Trotter v. Blocker

COLLIER, C. J. The plaintiff filed his bill on the equity side of the Circuit court of Lawrence, alleging that William Butler, late of that county, did, in August, eighteen hundred and thirty-two, make his last will and testament, in which, among other bequests, he declares, — “It is my will and desire, after my death, that all and every one of my negro slaves be free and emancipated, they and their heirs, forever. — I give and bequeath unto my said negroes, all my plantation utensils, and my kitchen furniture, and give them one year’s clothing, one year’s provision, out of my estate, and should the laws of my State be such, that the said negroes can not remain within the limits of the State, free, I give and bequeath the sum of one hundred — 289 — dollars, to the said negroes, to remove them to some other State in the Union.” The bill then states, that the testator died in March, eighteen hundred and thirty-six, that one of the executors, designated by him, died previously, and the other refusing the execution of the will, letters of administration cum testamento annexo, have been regularly granted to the plaintiff; — that the estate of the testator is indebted in a sum far below the extent of the available debts due it — -and that the defendants are believed to be the next of kin, and legal distribu-tees of the testator, and have expressed their deter- ~ dation to assert a right to the slaves intended to be tincipated by his will. The bill then prays that it maybe determined whether the slaves are entitled to be free, or whether the claim set up by the next of kin of the testator, is allowable. The defendants answered the bill, not however, denying its allegations, but leaving it to be settled by the Court, whether so much of the will as relates to the freedom of the slaves, is valid. The Circuit court rendered a decree affirming the validity of the bequest, and referring it to the judge of the County court of Lawrence, to determine upon an application to be made by the plaintiff, for the manumission of the slaves, under the act of eighteen hundred and thirty-four. Both parties, being dissatisfied with the decree, appealed to this coui't; and the question is here presented, as it was below. In the decision of every case in Equity, a prelimi- . nary inquiry is to be made — has the Court jurisdic- ' tion of the cause ? The powers of Chancery are extraordinary, and its interposition can only be asked, when the ordinary tribunals are incapable of affording full and complete relief. In the case before us, the plaintiff sets out the will of his testator — states that the defendants insist upon the invalidity of some of its bequests, and assert a right to some of the testa — 290 — tor’s estate; which, if allowed, must prevent the exertion of the will, pro tanto. Under these circumstances, the advice of a court of Equity is sought, that the plaintiif may perform the duties imposed by the will, without incurring a personal responsibility. Applications of this kind, are neither novel or unusual. It is the peculiar office of Chancery, to compel the performance of trusts, where trustees are either perverse or negligent. So, on the other hand, it will assist and protect trustees, in the performance of trusts, whenever they seek the aid and direction of the court, as to the establishment, management or execution of them.* This case comes clearly within the principle here stated. — The bequests of the will are trusts imposed upon the executor or administrator, cum testamento annexo, and whether they 'are valid, and how to be performed, are questions on which the aid of the Court is asked. In the case of Blackledge, ex’or. vs Singleton et al.,† where the plaintiff sought the directions of the court of Equity, how to distribute a certain portion of the estate of his testator, the jurisdiction was not questioned. Considering the right of the Circuit court to entertain the cause, not to admit of serious controversy, we will proceed to inquire, whether the bequest, that it is the “will apd desire” of the testator, that all of his negro slaves shall be “ free and emancipated, forever,” be legal. If the bequest of freedom be considered as a legacy to the slaves, it can not be maintained, — for being, themselves, in servitude, they have not the capacity to take property, either by purchase or descent.— Slaves, in this country, are not analogous in their condition, to that of the villeins of feudal ages, but may be more aptly compared to the slaves of the ancient — 291 — Greeks and Romans. As it regards their transmission from owner to owner, they are considered as personal property, and rather as things than persons. —Brandons vs Huntsville Bank;*—Walkers, ex’ors vs Bostick.† And, upon this principle, it has been held, that a promise or declaration of emancipation made to a slave, or for his benefit, can not be enforced in a court of law or Equity.—Beall vs Joseph.‡ While an agreement made by a purchaser, with the seller, to emancipate a slave, in a given period, will be specifically enforced, at the suit of the seller.—Thompson vs Wilmot.§—To S. P. Vide Cunningham’s heirs vs Cunningham’s ex’ors.