Drane v. Beall

21 Ga. 21

• Court: Supreme Court of Georgia
• Decided: January 15, 1857
• Docket: No. 5; No. 6
• Status: Published

Opinion

By the Court.

Lumpkin, J.

delivering the opinion.

The Circuit Court in deciding this case, considered that the numerous grounds of objection to the will, taken in the caveat, might be reduced to two : First, that of illegality: the purposes, designs and attempts of the will, being in opposition to the laws and settled policy of the State in regard to emancipation of slaves. And secondly, uncertainty and indefiniteness in the language of the will, and in the purposes and intention of the testator. And viewing the 12th clause as a direct attempt to manumit the slave Mariah in the State, and that the 13th and 14th clauses, were obnoxious to the same objection, having for their object the same illegal purpose ; the Court below declared these clauses to be null and void.

By the 15th item of the will, it was admitted, that the testator had manumitted all the rest of his slaves but one. The Judge said, it was plain, however, that this manumission Was to take effect out of the State. That the testator had taken special care to direct their removal, and to provide for the expense of it; and for a temporary support in their new home. That during their continuance in the State, which was not for' an unreasonable length of time to prepare for the important change designed in their condition, the state of slavery is strictly preserved. They have neither the power over their own time, nor over the proceeds of their labor. That the right of this testamentary disposition of slaves'by their owners, is as unquestionable as the right to remove them while the owner lives. That neither the 15th clause, therefore, nor those that follow it, having the same design and intention, are subject to the objection for which the 12th is declared null. That an illegal clause will not vitiate a whole will, was already settled by the Supreme Court.

As to the objection of uncertainty and indefmiteness, as applicable particularly to the 9th, 10th and 25th clauses of the will, the Judge held, that it was a matter more properly to be considered by the Court, whose peculiar dirty it is to interpret wills, and direct their execution, according to the intention of testators; and that there was nothing in this will so vague, indefinite and uncertain, that it should therefore be pronounced invalid. Nothing was decided as to the property mentioned in the clauses declared null.

As no exception was taken to the judgment of the Court, declaring the 12th and 13th clauses of the will void, because they attempted to manumit the slave Mariah within the State, it is, of course, not open for re-examination before this Court. If so, we might feel some hesitation in affirming the construction put upon this portion of the will. It seems from the recitals in the will, and there is no extraneous testimony in the case, that this woman formerly belonged to the estate of one Maiy Sattenvhite; that she was becoming old, and was liable to severe spells of sickness, and would shortly be superannuated. The testator was morally, if not legally bound for her maintenance and support. Feeling this obligation, he wills her in trust to William Satterwhite, to take charge of her person and effects, with the request that she may be as free as the laws of the Stale will allow her to 5e. He then sets apart a fund for her use; and then follows the 14th item of the will, which we are called upon to interpret It is as follows :

[1.] “I give and bequeath to William Satterwhite, my tract of land, known as the Harp place, &c. (describing it minutely by metes and bounds,) containing three hundred and odd acres”; and then adds: “and whereas, also, I design this tract of land as a home for my said servant Mari.ab, said tract, so bequeathed to the said William Satterwhite, shall not be liable to the debts of the said William Satterwhite, until after the death of my said servant Mariah.”

Were I satisfied that the object of the testator was to confer freedom or quasi-freedom upon this woman, and not to make a humane provision for a faithful servant who was sickly and superannuated during the remnant of her days, she having spent the prime of her life in his service, I might find some embarrassment in dissenting from the opinion of the Circuit Judge ; for the 4th section of the Act of 1818, is exceedingly comprehensive, it declares that:

“All and every will and testament, whether by way of trust, or otherwise, contract, agreement or' stipulation, or other instrument in writing, made and executed for the purpose of eifectingor endeavoring to effect the manumission of any slave or slaves, either directly,by conferring or attempting to confer freedom on such slave or slaves; indirectly or virtually, by allowing and securing or attempting to allow and secure, to such slave or slaves, the right or privilege of working for his, her or themselves, free from the control of the master or owner of such slave or slaves; or of enjoying the profits of his, her or their labor or skill; shall be and the same are hereby declared to be utterly null and void.” Cobb 991.

I repeat, the will upon its face, avows a different purpose; and it is a question of intention, and if there be no external proof, that intention must be gathered from the instrument itself. If that be legitimate and the means of accomplishing it be not forbidden, the will can and should be executed.

Did William Satterwhite accept an illegal trust, under this 14th clause, for the purpose of aiding and abetting the testator in a project not only prohibited, but one made highly penal by the Statute? Ib.

