Maddox v. Negroes Price

Bartol, J., delivered the opinion of this court. The appellees claim their freedom under the folllowing clause of the will of Mrs. Turner: “Item. — I also give and bequeath to my nephew, James T. N. Maddox, the residue of my negroes in trust, which negroes he shall hire out from year to year, until my just debts are paid as well as certáin legacies discharged and paid, as hereinafter made by me; ,then he, the said J. T. N. Maddox, may, if he wish to do so, take such of my negroes as are willing to go to the State of Kentucky, or elsewhere, where they shall be manumitted; it being my wish and intention, to manumit all my negroes except Josias, when my just debts shall have been paid, and the bequests made in this will are discharged and paid; and if any of my negroes shall refuse to leave the State of Maryland — a condition of freedom required by our equitable laws — then he, the said J. T. N. Maddox, may sell such negro or negroes, allowing those sold the privilege of choosing masters, provided the persons chosen will give a fair price for them.” At the trial before the jury the following agreement was filed: “We agree that the negroes mentioned in the petition for freedom, are of the negroes of the late E. W. Turner, that Josias Price, one of the petitioners, is not the Josias excluded by the will, that the executor of E. W. Turner, DrThos. Maddox, called on said negroes after the debts and legacies were paid off, to go out of the State of Maryland;-they have refused and still do refuse to leave the State of Maryland, and that said debts and legacies are paid.”' The appellees’ counsel contends, that by the true construction of the will, the petitioners became entitled to their freedom, when the debts- and legacies were paid, notwithstanding they refused to leave the State; that going out of the State. [417] was a condition subsequent to the bequest of freedom, and the failure to perform it, could not defeat the manumission under the will. In support of this view several cases have been cited, which, as we think this case is distinguishable from them, it is necessary for us to notice. In Spencer vs. Negro Dennis, 8 Gill, 314, the will set the negroes free at the age of thirty-eight years, “provided they leave the State of Maryland, (and do not return therein to reside,) in the course of thirty days after they arrive to the age of thirty-eight years, and should they return to reside in the State, the will, directed that they should be slaves to the testator’s heirs.” The petitioner having reached the age uf thirty'eight in 1845, went at large and acted as a free man till 1849; when he was taken by Spencer and claimed as a slave, he having remain • ed in the State. The court held that by the will, Dennis became free at the age of thirty-eight, and freedom having once vested could not be divested, and a state of slavery be again produced, by any condition prescribed by the testator. (See 8 Gill, 321.) In that case the condition prescribed was declared to be a condition subsequent. The cases of Vansant vs. Roberts, 3 Md. Rep., 119, and Negro William vs. Reynolds, 14 Md. Rep., 114, were decided in conformity with Spencer vs. Dennis. In each of those cases, freedom was conferred by the will; and the condition annexed was to be performed after the right to freedom became vested; but in the case before us the petitioners are not manumitted by the will, they are bequeathed to J. T. N. Maddox in trust, with directions that he hire them out from year to year, till the debts and legacies of the testatrix shall be paid; then the will does not in terms set the negroes free; but declares that J. T. N. Maddox, (who is the executor,) “'may, if he wish todo so, take such of the negroes as are willing to go, to the State of Kentucky or elseivhere, where they shall be manumitted. ’ ’ The testatrix declares her wish and intention to manumit all her negroes when her debts and legacies shall be paid; but this must be construed in connection with the other parts of the will, and clearly means that they are to be manumitted by [418] the executor, in the manner directed, not in the State of Maryland, but when they shall be removed from the State. The intention of the testatrix was not to confer freedom on the negroes by her will, within the State of Maryland; but they were to take, freedom from J. T. N. Maddox, to whom they were first given, and then only in the event of their being willing to go out of the State, and this intention is clearly manifest from the subsequent part of the clause. This will, like all others, must be construed so as effect the intentioe of the testatrix, so far as that can be done consistently with the rules of law; and according to our construction of it, the testatrix clearly intended that the removal of the negroes out of the State, by their consent, should be a condition precedent to their manumission. There is no more difficulty in making a bequest of freedom depend upon a condition precedent, than there is in prescribing conditions precedent to the vesting of any other right. In the case of Negro Williams and others, vs. Reynolds, already cited, the will bequeathed Lucinda “until she arrived to the age of twenty-seven years, then Lucinda shall be free to go to Africa, at the end of her term, and carry with her any child she may then have, under the age of five years.” It was held Lhat Lucinda became free at the age of twenty-seven years, although she did not go to Africa. But such of Lucinda’s children as were under the age of five years, at the time she reached twenty-seven, were decided not to be free, their mother not having carried them to Africa. We said that “a master may limit the time at which freedom is to commence, and it may be on a contingent event; if the event does not happen, the negro remains a slave.” 14 Md. Rep., 115. In our opinion, that principle is applicable to the case before us; the petitioners do not become entitled to freedom unless they are removed out of the State of Maryland. Requiring that they should consent to go out of the State by no means implies that they are to be free, whether they are willing to go or not. They are sentient, rational beings, and have capacity to make the election, under the will, before [419] they have become free; such a choice is not inconsistent with a state of servitude. On the contrary, by the provisions of the Act of 1831, ch. 281, sec. 4, the privilege is accorded to a manumitted slave to renounce freedom and to continue a slave. In the will before us, the testatrix referred to that law with approbation, and plainly intended to give to the petitioners a similar choice. (Decided Oct. 29th, 1861.) It follows from what we have said, that the judgment of Che circuit court must be reversed without a procedendo. Judgment reversed.