Cheairs v. Smith

Handy, J., delivered the opinion of the court. This was a contest in the Court of Probates of Marshall county — 662 — between, the heirs at law and distributees of William H. Cheairs, deceased, and the residuary legatee under the last will and testament of the said decéased, involving the validity of that will as to certain dispositions made in it in favor of the residuary legatee. The will, after making bequests of certain specific legacies to certain relatives and friends, contains the following provisions: “ All the residue of my estate, both real and personal, not herein particularly disposed of, I give and bequeath to my,nephew Lucius, son of Calvin Cheairs, on the uses and trusts following, to wit: I will that my mulatto boy Pillow and girl Mary are to be free, and are to have five hundred dollars each when they arrive at the age of eighteen- years ; that they are to remain under the care of my brother Calvin until Lucius shall be of age; that they are never to leave the family, nor be subject to the control of overseers; and that Mary be made a seamstress, and Pillow a barber. I further will that the offspring of the girl Mary shall be free, and that my nephew Lucius shall take care of them during his lifetime. Now, if my nephew Lucius and his father shall do with the boy Pillow and the girl Mary as herein willed and expressed, the gift to him of my estate, as above specified, to be good and absolute; but should they fail and .not comply with my request, the property so .bequeathed to the said' Lucius shall be equally divided between. the heirs of Lemuel Smith and David B.. Cheairs, .they paying to the said Pillow and Mary the five hundred dollars as before specified. If my nephew Lucius dies- before he becomes of age. then the property given and bequeathed to him shall go to my nepnew William, son of Calvin Cheairs, upon the same conditions as to my nephew Lucius. Believing my right to dispose of my property as best suits me, to be absolute, I affirm that no law or equity shall set aside this my last will and testament;”, and appointing Calvin Cheairs and James G. Hamer, his executors. It was admitted of record by the parties, that the slave Mary named in the will is about thirteen years old, and the slave Pillow about eleven years old, and the legatee, Lucius, about fourteen years old. That the residuum of the estate consisted of seven hundred acres of land, and thirty-two slaves, exclusive of Mary and Pillow, and horses, mules, cattle, &c., the whole residuum being worth about $35,000; and that the testator left two brothers and — 663 — one married sister, all in good circumstances. One of these brothers and the sister filed the petition in the court below, alleging that the residuary clause of the will is illegal and void, because the trust thereby created was illegal and void, and the same was a condition precedent to the vesting of the estate in the residuary legatee. This was denied by the answers of the executors and the residuary legatee. And upon the hearing, the court sustained the petitioner and decreed distribution of the slaves and other personalty above-mentioned, including the slaves Mary and Pillow; holding the residuary clause of the will to be illegal and void; from which decree this appeal was taken. It is admitted on the part of the appellants, that the bequest of emancipation to the slaves Mary and Pillow is contrary to the statute prohibiting emancipation of slaves in this State, and void; and consequently that those slaves remained the property of the testator’s estate. But it is denied that this vitiates the entire residuary clause. In behalf of the appellees several objections are taken both to the will as a whole, and to the residuary clause, which deserve consideration. And first, it is insisted that the will being illegal and void as to part of the slaves attempted to be emancipated in violation of the statute, falls under the condemnation of the statute as to all its provisions, and is void in toto. This position is founded on the language employed in the statute, which, after declaring that it should not be lawful for any person by will, deed, or other conveyance, to make any disposition of any slave for the purpose of emancipation in this State, or for removal of any slave for emancipation elsewhere, concludes as follows: “But all such wills, deeds, conveyances, dispositions, trusts, or other arrangements, made, had, or intended to accomplish the emancipation of any slave or slaves, after the death of the owner, no matter when made, shall be deemed and held entirely void, and the said slave or slaves thereby attempted or intended to be emancipated, shall descend to, and be distributed among, the heirs at law of the testator, &c, as though he had died intestate.” Rev. Code, 236, Art. 9. But we do not think that the view of the statute contended for, is sustained either by its language or the policy comprehended in it. The object of the statute is plain. It is to pre — 664 — vent emancipations of slaves in this State, or the execution of instruments here to take effect out of the State as emancipations. There is nothing in it indicating an intention to subject the owner of the slave attempted to be manumitted, to a penalty or forfeiture, or to do more than to frustrate his attempt at emancipation. The policy on which the statute was founded comprehends only the illegal act intended to be prohibited, and does not extend to other acts embraced in the same instrument, and which are in violation of no law. And such an instrument should not be held illegal and void as to other matters embraced in it, which are in themselves legal, without language clearly showing that it was the intention of the statute to render the whole instrument void. For such a construction might operate to defeat the most just and wise dispositions of a testator’s property, and to bring it into distribution for the benefit of parties in law occupying the position of distributees, against the plainest dictates of justice and right, because the testator might have attempted to emancipate a single slave of but little value, and forming a very inconsiderable part of the property disposed of by the will. But the language of the statute does not justify the construction. It first declares emancipation of slaves by will, deed, or other conveyance, to be illegal; and it then proceeds to declare the instruments made and intended for that purpose, to be void; and adds that “ the slave or slaves thereby attempted or intended to be emancipated, shall descend to, and be distributed among, the heirs at law of the testator,” as if he had died intestate. This latter clause shows the true intent of the statute to be that the will should- be void only as to “ the slave or slaves thereby attempted to be emancipated.” The next objection to the will is, that the emancipation of the slaves Mary and Pillow, and the acts required to be done by the residuary legatee in their behalf, and in consequence of their emancipation, were conditions precedent to the vesting of the estate bequeathed in the residuary clause ; and as they are illegal and void, that the estate, which is dependent upon their taking effect, must fail. With respect to the slaves Mary afid Pillow, it is to be observed, that the will does not require or authorize any act to be done by — 665 — Lucius to emancipate them; but it appears to have been the intention of the testator to set them free by the will. It is true, the residuary clause gives all the residue of his estate to Lucius; but this is qualified by the words “ not herein particularly disposed of.” And he immediately adds, “ I will that Pillow and Mary are to be free, and are to have five hundred dollars each, when they arrive at the age of eighteen years.” It appears, from the absence of any expression indicating that Lucius was to do any act by which they were to be set free, and from his positive declaration that they were to be free, that they were intended to be made free by mere force of the will, and at the time it went into effect. But whether they were to be free at that time, or when they should arrive at eighteen years of age, it is plain that their freedom did not depend on the act of Lucius, but was intended to be conferred by the will itself. It is, therefore, clear that the emancipation of these slaves was not one of the “uses and trusts” upon which the estate was bequeathed to Lucius, much less was it a condition precedent to the vesting of the estate in him. But there are certain things specified to be done by Lucius, or by his father during his minority, in relation to the slaves, which could not be done by the testator, and which had to be committed to some other person after his deafh. These were: to pay the slaves five hundred dollars each on their reaching eighteen years of age; they were to remain under the care of Lucius’s father until he came of age, and were not to leave the family or be under overseers; that Mary was to be made a seamstress, and Pillow, a barber; and that Lucius was to take care of Mary’s offspring during his lifetime, they being declared free by the will. After stating these particulars, he adds that “ if Lucius and his father should do with the boy Pillow and girl Mary as herein willed and expressed, the gift to him of the estate, to be good and absolute;” but if they should fail, that “ the property so bequeathed to Lucius” should be equally divided between other relations, they paying five hundred dollars to Mary and Pillow. He further adds that if Lucius should die before becoming of age, “ then the property given and bequeathed to him,” should go to his nephew William, upon the same conditions as to Lucius. It is manifest from these provisions, that a present estate in the property embraced in this residuary clause, other than the slaves — 666 — Mary and Pillow, was intended to be given to Lucius, requiring of him and his father the performance of certain acts for their welfare. These he refers to as “the uses and trusts” “herein willed and expressed.” They must necessarily be done in future, and if performed, “ the gift to him of the estate” was to be absolute, but to be defeated if Lucius and his father should fail to perform them. They were continuous in their nature, and the estate was subject to forfeiture at any time when a failure to perform the acts required should take place; but nevertheless the estate vested subject to such condition. And we think it very clear that the performance of these acts was a condition subsequent. 1 Jarman on Wills, 801. Nor is this changed by the fact that the estate is limited over to another legatee in the event of the non-performance of the conditions subsequent by the original legatee. For the bequest vested in Lucius immediately, subject to be divested upon the happening of the contingency. 1 Roper Leg. 518 (1st Am. edit.) But it is again insisted, that the bequest to the residuary legatee was a part of the illegal scheme to emancipate the slaves, and was made for the purpose of carrying out that scheme; and as the emancipation is void, that which was accessory to it is void or must fail. This objection would be fatal to the bequest if the act of emancipation had been required to be performed by the legatee, or if the emancipation had been made to depend upon the performance of the acts required to be done by the legatee for the benefit of the slaves. But, according to the view we take of the will, the emancipation was intended to take effect, whether these subsequent acts for the benefit of the slaves were performed or not. And that was the act which the law renders illegal. It is true that the invalidity of that act rendered the performance of the conditions subsequent annexed to the estate -impracticable by the legatee. But in order to render the residuary bequest void for illegality, it would be necessary to show that the emancipation depended upon the performance of the acts required to be done by the legatee. In the ease of Lewis v. Lusk, 35 Miss. 401, the pecuniary bequest to the Colonization Society was to be paid after the bequest of the slaves for emancipation should take effect; and it was held, that the pay — 667 — ment of the money depended on the emancipation, and failed for that reason, with the attempted emancipation. The general rule is, that a bequest of an estate upon condition which is void, vests the estate in the legatee discharged of the condition. To this there is an exception, where the bequest is to a mere trustee without any beneficial interest in him ; in which case, if the trust be illegal and void, there is a resulting trust to the heir. Lusk v. Lewis, 32 Miss. 297. But if the circumstances show that a benefit was intended to be conferred on the legatee in such a case, he will take the estate absolutely. Ib. Weathersby v. Weathersby, 13 S. & M. 685. In this case, it is evident that the legatee is something more than a mere trustee. He was the nephew of the testator, and the property left to him by the will was worth about . $35,000. That appears to be greatly disproportioned to the small duties towards the slaves required of him by the will, and the bequest of- so large an amount of property to him, affords the strongest evidence that a material part of his purpose was to make the legatee the subject of his special bounty. Therefore, although the performance of the acts by the legatee consequent upon the emancipation, is very stringently enjoined by the will, it cannot be held to be the sole or even the main purpose of the testator, in bequeathing so large an estate to his nephew. And as the emancipation was to take place, and, if legal, would have taken place, whether the subsequent acts required of the legatee had been performed or not, the condition annexed to 'the estate of the legatee cannot be considered as a “ trust or arrangement” “to accomplish emancipation,” within the prohibition of the statute; but a condition, the performance of which depended upon the emancipation of the slaves, which the law has prevented from taking effect. In such a case, the condition being void, and the legatee being not a mere naked trustee, but having a beneficial interest in the estate in his own behalf, takes the estate absolutely. Lusk v. Lewis, supra. It follows from these views of the case, that the decree holding the entire residuary clause of the will to be void, is erroneous, except so far as it emancipates the slaves Mary and Pillow. The decree is, therefore, reversed, and the petition is dismissed, except — 668 — as to the slaves Mary and Pillow; in which respect it is affirmed, and the cause is remanded for further proceedings upon the petition, as to those slaves.