By the will, Satterwhite took an absolute fee in the land, subject to the incumbrance only of allowing the woman Mari ah to live on it during her life. Suppose the object of Beall to have been illegal and Satterwhite did not participate in it, is his title forfeited ? We apprehend not. If the provision in the will be good, he takes the property cum onere : If bad, it is his absolutely.

We wish it distinctly understood, that our judgment upon this branch of the case is restricted entirely to the point, as presented by the will itself

[2.] Is the 15th clause of Thomas E. Beall’s will inoperative, because, by it he endeavored unlawfully to manumit all but one of his slaves ? And are the 16th, 17th, 18th, 19th, 20th and 24th clauses void, because that they contribute to, and constitute a part of, the unlawful scheme by which the said testator endeavored to emancipate his slaves ?

It is necessary that these clauses in the will be transcribed, they are as follows:

“Item Fifteenth: I will that all my negroes shall receive their freedom and be emancipated from slavery, except those hereafter mentioned. And such negroes so freed and emancipated from slavery shall be sent to Liberia, California, or any free State or Territory in the United States of America, as they choose to elect”

“Item Sixteenth: If those of my negroes freed and emancipated from slavery shall choose to go to Liberia, then in that case, I will to the Colonization Society the sum of fifteen hundred dollars, to be expended in transporting them there ; and if they choose to go to California, or any other free State or Territory in the United States of America, then and in that case, their passage shall be paid to the place they shall elect, by my executors, hereafter named.”

“Item Seventeenth: It is my will and desire that those negroes that I have given their freedom and emancipated, shall be kept on my plantation for the term of four years áfter my death, for the purpose of raising funds, and after defraying all expenses on the plantation during those four years, then the net proceeds shall be equally divided among those of my negroes freed and emancipated from slavery, share and share alike, agreeable to their situation, some being old, and some being women and children, will require more, whilst some are young, can go to work immediately and make their support ; and this division is left to my executors, hereafter named, to exercise a proper and equitable division between them all.. And it is my will and desire that my executors, out of the above named funds, shall furnish each of the negroes above eight years of age, two good blankets each; and the whole of the negroes freed and emancipated from slavery shall receive two good suits of clothes, a hat, a pair of shoes; and those of my negroes freed and emancipated from slavery, under eight years of age, one good blanket each.”

“Item Eighteenth: If I should depart this life whilst I have a crop making on hand, then in' that case that crop be taken and applied as before specified, and the year counted one of the four years specified for those of my negroes freed and emancipated from slavery, are to remain on my said plantation.”

“Item Nineteenth: It is my will and desire, that if any of my negroes freed and emancipated from slavery, shall elect to go to Liberia or California, then in that case my executors, hereafter named, shall see them on board the vessel, and shall pay over the money to my negroes so emancipated and freed from slavery, only on board the vessel, and that in the presence of the captain, commander, or owner of said vessel, and a certificate of the captain, commander, or owner of the vessel, that they saw my executors, hereafter named, pay over the money to the negroes so emancipated and freed from slavery; and also, the captain, commander, or owner of said vessel shall furnish my executors with a list of the negroes’ names, and the number of the negroes so freed and emancipated from slavery, as this shall be necessary for my executors to tender as a voucher in the final settlement of my estate.”

“Item Twentieth: And if my negroes so freed and emancipated from slavery, shall elect to go to any free State or Territory, other than the State of California, then in that case it is my will and desire that my executors shall pay their expenses to such free State or Territory out of the funds of my estate; and in the event that my negroes so freed and emancipated from slavery shall not elect to go to Liberia, then in that case the sum of fifteen hundred dollars, placed at the disposal of the Colonization Society, shall be withdrawn and placed at the disposal of my executors, hereinafter named. And, it is further my will and desire, that the expenses of my executors, or their agent, shall be paid out of my estate, and the additional sum of one dollar per day whilst going to and returning from the place where my negroes so freed and emancipated from slavery shall elect as their future place of residence, in any of the free States or Territories of the United States of America, other than the State of California.”

“Item Twenty-fourth: Whereas, it will not be necessary to keep the whole of my personal property, such as stock, farming utensils, corn, fodder, wheat, and other articles, for the purpose of stocking for four years, as expressed in a former clause of my will, it is my will and desire that a sufficient amount shall be kept on the plantation, of the articles above named, for the purpose of stocking my plantation, and that the balance shall be sold as soon after my death as the law or circumstances will admit.”

The only question upon these seven clauses of the will is, was the manumission of the slaves to take effect at the death of the testator, and consequently within the State ? Does the will, in other words, contemplate their removal, not to acquire, but to enjoy the freedom which it supposes to be conferred by virtue of the declared wishes of the testator ?

