Webster v. Corbett

34 Tex. 263

• Court: Texas Supreme Court
• Decided: July 1, 1871
• Status: Published

Opinion

Walker, J.

In Purvis v. Sherrod, 12 Texas, 140, a court, sitting in a slave State, surrounded by all the influences of the institution, both civil and social, uttered the following noble language: “A bequest of slaves, upon trust that they should be carried to a free State, or to the colony of Liberia, where they may enjoy their freedom, is not void at common law because of the incapacity of the beneficiaries to take, at the' testator’s decease.”

11 Where a right exists at common law, and the Constitution contains a provision that the Legislature shall have power to permit the exercise of the right, under certain regulations and restrictions, the common law right is not affected until the Legislature acts; it is otherwise when the right did not exist at common law.” It is unnecessary to say that at common law no man was a slave. A person who desired to emancipate his slaves, as the law stood on the eighth' day of May, 1856, must have provided for sending the slaves out of the territorial limits of the State; but it was not necessary that it should be done in a day, a month, or year. The slave could not go without the limits by his own free will; he would have been detained by law, and whilst he remained he could not take either his freedom or any devise or legacy of real or personal property; but an estate devised in trust for his use would vest in the trustee, and there remain sub modo ; and if, by any means, the slave could get to a free State or Government, then his right as cestui que trust attached, and the law fixed no limit within which the use must attach and be enjoyed. Betsy Webster might have lived and died in the State of Texas, a slave and poor, notwithstanding the handsome fortune left her by a grateful and humane master, and yet Mrs. E. J. Hardin would have held the property as trustee. The condition that Betsy should leave the State was by no means an impossible condition; it was not in contravention of the common law, nor of the statute law, if her trustee had done her duty and taken her out of the State to a free State, as she might have done.

The fact that Mrs. Hardin did not formally assume the trust» but tried, probably in good faith but in ignorance of the law, to transfer the trust to her son, does not change the law of this case. The legal title to the property was in her, and is yet in her, and she must be made a party (if living) to this action. A court of probate, by its equity power, could discharge her and appoint another trustee, or it might, perhaps, declare the trust executed, now that Betsy Webster has been made a free woman. The district court may perhaps do this by virtue of its equity jurisdiction; but Mrs. Hardin must be made a party, before the proper decree can be entered in the case. When the deed to Corbett was made, Betsy Webster was a slave and could not make a deed. Nor does it help the matter that Mrs. Hardin should have joined in the deed. She could not sell and convey the land of.her cestui que trust, without an order from a court of competent jurisdiction. The judgment of the district court is reversed, and the cause remanded, to be proceeded in in accordance with this opinion. Let Mrs. B. J. Hardin be made a party, and the trust properly represented, and if it shall appear to the court that the trust has been executed, she may be discharged and the lots 1, 2, 3, 4, 5, 6 and 7, in block 255, in the city of Galveston, may be decreed to Betsy Webster, the plaintiff.

But there is evidence going to show that Betsy Webster did receive the purchase money for this property, from Corbett; and if a jury shall so find, equity-requires that she refund the money before she can be entitled to a reconveyance of the property. •

The case of Webster v. Heard, decided by this court at the Galveston term, 1870, has been considered and is overruled.

Reversed and remanded.