The opinion of the court was delivered by
Buchanan, J.
Rachel Turner made her will on the-22d of February in the year 1801, in which there is this be* quest: ‘■‘•Item. I give and bequeath unto my loving sister Sarah Turner, five negroes, by name, Frank, Joe, Zille, Mill and Lin, to possess and enjoy during her natural life, them and their increase, and my will is, that after my said sister’s death, the above named negroes be free.” Rachel Turner died soon after the execution of her will, which [17]*17■was admitted tó próbat On the 5th of April 1808. Sarah Turner, the legatee, died in the year 1807, having previously, on the 24th of May 1804, executed her will, which Was admitted to probat on the 4th February 1808-, and in ■which, after a small bequest 'to Elizabeth Beck, she bequeathed “all her property” to Jlndrcw Hamilton, the appellant, who under that will claims title to James Cragg, the petitioner. It is admitted that James Cragg is the son of Mill, one of the negro women bequeathed by Rachel Turner to Sarah Turner, and that he wás born in the year 1805 or 1806, after the death of Rachel Turner, and in the life-time'of Sarah Turner; and we are called upon to determine whether, under the will of Rachel Turner, he is entitled to his freedom?
The first question submitted, arises on the words of the latter part of the bequest to Sarah Turner, “my will is-, that after my said sister’s death the above named negroes be free.” If the words “the above named negroes” were used in reference to those only who wore before called and described by name, the petitioner, (James Cragg,) not being named nor in esse, could derive no title to his freedom by force of the terms used, but followed the condition of his mother at the túne of his birth, who, though to become free, on the death of Sarah Turner, the legatee, was, during her life-time, not in the capacity of a servant, but in' the. state and condition of a slave; she had no civil rights, and could have pursued no legal remedy against her mistress on any account; she could have made no will-, and was incapable of taking either by purchase or descent; the product of her labour belonged to her mistress; she could neither plead nor be impleaded, and was subject to all the disabilities aftd incapacities incident to a state of slaveryf she was a mere chattel, the property of her mistress, who could have sold or transferred her at pleasure. Her becoming free, depended on tbe contingency of her surviving Sarah Turner, and if she had died before Sarah Turner, she would have died a slave, and could have had no heirs, and no civil right could have been claimed under her, founded on the relation of blood — when in that state of slavery, the petitioner was born, and though, oh the death of Sarah Turner, in 1807, his mother bécame free, yet she Juay be said then first to have been “born into civil life,” tod her new born capacities, incident to her new state of [18]*18being, could not have a retrospect to the time of his birtli; to the effect 'of givinghim civil rights with which he was not born; but he became the slave of Sarah Turner, under the authority of the cases of Scott vs. Dobson, and Somerville vs. Johnson, 1 Harr. & M‘Hen. 160 and 352, and Standiford vs. Amos, 1 Harr. & Johns. 526; by which it is settled, that where a negro Woman, bequeathed to one for the1 life of the legatee, has issue during his life; and after the death of the testator, such issue shall belong to the legatee, on the ground, that the issue is to be considered not as an accessary bút as á part of the usé; arid to go to the person to whom the uséis limited. But the will of Rachel Turner is not to be so construed; There is no limitation over of the issue of the women bequeathed to Sarah Turner, to whom the testatrix meant to give freedom aftér the death of the legatee, as well as to their mothers; and the words uthe above na,med negroes,” were intended to bé used as Words Of description, not to be restricted to thosé who were before mentioned by name, but must be understood as applying to all who were the subject of the bequest; the issue as well as théir mothers. They were all placed in the' same state and condition during the life of Sarah Turner; ánd no difference in their conditions, after her death, was intended, but all wéré' equally the objects of the benevolence of the téxtatrix; áiid the issue; ás well as théir mothers, were entitled to their freedom on the death of Sarah Turner, the legatee for life,- if they were in á predicament io receive it. But by the 13th sec. of the act of 1796, ch. 67, it is enacted, “that all persons capable in law to make a-vafid will and testament, may grant 'freedom to, ánd effect the manumission of any slave of slávés' belonging to such person'or persons,-by his, her of their last will and testament;' arid such mamímissiori of ány slave' or slaves1 may be made to take effect-at the death of the testator or testators,- or at such other period as may bé limited in such last will and testament; prbvided always, that rió' manumission liereáfter to be made by last will arid’ testariiéñty shall be effectual to give' freedom to any slave or slaves, if the-same shall be to the-prejudice of creditors,- nor unless^ file said slave or slaves shall be under the age of forty-five years,-,and able to work and gain a sufficient maintenance and livelihood at the time the freedom given, shall commence^” The petitioner, James Lragg, Was bom in the" [19]*19year 4805 or 180S,. and Sarah Turner, the-Iegatec for life,., died in the year 1807,, so. that he could not have been more than two years old at th.