Ned v. Beal

5 Ky. 298

• Court: Court of Appeals of Kentucky
• Decided: July 1, 1811
• Status: Published

Opinion

OPINION of the Court, by

Ch. J. Boyle.

Isaac Cox died possessed of sundry slaves, having previously made his will, by which, among other things, he devised his slaves to his wife, “ to serve in the following manner, and to be free at the following periods, to wit, Faster, on the 1st day of May, in the year of our lord 1793 ; Jude, to be free in the year 1804 ; and Dinah, t > be free in the year 1806 ; and in the mean time, the, above named Jade and Dinah, shall be schooled in such manner as to be able to read a chapter in the bible.

After the death of Isaac Cox, and before the year 1804, several children were born of Jude, who brought suit for their freedom against the appellee, who claims them as slaves,

It was agreed that if by law they were entitled to freedom under the will of Isaac Cox, judgment should be given for them, but if they were not, that judgment should be given for the appellee. The circuit court being of opinion that the law was for the appellee, gave judgment accordingly ; from which this appeal is prosecuted.

The general rule is, that the children follow the condition of their mother at the time of their birth, according to the maxim partus sequitur ventrem.

Hence it naturally follows, if Jude, the mother of the appellants, were at the time of their birth a slave, that they are also slaves. Whether Jude was a slave or not, when the appellants were born, depends upon the intention of the testator, deducible from the language he has used in the expression of that intention. The language used by the testator is plain and unequivocal ; and having, in express words involving no ambiguity, fixed the period when the mother of the appellants should become free, it by necessary implication follows, that the testator intended she should continue to be a slave until that period arrived. To say that she was free at the death of the testator, and that she should become free at a future period, is a contradiction in terms wholly irreconcilable by any rule of construction, or upon any principle of common sense. Nor can any inference in favor of the appellants’ right to freedom, be deduced from the expression in the will, with respect to the manner in which their mother should serve. The only modification of her servitude which is designated by the testator, relates to her education. Such a modification of her servitude, is by no means incompatible with slavery.

v We are therefore of opinion, that the judgment of the fircuit court was correct, and must be affirmed.