ǁ That the owner of próperty is free to relinquish his right to it, at pleasure, as a general proposition, will not be denied; and the manner of the relinquishment, in the absence of legal restraints, must be left to his discretion. But the imposition of restraints, upon the exercise of this natural right, (the more especially as it respects slaves) is not only allowable, but the dictate of a wise policy. As a measure of expediency, the State owes it to its citizens at large, to protect their interests, by throwing suitable guards around the institution of slavery. If emancipation were allowed, at the mere volition of the master, consequences, disastrous to the quiet of the country would most likely result, — the public would be burthened with the charge of more paupers than it would be convenient to support, and slaves, themselves, would be turned loose upon society, who either from age, or the want of it, could not provide the pomforts, or even the necessaries of life. And last, though not least, the de-moralising tendency of such a policy would be such — 292 — as should induce every Christian and philanthropist to deprecate its toleration. The necessity of imposing checks upon the right of manumission, suggested itself to the convention which framed our constitution. Accordingly, we find it declared, in the first section of the Article relating to slaves, that “ The general Assembly shall have no power to pass laws for the emancipation of slaves, without the consent of their owners, or without paying their owners, previous to such emancipation, a full equivalent, in money, for the slaves so emancipated.” And again: “They [the general assembly,] shall have power to pass laws to permit the owners of slaves to emancipate them, saving the rights of creditors, and preventing them from becoming a public charge.” This latter provision is a clear delegation of authority to the legislature to regulate, by law, the emancipation of slaves, and is quite as potent, as if it contained negative terms, inhibiting the exercise of such a right, but in obedience to the expressed will of the general assembly. Any other construction would make it an act of supererogation ; for independent of such a grant of power, it was permissible at common law, for the owner to set at liberty his slaves. Why then confer this power upon the legislature by the constitution, unless it was intended thereby to abrogate the natural and common law right of the master. This provision can not be held to be merely declaratory of the legislative power, for that, if unrestrained by fundamental law, could not be questioned; and besides, this description of property was sufficiently secured by other guards in the constitution. I am strengthened in this view, by the fact, that until a general law was passed bn this subject, in eighteen hundred and thirty-four, applications were made to the legislature, at every session, for leave to emancipate slaves, and in the invervening period after the adoption of the constitution, up to that time, there was no instance of emancipation being effected, otherwise than by legislative permission. Contemporánea expositio forlissima esl in lege. — 293 — But we are not sustained alone by a continuous and tacit exposition of this feature of the constitution; for this court, in the case of Isbell, Daniel, et al. vs Stamp's ex’or,* at January term, eighteen hundred and thirty, decided that slaves could not be emancipated by will — that it was essential, that the authority should be given, either by general or special enactment. That case, it is true, was,not argued, and no written opinion drawn out, yet, we can not conceive how the court could have decided otherwise. Conceding the justness of this conclusion, independent of legislation, it has been argued by the plaintiff, that the statute, of eighteen hundred and thirty-four, by an equitable construction, gives to the master the right to i emancipate his slaves, by will, creating thereby, a trust for that pttrpose, which those charged with the execution of, may be compelled, or at least allowed to per- * form. By the act referred to,it is enacted, “That whenever the owner or owners of any slave or slaves, shall be desirous of emancipating such slave or slaves, such owner or owners shall make publication in some newspaper, printed within the county where such slave or slaves reside, (or, if there be no paper printed in said county, then in the nearest paper' thereto,) for at least sixty days previous to the making application, in which shall be set forth the time and place, that such application will be made,' together with the names and description of the slave or slaves sought to be emancipated; and at the time appointed the Judge of the said County court, may, upon petition filed, proceed to hear and determine upon the application so made, and if in his opinion, the said slaves should be emancipated,,in consideration of long, faithful, and meritorious services performed, or for other good and sufficient cause shewn, the said judge may proceed to emancipate and set free, such slave or slaves; and the clerk of the said court — 294 — shall make record of the same, in a hook to he kept by him