Lewis v. Lusk , 35 Miss. 401 ( 1858 )

HaNDT, J.,

delivered the opinion of the court.

This was a petition for distribution of the estate of the appellant’s testator, filed by the appellee in the Court' of Probates of Yallobusha county.

The allegations of the petition necessary to be taken into view, are, in substance, that Robert Lusk died in that county, in the year 1855, leaving a widow, and the petitioner, his mother, the only parties entitled to distribution of his estate; that before his death, he made and published his last will and testament, which had been admitted to probate in that court, and which contains the following clauses: “ Mfth. Should I depart this life, leaving my wife or mother, or either of them, surviving me, I direct that my whole estate, real and personal, not otherwise disposed of, be kept together, so long as either my wife or mother shall live, and managed with a view to its improvement; and that out of the proceeds thereof, my wife and mother, and the survivor of them, be bountifully supported, supplied in all their reasonable wants, and made comfortable in every respect; when this is done, out of the surplus proceeds of my estate, I direct that so long as my wife and mother, or either of them shall live, one hundred dollars be annually paid to the ruling elders of the Water Yalley Church, to be by them used and appropriated in paying the salary of the minister at the time supplying the WaDer Yalley Church pulpit. The surplus proceeds of my estate remaining after these charges shall have been met, or so much thereof as may be necessary, I direct to be used in the purchase of any slaves who may have wives or husbands belonging to my estate, it being my. object, in this way, to keep families together: on this subject, my executors are to exercise a discretion, as it is not my wish that exorbitant prices should be paid.

“ Sixth. I direct that provision be made out of my estate, for the comfortable support of any of my slaves who may be superannuated, who, from any cause, would be likely to prove a burden to those who might have them on their hands.

“ Seventh. At the death of my wife and mother, should they not both die in my lifetime, or at the time of my death, should I survive them, I give and bequeath in fee simple, to John II. B. Latrobe, Rev. Wm. McLean, and W. W. Seaton, Esq., in trust for the' American Colonization Society, all the slaves belonging to my estate, except such as it may be necessary to have supported in pursuance of the sixth clause of this will.

u Eighth. All the property, both real and personal, which may belong to my estate, exclusive of slaves, at the time when the foregoing bequest to Latrobe, McLean, and Seaton, in trust for the American Colonization Society, is to take effect, I direct shall be sold on a credit of one year, for sums of one hundred dollars and less, and of one, two and three years, for sums over one hundred dollars, with interest from the date, purchasers giving bond, with not less than two good securities — the purchasers to have the option of paying cash, if they choose, at the time of sale, or. of paying said bonds at any time before they fall due: the proceeds of what may be thus sold, and all funds not otherwise disposed of, belonging to my estate, I will and bequeath as follows: —

“ To John H. B. Latrobe, Rev. Wm. McLean, and W. W. Sea-ton, Esq., I give and bequeath, in trust for the American Colonization Society, the sum of three thousand five hundred dollars, to be paid as soon as practicable after the foregoing bequest of slaves to them in trust, shall take effect. The balance undisposed of, I direct to be equally divided between the Board of Education, and the Board of Domestic Missions, of the Old School Presbyterian Church in the United States,” ke.

The petition states, that the widow renounced the will, and upon petition to the court, was allowed one-half of the personal estate as her'share thereof, and her dower in the real estate; and that the residue remains in the possession of the administrator, consisting of slaves, and other personalty. It alleges, that the bequest of the slaves, in trust for the Colonization Society, is a secret trust for emancipation, and is therefore illegal and void; and prays distribution to the petitioner of her share of the estate.

The trustees of the Colonization Society answer, denying the allegation of the secret trust for emancipation, and claim the right to the Society to hold the slaves, under the power granted in its charter, “ to receive any sum or sums of money, goods, or chattels, that shall be bargained, sold or bequeathed to them in any manner,” and “to occupy, sell and dispose of their property, as they shall determine to be most conducive to the objects for which it was instituted.”

