Garnett v. Cowles

Harris, J., delivered the opinion of the court: Appellees filed their petition in the Court of Probates for Yalobusha county, praying for distribution of the estate of Samuel Hurd, deceased, to the said Polly Cowles, as his heir at law. The petition does not appear in the record. But, from the answers of the American Colonization Society, of H. T. Garnett, admr. de bonis non on the estate of said Hurd, and of T. N. Waul, claiming to be residuary legatee, as well as from the arguments and admissions of counsel, it is to be inferred that the petitioner bases her claim, as heir at law, upon the assumed invalidity of the will of Samuel Hurd, deceased, a copy of which appears in the record before us. It seems to be charged in the petition, and admitted by all the answers, that it was the object of the said Hurd, originally, and especially by the twelfth clause of his will, to emancipate his — 101 — slaves; but all parties deny any agreement, secret or otherwise, or any participation with said Hurd as to sueb illegal purpose. Tbe answer of tbe Colonization Society denies tbat they had any knowledge of said testator’s purpose, or will, until after his death; or that, since his death, they have in any manner assented to the provisions of said will. They allege that they are a corporation, duly authorized to sue and be sued, and capable, in law, of taking and holding property and money, by gift, bequest, devise, or otherwise, within the limits of Mississippi. They claim that they may lawfully insist on the sale of the negroes of said estate, for their benefit, under the twelfth section of said will, and that they have a right to renounce the illegal trust, or bequest, and to take the pecuniary legacy bequeathed to them, absolutely discharged from such illegal trust or conditions. The answer of Waul admits the statements of the petition in relation to the execution of the will, and its purpose, through the agency of the Colonization Society and the trustees named in said will, to emancipate testator’s slaves. Admits the writing of the letter, mentioned in petition, as evidence of testator’s intent thus*to emancipate his slaves; that it was written by Hurd about the time of the original draft of his will by himself; that the same was. published in the Liberia Advocate, as charged in the petition. Admits the making the codicil to said will, as stated in the petition, by which respondent, Waul, was made residuary legatee ; and recites the fourth clause of said codicil. But, denies, most positively, that there ever was any secret agreement, or understanding, between the said Hurd and the said Waul, that in case the said twelfth clause of said original will should be declared void, that he, as residuary legatee, would, nevertheless, emancipate said slaves; denies any knowledge of, or participation in, any trust, secret or otherwise, or that any such trust, or purpose, was intended, by said fourth clause of said codicil, different from what is expressed on its face. Believes that said Hurd’s primary object, in his original will, was to emancipate his slaves through the aid of Gray, Means, and Finley, (the trustees named in said will,) and the American Colonization Society; but fearing that he might fail in accomplishing this purpose, as a secondary or alternative object, and — 102 — in order to secure to his slaves a just and humane master, he executed said codicil, making said Waul his residuary legatee; and claims said property mentioned in said will, under and by virtue of said codicil, as now rightfully belonging to him; makes his answer a cross-bill, tenders an indemnifying bond, End prays that the property may be distributed to him. It will thus be seen that there are three parties presenting themselves in court to claim this estate: 1st. The American Colonization Society claims, under the twelfth clause of the will, the sale of the negroes, &c., and to have the proceeds, as a pecuniary legacy, discharged of the illegal trusts, conditions and purposes of the will; which are admitted by them to have been desired, and intended ’ to be accomplished, by this clause. 2d. The residuary legatee, "Waul, who denies the illegal purpose or intent of the testator, or of himself, in relation to the bequest contained in the codicil, and insists that this bequest was intended to convey the slaves to him in servitude, and to secure to them a just and humane master, in the event that his main purpose, expressed in the original will, should prove void or ineffectual to accomplish their freedom and removal to Liberia. And, lastly, the heir at law, Polly Cowles, who insists, first, that both the original will and the codicil are infected with the same illegal attempt and intent or purpose of emancipation; and, second, that if this be not so, then the whole-will is declared void by the true reading of the Act of 