for that purpose: Provided, that such slave or slaves shall remove without the limits of this State, within twelve months after such emancipation .never more to return; and that such emancipation shall not take effect until after such removal.” This statute authorises the owner to make an application for the manumission of his slaves; and if it is to receive a construction according to its terms, it is material to ascertain who is to he regarded as such. The owner must be taken to be him, who is authorised to command the services and enjoy the profits arising from them, or for his own benefit to dispose of the title to the slave to another. Does the relationship of the executor to the estate of his testator, give him this right? It is believed that it does not. Upon the death of a testator, the legatees under his will become sub modo cestui que ¿rusts of their respective legacies: if the estate is free from debt, an equitable title vests, which becomes perfect in law, by the assent of the executor. If any portion of the estate is undisposed of by the will, it vests in the heirs or distributees designated by law, and quoad hoc, they are the owners. So, that the mere authority to execute a will does not confer the ownership of property, but this continues with the testator while living, and after his death (if not required to pay debts) vests in his legatees or distributees. And there is an obvious propriety in withholding from an executor the right to emancipate slaves — at least, without investing him with the discretion over the subject, which the owner himself possesses. If it is competent to delegate the power to act under the statute of eighteen hundred and thirty-four, to an executor, he might be constrained to perfect the emancipation, so far as it depended upon his agency, without being permitted to regard any after developments in the characters of the slaves, however unworthy these might shew them to be of the boon of freedom; and which, had they been anticiptited by the owner, would have induced its denial. The owner has — 295 — a control over the statutory proceeding, and may withdraw it at any time before consummation of the act, and retain his slaves in servitude. Again: In some of the States, their legislatures have refused to allow the manumission of slaves, by will-'for the reason, that wills are usually made during the last illness of the testator, when influences often act upon the mind, calculated to cause a disposition of property, which sober reason could not approve. And who can say that this consideration weighed nothing with the General Assembly in thus limiting, in its terms, the act of eighteen hundred and thirty-four. To recapitulatewe have said, that the Constitution, by investing the General Assembly with the power “ to pass laws to permit the owners of slaves to emancipate them,” has impliedly, abrogated all pre-existing modes of emancipation, and is, consequently, a negation of the right, save only in the manner, and to the extent, the legislature may prescribe. The legislature having sig-" nifled its pleasure that the owner shall institute and consummate a proceeding, having that object in view, there is a want of authority to confer freedom by will, either absolutely or upon condition, for the reason that it is not a compliance with the legislative direction. Let us now inquire whether this conclusion is in harmony with judicial decision. In Haywood vs Craven’s ex’ors.* it appeared that the testator, among other bequests, by his will, gave and bequeathed to his sister, thirty slaves, and after her death, gave and bequeathed twenty-nine of these slaves and their increase to his executors, the survivor of them, and the executors of the survivor, in trust, to have them set free by the laws of the State, in such time and in such manner as they might think proper. The testator died, his sister was put into the possession of the property, and by her will bequeathed the same to the plaintiff. The bill prayed that the defen — 296 — dants might be decreed trustees for the benefit of the plaintiff and compelled to deliver unto them the slaves, &c. Among other arguments against the plaintiff’s right to recover, it was urged, that the testator having empowered other persons to dispose of his estate, the heir at law was disinherited as much as if he had disposed of it himself, so that there could be no resulting trust. And further, as the testator had asked for nothing to be done, but in pursuance of law, it was possible that the slaves might yet be emancipated by the legislature; or the executors might procure their emancipation by sending them to some other State. They should be allowed full time to make every proper effort to obey the will of their testator, and the discretion of the court could not be more wisely exercised than by holding up the bill ’till this was done. For the plaintiffs it was answered, that equity adopts the same rules for the transmission of estates, that have been laid down by courts of law, and puts the same construction upon trusts, that a court of law does upon legal estates; and where a case is sent from the former to the latter, for its opinion, it must be