©. time of her death, and consequently was not, in, the language of the laity able to work, and gain a sufficient maintenance and livclilfpqd it the time that the freedom intended to be given, au'.tfo'C'ommence; therefore, though he was within one of the 'provisions of the act, that is, under the age of'forty-five years, yet not having the other requisite, “the ability to work and gain a sufficient maintenance and livelihoodthe. next question is, was he in a predicament to receive, hiq freedom, or to. take any benefit under-the will? The policy and,object of the law. is to prevent those, who by reason, of, their,tender years, or of decrepitude, old age, or fixed and. permanent disease, are unable to maintain themselves, from being cast by emancipation, as a burden upon the community, or thrown into a, state of suffering and of want. The. law Snakes no distinction in favour of infants, and did not in-. tend to x-est upon the.ties or obligation of natural affection, nor on the ability of mothers.to protect and support their issue; they might themselv.es.be slaves, or dead, or might die befox-e the. period appointed for the freedom, to commence, leaving their issue.too young to take care of themselves; or if free and living,, they might want both the inclination and ability to support ami maintain them. But it looks, in relation to all,.to. the-agqland' pei'sonal ability to work aqd maintain themselves, of the- individuals intended to be set free, and to no adventitious circumstances. On that, principle, the case of Negro Amnna, against Woodburn Adm’r. of Burroughs, a petition for freedom, was decided by this court at June 1817. There, Leonard Bur - roughs
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The opinion of the court was delivered by
Buchanan, J.
Rachel Turner made her will on the-22d of February in the year 1801, in which there is this be* quest: ‘■‘•Item. I give and bequeath unto my loving sister Sarah Turner, five negroes, by name, Frank, Joe, Zille, Mill and Lin, to possess and enjoy during her natural life, them and their increase, and my will is, that after my said sister’s death, the above named negroes be free.” Rachel Turner died soon after the execution of her will, which [17]*17■was admitted tó próbat On the 5th of April 1808. Sarah Turner, the legatee, died in the year 1807, having previously, on the 24th of May 1804, executed her will, which Was admitted to probat on the 4th February 1808-, and in ■which, after a small bequest 'to Elizabeth Beck, she bequeathed “all her property” to Jlndrcw Hamilton, the appellant, who under that will claims title to James Cragg, the petitioner. It is admitted that James Cragg is the son of Mill, one of the negro women bequeathed by Rachel Turner to Sarah Turner, and that he wás born in the year 1805 or 1806, after the death of Rachel Turner, and in the life-time'of Sarah Turner; and we are called upon to determine whether, under the will of Rachel Turner, he is entitled to his freedom?
The first question submitted, arises on the words of the latter part of the bequest to Sarah Turner, “my will is-, that after my said sister’s death the above named negroes be free.” If the words “the above named negroes” were used in reference to those only who wore before called and described by name, the petitioner, (James Cragg,) not being named nor in esse, could derive no title to his freedom by force of the terms used, but followed the condition of his mother at the túne of his birth, who, though to become free, on the death of Sarah Turner, the legatee, was, during her life-time, not in the capacity of a servant, but in' the. state and condition of a slave; she had no civil rights, and could have pursued no legal remedy against her mistress on any account; she could have made no will-, and was incapable of taking either by purchase or descent; the product of her labour belonged to her mistress; she could neither plead nor be impleaded, and was subject to all the disabilities aftd incapacities incident to a state of slaveryf she was a mere chattel, the property of her mistress, who could have sold or transferred her at pleasure. Her becoming free, depended on tbe contingency of her surviving Sarah Turner, and if she had died before Sarah Turner, she would have died a slave, and could have had no heirs, and no civil right could have been claimed under her, founded on the relation of blood — when in that state of slavery, the petitioner was born, and though, oh the death of Sarah Turner, in 1807, his mother bécame free, yet she Juay be said then first to have been “born into civil life,” tod her new born capacities, incident to her new state of [18]*18being, could not have a retrospect to the time of his birtli; to the effect 'of givinghim civil rights with which he was not born; but he became the slave of Sarah Turner, under the authority of the cases of Scott vs. Dobson, and Somerville vs. Johnson, 1 Harr. & M‘Hen. 160 and 352, and Standiford vs. Amos, 1 Harr. & Johns. 