By the Court.
Lumpkin, J.
delivering the opinion.
[1.] The testator has directed that there shall be a sufficiency of good, arable land purchased, either in the States of Indiana or Illinois, for all of his negroes to locate upon and cultivate, with a sufficiency of land for timber and firewood included; to be done within a reasonable time after his death, by his executors, or any one or two of them; and to remove all of said negroes to said tract or settlement of land in the aforesaid States. And recommends that the title to the land so bought be made to the executors, for fear the slaves should squander or be defrauded out of it.
He further directs, that after the removal and location of his negroes, that there' be purchased for them an outfit of farming-utensils,-including the wagons and teams used in their removal as a part of said outfit. And lastly, he requests 'that a year’s provision be supplied for the subsistence of the negroes, after-their removal and settlement.
[135]*135It appears that Indiana, by her Constitution and laws, and Illinois, by Statute, have prohibited, under severe pains and penalties, the introduction of negroes into either of those States — the former before and the latter subsequent to the death of the testator.
1. Can this bequest in the will, as to the negroes, be carried into execution? Of course it cannot be, according to the expressed wish of the testator. And that, alone, would seem to be, as it ought to be, conclusive of the case. But the Courts of Great Britain, and to some extent of this country, whether wisely or unwisely, reasonably or otherwise, have taken it upon themselves, under certain circumstances, to perform a most delicate and responsible office; that is, to make another will for the testator, where his declared intention necessarily fails. However revolting this doctrine may be to common sense or repugnant to our own sense of right, we are content to administer it, for the present at least, notwithstanding Lord Kenyon, Lord Eldon, Lord Denman and the ablest of the English and American Judges have reprobated it in the strongest language.
After carefully examining the Cypres doctrine, as established in the text books as well as the adjudicated cases, we are inclined to adopt the principle as stated by Sir James Wigram. He says the meaning of it is now sufficiently understood, “In order to preserve and effect something which the Court collects from the will, to have been the paramount object of the testator, it rejects something else which is regarded as merely a subordinate purpose, namely: the mode of carrying out that paramount intention.” Vanderplanck vs. King, (3 Hare, 11, 12.)
Let us apply this rule of approximation to this testament. Can it be collected from the will, that the paramount object of the testator was to give freedom to his negroes, and that Indiana and Illinois were selected only as the mode of carrying out that paramount purpose? TYo may conjecture so, especially as to substitute some other State or Territory northwest of the Ohio -would be but a slight alteration of that [136]*136which is directed, but which cannot be performed. But the testator has not said so, and neither this nor any other Court can undertake to determine, judicially, what would have been his will provided he had foreseen what has happened. I might be willing to have my sons educated at Princeton College ; and yet, prefer that the whole of them, were they numerous as the progeny of old Priam, should grow up in ignorance of the alphabet, rather than they should be taught at Yale. Still, these institutions- are within less than a day’s journey of each other.
General Bledsoe was a large landed proprietor in Indiana and Illinois, and had often visited those States. He is known to have entertained the most inveterate hostility to the neighboring State of Ohio. The differences which existed between the two former and every other north-western State may have constituted the sole motive with the testator for making the disposition which he did of his slaves. I do not pretend to say that this was so. It is sufficient that it may have been. Speaking for the last time by his last will, and without manifesting, by a single syllable, any general intent to manumit his slaves, and without once using the words “freedom,” “ emancipation” or any other term indicative, that any such object was uppermost in his mind, his sole and definite proposition is to have his negroes removed to Indiana or Illinois, and located on land to be bought for them there. Liberty, of course, would be the necessary terms of this disposition; and such, unquestionably, was contemplated by the testator. But to .hold that he would have conferred the same boon,, taking all the risks and disadvantages attendant on the change, anywhere else, is to assume what is incapable of proof. Upon this subject, he has not spoken and must remain silent forever; and we must be satisfied to continue ignorant of his wishes, further than he has seen fit to reveal them. All beyond is terra ignota, mere vague surmise, upon which we dare not act.