stripped of all appearance of a trust, otherwise no answer will be given* It is essential to every gift, that there should be a donor, a donee, and a thing given; the donee must have capacity to take and hold: where he has neither, the conveyance of whatever sort, is absolutely void. Again: If a devisee has not capacity to take when the estate ought to vest, the devise is void. In the case of a descent, a person not in esse may take when he comes in esse — A slave cannot hold property, and the holding it for him, whether by trust or otherwise, is illegal. And lastly, a statute of North Carolina points out the manner in which slaves shall be liberated and inhibits every other mode, which at once excludes the idea of a complete emancipation by will, or — 297 — of a valid authority to emancipate; so that to carry the trust into effect would he, hut to set the slaves free, contrary to lav/. The court declared the opinion, that the trust attempted to he created by the will of the defendant’s testator is void in law, not only as contrary to its general policy, but as repugnant to positive provisions by statute; the law having pointed out hut one method in which slaves could he liberated, and the principle on which it is allowed, — it could not, by construction, be applied to that case in which a different course was pursued.. The pertinency of this, to the case at bar, will best appear by a reference to the statute on which the court founded its judgment. The preamble to the act recites: “ Whereas the ' evil and pernicious practice of freeing slaves in this State, ought at this alarming and critical time, to be guarded against by every friend and well wisher to his country,” it is enacted, “That no negro or mulatto slave, shall hereafter be set free except for meritorious services, to be adjudged of and allowed by the County court, and a license first had and obtained thereupon.” And if any slave is set free otherwise than the act directs, it is made lawful for any freeholder in the State to take him and deliver him to the sheriff of the county, who is required fo commit him to jail, to remain until the next County court, when an order shall be made to sell all slaves thus confined, to the highest bidder; and the sheriff is directed to give at least five days notice to the last owner, &c. This statute declares the. policy of .that State tobe adverse to the emancipation of slaves, and authorises the apprehension and sale by the sheriff, (unless claimed by his last owner, &c.) of any slave set at liberty otherwise than it provides. Our statute does not expressly declare the policy of the State on this subject, but our constitution is an exclusion of any other mode of emancipation, than the legislature have enacted, and operates with as much force as if express negative terms were embraced in the act itself. — 298 — The case of Haywood vs Craven's executors, is then, an authority directly in point, to shew that it is net allowable absolutely to emancipate slaves ly will, nor to impart to trustees an authority by such means to adopt measures contemplating the performance of that act. — (To S. P. Vide Wright & Scales vs Lowe’s ex’ors.*) In South Carolina, the statute inhibits emancipation, in any other way than by deed, executed by the owner, in a prescribed form, at least a certain time betore his death. The court of Chancery of that State, determined that a bequest of slaves to a trustee, with directions to set them free according to law, was an attempt to evade the law, and could not be supported. Walker’s ex’ors vs Bostick & Walker.† See also Lamilton vs Cragg,‡ where the same principle is maintained in expounding a statute of Maryland, upon the same subject. In Kentucky, the legislature have prescribed a mode for the emancipation of slaves, without restricting the right by the employment of negative wmrds.§ Lut in the constitution of that State, we find this injunction: “They” (the general assembly) “shall pass laws to permit the owners of slaves to emancipate them, saving the rights of creditors and preventing them from becoming a charge to any county in this commonwealth”ǁ Its Supreme court, in considering an application for freedom, held, that to effect tho emancipation of slaves, the requisitions of the statute must be complied with— Talbot vs David.¶ Here is a case strikingly analogous in principle, to the one before us — like our act, that of Kentucky speaks affirmatively, while we have borrow ed an almost literal copy of its constitutional provision. But we have been referred by the plaintiff to the case of McCutchen, et. al. vs Marshall,** as fully maintaining — 299 — the authority of the master to emancipate his slaves by' will. That case arose in Tennessee, and was of course subject to its laws. The testator, (Patrick M’Cutchen,) among other bequests, proceeds as follows: “I give and bequeath to my beloved wife Hannah, during her natural life, the tract of land on which I now live, together with all its appurtenances, and the residue of the slaves; the slaves to be subjeat to an arrangement, to be made in a subsequent article of this testament.” In a subsequent part of the will, he directs the slaves to be