1842, forbidding the emancipation of slaves by will, and directing that "the same shall descend to and be distributed amongst the heirs at law of the testator, or be otherwise disposed of, according to law, in the same manner as if such testator had died intestate.” This last claim is dependent upon the invalidity of the two first. We will therefore settle the rights of Mrs. Cowles, in deciding whether either Waul or the Colonization Society have any rights here. And, first, of the claim of the American Colonization Society. It will be observed that this claim is urged upon the ground, 1st. That the testamentary purpose disclosed upon the face of the — 103 — toill may be fully effected without' emancipating the slaves or violating the law. 2d. That the record affords no evidence which, taken by itself, or in connection with the will and the circumstances surrounding the testator at the time, can establish such unlawful purpose. 3d. That the statute cannot be applied to a will which discloses no illegal purpose on its face, and which, if carried into effect, according to its terms, would not be illegal; no matter what may have been, the purpose of the testator. 4th. That the belief, desire, or hope of emancipation, although constituting the motive or purpose of the bequest, so long as the legatee is left free to obey his own will instead of that of the testator, will not bring the will within the operation of the statute. 5th. That unless emancipation is to take effect by force of the terms of the will, the unexpressed intent or purpose of emancipation with which it was made, though existing in the mind, will not, under the statute, affect the validity of the will. 6th. That no trust is created by this will, either taken by itself or in connection with facts in proof. To all this one answer is obvious and conclusive. The Act of 1842, sec. 11, Hutch. Code, p. 539, declares that "hereafter it shall not be lawful for any person, by last will or testament, to make any devise or bequest of any slave or slaves, for the purpose of emancipation,” &c. The statute declares that the “purpose of emancipation" “shall not be lawful," and it is not for courts, however averse to the punishment of intention alone, to say, that the Legislature may not visit with the penalty of invalidity any contract or other instrument tainted with a fraudulent or criminal intent, though pure and unspotted on its face. Such statutes have been enforced, and such unlawful intent has been visited upon deeds, perfectly fair on their face, made to secure honest debts to innocent and even conSdential creditors wholly ignorant of fraudulent intent, both in Great Britain and in the several States of this Union, too long to be questioned at this day either as to their policy or validity. — 104 — That this will was made “for the purpose of emancipation,” we are satisfied from the face of the will itself; and, reasoning from human conduct and feelings to human motives, we think the purpose could scarcely be made more manifest by the plain declaration of intent contained in the other evidence, to be found in this record. We shall not stop to discuss this view of the case, as we are relieved from such necessity by the luminous and overwhelming analysis of the will, on this point, contained in the able brief of counsel for defendant in error. We hold it clear, therefore; that under the Act of 1842 this will, so far as it attempts to constitute the American Colonization Society a legatee, is void. See Lusk v. Lewis, 32 Miss. R. 297; Lewis, admr., v. Lusk, 35 Miss. R. 401. We are next to consider this will in reference to the claim set up by the appellant, Waul, as residuary legatee. It is insisted by counsel for defendant in error that this bequest is void, under the Act of 1842. Hutch. Dig. p. 539, sec. 11. The section reads as follows : “ Hereafter it shall not be lawful for any person, by last will or testament, to make any devise or bequest of any slave or slaves for the purpose Of emancipation, or to direct that any slave or slaves shall be removed from this State for the purpose of emancipation elsewhere; and in all cases of wills heretofore made and admitted to probate within this State, whereby any slave or slaves have been directed to be removed from this State, for the purpose of emancipation elsewhere, or whereby any slave or slaves have been devised or bequeathed in secret trust for such purpose, unless such slaves shall be removed from this State within one year after the passage of this Act, it shall not be lawful for the executor or executors of such last will or testament, or the person or persons having possession of such slave or slaves under the provisions of such will, so to remove such slave or slaves; but the same shall descend to and be distributed amongst the heirs at law in the same manner as if such testator had died intestate,” &c. We