The administrator answered, submitting the question of distribution to the court, admitting that he had the slaves and other personal estate in his hands, and stating that there were debts, which it would require a sale of some of the personal estate to pay.

A decree was thereupon made, reciting that the ruling elders of the Water Valley Church appeared in court, and declined to resist the prayer of the petition, and ordering distribution to the petitioner, of the slaves in the hands of the administrator, upon her executing a refunding bond.

From this decree, the administrator has prosecuted this appeal.

The first, and most important question urged upon our consideration is, the validity of the bequest of the slaves to Latrobe, and others, in trust for the American Colonization Society; and it is insisted, that that society has the power, under its charter, to hold, sell and dispose of slaves absolutely as such; and, as there is no evidence that this bequest was made upon an express trust that the slaves should be emancipated, the general powers of the society authorize the holding of them as absolute property; and hence, that there is nothing in the bequest in contravention of our laws and public policy. This question was argued and submitted for our determination, on a former occasion, in behalf of the parties interested ; ancl upon mature consideration, we were of opinion, that the holding of slaves, not for the purpose of emancipation, is irreconcilable with the policy and.true spirit of the society, and hence that this bequest was not' valid. Lusk v. Lewis et al. 32 Miss. 297. The question was there submitted for decision by consent of the parties in interest, and now urging it again; and according to established doctrine, that decision is conclusive of the question between these parties. It is as binding upon the trustees for the Colonization Society, as a decision in this case could be; for they do not prosecute this appeal, and are not parties to it, their interest being only set up here through the administrator, and in the same manner in which it was presented for consideration in the former case.

But we are satisfied, upon further consideration, that the view there taken of the power of the Colonization Society, in relation to the subject-matter of this bequest, is correct.

Secondly. It is insisted, that the bequest of $3500, to the trustees for the Colonization Society, is valid, whether that of the slaves be legal or not; because the pecuniary bequest is independent of that of the slaves, and is, therefore, free from legal objection.

When this point was presented in the previous case, it was held, that the pecuniary bequest was dependent upon the bequest of the slaves talcing effect, and was intended to be in furtherance of the emancipation of the slaves. The correctness of that view appears to be clear, from the language of the will.

The sum of money bequeathed to the trustees for the society, is expressly directed, “ to be paid as soon .as practicable after the foregoing bequest of slaves to them in trust shall take effect.” The contingency upon which they should be entitled to receive the money, is thus distinctly stated. And the purpose for which it was to be paid, may be fairly inferred from the circumstances. The bequest of the slaves was not to take effect, until the death of the testator’s wife and mother, and the money bequeathed was not to be paid, until the bequest of the slaves took effect. What connection could there be between the two bequests, and why was the money withheld until the bequest of the slaves took effect ? The answer is found in the circumstances of the case, and in the nature of the business in which the Colonization Society was engaged,— the removal of emancipated slaves from this country. It would require money to emancipate the slaves, and have them transported from this country, and it was doubtless for this purpose that this pecuniary bequest was made. Otherwise, there was no connection between the bequest of the slaves, and that of the money, and there could be no reason why the payment of the money, should depend upon tlie bequest of the slaves talcing effect.

But, whatever may have been the purpose of the testator, it is manifest, that he made the payment of the money to depend upon the bequest of the slaves talcing effect; and as that was void, and cannot take effect, the pecuniary bequest must fail, because the contingency, upon which it was to be paid, can never arise.

Thirdly. Another question has been argued, and, though it is not necessarily involved in the consideration of the case, as it is now presented, it is submitted, in order that the legal operation of the will may be determined. This has reference to the interest the Board of Education, and the Board of Missions, have in the bequest for their benefit, in the eighth 'clause of the will; and upon that, two questions are raised, — 1st. Yfhether the bequest, in favor of these boards, fails, in consequence of the invalidity and failure of the bequests for the benefit of the Colonization Society; and 2d. If not, what interest these boards take, in consequence of the failure of the bequests for the benefit of the Colonization Society, in the proceeds of the sale of the testator’s personal and real estate, except slaves, directed to be sold, and the proceeds applied to the use of the Colonization Society, to the amount of $3500, and iithe balance undisposed of, to be equally divided” between these boards.