Had the testator directed his negroes to be manumitted in some place where they could, by law, enjoy this real or ima[137]*137ginary blessing, and there stopped, his will might have been executed ; certainly it could have been in England by the' • King as parens patrice ; and upon the information of the Attorney General, a scheme would have been devised for this .purpose. Had he declared a general intent to free his slaves, and given specific directions for its execution, which could not be carried out, as in the present instance, still a Court of Chancery would execute the general intent as nearly as possible, in some other way. But I repeat, that here no such general purpose is manifested ; but a precise disposition made upon the testator’s own plan. The Courts, in such case, cannot execute the will Cypres ; because the testator having declared a clear and intelligible purpose, and nothing more, that purpose, and none other, is Ms will. (Adams’ Equity, 197, 1 Spencer’s Eq. Jur. 532.)
Believing, as we do, that this doctrine has been misunderstood and misapplied, and it being the opinion of some, that the Courts are bound to devise some scheme to prevent the failure of a bequest of this sort, we will submit another familiar illustration. A testator in this State appropriates ten thousand dollars for the erection of a Presbyterian Church, and says no more. Here, the object being specified with suf-. ficient certainty, the intention of the testator will be effectuated, notwithstanding he has omitted to designate the place which is to be the recipient of his bounty. The Courts will supply that defect rather than the charity shall miscarry. So, if the testator sets apart, by his will, ten thousand dollars for' the building of a Presbyterian Church within the bounds of Hopewell Presbytery, and mentions Augusta as a suitable location, but no lot can be procured in that city for the purpose, here, no doubt Smother site might be chosen as within the plan of the testator, and the church would be decreed to be built at Macon or some other place. But suppose the testator should simply direct his executors to erect a Presbyte-rian Church at Milledgeville, the seat of Government, at a cost of ten thousand dollars, and the civil authorities should [138]
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By the Court.
Lumpkin, J.
delivering the opinion.
[1.] The testator has directed that there shall be a sufficiency of good, arable land purchased, either in the States of Indiana or Illinois, for all of his negroes to locate upon and cultivate, with a sufficiency of land for timber and firewood included; to be done within a reasonable time after his death, by his executors, or any one or two of them; and to remove all of said negroes to said tract or settlement of land in the aforesaid States. And recommends that the title to the land so bought be made to the executors, for fear the slaves should squander or be defrauded out of it.
He further directs, that after the removal and location of his negroes, that there' be purchased for them an outfit of farming-utensils,-including the wagons and teams used in their removal as a part of said outfit. And lastly, he requests 'that a year’s provision be supplied for the subsistence of the negroes, after-their removal and settlement.
[135]*135It appears that Indiana, by her Constitution and laws, and Illinois, by Statute, have prohibited, under severe pains and penalties, the introduction of negroes into either of those States — the former before and the latter subsequent to the death of the testator.
1. Can this bequest in the will, as to the negroes, be carried into execution? Of course it cannot be, according to the expressed wish of the testator. And that, alone, would seem to be, as it ought to be, conclusive of the case. But the Courts of Great Britain, and to some extent of this country, whether wisely or unwisely, reasonably or otherwise, have taken it upon themselves, under certain circumstances, to perform a most delicate and responsible office; that is, to make another will for the testator, where his declared intention necessarily fails. However revolting this doctrine may be to common sense or repugnant to our own sense of right, we are content to administer it, for the present at least, notwithstanding Lord Kenyon, Lord Eldon, Lord Denman and the ablest of the English and American Judges have reprobated it in the strongest language.
After carefully examining the Cypres doctrine, as established in the text books as well as the adjudicated cases, we are inclined to adopt the principle as stated by Sir James Wigram. He says the meaning of it is now sufficiently understood, “In order to preserve and effect something which the Court collects from the will, to have been the paramount object of the testator, it rejects something else which is regarded as merely a subordinate purpose, namely: the mode of carrying out that paramount intention.” Vanderplanck vs. King, (3 Hare, 11, 12.)
Let us apply this rule of approximation to this testament. Can it be collected from the will, that the paramount object of the testator was to give freedom to his negroes, and that Indiana and Illinois were selected only as the mode of carrying out that paramount purpose? TYo may conjecture so, especially as to substitute some other State or Territory northwest of the Ohio -would be but a slight alteration of that [136]*136which is directed, but which cannot be performed. But the testator has not said so, and neither this nor any other Court can undertake to determine, judicially, what would have been his will provided he had foreseen what has happened. I might be willing to have my sons educated at Princeton College ; and yet, prefer that the whole of them, were they numerous as the progeny of old Priam, should grow up in ignorance of the alphabet, rather than they should be taught at Yale. Still, these institutions- are within less than a day’s journey of each other.