set free after the death of his wife, to whom he had given them for life. Against the validity of the bequest of freedem, it was argued, that the laws of Tennessee did not authorise emancipation by will, but only authorised it for meritorious services, to be judged -of by the County court — that they prescribed the method of proceeding where manumission was proposed; and provided for the sale of the slave, where the master attempts to free him, without co nplying with the directions of the law. Further— that by the testator’s death, the property in the slaves passed to another; so that it was incompetent for the public, through its organ, the County court, to give an assent to their manumission, on the application of a trustee, designated by the testator. To this argument, it was answered, that the laws of Tennessee did not prohibit the emancipation of slaves, by will, and that the executors were authorised to observe the directions of the will, if the assent of the State, through its appointed organ, could be obtained — and that the next of kin have no vested rights to be affected by such act. A contrary argument could only be supported, upon the ground, that there is a positive law, inhibiting any other mode of emancipation, than that expressly pointed out. That the restrictions upon that right, contained in an earlier enactment, and the authority to sell slaves, not manumitted, according to its directions, had been repealed by a a later law, and general powers given to the County court upon the subject. The court, in its opinion, say, — 300 — that the act of North-Carolina, of seventeen hundred and seventy-seven, which was in force in Tennessee, has been modified, by a statute of the latter State, passed in eighteen hundred and one — as far as it relates to its restrictive terms: so that, no positive inhibition was imposed upon other methods of manumission, not provided for by it. Besides, the question, whether an executor shall be authorised to consummate the freedom of slaves, by an application to the County court, or that tribunal be authorised to entertain such a proceeding, was determined by the Supreme Court of Tennessee, in the case of Hope vs Johnson, in the affirmative. The opinion in that case was regarded as a judicial interpretation, by the highest court in the State, of one of its own statutes, which not having been called in question, in its own tribunals, was regarded as conclusive. In the case of Hope vs. Johnson,* the Court say — “ As between the master and the slave, the intent and volition of the master to emancipate may be made known by any species of instrument that will completely evince it; and then nothing more is wanted but the assent of the State, expressed by its organ, the court — which may shew its determination, by reporting on the petition, and certifying the same; and by causing both the petition and the report to be filed among the records of the court. The mind and desire of the owner may be as well expressed by will, as by deed, or any other instrument; and when it is made known by his will, the duty of his executor is to use such legal means as may be effectual for the completion of his purpose.”— See also, McCulchen vs Price.† The judgment in the case of McCutchen, et al. vs Marshall, is professedly founded upon the decision of Hope vs Johnson, and that case upon an affirmative statute, uncontrolled by a constitutional provision, such as ours, and does not at all conflict with the conclusions we — 301 — have expressed. So, that however obnoxious we consider it to legal criticism, we forbear to remark further upon it, as it does not lie in our way. In Pleasants vs Pleasants,* the heir and executor of John Pleasants, and the executor of Jonathan Pleasants filed his bill in Chancery, in which it is substantially alleged, that the respective testators bequeathed the slaves in question, to legatees, named in their wills, upon condition that they should be emancipated when they attained a certain age, and the laws would permit, — that some of them had attained the age appointed by the will, and the laws now authorised their freedom. The plaintiff claimed title for a breach of the condition, or as an executor, to perform the directions of the wills, and had applied to the defendants to emancipate the slaves, which they refused to do. The bill prays that the slaves may be delivered up, to be holden in trust, for the purposes of the wills of the testators, and that the court would direct the manner of their emancipation, and for general relief. The allegations of the bill were not materially denied by the answers. So that the cause was examined mainly upon the questions of law arising upon the bill itself. The judges delivered their opinions seriatim, in which, conceding it to be a nice question, whether the negroes are entitled to freedom, the adjudge the following points: First — That in Yirginia, up to the year seventeen hundred and forty-eight, the owner of a slave was allowed to emancipate him, upon the principle, that every one had a right to dispose of his own property, as he pleased; but, in that year, a law was enacted, to prevent the manumission of slaves, except for