526; by which it is settled, that where a negro Woman, bequeathed to one for the1 life of the legatee, has issue during his life; and after the death of the testator, such issue shall belong to the legatee, on the ground, that the issue is to be considered not as an accessary bút as á part of the usé; arid to go to the person to whom the uséis limited. But the will of Rachel Turner is not to be so construed; There is no limitation over of the issue of the women bequeathed to Sarah Turner, to whom the testatrix meant to give freedom aftér the death of the legatee, as well as to their mothers; and the words uthe above na,med negroes,” were intended to bé used as Words Of description, not to be restricted to thosé who were before mentioned by name, but must be understood as applying to all who were the subject of the bequest; the issue as well as théir mothers. They were all placed in the' same state and condition during the life of Sarah Turner; ánd no difference in their conditions, after her death, was intended, but all wéré' equally the objects of the benevolence of the téxtatrix; áiid the issue; ás well as théir mothers, were entitled to their freedom on the death of Sarah Turner, the legatee for life,- if they were in á predicament io receive it. But by the 13th sec. of the act of 1796, ch. 67, it is enacted, “that all persons capable in law to make a-vafid will and testament, may grant 'freedom to, ánd effect the manumission of any slave of slávés' belonging to such person'or persons,-by his, her of their last will and testament;' arid such mamímissiori of ány slave' or slaves1 may be made to take effect-at the death of the testator or testators,- or at such other period as may bé limited in such last will and testament; prbvided always, that rió' manumission liereáfter to be made by last will arid’ testariiéñty shall be effectual to give' freedom to any slave or slaves, if the-same shall be to the-prejudice of creditors,- nor unless^ file said slave or slaves shall be under the age of forty-five years,-,and able to work and gain a sufficient maintenance and livelihood at the time the freedom given, shall commence^” The petitioner, James Lragg, Was bom in the" [19]*19year 4805 or 180S,. and Sarah Turner, the-Iegatec for life,., died in the year 1807,, so. that he could not have been more than two years old at th.©. time of her death, and consequently was not, in, the language of the laity able to work, and gain a sufficient maintenance and livclilfpqd it the time that the freedom intended to be given, au'.tfo'C'ommence; therefore, though he was within one of the 'provisions of the act, that is, under the age of'forty-five years, yet not having the other requisite, “the ability to work and gain a sufficient maintenance and livelihoodthe. next question is, was he in a predicament to receive, hiq freedom, or to. take any benefit under-the will? The policy and,object of the law. is to prevent those, who by reason, of, their,tender years, or of decrepitude, old age, or fixed and. permanent disease, are unable to maintain themselves, from being cast by emancipation, as a burden upon the community, or thrown into a, state of suffering and of want. The. law Snakes no distinction in favour of infants, and did not in-. tend to x-est upon the.ties or obligation of natural affection, nor on the ability of mothers.to protect and support their issue; they might themselv.es.be slaves, or dead, or might die befox-e the. period appointed for the freedom, to commence, leaving their issue.too young to take care of themselves; or if free and living,, they might want both the inclination and ability to support ami maintain them. But it looks, in relation to all,.to. the-agqland' pei'sonal ability to work aqd maintain themselves, of the- individuals intended to be set free, and to no adventitious circumstances. On that, principle, the case of Negro Amnna, against Woodburn Adm’r. of Burroughs, a petition for freedom, was decided by this court at June 1817. There, Leonard Bur - roughs by his will, bequeathed her freedom to his negro woman Anna^ the petitioner, who was above, the age of forty-five at the time of the testator’s death; and besides other property, he bequeathed to her also her son as a labourer. It was.,urged.in support of her claim to freedom, that although she was. above the age of forty-five years, yet the. pi'operty bequeathed, to her by the testator was sufficient for her maintenance, and therefore that the spirit and the policy of the law were gratified. But it was determined that she acquired no right to freedom under her master’s will, on the.ground, that by the act of assembly, from which, alone the power to. manumit slaves by last [20]*20will and testament is derived-,, no slave could be set free, who was not. both under the age of, forty-five years, and, able to, work apd gain a sufficient maintenance and livelihood at the time that the freedom wap intended to com-, jpence; and the circumstance that property was bequeath-, ed to her, adequate, as was. alleged, to her. support, was.®ot deemed sufficient to give, effect to the manumission, qontrary to the plain and unequivocal expressions of the. act. Ip this case the petitioner was indeed under the age, qf forty-five years, but being upuble to work and maintain, himself at the time Qf Sarah Turner’s death, the event on, which he was to become free, we are constrained to say. that the. will was ineffectual to confer upon him.his free-, d.om». and that tb.e judgment must be reversed.
