Rozier v. Holliday

Tuck, J., delivered the opinion of this court. The appellant claims his freedom under the will of Van S. [385] Brashears, which was executed on the 20th day of October 1832, and provided that all his property, real, personal and mixed, should belong to his wife, Maria, for her sole and exclusive use and benefit, but that at her death all his slaves then existing, and those that might be bom of them thereafter, should then cease to be slaves, and ever thereafter remain free. The will was admitted to probate on the 31st day of October 1832. It was proved on the trial that the petitioner was born after the death of the testator, and was the son of Henry and Mary Rozier, slaves of the testator at his death; and that the widow of the testator died in the month of October or November 1837, when petitioner was about four or five years old; and that a negro boy is not able to work and gain a sufficient maintenance and support until he is ten or twelve years of age. On the 9th January 1838, and after the death of the widow, the orphans court passed an order, that the administrator of Van S. Brashears “proceed to make such disposition of the negroes belonging to the estate as will enable him to close the estate of deceased with the court.” The administrator sold the petitioner, then in his fifth year of age, to Benjamin G. Fitzhugh, to serve from the 1st of March 1838 until the 1st of March 1860, who afterwards sold him to the appellee in this case for the residue of the term. The defendant below, by his counsel, offered a prayer, the point of which was, that if the jury believed from the evidence that the petitioner was not more than four or five years of age at the time of Mrs. Brashear’s death, when his freedom was to commence under the will, and that he was not then able to work and gain a sufficient livelihood and maintenance, then the petitioner was not entitled to his freedom under the laws of Maryland, and the verdict must be for the defendant, which prayer the court granted. The petitioner also prayed for an instruction upon the whole evidence, the point of which was, that if the jury should believe there was no bill of sale from Fitzhugh to Holliday, duly executed and acknowledged, specifying and designating the true time or condition of the servitude of the petitioner and the residence of the purchaser, then the petitioner was entitled [386] to his freedom, the jury having the right to decide whether there was any fraud intended in the sale of the petitioner, and if no fraud intended, then the omission to make the bill of sale would not entitle the petitioner to his freedom. This prayer the court rejected, and the petitioner appealed. This case was tried in March 1855. Since then we have decided that under the act of 1831, ch. 281, a negro of whatever age is capable of receiving freedom, by will, according to the purposes and provisions of that act. It follows, therefore, as conceded by the appellee’s counsel, that the ruling of the court below on the first exception must be reversed. Tongue vs. Negro Crissy, et al., 7 Md. Rep., 453. The second exception involves the application of the act of 1817, ch. 112, sec. 3, to cases where negroes entitled to freedom under a will are sold, for purposes of the estate, for terms of years. That they may be sold for the payment of debts and for terms of years, where such sales will realize the sum required, see Allein vs. Sharp, 7 G. & J., 96. But do they ultimately take their freedom under the will, or is it necessary, as contended by the appellee, for the executor or administrator to execute deeds of manumission according to the terms for which they may be sold ? Doubtless by force of the will alone. The general principle is, that an executor has no power to execute deeds of manumission. Anderson vs. Garrett, 9 Gill, 120. The case is different, however, where such deeds are authorised by the will. Pearce vs. Van Lear, 5 Md. Rep., 85. If, in cases like the present, a deed was necessary to confer freedom, the failure or neglect of the administrator or executor to perform this duty might deny to the negro all benefit of the bequest, by the want of competent proof. The law does not subject persons in this predicament to any such risk. The right is derived under the will, limited in its enjoyment by the term of service that may be imposed in the due administration of the estate; and when the time expires, as may be shown by the account of sales or otherwise, the party can claim the usual certificate of freedom from the register of wills. Hence it follows that at the time the appellee purchased the appellant from Fitzhugh, he was in a condition which [387] Secured to him the protection afforded by the act of 1817, (ias a servant or slave entitled to freedom after a term of years, or particidar time,” subject, of course, to the finding of the jury on the question of fraud in making the sale, as provided by the act. Consequently the exception on this point was well taken. We express no opinion on the effect of the order of the orphans court, passed 9th January 1838, nor as to the onus of proof touching the condition of the estate, as these questions are not presented by this record. On these points see Allein vs. Sharp, 7 G. & J., 96; Wilson vs. Barnett, 8 G. & J., 159, and 9 G & J., 158. Judgment reversed and procedendo ordered.