By the Court.
Nisbet, J.
delivering the opinion,
[1.] The Statute of Frauds requires the attestation of a will of real estate to be “ in the presence'” of the testator, The first question in this case is, whether the will of Elisha King Was subscribed in his presence. The testator signed the will in bed, and was not able to get up Without assistance. The witnesses wrote their names to the will in a piazza adjoining the room where the testator lay, and were some ten feet distant from him. The room in which the testator was, communicated with the piazza by a door, but the situation of the testator and of the witnesses was such that the testator could not see the witnesses attest the will. This, we hold, was not an attestation “ in the presence of the testator,”
[545] This requirement of the Statute is to prevent a fraud upon the testator, by substituting another will. The law requires the attestation to be in his presence, that he may have ocfcular evidence of the identity of the instrument attested as his will. The construction of this clause of the Statute of Frauds is well settled. It is not necessary that the testator shall actually see the witnesses subscribe. If this was required a blind man could not make a devise. The simple turning of the head, or closing of the eyes at the moment of attestation, although done at the side of the testator, would, if that strictness was required, defeat his will. Nor is it necessary that the testator and the witnesses shall be in the same room, or even the same house. And, on the other hand, if they are in the same apartment, and the testator’s view of the proceedings is necessarily obstructed, the attestation is Insufficient. The rule is, if the situation and Circumstances of the testator and witnesses are such, as that the testatoi', in his actual position, might have seen the act of attestation, it is a good attestation. I consider that this is a firmly settled rule of law, and shall not review the authorities to prove it, but content myself with a full reference to them. At the same time I admit that peculiar cases might occur, where modification of this rule might be admissible. 1 state it as the general rule, applicable to all ordinary cases and as controling this case. Shires vs. Glasscock, 2 Salk. 688. 1 Ld. Raymond, 507, S. C. Winchelsea vs. Wauchope, 3 Russ. 441, 444. Todd vs. Earl of Winchelsea, 2 C. & P. 488, S. C. Davy vs. Smith, 3 Salk. 395. Russell vs. Falls, 3 Har. & McHen. 463, 464. Doe vs. Manifold, 1 M. & S. 294. Casson vs. Dade, 1 Bro. Ch. Cas. 99. Dewey vs. Dewey, 1 Metc. 349. 1 Show. 89. Carth. 79, S. C. Edelen vs. Hardy, 7 Har. & J. 61. Neil vs. Neil, 1 Leigh, 6. 1 P. Will. 740, 1 M. & S. 294. Newton vs. Clarke, 2 Curtis, 320. 7 Eng. Eccl. R. 125. Ib. 150. 2 Greenl. Ev. §678. Rowell on Devises, (Jarm. Edit.) 80 to 112.
If the situation of the parties is such that the testator may see the attestation by rising from his bed, it is not a good attestation. He must be able to see it in his actual position. In this case the testator was in bed and unable to rise without assistance, and by the testimony, the situation and circumstances of the testator and witnesses were such as that, in his actual position, he could not see the attestation. It is a plain case, and the decision of the Circuit Judge was right.
[546] [2.] The Circuit Judge held that the following clause in the will of Mr. King is illegal and void upon its face, it being in conflict with the Act of 1818, against the manumission of slaves, because the intention of the testator was to give an estate in the negroes mentioned, different from what that Act admits, to wit: “ It is my will and desire that my old servant, Writ, and her five children,- to wit: Mat, Sherrod, Cherry, Dilla and Fanny, and her husband, Jacob, may be made to live comfortable under the superintendance of:my friends, Samuel Robinson and Henry Wood, into whose care,-, and under whose protection, I do hereby give and place the negroes herein named, in view of their being treated with humanity and justice,, subject to the laws made and provided in such cases.-”
It is^our judgment that this clause is void, because it is in conflict with the Act of 1818. We arrive at this conclusion irrespective of the parol testimony which was admitted on the trial, and upon a construction of the clause itself.
By the Act of 1801, it is made unlawful for any person to manumit any slave, or any person of color who may be deemed a slave at the time of passing the Act, in any other manner or form than by an application to the Legislature for that purpose. Prince, 787. Penalties are prescribed in this Act for its enforcement. It is amended by the Act of 1818, which re-enacts the provision above referred to, with additional penalties. By the 4th section of the Act of 1818, it is declared that, “ all and every will and testament, deed, whether by way 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, 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 io be utterly null and void.’’ This section makes all persons executing such will, deed, &c. or parol stipulation, and also, all persons who may be concerned in giving effect to them, by accepting a trust or otherwise, liable to a heavy penalty. Prince, 794, ’5, ’6.