JUDGMENT REVERSED
We subjoin the following case qf Negro Jack vs. Hopewell, in the general court at May term 1781,' on an appeal from, Saint Mary’s county court, as applicable to the preceding case.
The appellant preferred his petition to the county court, claiming his freedom under the will ot William Cole, dated the 7th of Februaiy, 1732, wherein, amongst others, is this bequest; “I.givq and bequeath unto my dear beloved wife, j¡li%abeth Cole,, all my negroes, viz. Sam, Moll, Tom, Sarah, Job, and their increase, during h er.natural tiff ;■ and also my moveable estate for ever; and after her decease, I. leave all my above negroes free and for themselves; and-also my lands, after her death, I leave to be equally divided,.apipyigst.them,’^ It was admitted, that negroes Fan and-Frank or Frances, two peiitioners for freedom in another case, were the children of negro, named in said will and bequest, and th.at tb,ey were born in, the life-time of Elizabeth Cole, the devisee in said will, and after the death of tile testator, and tha$ Elizabeth survived the testator; and that negro Jack, the petitioner iij this case, was the descendant of said negro Fan or Frank, and had been held in .slavery from the time of his birth, "The defendant in the county court, (the present appellee,) produced to. the court a transcript of an instrument of writing, taken from the records of Saint-Mary’s county,’ executed by the said William'Cole on the 2d of November, 1732, whereby, for great love and affection which he bore to his wife Elizabeth, he gave to his.said wife the following negroes, viz. Sam, Moll, Tom and Sarah,,and ail other his goods and chattels lie had, migh,tor ought to have; to have to the said Elizabeth, her heirs and as. signs for ever, and had and did.deliver, the negro woman, named. 'Moll, in the name qf the whole. This instrument of writing appeared to have been executed, and the said negro delivered in pursuance qf it, in the presence of two witnesses. It was recorded on the 16th of November, 1732. The county court gave, judgment against the petitioner, who prosecuted this appeal. ’
J T. Chase, for the appellant, contended, that all the descendants of the negroes, mentioned in William Cole’s will, became entitled to their freedom on Mrs. Vole’s death. This was obvious,ly the testator’s intention, for in every part of the will he places the issue on"precisely the same footing with those who are expressly named, respecting whose ijight to be free no question had hyen or could be raised. To show hów intimately and indissohi. [21]*21bly they are connected, ii is only necessary to read the bequest. The testator gives negro “Sam, Moll, See. and their increase, to his wife during her natural life, and after their decease, leaves all his above negroes free and for themselves 39 Now this irnguage |s equally applicable t© the inci ease, as to those who ai e specified. It is impossible to refer any part pf it to, o.ne, without also referring it to the other. The counsel tor the appellee may contend» that it was not intended to manumit the increase, because, by the bequest, the only persons whom the testator wished to be free, Were such as could take the land devised in the latter ciau.se of the will, and that the increase, not being in esse at 1 he time of making the will, were incapable of taking under that devise. This, however, is not a correct doctrine; for it is well established, that either real or personal property may be leit to persons not in esse, and Who, when horn,, may receive the benefit of it as fully as if they had been in existence at the death of the devisor. In support pi this position, he referred to 2 Vern 705. 1 Eq. Ca, Ab. 203. 2 Eq. Ca. Ab. 290, pl. 2 Vin. Ab. tit. Devise, 86, pl. 6. Since the tes tator has expressly said thal the increase shall he free, all those doubts, which might otherwise have arisen, are removed, lor it will hardly be contended that the increase could not be disposed of because thpy were in esse when the testator died. Lest, however, such an opinion should he advanced, he said he would show to the court, from ihe highest authority, that it'was erroneous; he accordingly cited the following passage from Swinburne, 186. ««not only that thing may be devised which is truly extant, or hath an apparent being at the making the will, or at the death of the testator, but Mai thing also which is not in rerum natura while thq testator livetb, as the corn which shall be sown-or grow in such a soil alter his death, or the Lambs which shall come of his flock of Sheep next year.19 Nor (he said,^ does any doubt exist respecting the power which every man possesses to give by will a life estate in a personal chattel, with a remainder over. referred to 2 Eq. Ca. Ab. 319. 2 Freem. 206. Ca in Ch. 280. 1 P. Wms. 534, 535. He also cited P. Wms. 340, 342. 1 Atk. 410, 412, 435. Pr in Chan. 470.
T. Stone, for the appellee.
The General Court reversed the judgment of the County Court. The appellee appealed to the Court Of Appeals, and, at IVIay Term, 1784, the judgment of reversal was affirmed in the £!ourt of Appeals.