1. Upon the first point, it is insisted, in behalf of the appellee, that the bequest must fail, because the primary object of the sale of the property, directed by the eighth clause of the will, was to pay the bequest of $3500, for the benefit of the Colonization Society ; and, as that has failed, the bequest for the benefit of these boards, which is dependent upon it, must also fail. If the latter bequest appeared to be connected with, and dependent upon, the former, this position would be correct. But it does not appear that the payment of the bequest to the Colonization Society, was an object of greater desire to the testator, than the bequest to the Board of Education and the Board of Missions; nor does it appear, that the latter bequest was in anywise connected with the former, or dependent upon it. The provision is simply, that' the sum of $3500, shall be first paid, for the benefit of the Colonization Society, out of the proceeds of the sale of the property directed to be sold, and that “the balance undisposed of,” should be equally divided between these boards. Nor was the sale directed to be made when the bequest of the slaves should take effect. Doubtless, the payment of the pecuniary bequest to the Colonization Society was an important consideration with the testator, in directing his property to be sold; but it was certainly not his sole object; and the failure of a part of his purpose, cannot defeat the bequest in favor of other parties, involving no violation of law, and not dependent upon the invalid bequests, in its execution.

2. As to the amount which these boards take, under the bequest for their benefit, in consequence of the failure of the pecuniary bequest to the Colonization Society, it is insisted that the bequest of $3500, being illegal and void, is a resulting trust to the heir.

It is to be observed, that the land, directed by the will to be sold, for the payment of the bequests specified, is thereby converted into personalty. The provision is, that all his property, both real and personal, except slaves, be sold; and the proceeds thereof, and uall funds, not otherwise disptosed of, belonging to Ms estate,” are bequeathed as follows: $3500, to be paid to the trustees of the Colonization Society, and “ the balance undisposed of,” to be divided equally between these boards.

According to the view we have taken of the subject, the bequest for the benefit of the Colonization Society, is an invalid disposition ; and it is clear, by the terms of the will, that the Board of Education and the Board of Missions are the residuary legatees of the entire estate, not disposed of, except the slaves, which were not to be sold. The rule is incontrovertible, that the residuary legatee takes whatever by lapse, invalid disposition, or other casualty, falls into the residuum. Vick v. McDaniel, 3 How. 337; Luckey v. Dykes, 2 S. & M. 60. The result of this rule is not controlled by the use of the word “balance,” in this case, as showing that these boards were to take the residue, after deducting from the fund the specified sum of $3500; for the operation of the rule, is to give to the board all of the fund which was not left to the Colonization Society. “The limitations of a particular bequest, and those of the residue, may be quite incongruous, and yet what is not disposed of, will fall into the residue. Here express intention, in favor of either heir or residuary legatee, is out of the question ; yet the courts refuse the bequest to the heir, on the ground, that it is contrary to the express will of the testator, to support those he intended to disinherit, as to that bequest. It is, therefore, thrown into the residue. And this rule will not be made to yield to the probability that the testator would have given the illegal and void legacy to others.” Vick v. McDaniel.

It is clear, therefore, that these boards take the amount of the invalid bequest of $>3500, to the Colonization Society.

The slaves of the testator, which w.ere the subject of the decree and distribution in this case, were expressly reserved from sale by the will, and could not, therefore, take the course directed by the eighth clause of the will, as to the destination of the general assets of the estate, not disposed of. But, the particular disposition made of them by the will, being illegal and void, these slaves were subject to distribution, as assets of the estate, in due course of law, both by force of the Statute of 1842, in relation to illegal emanci-pations, and under the general rules of law applicable to the circumstances of the case, and the provisions of the will.

Let the judgment be affirmed.