Chase v. Plummer , 1861 Md. LEXIS 29 ( 1861 )

Tuck, J.,

delivered the opinion of this court.

We agree with the judge below, that Mrs. Wells took an absolute estate in the negroes bequeathed by the will of her brother, Jacob W. Brashears, unless the language in reference to their manumission can be construed as limiting that interest. The cases cited in his opinion establish this beyond any doubt.

Whether the will created a trust by implication in favor of the negroes, which may be executed by compelling the appellee, or any person who might happen to have them in possession, to make deeds of manumission to them, is the main question in the cause, and although there are others which, in the view of the appellee’s counsel, entitle him to an affirmance of the decree, we think the construction of the will should not be overlooked, as well on the appellee’s account, who might be subjected to the imputation of holding in servitude persons entitled to freedom; as because the negroes themselves should understand that their claim has been solemnly considered and disallowed by the highest tribunal in the State.

It has-been frequently decided in England and in this country, that words of recommendation, desire, hope, and such like, will raise a trust to be executed by the person to whom they may be addressed. The cases on this branch of jurisprudence were brought before the Court of Appeals in Tolson vs. Tolson, 10 G. & J., 159, where the doctrine was first recognized in Maiyland. But such expressions are not always imperative: they are deemed to be flexible in character, and must yield, if the imputed interpretation be against the rules of law, or so inconsistent with other provisions in the will that both cannot stand together, or if it appear from the whole will and the nature of the property, that the testator meant to depend on the justice and gratitude of the donee, '«r reposed in him a power to execute the supposed trust or not, at his discretion. In some cases where the strongest terms were employed, relief has been denied. So that, while we find the doctrine well established, when courts come to apply ft, the question, whether it is to be recognized in the particular case, is always one of construction, depending upon the whole will.

In the will before us, the language is as plain as in any of the cases to be found in the books — on this point there is no difficulty — yet, looking to the entire instrument, the property, the nature of the supposed trust, and the requirements of our laws in reference to manumission, We have come to the conclusion that such relief cannot be granted. The modes provided b3r law for liberating slaves, we must presume, were known to the testator, and no reason is suggested by the will why he left to his sister the execution of a purpose, supposing he intended the negroes to he free, which he did not accomplish himself. For causes satisfactory to him, and perhaps known to her, he did not provide for their freedom by direct bequest, but confided to his legatee a large discretion, both as to the time and manner of making the manumission. It is manifest that he did not intend their freedom to take effect, at all events, on the death of his sister. She might have left issue, and in that contingency the supposed trust would have Failed, and as her dying without issue was the event contemplated by the will, the trust could not have been enforced in her lifetime without impairing her enjoyment of the bequest to herself; nor could she have been compelled to execute a deed or will, because she was left at large as to the mode of manumission, and no court would have interfered with the exercise of her own judgment and discretion as to the time and mode of doing what the testator had requested. Again, the will looked to the sister’s marriage, and issue of the marriage. The testator knew that if she married, she could neither make a deed or will during coverture, and we must suppose that he made this request with the understanding that, as far as the legatee’s agency was necessary to the gratification of his purpose, her marriage would defeat it, unless she happened to survive her husband; and, on that theory of the case, the execution of the trust might depend on other contingencies than those mentioned in the will, and, in addition to this, by the marriage, the rights of the sister would devolve on her husband, and in that way increase the uncertainties attending the execution of the trust, if any was intended. This event did happen, the husband received the negroes from the executor, and disposed of them by will, as. is alleged, which, perhaps, prevented Mrs. Wells from complying with her brother’s wishes, as expressed in his will.

There are two modes of manumission known to the laws of Maryland, and it has never been held that freedom can be obtained under a trust of this kind. In Mrs. Van Lear’s will, (4 Gill, 249,) the direction'was positive to the executors, whose duty it was to execute the deeds, and the court held that the negroes were free under the will by relation, and that the executors were clothed with a power merely, over which they had no discretion, if they accepted the office of executor. Here the party addressed was not executor, but a legatee, with a discretion, as we think, to manumit or not. He did not manumit them or intend they should be free- under his will, but, if at all, by some act of his legatee, provided she thought proper to discharge them.

We do not think the doctrine of election applies. When it is said that the testator bequeathed' the negroes under the trust and confidence that his legatee would set them free if she died' without issue, the argument assumes what the appellee denies, and which, indeed, is the question at issue — • did she take them under such an imperative trust and confidence? We think she did not, in the sense in which these words, are used in equity; but she had a full title under the will.

We are dealing with the rights of parties under the law, not with the moral duties of Mrs. Wells, or of any claiming under her and her husband. If, as is alleged, the appellee has these negroes in possession, claiming them as owner under Mr. and Mrs. Wells, he must determine for himself whether he will manumit them or not. This court possesses no power to direct it.

(Decided April 1st, 1861.)

Being of opinion that the complainants had no right to relief, the decree must be affirmed, but without costs in either court.

Decree affirmed,