dissented: he said—This ca-eis,T think, an important one, since it involves the point decided in the case of Maria v. Surbaugh. There, a testator bequeathed a female slave to his son, with a provision that she should be free at the age of thirty-one years; *654she had children b.orn after the testator’s death and was thirty-one; and the question was, whether these children were born slaves ? or born free ? or persons bound to service for a limited time ? The point had never before been decided; and the court after great consideration held, that they must follow the actual condition of their mother at the time of their birth,, and that as she was then a slave, though she was afterwards to be free, therefore they were born slaves-In the case before us, I think the boys, Green and Henry', born while their mother Patty was a slave though she was to be free at the age of twenty-one,, must b¿ held to be slaves until they attain to the age of twenty-one, according to the [particular provisions-of this will. "In Maria v. Surbaugh, the claim was, that-the children of Maria born before she attained to the age of thirty-one, were free born; and that case wasdécided on its merits. Here, it is admitted, that Green and Henry were slaves; and the object of the bill was to protect them from the treatment of their masters till they shall attain to the age of twenty-one, when they are to be free. Their case is a hard one; every case of slavery is a hard one; but there are considerations connected with it of a very delicate nature. The-rights of the master must be controlled, the moral influence that subjects the slave to the master disregarded^ and a spirit of hostility engendered while they continue to be slaves, calculated to diminish their value while slaves; the property of the master is to be invaded in a manner subversive of the institution of slavery, and. likely to have an influence on those who are slaves for life; and the next step may be to interfere with the master in their case also, if the humanity of the court is to be appealed to. I admit the right of a testator-to emancipate his slaves prospectively, because I submit to the decisions of this court, though I think there-is nothing in the law, which authorizes it; but while-*655I do this, I insist that, in such case, the testator must make complete provision for the objept, and not .rely on the Court of Chancery to become the guardian of his infant slaves, and thereby to enfeeble the master’s rights while they continue slaves. The case of Erskine v. Henry, is entirely unlike this. That case was cided by a bare court; I did not sit'in it, or I should have dissented. There the question was presented upon the will of one M’Coy, by parties who claimed the negroes as their property; and the court, instead of deciding that question, which was a pure question of property, decided that the negroes were free under the will; and that too, notwithstanding that in a former suit brought by the negroes against Erskine for their freedom, they had been adjudged to be slaves, and this court had refused to allow a.swpersedeas to the judgment; for it was said, Erskine had no title to them, though he had a verdict and judgment against them as slaves, in their pauper suit for freedom. This was confounding the question of property with the question of freedom, which, unfortunately has been too often done. Elder v. Elder’s ex’or has as little application to the present case. In that case, the testator’s will provided amply for the emancipation of all his slaves, the young and the old, if they would consent to go to Liberia; they were free at the testator’s death, upon condition that they should consent to go to Liberia; and it was only necessary to apply to the Court of Chancery to carry the provision into effect. Though I reluctantly differ from my brothers, I am of opinion that this decree ought to be reversed, the injunction dissolved, and the bill dismissed.

Decree arrirmed.

delivered the opinion of the court. The cases of Elder v. Elder’s ex’or, and Erskine v. Henry, are decisive in favour of the negroes. Judge Carr remarked, in the first of those cases, that “in the construction of wills, we are to find out the meaning, the intention, the will of the testator, and unless it violates some provision of law, it must be carried into effect.” This is the polar star to guide us in the construction of all wills. The law permits emancipation by will, and where the intention is clear, it must be observed. In the present case, upon the whole will, there would seem to be no doubt of the intention of the testator to emancipate the whole of his slaves. The will intends a disposition of his whole estate. *652But his slaves are not specifically bequeathed, as slaves, to any person. A limited interest, coupled' with a¡- . charge, is given to the legatees, “the labour and raising;” with a further restriction as to the slaves in question, that they were not to be removed out of the staté, or so far as to deprive them of .their freedom; And after making similar provisions as to other slaves, and the two young negroes, with his sons Charles and James, he directs that they and “all the others,”- shall be free at twenty-one years of age. Many of the slaves no doubt exceeded that age at the execution of the will: others might probably attain it before his and his wife’s death; and for those in that condition, he provides that they shall be free on the first of January succeeding the death of himself and wife. Such as-were then under that age were left to the operation of the preceding clauses, which gave their “labour and - raising,” to his sons, and conferred freedom on their attainment of twenty-one. bTo disposition being made of the slaves or their increase, they continued to be the slaves of his estate, and as such were embraced by the comprehensive grant of freedom to all the other slaves of his estate. In the case of Elder v. Elder’s ex’or, the testator directed that all the rest of his slaves should be given to a trustee to take to Liberia. It was contended there, in reference to the increase, that the mothers were slaves at the birth of the children: to w’hieh it was replied by Judges Carr and Tucker, “ If the children were born slaves, they were the slaves of the testator, and come within the bequest as well as their mothers.” In Ershine v. Henry, the testator bequeathed all his. estate, real and personal, to R. 0., during her life, and at her death all his negroes to be tree: the court held, that not only the slaves living at his death, but the children born during the life estate, were his slaves, belonged to his estate, and as such were emancipated. The words in the present will are *653equally comprehensive; and the intention not to dispose of any of the slaves as slaves, hut to emancipate all, is equally manifest. . .

¥e do not think there is any thing in the objection to the jurisdiction or form of proceedings. Though a testator may emancipate by will, the right to do so is subject to the claim of creditors. The assent of the executors is necessary, and until given, the slaves have no legal title to freedom which could be asserted in an action at law; hence the necessity of an application to a court of equity. The slaves here were infants, bound to service until they attained the age of twenty-one; the legatee and his representatives had a right to the custody of •them. The bill avers an intention to sell; and this allegation is not denied. The executors insist upon their right to hold and dispose of them as absolute «laves; and if the condition of the estate required it, they would, if their view was correct, be bound, in the proper discharge of their duty, to sell them. If redress could not be afforded by a Court of Chancery, the slaves would be without remedy. On both grounds, it seems to me, the jurisdiction could be maintained.

The decree is to be affirmed.*