meritorious services, to be judged of by the executive. This law remained unaltered until seventeen hundred and eighty-two, when the act passed to tolerate emancipation, upon condition that an indemnity should be given to the public, against loss and ex — 302 — pense. Second — Though the emancipation provided for toy the will was unqualified, without any act to be done by the legatees or trustees; yet the act contemplated by the testator had substantially taken place, by the passage of the statute of seventeen hundred and eiglity-two. Third — The negroes were not legally emancipate:!, under the wills, and the act of seventeen hundred and eighty-two, enacted subsequently to the testators’ deaths; but they should be liberated, on the ground of a a trust created by the wills, the performance of which that statute made permissible. Fourth — The testators’ power to emancipate, was restricted by the act of seventeen hundred and forty-eight, and had the slaves been bequeathed on condition that the legatees should immediately manumit, such condition would have been void, and the property vested; yet a condition, the performance of which was to be postponed, until authorised by law, was not of that sort. Fifth — The limitation in favor of the slaves, if to be tested by the rules applying to the remainder of a chattel, upon a contingent event, would be too remote, and therefore void;, but considering the character of the property, these rules should not be applied. Sixth — The construction of the wills must be, as it should have been, at the death of the respective testators. And lastly— That an acceptance of the legacies, under the wills was an inchoate contract to emancipate the slaves, which was essentially made complete, by the passage of the act of seventeen hundred and eighty two. But, in as much as the testators did not declare their minds, whether they would compel their legatees to manumit, on the terms imposed by that act, they can not be compelled to execute the requisite bonds,- yet the executor, or any other person, may voluntarily give them —and the bonds thus given, would be quite as effectual to consummate freedom. That this case does not, in the slightest degree, oppose the construction we have placed on our statute, must be apparent to' any one who will carefully examine it. The court assume it, as a point undeniable, — 303 — that the act of seventeen hundred and forty-eight, deprived the owner of the right to emancipate slaves by will, or to create a trust in that way, by which that object could be effected. This statute, so far as that question is concerned, is not materially variant from our own: it inhibits manumission, except for meritorious services, to be-judged of by the executive; — ours, taken in connection with the constitution, tolerates this right, save only “in consideration of long,- faithful and meritorious services performed, or for other good and sufficient cause shewn,” of which the judge of the county court is to determine. So that under each law, the right of the owner is restricted, or to be exercised in obedience to the judgment and discretion of an officer designated for that purpose. Not so with the Virginia statute of seventeen hundred and eighty-two,. — that act permits “an unlimited, emancipation” but annexes “a condition, imposing upon the person liberating, certain terms, for the sake of the community, of which persons making a voluntary manumission might judge whether they would do the act upon these terms, and use their pleasure.” The terms are, the execution of a bond, with approved securities, conditioned, that the slaves proposed to be freed, shall not become chargeable to the public. The idea that this case fully sustains the plaintiff, is generated by a neglect to mark the striking dissimilarity between the law of seventeen hundred and eighty-two, and that of our own State. ' The one intrusts every thing to the mere pleasure of the owner, while the other invests a tribunal designated for that purpose, with a right, uncontrolable, (save only by the legislature,) of determining upon the owner’s mere petition. And this difference in the legislation of the two States deprives the decision we are remarking upon, of all force, when sought to be applied to the case at bar — for had the act of seventeen hundred and forty-eight, have continued unchanged by that of seventeen hundred and eighty-two, it never would have been supposed that the — 304 — slaves were entitled to freedom under the wills of the testators: in fact, any such pretence, is directly opposed, as well in the argument of counsel, as in the opinions of the judges. In that case, it is adjudged as a legal principle, that a legacy given by words, in prmsenii, which cannot vest at the testator’s death, because of its unlawfulness, or the incapacity of the legatee, is void. Now if the desire and will of the testator, that his slaves shall be free, be considered in the light of a bequest to them alone, it cannot be maintained; for the will does not ascertain a future period, when they shall be allowed the enjoyment of this boon, and according to legal interpretation, it must vest, if at all, immediately upon the testator’s death. It is utterly impossible for such a bequest then to take effect: the assent of the judge of the County court must first be sought and obtained, and this assent, it is more than possible, could not be had; so that, being necessarily deferred to a future contingent period, the will, pro tanto, is void, and the property in the slaves must pass to the legal distributees.