Carter's Heirs v. Carter's Adm'rs

39 Ala. 579

• Court: Supreme Court of Alabama
• Decided: January 15, 1865
• Status: Published

Opinion

STONE, J.

Tbe rule in regard to void conditionals too well settled to require elaboration. If tbe Toid condition be precedent, it defeats tbe whole instrument or conveyance. If it be subsequent, tbe conveyance stands, and tbe condition alone is defeated.—See 2 Story’s Equity, § 1306; Weathersby v. Weathersby, 13 Sm. & Mar. 685; 1 Jarman on Wills, 806, et seq.

[2.] Tbe clause of Claiborne Carter’s will, wbicb raises tbe issue in tbis cause, presents tbe case of a conditional testamentary disposition. Some of tbe conditions we regard as precedent, and some as subsequent; that is, tbe will requires certain things to be done before its dispositions take effect, and provides that certain other things, done or suffered after tbe will by its terms takes effect, shall divest tbe title out of tbe beneficiaries therein named. To prove tbe correctness of tbis view, let us suppose, that after Claiborne Carter made bis will, no responsive or corresponding provision bad been made by Bobert D. James, or those claiming under him; that be and they bad remained entirely silent as to any and all disposition of tbe seven negro children, John, Wesley, &c. All will admit that, in such case, tbe children of Bobert D. James never would have taken under tbe will of Claiborne Carter. Tbe primary condition was to precede tbe vesting of tbe devise and bequest; and it was to take effect immediately after tbe death of Claiborne Carter. Tbe language of the will is: “ I give, bequeath, and devise, unto Erancis B. James,” &c., “ all my estate, real and personal; to have and to bold tbe same, after my death, forever; on tbis condition nevertheless, that 'the said Bobert D. James do, immediately after my death, manumit and set free seven certain negro children,” &c. These words have all tbe properties of a condition precedent.

There is some obscurity in tbe language of Claiborne Carter’s will, caused by tbe words, “ as far as tbe laws of tbe State will permit,” and “ as far as tbe laws of tbe land will allow.” We have carefully considered tbe clause under discussion, and come to tbe conclusion, that these words were inserted to meet tbe obstacles which' tbe law interposed to tbe absolute emancipation of tbe seven negro children. There are other conditions, which we think these words do not qualify or limit Of this class we consider the following: “ So that they” [the negroes] “ may enjoy their liberty, and the profits and results of their own work and labor.” We think the testator clearly intended that the privilege here provided for — namely, that of enjoying their owü liberty, and the profits of their labor — was to be the least condition on which the children of Robert D-James were to take under his (Garter’s) will.

The argument, then, leads to this : The devise and bequest were to take effect only on the alternate conditions precedent — namely, that the seven negro children were to be emancipated; or, failing in that, they were to enjoy their liberty and the profits of their labor. Each of these conditions is violative of the positive law of the land. At the time thjs will took effect by the death of the testator, both the constitution and statute of the State inhibited the emancipation of slaves.' — -See Acts 1859-60, p. 28 -, Constitution of Alabama, art. YI, title slavery, section 1. And our statute and the policy of the law also forbade that slaves should enjoy their liberty and the profits of their labor. It is the policy of our law that slaves shall remain under the direction and control of their owner, and not go at large. They cannot enjoy their liberty and the profits of [their labor, without violating section 1005 of the Code, except in the mode for which that section provides; and there is no pretense that the clause of this will contemplates the license which that section tolerates.

It results from what we have said, that the dispositions of Claiborne Carter’s will, in favor of the children of Robert D. James, are inoperative, because they depend on a condition precedent which is illegal and void. ’

[3.] Having construed Claiborne Carter’s will, we feel bound to declare, that the probate court rightly dismissed the petition in this case. The property had been divided Under the will, on the basis that its dispositions are valid. The property, under that division, has passed into other hands, and is beyond the reach or control of the administrators, and of any process the probate court can issue. The administrators, being the actors, and parties to the division, cannot re-possess themselves of the property. Pistole v. Street, 5 Porter, 64; Weir v. Davis, 4 Ala. 442; Dearman v. Dearman, 4 Ala. 521; Fambro v. Gantt, 12 Ala. 298; Ventris v. Smith, 10 Peters, 161; 1 Story’s Equity, §§ 90-1-2. The remedy of the heirs-at-law and next of Mn of Claiborne Carter is in chancery.—Hunley v. Hunley, 15 Ala. 91.

The decree of the probate court is affirmed.