recognize the rule established in Reid v. Manning, 30 Miss. R. 308, Lusk v. Lewis, 32 Miss. R. 297, and Lewis, admr., v. Lusk, 35 Miss. R. 401, that the latter clause of this section — 105 — applies as well to wills made after as to wills made before the passage of the Act. But counsel are mistaken when they suppose that, in these cases, or in either of them, it has been held “ that the heir takes in preference to the residuary legatee.” That question did not arise in either of these cases; there was no general residuary legatee in either of them; and, as applicable to the facts before the court in those cases, there is not a word which may .not properly stand. Each decision, upon well-settled principles, is considered as applicable alone to the facts then before the court. See Pass v. McRea, 36 Miss. R. 148. Indeed, the case of Lewis, admr., v. Lusk, 35 Miss. R. 401, is an authority directly against the position assumed by counsel, (“that the whole will is void, and the property must descend to the heir at law, notwithstanding there may be provisions in the will perfectly legal.”) For in this case, notwithstanding the will was declared void both as to the slaves and to the pecuniary bequest dependent upon this invalid disposition, yet the Board of Education and the Board of Missions of the Presbyterian Church, as residuary legatees of the entire estate not disposed of, except the slaves which were not to be sold, were declared entitled to hold the same; and it is here said, in reference to the state of facts then before the court, and also as to the construction of the Act of 1842, that “the rule is incontrovertible, that the residuary legatee takes whatever by lapse, invalid disposition, or other casualty, falls into the residuumand the court say expressly that the slaves would also have taken the same course, but that they were reserved from sale, and could not therefore take the couráe directed by the residuary clause, which had relation alone to the proceeds of the sale it directed to be made. It is insisted, however, that the Act of 1842 is not to be construed in reference to the intention of the testator, but that it is the object of the statute to defeat that intention, and to destroy the right of testamentary disposition, wherever an attempt is made to violate the provisions of this Act; that in this respect it is penal, and it is the policy of the statute to make the heir a common informer by allowing him the benefit of his vigilance — 106 — in exposing and bringing before the courts sucb illegal bequests. The design of the Act, both from its language and tbe subject-matter, was not to interfere, unnecessarily, with the great and sacred right of testamentary disposition. Its subject-matter is to make unlawful the emancipation of slaves by will; its language is clear, apt, and appropriate, to effect this object, and must be construed to be co-extensive with this design' — not to exceed it, and thereby limit the right of testamentary disposition and destroy the rights and interests of the innocent Toeneficiary of the testator’s bounty, where his will violates no rule of law, nor, on the other hand, to encourage the spirit of evasion and artifice which a wicked fanaticism may employ to defeat the salutary operation of a wholesome law. As suggested in the opinion of the court in Calvin Chiairs et al. v. Smith et al., 36 Miss. R. 646, it could scarcely be regarded as consistent with the object of the statute, or with any rule of just or nice policy, to hold that, because a testator, from mistaken views of humanity, should see fit in his will to direct the liberation of a favorite old servant of but little value, that the necessary dispositions of his will,in order to distribute justly a large estate among infant and adult children, and to provide for the maintenance and education of some or the misfortunes of others, should all be declared void, and the just and equal distribution of his whole estate thereby wholly defeated. It is enough to destroy the illegal disposition, and to give effect only to that which is legal. It is, lastly, insisted, that even if the will is not rendered wholly inoperative, by the illegal attempt at emancipation evinced by the twelfth clause, that the codicil itself was executed with the same illegal purpose, and in the hope and expectation that Waul would emancipate the slaves bequeathed to him by the residuary claim, and send them to Liberia. It is true, that if it was the purpose of the testator, in his codicil, to emancipate his slaves, and to use his residuary legatee as an instrument for that purpose, it would be plainly within the. prohibition of the Act, and equally invalid as the original will. — 107 — But we are wholly unable to discover either in 'the will or the circumstances in proof any such illegal purpose. On the contrary, the answer positively