General Bledsoe was a large landed proprietor in Indiana and Illinois, and had often visited those States. He is known to have entertained the most inveterate hostility to the neighboring State of Ohio. The differences which existed between the two former and every other north-western State may have constituted the sole motive with the testator for making the disposition which he did of his slaves. I do not pretend to say that this was so. It is sufficient that it may have been. Speaking for the last time by his last will, and without manifesting, by a single syllable, any general intent to manumit his slaves, and without once using the words “freedom,” “ emancipation” or any other term indicative, that any such object was uppermost in his mind, his sole and definite proposition is to have his negroes removed to Indiana or Illinois, and located on land to be bought for them there. Liberty, of course, would be the necessary terms of this disposition; and such, unquestionably, was contemplated by the testator. But to .hold that he would have conferred the same boon,, taking all the risks and disadvantages attendant on the change, anywhere else, is to assume what is incapable of proof. Upon this subject, he has not spoken and must remain silent forever; and we must be satisfied to continue ignorant of his wishes, further than he has seen fit to reveal them. All beyond is terra ignota, mere vague surmise, upon which we dare not act.
Had the testator directed his negroes to be manumitted in some place where they could, by law, enjoy this real or ima[137]*137ginary blessing, and there stopped, his will might have been executed ; certainly it could have been in England by the' • King as parens patrice ; and upon the information of the Attorney General, a scheme would have been devised for this .purpose. Had he declared a general intent to free his slaves, and given specific directions for its execution, which could not be carried out, as in the present instance, still a Court of Chancery would execute the general intent as nearly as possible, in some other way. But I repeat, that here no such general purpose is manifested ; but a precise disposition made upon the testator’s own plan. The Courts, in such case, cannot execute the will Cypres ; because the testator having declared a clear and intelligible purpose, and nothing more, that purpose, and none other, is Ms will. (Adams’ Equity, 197, 1 Spencer’s Eq. Jur. 532.)
Believing, as we do, that this doctrine has been misunderstood and misapplied, and it being the opinion of some, that the Courts are bound to devise some scheme to prevent the failure of a bequest of this sort, we will submit another familiar illustration. A testator in this State appropriates ten thousand dollars for the erection of a Presbyterian Church, and says no more. Here, the object being specified with suf-. ficient certainty, the intention of the testator will be effectuated, notwithstanding he has omitted to designate the place which is to be the recipient of his bounty. The Courts will supply that defect rather than the charity shall miscarry. So, if the testator sets apart, by his will, ten thousand dollars for' the building of a Presbyterian Church within the bounds of Hopewell Presbytery, and mentions Augusta as a suitable location, but no lot can be procured in that city for the purpose, here, no doubt Smother site might be chosen as within the plan of the testator, and the church would be decreed to be built at Macon or some other place. But suppose the testator should simply direct his executors to erect a Presbyte-rian Church at Milledgeville, the seat of Government, at a cost of ten thousand dollars, and the civil authorities should [138]*138refuse to allow it, or it should fail from any other cause. In-that event, the Courts could not presume that the general' idea of benevolence, in propagating the gospel, was foremost with the testator, and that the particular spot specified was merely illustrative; but they Avould be bound to hold that the individual purpose mentioned, Avas the only one in the testator’s mind, and that if it should fail, he intended the property to go to his next of Icin or heirs at Iuav. And there is no' equity to alter this disposition.
In the case, then, before us, as the design of the testator respecting his negroes cannot be accomplished, and the Courts are poAverlcss to intervene, the slaves must descend to and bo distributed amongst the heirs at Lot of the decedent.
