Carroll v. Brumby

13 Ala. 102

• Court: Supreme Court of Alabama
• Decided: January 15, 1848
• Status: Published

Opinion

DARGAN, J.

The plaintiffs contend that the testator intended a legacy to the slaves, to wit, their freedom — but as the laws of this State prohibit this, and they cannot take this legacy, or bequest, for want of legal capacity; that the testator died intestate as to his slaves, and therefore their services, and the slaves themselves, are liable to pay the legacies. If the hire of the slaves be assets for the payment of the legacies, then the slaves themselves would necessarily be so, and it' is only necessary to inquire whether the slaves named in the will are subject to pay the legacies. It is certainly very clear that the testator never intended that the slaves named in his will should be sold for this purpose, for he forbids their being sold under any circumstances. It is true he did intend to give them the option of freedom or servitude, but they have not the legal capacity or power to choose — the law forbids this, (see 6th Porter, 269,) hence it is contended, that the testator died intestate as to them. But if we take the intention of the will for our guide — and this we can do when that intention does not contravene the law — we will find, that the testator intended, that if they remained in servitude, they should be subject to his daughter, as they had been to him. How had they been subjecl to him ? They had been subject to him as his slaves. It was then his will, that they should be subject to his daughter in servitude, as her slaves. We can give effect to this intention of the will, but we could not give effect to the intention that the slaves should be free. But suppose the law would permit the slave to accept freedom or not, and in the event the slave refused the bequest, then the testator willed the slave to his daughter — and the slave refused the legacy, would not the right of the daughter be incontrovertible ? A testator can surely give a legacy to one, and if such one refuse to accept, then over to another. In this case, the legatee (the slave) has not capacity to accept; the law binds him to servitude, and the gift, or legacy to the daughter ought not to fail, if the slave will not, or by law cannot, accept of his freedom. In either event, they should remain in servitude, subject to the daughter as they had been to the testator — for so is the will. And if they remain in servitude, subject to the daughter as they had been to the testator, then the administrator is not responsible for their hire, nor are the slaves liable to pay the legacies.

It results from this, that there is no error in the decree of the orphans’ court, and it is consequently affirmed. .