denies every allegation of any agreement, understanding, or purpose, of this kind; and the circumstances tend to support this denial. In the first place, the testator originally drew his own will in the last week of April, 1846, and certainly did not then contemplate any thing but the agency then specified for the emancipation of his slaves. There is no proof that he then relied on Waul, as his confidential friend in the business of emancipation, but he selected other and safer agents, whose residence and associations gave better promise that they would liberate his slaves. At the same time, or in the same week, in which he drew his original will, he wrote his letter to the Liberia Advocate, developing his plan of emancipation. There is no evidence that "Waul either knew of the existence of the will, or the letter, until after the death of "testator. In that letter the testator expresses his difficulties arising out of the laws of Mississippi forbidding emancipation, and seemed to regard it as doubtful whether this cherished scheme could ever be carried into effect. It was altogether natural, therefore, that he should make an alternative disposition, so that in the event his scheme of emancipation should fail, he might still select a “just and humane master” for his slaves, who should retain them in servitude. His scheme for evasion and avoidance of the laws of Mississippi was as perfect as it could have been made, without changing the agent. If the Colonization Society and the three trustees, Gray, Means, and Einiey, could not do it, why expect that Waul could do it any better than they? If the law would arrest them, in the execution of his illegal purpose, why should he suppose that a gift to Waul, with the same intent, would prove any more effectual ? He did not intend to die intestate, but, in the event that his emancipation scheme should ’be declared invalid, he intended to leave a valid will, selecting a master for his slaves. And hence, on the 6th June, long after his original — 108 — will was drawn, this codicil was executed, making Waul his' residuary legatee. It is said that Waul admits that he knew that the testator was anxious to free his slaves through the agency of the trustees, &c., “and that the reason the testator made him residuary legatee was, because he feared some obstacle might be placed in the way by petitioner or some other of his kindred pecuniarily interested.” To do justice to his meaning, the balance of the sentence should be added: “he resolved as a secondary object to place said slaves with one whom he believed would make for them a just and humane master.” The latter member of the sentence affords a full answer to the argument, based upon the half quoted. It is again said that the suggestion in the answer of Waul above quoted is shown to be false. Instead of trusting his negroes to Waul’s humanity, he selected his nephew to have the management of the slaves. But the evidence does not sustain this argument, for the very clause of the will from which this idea is deduced makes the nephew only an assistant of Waul “in the little details of business, for which he may receive not more than $300, and board for himself and horse so bng as my executors may think it necessary.” It is again said that the letter to Finley discloses the object of the testator in making Waul residuary legatee. That letter was written the 28th April, 1846, and Waul was not made residuary legatee until the 7th June afterwards. The last evidence relied on to prove Waul’s connection with the illegal intent or purpose of the testator is a declaration made by Waul, more than a year after testator’s death, in a speech at a sale of the estate, “that any person who charged that he (Waul) had claimed or ever would claim any interest in the property of the testator, in opposition to the ’ American Colonization Society or its trustees, named in the will, was a scoundrel and a liar.” We think there is nothing in this declaration tending to show the purpose of Hurd or the purpose of Waul, before Hurd’s death, (more than twelve months then past,) to violate or evade the Act of 1842, prohibiting the emancipation of slaves by will. — 109 — There is not a particle of evidence showing that Waul ever knew of tbe existence of sucb a will, or of tbe testator’s design to make him executor or residuary legatee, until after tbe testator’s death, nor is this declaration necessarily inconsistent even with bis present position. It follows from these views that, as residuary legatee, be is entitled to the property in dispute under tbe residuary clause in tbe codicil to said will, and that the heir at law can take nothing by bis petition. Let tbis judgment be reversed and cause remanded for further proceedings, in accordance witb tbis opinion. A petition for a reargument was filed by tbe counsel of Mrs. Cowles, but it was overruled.