpaid.

4. It was insisted that the rule which we have adopted in this case, if announced, would lead to an immense amount of litigation, as it would authorize freedmen to maintain suits in the Courts of this State, for injuries done to their persons while they were slaves, and for wages during the same period. We anticipate no such results. There is a very broad distinction between the rule which we maintain and the one which counsel insists will follow as a necessary consequence. We hold that a freedman of legal age, may commence proceedings to enforce, in the Courts of this State, any existing legal or equitable right, created in his favor while he was a slave, that did not then contravene the policy or violate the laws of the State. If, in other words, a legal trust was created in his favor, while he was a slave, which he had no right to ask the Courts to enforce, but which it was the right and duty of an executor or trustee to execute, or to enforce in the Courts for him, he may now institute proceedings in his own name, to enforce it, if the executor or trustee still-refuses to account to him, or fails to execute the trust.

But we hold, that a freedman has no right of action in our Courts, to recover damages for injuries done to his person while he was a slave, or for wages on account of labor done by him as a slave. As the law then stood, his labor belonged to his owner, and the owner alone had a right of action to recover damages for injuries to his person. By his transition from slavery to freedom, no such right of the owner has been transferred to him. I may add, that, under our last statute of limitations, all such actions for personal injuries, not already commenced, are forever barred and foreclosed.

Judgment affirmed.