As to the idea that these negroes go to the nephews and nieces, as residuary legatee, to my mind nothing can be clearer. I am aAA'are that the English hw goes far to favor the residuary legatees, because there the undevised residuum Avont to the executor. But no such reason exists here. The nephcAA’s and nieces may bo properly called, under this will, partial residuary legatees, and that of a particular fund. There are no words going before or folloAving after, to which the term “ balance” can’ have relation, Avhich Avould justify the conclusion, that it meant a residuum of the Avholeestate. It would bo a great stretch of interpretation to say, that slaves are comprehended in “ the balance of the proceeds of the sales,” Avhen this very sale ayus mainly for their benefit. To say that the slaves compose a part of the residue Avhen the larger portion of that very residue is given for the use of the slaves themselves, Avould be manifestly absurd. Had the testator used the words, “ the balance of his estate” or any other of equivalent import, the slaves might have passed under it. But we cannot interpolate Avords into a avüI ; and without such interpolation, aa'c think the slaves pass to the next of kin. (2 Roper on Leg. 182, 437-8. 1 Hill's Ch. Rep. 95. 1 P. Wms. 40. Dev. and Batt, Eq. 491.)
I Avill only add that, as a man, I do not regret the failure of this bequest. Look at the stringency of the laws of In[139]*139diana and Illinois and other Northwestern States, against persons of color, and reflect upon their thriftlessness, when not controlled by superior intelligence and forethought, and what friend of the African or of humanity, would desire See those children of the sun, who luxuriate in a tropical climate and perish with cold in higher latitudes, brought in close contact and competition with the hardy and industrious .population "which teem in the territory northwest of the Ohio, and who loathe negroes as they would so many lepers ? Courts should not be astute in so construing wills as to doom them to such a destiny. A stern and inexorable State policy equally forbids it. (See Bryan vs. Walton, 14 Ga. Rep. 185, 206.) As to the transportation of these slaves to Liberia, the wildest and most latitudinous application of the Cypres doctrine, could never, under this will, justify such a project as that.
[2.] For the purpose of carrying into effect the bequest in the will which we have been considering, the testator directed the whole of his estate, real and personal, to be sold; and after the removal, location and outfit for his negroes should have been completed in the State of Indiana or Illinois, the balance or residuum of the proceeds of his property to be vested, by his executors, in the stock of the State Bank of Georgia; and that whenever the dividends should be declared, the same should be divided between his nephews and nieces, the children of his late brothers, Richard Bledsoe and Jesse Bledsoe, deceased. The testator gave as a reason for wishing this investment made in bank stock, that his nephews and nieces might enjoy the periodical profits without having authority, individually or collectively, to dispose of their interest in said stocks.
An important question arises upon this will, wholely overlooked in the argument. The point was fully and ably discussed at bar, whether the bequest as to the negroes being void, they would go to the legatees or descend to the heirs. But as no portion of the proceeds of the property is needed [140]*140for the slaves, what is to become of that fund ? Does that go to the legatees or the heirs ?
In the opinion of this Court, the whole goes to the legatees, not as a residuum, but by the express terms of the will. It is true that the balance, only, of this fund is given. But this balance is indefinite, being dependent entirely upon the amount needed for the negroes. Still, it is the entire balance, be it more or loss. If it took nine-tenths or ninety-nine-hundredths of this fund to colonize the slaves in Indiana or Illinois, what was left only was bequeathed to the nephews .and nieces. And we apprehend the converse of this proprosition is equally true, namely: that if none bp needed for this purpose, the legatees take all.
Suppose the gift of this fund had been made in another form; that is, subject to be diminished by so much as would be required to remove, locate and furnish the negroes for twelve months in their hew home. Is it not clear that in that case the legatees would take the whole — and are not the two cases substantially the same ?
Had the testator bequeathed a definite portion to the. legatees, namely: two-thirds or three-fourths, to be applied to the use of the slaves and the remaining one-third or one-fourth ,to be vested in bank stock for his nephews and nieces, it. would be plain that, as legatees, they could take no more ; and not only the negroes, but so much of the monied estate .as was appropriated to their benefit, Avould go to the heirs at law.
It is plain, therefore, that the nephews and nieces are residuary legatees, if you please, not of the estate, but only of the proceeds of the property directed to be sold,, and in part ap-propriatod to other objects; the word balance, having reference to what remains of the proceeds of the sale after paying certain charges and expenses, and not to any general- residuum of the estate.