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By the Court.
Nisbet, J.
delivering the opinion,
[1.] The Statute of Frauds requires the attestation of a will of real estate to be “ in the presence'” of the testator, The first question in this case is, whether the will of Elisha King Was subscribed in his presence. The testator signed the will in bed, and was not able to get up Without assistance. The witnesses wrote their names to the will in a piazza adjoining the room where the testator lay, and were some ten feet distant from him. The room in which the testator was, communicated with the piazza by a door, but the situation of the testator and of the witnesses was such that the testator could not see the witnesses attest the will. This, we hold, was not an attestation “ in the presence of the testator,”
[545] This requirement of the Statute is to prevent a fraud upon the testator, by substituting another will. The law requires the attestation to be in his presence, that he may have ocfcular evidence of the identity of the instrument attested as his will. The construction of this clause of the Statute of Frauds is well settled. It is not necessary that the testator shall actually see the witnesses subscribe. If this was required a blind man could not make a devise. The simple turning of the head, or closing of the eyes at the moment of attestation, although done at the side of the testator, would, if that strictness was required, defeat his will. Nor is it necessary that the testator and the witnesses shall be in the same room, or even the same house. And, on the other hand, if they are in the same apartment, and the testator’s view of the proceedings is necessarily obstructed, the attestation is Insufficient. The rule is, if the situation and Circumstances of the testator and witnesses are such, as that the testatoi', in his actual position, might have seen the act of attestation, it is a good attestation. I consider that this is a firmly settled rule of law, and shall not review the authorities to prove it, but content myself with a full reference to them. At the same time I admit that peculiar cases might occur, where modification of this rule might be admissible. 1 state it as the general rule, applicable to all ordinary cases and as controling this case. Shires vs. Glasscock, 2 Salk. 688. 1 Ld. Raymond, 507, S. C. Winchelsea vs. Wauchope, 3 Russ. 441, 444. Todd vs. Earl of Winchelsea, 2 C. & P. 488, S. C. Davy vs. Smith, 3 Salk. 395. Russell vs. Falls, 3 Har. & McHen. 463, 464. Doe vs. Manifold, 1 M. & S. 294. Casson vs. Dade, 1 Bro. Ch. Cas. 99. Dewey vs. Dewey, 1 Metc. 349. 1 Show. 89. Carth. 79, S. C. Edelen vs. Hardy, 7 Har. & J. 61. Neil vs. Neil, 1 Leigh, 6. 1 P. Will. 740, 1 M. & S. 294. Newton vs. Clarke, 2 Curtis, 320. 7 Eng. Eccl. R. 125. Ib. 150. 2 Greenl. Ev. §678. Rowell on Devises, (Jarm. Edit.) 80 to 112.
If the situation of the parties is such that the testator may see the attestation by rising from his bed, it is not a good attestation. He must be able to see it in his actual position. In this case the testator was in bed and unable to rise without assistance, and by the testimony, the situation and circumstances of the testator and witnesses were such as that, in his actual position, he could not see the attestation. It is a plain case, and the decision of the Circuit Judge was right.
[546] [2.] The Circuit Judge held that the following clause in the will of Mr. King is illegal and void upon its face, it being in conflict with the Act of 1818, against the manumission of slaves, because the intention of the testator was to give an estate in the negroes mentioned, different from what that Act admits, to wit: “ It is my will and desire that my old servant, Writ, and her five children,- to wit: Mat, Sherrod, Cherry, Dilla and Fanny, and her husband, Jacob, may be made to live comfortable under the superintendance of:my friends, Samuel Robinson and Henry Wood, into whose care,-, and under whose protection, I do hereby give and place the negroes herein named, in view of their being treated with humanity and justice,, subject to the laws made and provided in such cases.-”
It is^our judgment that this clause is void, because it is in conflict with the Act of 1818. We arrive at this conclusion irrespective of the parol testimony which was admitted on the trial, and upon a construction of the clause itself.
By the Act of 1801, it is made unlawful for any person to manumit any slave, or any person of color who may be deemed a slave at the time of passing the Act, in any other manner or form than by an application to the Legislature for that purpose. Prince, 787. Penalties are prescribed in this Act for its enforcement. It is amended by the Act of 1818, which re-enacts the provision above referred to, with additional penalties. By the 4th section of the Act of 1818, it is declared that, “ all and every will and testament, deed, whether by way 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, 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 io be utterly null and void.’’ This section makes all persons executing such will, deed, &c. or parol stipulation, and also, all persons who may be concerned in giving effect to them, by accepting a trust or otherwise, liable to a heavy penalty. Prince, 794, ’5, ’6.
