Beaupied v. Jennings ( 1859 )

Napton, Judge,

delivered the opinion of the court.

The question in this case is not whether the privilege, conferred by Howdeshell’s will upon his slave Eliza, of selecting another mistress in the event of her being dissatisfied with Mrs. Beaupied, could be enforced, but whether, after the trustee to whom the enforcement of this privilege was entrusted has complied with the directions of the will and sold the slave to the person she selected, the legatee can now maintain an action against the purchaser to recover back the slave and her children; and we are of opinion such action can not be maintained. This will is not to be understood as making an absolute bequest of a specific slave to the testator’s daughter. The legal title to the slave is put in a trustee, and that trustee is authorized, and indeed required, in a certain contingency, to sell the slave and hold the proceeds for the benefit of the legatee. ' The trust has been complied with, and as the trustee had, beyond doubt, the power of sale, the purchaser acquired a good title.

There is nothing in the institution of slavery as understood in the slaveholding states inconsistent with the concession of a privilege of this kind to a slave. The practice is very common and commendable, and the courts will respect the humanity and kindness by which such arrangements are dictated, and will assuredly not interfere with them when voluntarily carried out. Slaves are not mere chattels, nor do our laws or usages so regard them; nor, as human beings, are they regarded as incapable of volition or choice; and the writers, if there be any, who have so represented, are treating of it as an abstraction, and probably know nothing about it practically. The relation between master and slave is regulated by a variety of laws, all having in view to enforce their reciprocal rights and duties, obedience and submission oh the one hand, and protection and kindness on the other; and although these rights and duties, to some extent, like those of parent and child, can, from their very nature, be enforced but imperfectly, yet their existence and validity is recognized, and any deviation from them is punished in the same way and to the same extent as a dereliction of other moral obligations.

The instructions given by the court were correct, and the judgment will therefore be affirmed.

The other judges concur.

Scott, Judge.

So far as the opinion in this case sanctions the doctrine that a trustee, if directed by the terms of a trust, may, as against a cestui que trust, apply the trust property in a way contrary to law, I do not concur in it. I am of the opinion the judgment should be affirmed.