[3.] One other assignment of error only, remains to be disposed of. His Honor, Judge Hardbaian, held that the legatees took an absolute estate at once in the proceeds of the [141]*141property directed to be sold; whereas, it is insisted that the investment in bank stock, should at least be first made, and that the executory trust continues for and during the life of each legatee.
But what sufficient reason can be assigned, why the bequest should be limited to the life of the legatee? Our construction is, that it was a gift of the dividends to all the nephews .and nieces, the children of Richard and Jesse Bledsoe, deceased, without limitation of time, and not in joint tenancy, but in common. And that upon tho principle that a devise of the rents and profits of land, is a devise of the land itself; and that when the interest or produce of a legacy is given to or in trust for a legatee without limitation as to continuance, the principal will be considered as bequeathed also, and that absolutely an unconditional fee vested immediately in the legatees. (2 Roper on Leg. 381. 4 Ves. 51. 1 Johns. Ch. R. 494. 18 Ves. R. 463. 1 Bro. Ch. C. 532. 1 Mad R. 253. 2 Ib. 188. 8 Co. 95, b. Cro. Jac. 104. 1 Ves. R. 170, 523.)
In Newland vs. Shepherd, (2 P. Wms. 194,) the testator devised the residue of his real and personal estate to trustees in fee, in trust, to pay tho interest thereof for the maintenance of his grand children until they should come of age or be married; and he went no further, nor made any other disposition of his estate; and yet, this ivas held to pass the absolute property to his grand children after the age of twenty-one. “ This case,” says Chancellor Kent, in Earl vs. Gwin and Wife, (1 Johns. Ch. R. 494,) “has been questioned, and perhaps very justly; for there was an express limitation of the period of the payment of interest to the minority of the children; but in a case in which there is no such limitation, I apprehend the decision would be deemed correct.”
In General Bledsoe’s will, there is no limitation of the period of the payment of interest.
In Philips vs. Chamberlaine, (4 Ves. 51,) trustees were directed, by will, to pay tho dividends and interest of certain stock and funds to the legatees, share and share alike, and [142]*142the survivor of them, as they attained the age of twenty-one. And the Master of the Rolls said he had never hoard, that whore the testator gave forever and without limitation, the dividends and interest to accrue upon the residue of his personal estate, that it would not carry the whole interest; and he apprehended that where the dividends and interest of the residue were given absolutely to the trustee on trust, to pay the interest and dividends to A from timo to time, without any limitation of duration, it would carry the principal.
We deem it a work of supererogation to elaborate this point further.
4. Moreover, as this bequest is for the benefit of the legatees alone, it is competent for them to elect whether they will take the property itself, its proceeds, or the bank stock, in which the funds arising from the sales is directed to be invested. (1 Roper on Leg. 370-’1-’2-’3.)
We have been notified by our brother Bennino, that he shall dissent from so much of this opinion as recognizes the validity of the will, believing, as- Jie does, that the whole testament is null and void, under the Acts of 1801 and 1818, prohibiting manumission.
This will has been proven and admitted to record by the proper tribunal, without contestation, and the executor comes into Court, upon the will, and asks direction as to its execution. Whether the will, therefore, as to the property or pecuniary legacies, be in issue, by the pleadings in this forum, may well be doubted. And although void as to the emancipation clause, so as to create an intestacy as to the slaves, it it may nevertheless be valid as to the other items. By the 17th section of the 1st article of the Constitution, it is provided, that no law or ordinance shall pass, containing any matter different from what is' expressed in the title thereof. And yet, no Court in Georgia has ever held that the whole Act was a nullity ; but only so much and such parts thereof, as were obnoxious to this constitutional inhibition.
But waiving thes eobjections, I am content, for the present, to pass this point in silence, maintaining, as I do, that it is [143]*143no longer an open question in this State; but that the same was settled, and correctly settled, and had been by every department of the Government for more than a quarter of a century before the organization of this Court. And for the reasons of this opinion, I beg leave to refer to the case of Cleland against Waters, decided at Gainesville, October, 1854, and not yet published. If a change of policy is demanded by recent dcvelopements, it is for the Legislature, and not the Judiciary, to initiate it.