Anderson's Ex'ors v. Anderson

dissented: he' said — this case is, I think, an important dhe, 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; she had children born after the testator’s death and before she was thirty-one; and the 'question was, whether these 'children were born slaves? or born free? or persons bound to service for limited time? The point had never before been ¡decided ; and the court after great consideration held, that they rhüst 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 twénty-óne, must be held *to be slaves until they attain to the age of t'wenty-o'ne, according to the particular provisions of his 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 was decided on its merits. Here, it is admitted, that Green and Hénry 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 á very delicate nature. The rights of the master musí 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 t^e 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 maybe to interfere with th'e 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 I do this, I insist that, i'n such case, the testator must make complete provision for the object, . 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 decided by a bare court; I did not sit in it, or I should have dissented. There the question was presented upfon 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 théir freedom, they had been adjudged to be slaves, and this court had refused to' allow a supersedeas to the judgment; for it was said, Erskine had no title to them, though' he. had a verdict and judgment against them as slave's, in their jjauper 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 affirmed.

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. But 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 state, or so far as to deprive them of th«ffr 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. No 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 which 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 Erskine v. Henry, the testator bequeathed all his estate, real and personal, to R. C. during her life, and at her death all his negroes to be free: 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 equally comprehensive; and the intention not to dispose of any of *736the slaves as slaves, but to emancipate all, is equally manifest. ’ ' ‘ •

We 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' servicd until they attained the age of twenty-one; the legatee *and his representatives had a fight 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 slaves; 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.*