Williams v. Ash

Mr. Chief Justice Taney delivered the opinion of the court. This case is brought here by writ of error, from the Circuit Court of the District of Columbia, for Washington county, and came.before that court upon a petition for freedom. It appeared on the trial, that the petitioner was the property of Mary Ann T. Greenfield, of Prince George’s county, in the state.of Maryland, who died in 1824, having first duly made her [13] last will and testament, whereby among .other -things she bequeathed(the petitioner, with sundry other slaves, to her nephew, Gerard T. Greenfield, with a proviso in the following words: “ Provided he shall not carry them out of the, state of Maryland, or sell them to any one; in either of, which events I will and devise, the said negroes to he free for life,” and she appointed her said nephew her executor. Upon the death of the testatrix, Gerard T. Greenfield took possession of the petitioner and the other, slaves bequeathed to him, and held them from that time until December, 1839, when he sold the petitioner to the defendant; and the petition for freedom was filed shortly after the sale. At the time of the making of the will, and ever since, Gerard T. Greenfield resided in the state of Tennessee; with an interval of between two and three years, during which he sojourned in Prince George’s county, after the death of the testatrix, for the purpose of settling his business. Upon this evidence, the Circuit Court instructed the jury, that by the fact of such sale of the petitioner, the' estate or property in the petitioner so bequeathed to Greenfield, ceased and determined, and he therefore became entitled to his freedom. Under this direction of the court, the verdict was in favour of the petitioner. . By the laws of Maryland, as they stood at the date, of this will, and at the time of the death' of the testatrix, any person might, by deed, or last will and testament, declare-his slave to be free after any given period of service, or at. any particular age, or upon the performance of any condition, or on the event of any contingency. This right is recognised in the act of Assembly, of 1809, ch. 171. The contingency upon which the petitioner' was to become free must, by the terms of the will, have happened in the lifetime of Gerard T. Greenfield; and if he had died without selling him, or conveying’him out of the state of Maryland, the petitioner would have continued a slave for life. The event,.therefore, upon which he was to become free was not too remote. It is said, however, that this was a restraint on alienation inconsistent with the right of property bequeathed by the will. But if, instead of-giving freedom to the slave, he had been- bequeathed to some third person, in the event of his being sold, or [14] removed out of the estate by the first taker, it is evident upon common law principles, that the limitation over would have been good. 2 East, 481. Now .a 'bequest of freedom to the slave stands upon the same principles with -a bequest over to a third person. I-t is said by the chancellor of Maryland, 2 Bland’s Chancery Rep. 314, that the bequest of freedom to a slave is a specific legacy, and undoubtedly: this is its true legal character. And if a bequest' over' to a third person would not be regarded as an unlawful restraint upon alienation, there can be no reason for applying a different rule where- the bequest over is freedom to the slave. In the one case, the restriction on alienation ceases as soon as the devise over takes effect; and in the other, the right of property ceases upon the happening of the contingency, and there is nothing to alien. We think that the bequest in the will was a conditional limitation of freedom to the petitioner, and that it took effect the moment he was sold. The judgment of the Circuit Court must therefore be affirmed.