* We have felt it proper to consider, thus at length, the case of Pleasants vs. Pleasants, because it was mainly relied on by the plaintiff, as sustaining his testator’s will. We do not think it necessary to examine its legal accuracy, as it does not oppose any conclusion of ours; — if it did, it is more than possible, we should, with all our respect for the Judges who determined it, be tempted to question the correctness of some of the positions they maintain. It has been argued further for the plaintiff, that though the bequest, in favor of the slaves, may not come within the equity of eighteen hundred and thirty-four, yet it may be regarded as a trust imposed upon the executor, and of consequence, upon the administrator, cum testamento an-nexo — the performance of which may be permitted by (if — 305 — ■'Rot enforced, against) the executor, by a removal of the ■negroes to some other State, where they may enjoy their ■freedom; that the terms of the wdl shew, that such a performance was not beyond the contemplation of the testator. To tliis ar gument, it may be answered, that the only means known to our law, of imparting liberty to slaves, is either that provided by the act of eighteen hundred and thirty-four, or the special permission of the legislature; that the will does not contemplate their removal to acquire, but to enjoy freedom, which it sup oses to be conferred by virtue of the declared wishes of the testator, and consequently no such trust is either expressly or implied-l3 created by the will, as the argument assumes, lint let the premises be conce led, and how stands the case ? A divestiture of title is not sought by the application of our laws, within whose jurisdiction the slaves arc, but by the force of other laws, within whose influence the Court is asked to have them taken. It cannot be, that our tribunals should deny them freedom, and yet coerce or approve their removal to another government, for the undisguised purpose of effecting that end. And may it not well be doubted whether the performance of the? trust suppose 1, would not oppose the policy of our law! Besides, does not the property of a testator, if within the ■State, an 1 not legally disposed of, at the time of his death, ■vest in his personal representatives or distributees, so that it can .rot b) divistel by the po wer of the juliciary?— These questio is need not be answered, for it has been already shewn, that the argument is not defensible. Again: — Equity subjects trusts to the same construction that a court of law does legal estates. And a dones must have capacity to take, whether it is attempted to convey title directly to the party himself, or to another in trust for him* Here, the plaintiff insists, that the administrator, awn teilavisn-'o annexo, is made a trustee by the will, to execute its directions: so far as it relates to the be — 306 — quest of freedom, the slaves themselves must he the ces-tui que trusts. Does not their incapacity forbid this? If It does, would not such a trust fail, because there was no one competent to claim its benefit?* We are of opinion, from a view of the entire case, that the slaves intended to be manumitted by the will of the testator, are not entitled to freedom. The decree of the Circuit court is therefore reversed; and the slaves must be held subject to distribution, according to the laws of this State, as in cases of intestacy — the testator not having made any other disposition of the void or lapsed legacies, bequeathed by his will. And as there are sufficient reasons for believing that the plaintiff’s bill was exhibited, bona fide, for the purpose of obtaining the directions of the court, in the execution of the will, the costs of this court, as well as of the Circuit court, should be paid out of the estate of the testator, in plaintiff’s hands to be administered. The bequest of plantation utensils, kitchen furniture. &c. being made in anticipation of the freedom of the si aves, must of course fail, for the reasons stated, — and a decree will be entered accordingly. Footnotes [*] 3 Story’s Eq. 229-325. [†] 3 Murphey’s R. 597. [*] 1 Stew. Rep. 320. [†] 4 Dess. Rep. 266. [‡] Hardin’s R. 51. [§] 1 Bibb, 422. [ǁ] Cam. & Nor. 353. [*] No written opinion — never reported, [*] 2 Caro. Law Hep. 557. [*] Burr. R. 1108-9; 2 Vcs. jr. 426; 4 Ib. 788. [*] 2 Murph. R. 354. [†] 4 Dess. R. 266. [‡] 6 Harr. & J. 16—and 2 Har. & McH. 199. [§] Laws of Ken. Morehead & Brown’s ed. 1st vol. 608. [ǁ] Art. 7, s. 1. [¶] 2 Marsh. R. 608, To S. P. 2 Bibb’s R. 57. [**] 8 Peters’ R. 220. [*] 2 Yerger’s R. 123. [†] 3 Hayw. R. 212. [*] 2 Call’s R. 270. [*] To S. P. vide 2 Ves. jr. 282—1 Roper on Leg. 44, 319—Plow. 345—Cro. Eliz. 422—9 Mod. 167—181—1 Strange, 369—1 Salk. 227. [*] 2 A tk. 806—2 Ves.jr. 482. [*] 4 Dess. R. 266—Cam. & Nor. R. 353.