It seems to us, that there can be but one answer given to these questions. The words of the will are too plain to admit of doubt or difficulty. That the emancipation bequeathed by the will, was intended to be enjoyed in Liberia, California, or some other free State or Territory, will be readily conceded: but that it was to take effect in Georgia, at the death of the testator, is clear, beyond cavil; and whether you construe the 15th item per se, or as explained by the context, the same inference is irresistible.

It never occurred to the testator, for a moment, that it was wrong to give his slaves present freedom by his will, provided they were to be carried out of the State, within what he supposed to be a reasonable time, to enjoy it. He did not intend to violate the law. But the mistake he committed was in supposing that a gift of freedom, in prmsenti, to his slaves, to vest at his death, although it be but for a moment of time, was not unlawful. In whom was the title of these slaves, from the death of the testator to the time contemplated for their removal ? Not in themselves, for they were incapable of taking; not in the Executors, although . they were clothed with a quasi trust or agency respecting them. The title vested, eo-instanti, at the death of Beall, in his personal representatives, in trust for the residuary legatees or distributees, and it is not in the power of the Courts to divest it. For myself, I entertain not a doubt but that a testator may by his will direct his Executor to remove his negroes to some other country, where they may acquire, as well as enjoy their freedom, and that the performance of such trust, will be permitted, if not enforced against such Executor; I am equally well satisfied, that the bequest of freedom to slaves in this case is void, as. it was to take effect in this State, and the slaves are made the legatees of their own freedom, a boon they are incapable of taking.

This being the conclusion of the Court, whether looking at the 15th verse alone, or the “whole chapter of emancipation,” as it has been called, we- do not find it necessary to dwell at length upon the 17th item, directing the slaves, to whom the testator had given their freedom, to be kept on his plantation for four years after his death, to provide for an outfit

Was this scheme lawful in other respects, we are not prepared to say, how far its validity might not be affected by this arrangement. It is said that a reasonable time must be allowed, because some time must elapse, longer or shorter, according to circumstances, despite the testator, as in case of caveat, suit in chancery, possible insolvency of the estate, &c., and this is certainly true. But the time required for the meeting and overcoming these and other unforeseen contingencies, is one thing; and for the testator to direct by his will, that they shall be kept within the State for a specified period, four, six or ten years, to accumulate funds to defray the expenses of their transportation, and support them in their new home, is quite a different thing. This -point has never been distinctly made in any previous case. By the act of 1818, already quoted, every will, deed, whether of trust or otherwise, contract, agreement or stipulation, or other instrument in writing, or by parol, made and executed for the purpose of effecting or endeavoring to effect the manumission of any slave or slaves, either directly, by conferring or attempting to confer freedom on such slave or slaves, or indirectly and virtually, by allowing or attempting to secure to them the privilege of enjoying the profits of their labor and skill, shall be utterly null and void. Cobb 991.

Suppose it be true then, that the hand of the Executor is upon these slaves, as the hand of the master, until they leave Georgia, and that they are subject to his control, still can it be denied, that during this four years, these slaves are working for themselves ? That they are enjoying the profits of their own skill and labor ?

In our judgment, principle and policy, not to say positive law, are opposed,to this whole scheme of emancipation.

[3.] Finally, it is insisted that the 9th, 10th and 25th clauses of the will, are void, because of their absurdity and indefiniteness, as to the donees and the thing given, as well as the method of executing the bequest of the will. Our opinion is, that the Circuit Court veiy properly held that there was nothing in this portion of the will, so vague as to justify the Superior Court, on appeal from the Ordinary merely, to pronounce them a nullity. And that it was a matter more properly to be considered by the Court, whose peculiar duty it is to construe wills, and direct their execution.

It has been earnestly pressed upon the Court, that the Ordinary in .the first instance, and the Superior Court on appeal, may interpret wills. And this is the every day practice, where no objection is made, as it seems to expedite litigation. Strictly speaking, however, and with but a limited exception, the jurisdiction of the Ordinary is restricted to the factum of the execution of the will; as to emancipation clauses, it is made their duty, under the Statutes, to go further, and pronounce upon their validity, and to grant or refuse probate accordingly.

In all other cases, it is best to leave the rights arising out of wills to be contested in the proper Court, by the proper parties, who are more immediately interested.- It is conceded, that in a vast number of questions originating under wills, none but a Court of Chancery is competent to determine, because that Court alone, can grant hill and adequate relief. Clothe the Courts of Ordinary with jurisdiction beyond the factum of execution, and where will you limit it? What practically available line of demarkation can be drawn? This, to our mind, constitutes the most stubborn objection to the claim of power attempted in this case to be set up. Was it ever contemplated, that the Court of Ordinary should sit in judgment upon the intricate doctrines involved in the 9th, 10th and 25th clauses of this Will ? We think not