Bateman v. Frisby & Kendig , 15 La. Ann. 58 ( 1860 )

Land, J.

The plaintiff sues for his freedom, and claims title thereto under the last will and testament of his former owner, made and probated in the State of Arkansas.

The law of that State, on the subject of the emancipation of slaves, is as follows :

Sec. 1. Any person may emancipate his slaves by last will and testament, or by any other instrument in writing, under hand and seal, attested by two witnesses, and proved in the Circuit Court of the county where he resides, or acknowledged by the party in the same court.

Sec. 2. Such emancipation shall have the effect to discharge the slave from the performance of any contract entered into during servitude, and shall make such slave as fully and perfectly free as if such slave had been born free.

The testator in his will declared that his slaves should remain in the possession and service of his wife until her death, and that, on the happening of that event, two of them, described by name, should be liberated and set free, and that his other slaves, with their increase before the death of his wife, should be appraised and hired out, after her death, until their hire should amount to two-thirds of their appraised value; then, and in that event, each and every one of them should be liberated and set free from all further servitude whatever, and that the hire of the slaves should be paid over to, and equally divided between his three eldest sons.

The testator, after making his will, made a codicil thereto, in which he declared that his slave Isaac (who is the plaintiff in this suit) should, after his own death, be hired out, and that one-half of the proceeds should go to his wife, and the other half to be equally divided between his four daughters; and that, after the death of his wife, the proceeds arising from the hire of Isaac, instead of going to the use and benefit of his three oldest sons, should be paid over to, and equally divided between his four daughters.

The testator died in 1850, and his widow in April, 1851, and after her death, Isaac was appraised at the value of six hundred dollars, and his hire in the State of Arkansas was worth one hundred and fifty dollars per annum. Some four years after the death of the testator’s widow, the plaintiff was removed from the State of Arkansas, by the administrator, with the will annexed of the estate of the testator, and sold as a slave for life to the defendant, Kendig.

The defence made in this court is, that under the terms of the will, the plaintiff was not entitled to his emancipation until all the other slaves were, that is, until the hire of all the slaves amounted to two-thirds of their appraised value. In our opinion, the plaintiff was not bound to prove more than he has proved on that point in this case, that is to say, that his own hire exceeded two-thirds of his appraised value, before his sale to the defendant; and whatever validity there may be in the defence set up, the plaintiff having made out his own case the burden of proof in support of the defence was thereby thrown upon the defendant, who admits that no proof has been made.

We are not satisfied that there is any error in the judgment of the lower court, based as it is upon the verdict of a jury, in awarding damages in the sum of three hundred dollars to the plaintiff.

It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed, with costs.