Bird v. Vail

Campbell, J. Plaintiff, as testamentary executor of the last will of H. 0. Vail, deceased, sues for the possession of a slavenamed Jane, who was directed by the testator to be liberated. Seizin of the slave is not given to the executor by the will. The defendants, Alexander and wife, disclaim possession, and the latter, who is one of the heirs of the deceased, releases in favor of Jane, any right to her that she may have. The defendant Vail, who is also one of the heirs of deceased, averring that he has accepted the succession unconditionally, claims that even though the slave be entitled to her freedom under the will, which however he denies, he is entitled to her services, and, consequently, to her possession, until her emancipation shall legally take place. Judgment was rendered in favor of defendant, dismissing the suit, and plaintiff lias appealed. This case, in its important features, is not distinguishable from that of Nimmo et al. v. Bonney et al., Executors, 4 R. 179, in which it was in substance held, under a similar bequest, that as the slaves did not become absolutely free by the homologation of the will, but only entitled to their freedom, upon compliance with the formalities prescribed by law for the emancipation of slaves ; until these formalities were complied with, they remained slaves, and the heirs had a right, as against the executors, to detain them in possession, and enjoy their services and labor. The possession of the slave by the heir, will not preclude the executor from talcing all stops, which in law may bo necessary, for her emancipation. Judgment affirmed, with costs in both courts.