[547] In Spaulding vs. Grigg, (4 Ga. Rep. 75,) we have given generally our views as to the intention and policy of this Act. It may be sufficient now to say, that the Acts of the Legislature against manumission, look to the prohibition of all manumission, and of all attempts to effect it, directly or indirectly. The policy of the State is to prevent it absolutely. The intention of the Legislature farther was to prohibit qualified manumission — to prohibit owners of slaves from placing them in a situation where, according to law, they would be pronounced slaves, yet where they would be entitled to some of the rights and immunities of freemen. In the position, for example, where they might have the .control of their own time, and enjoy the fruits of their own skill and labor. To effectuate this policy, all wills and deeds, contracts or verbal stipulations, having for their object the manumission of a slave, or an attempt to manumit a slave, directly or by the creation of a trust, are declared null and void. If, therefore, ’it is apparent. Upon the face of this will, that it was the intention of the testator, directly or by creating an agency or trust, either to manumit these slaves, or to attempt to manumit them, or to place them or attempt to place them in a situation where they might be enabled to work for themselves, free from the control of a master, or where they might enjoy the profits of their skill or labor, it is illegal, and by Statute void. Our construction of this will is, that the testator did not intend to give these negroes to Messrs. Robinson and "Wood, but to malte them agents or trustees, to hold them in order that they might enjoy the privileges of manumission. He, in other words, intended to declare a trust, which was practically freedom in their hands. Whether, aside from the Acts against manumission, he was successful in declaring the trust in such way as would make it capable of execution, is an immaterial question. Under the Act of 1818, it is enough, if he has attempted to create this trust, to make it null and void. Perhaps the best definition of a will or testament is this — “ The legal declaration of a man’s intentions which he wills to be performed after his death.” What then is the intention declared in this instance % It is not to give these negroes to Robinson and Wood as a legacy. A legacy is the transfer, by gift in the will, of the entire property in the chattel — the whole interest, the entire dominion passes. Here there are no words used which import an intention to part with the property in the slaves, and to clothe [548] these persons with the title. If tho testator had simply said, I give Writ and her children to my friends Robinson and Wood, without anything farther, tho intention to pass the fee would have been sufficiently declared. But not so ; for he does not say that he gives the slaves to them. The word give in the clause is so qualified, as we shall see, as to convey no title. No words of perpetuity, or of inheritance, or of transfer are used. Indeed, it is very obvious that the testator, with care, avoids an absolute gift. Much stress was laid in the argument on the words, 1 do hereby give ; but the connection in which they stand, clearly evinces that they were intended to mean no more than a tradition of the negroes into their care and under their protection. After declaring that it is his will and desire that the negroes should be made to live comfortable under the superintendance of Robinson and Wood, he proceeds to say, “into whoso care and under whose protection I do hereby give and place the negroes herein named.” He means then, not to give the negroes to them, but give them into their care. To place them in their hands to create an agency for their protection. The words declare no such intention as that those slaves shall be theirs — liable to their debts and subject to their alienation. The limitation of the bequest is for the care and, protection of the negroes. The word give if it is significant of a gift, means a gift intrust; that they will superintend them, take care of and protect them. That such is the will of Mr. King, is obvious from the whole drift of tho clause. Robinson and Wood are not the objects of his bounty, but the negroes are. They are the subjects of his solicitude. Their comfort in life is the object which stands prominently forth in every word of the will. The object is declared — he expresses that to be his will and desive — and they are placed under the superintendance of these convenient co-workers, “ in view of their being treated with humanity and justice.” Now, either the property in these negroes is in them or it is not. That it is not is clear. If not, what would be their condition in their hands at the death of the testator? That of quasi servitude and of practical freedom. Precisely that condition into which the Legislature has declared they cannot be placed. If I am right in this construction, then the last words of this clause, “subject to the laws made and provided in such cases,” mean nothing. Suppose a testator should manumit his slaves out and out, and yet add, subject, nevertheless, to the laws [549] in such cases made and provided, would it be held that ibis last clause would make the will a good one ? I trow not.
The intention is clearly, to my mind, declared in this will, and the insuperable difficulty is, that the declaration of intention is not legal. Upon the construction of the paper, then, we agree with Judge Holt, that this will, as to the bequest to Robinson and Wood, is void.