So where the will is declared void.

The defendant pleaded, that the will of Marshall devising freedom to his slaves was void; that by the laws of Georgia a slave could only be set free by a legislative act.

The district judge thought, that slaves, being passive in their situation and character, it was the duty of the executor to see the will executed, which he viewed in the light of a contract. Judgment for plaintiff. Appeal.

But the court reversed the judgment, and held, that the bequest in the will being prohibited by the laws of Georgia, where it was made, is null and void; that the bequest of liberty to slaves, which is made in contravention of the law of a state enacted for the security of the public peace and good order of the community, is absolutely null and void, and such slaves do not, ipso facto, become free under the will, or being brought into this state where slavery is tolerated, but in which slaves may be manumitted by will. And see Pleasants v. Pleasants, 2 Call's Rep. 319., where a devise of freedom to depend upon a subsequent contingency (as where the state should grant a right to emancipate) was valid.

2.

CHASTEEN V. FORD. Spring T. 1824. 5 Little's Rep. 268. Trespass, by Ford, a man of color, against Chasteen, to recover his freedom.

It appeared, that Lewis Chasteen made his will, and devised, that all his slaves should be set free on their arriving at 25 years of age. The children of the testator exhibited a bill in equity against the executors, alleging the invalidity of the will, and praying a decision of the court thereon. The court pronounced against the validity of the will. Ford arrived at the age specified in the will after the court had pronounced against its validity. And the question on these facts is, whether Ford was entitled to his freedom or not.

Per Cur. Owsley, J. Ford claims his freedom under the will; and was the question of his right governed exclusively by the import of the will, we should have no difficulty in pronouncing Ford a freeman. He had arrived at the age of 25 years, the commencement of this action, and the will expressly declares he should be emancipated at that age.

But the will has been declared to be inoperative, by the decree

of a court of equity, and that decree was, in argument, contended
to be conclusive in the present case.
But Ford was no party to
that suit; and it was insisted in argument, that as to him the de-
cree can have no operation in this contest. It must not be for-
gotten, that at the time the decree was pronounced, Ford had not
arrived at the age to which, by the will, he had to arrive before
he was entitled to his freedom. He could not, therefore, have been
made a party, and the failure to have made him a party, cannot be
alleged to render the decree inoperative as to him.

3.

CHEW v. GARY. June T. 1825. 6 Har. & Johns. Rep. 526.;
S. P. HUGHES V. NEGRO MILLY et al., 5 Har. & Johns.
Rep. 310.; HAMILTON V. CRAGG, 6 Har. & Johns. Rep.
16.

Suit for freedom. Mary Ann Wood devised as follows: "My will and desire is, that all my negroes shall be free, except my negro woman Nanny; and my will is, that she shall serve my mother Ann Brown during her life, and at her death, my said negro woman Nanny to enjoy her freedom." The petitioner for freedom was the child of Nanny, and was born after the death of Mary Ann Wood, and during the life of Ann Brown. The defendant demurred to the petition, and the court ruled the demurrer sufficient, and the petitioner appealed. Judgment affirmed.

4.

In the Matter of NAN MICKEL, a Negro Girl. Aug. T. 1817. 14 John's. Rep. 324.; S. P. PETRY V. CHRISTY, 19 Johns. Rep. 53.

ed, as by delivering

a certificate or writing to the slave

The testator, by his last will, devised as follows: "I manumit The act of and give freedom to my negro woman, Mott, and her daughter Nan, manumisimmediately after my decease." After the date of the will the tes- be perfecttator sold Nan. On a habeas corpus to the assignee of the purchaser, the question before the court was, whether Nan was entitled to her freedom. Per Cur. The sale made by the testator after making his will third perwas, pro tanto, a revocation of his will. The will has no effect before the death of the testator. Although a manumission of a slave does not rest upon the principles of a contract, but is an act of benevolence, sanctioned by the statute, and made obligatory if in

qr some

son for his benefit.

writing; yet such writing ought to pass out of the hands, and from under the control of the master. In all the cases we have had before us on this question, the certificate of the master has either been delivered to the slave, or to some third person for his benefit, and the act has thereby become consummated. But in the case No before us, it must be considered as resting only in intention. act has been done that is binding on the master. We are of opinion, therefore, that the girl is not entitled to her freedom.

5.

PLEASANTS V. PLEASANTS. 2 Call's Rep. 319. 357.

The testator, by his will in 1771, directed, that "all his slaves should be free, when they arrived at the age of 30 years, and the laws of the land would permit them to be free without being transported out of the country; that is, all his slaves now born, or hereafter shall be born, whilst their mothers were in the service of him or his heirs, to be free at the age of 30 years, as above mentioned, their age to be adjudged of by his trustees." He then gave his son Robert eight negroes, "on condition he allowed them to be free at the age of 30 years, if the laws of the land would admit of it;" and then devised the residue of the slaves to sundry persons under similar conditions.

Held by the court, that the limitations were good in the event of such a law being passed, while the slaves remained in the possession of the family, without change by the intervention of creditors or purchasers; it being considered too rigid to apply the rule respecting the limitation of the remainder of a chattel upon too remote a contingency, with all its consequences, to the present case; but that a reasonable principle ought to be adopted to suit its peculiar circumstances. And, therefore, after the passage of the act of 1782, permitting the emancipation on certain conditions imposed to prevent persons emancipated from becoming burdensome to the community, the court being of opinion that the limited manumission, according to the modifications in the will could alone take place, and that the terms for securing the public against the maintenance of the aged and infirm, could not be equitably imposed upon the devisees, it was decreed that all the slaves (not subject to the claims of creditors or purchasers) who at the date of the decree were above the age of 45, and their increase born after their respective mothers had attained the age of 30 years, should be emancipated so soon as the executor of the several trustees, or any

other person, should, in the courts of the several counties in which the slave respectively resided, enter into bonds with approved sureties, payable to the justices then sitting in each court, and their successors, with condition, that the said slaves should not become chargeable to the public, or should enter into one such bond for the whole in the general court; that all who, at the same date were abve 30 years, and under 45, should be immediately emancipated and set free to all intents and purposes, as if born free; and that all who at the same date were under the age of 30, and whose mothers had not attained that age at their birth, and all their future descendants, born while their mothers were in such service, should serve their several owners until they should arrive at 50 years of age, and then be free.

6.

WALTHALL'S EX'RS V. ROBERTSON et al. June T. 1830.. 2 Leigh's Rep. 189.

A condi

tional

pation is

valid, and when the condition is

is effective

performed.

In the year 1819, Francis Walthall made his will, and devised as follows: "Item, if it be agreeable to the laws of this state, (Virginia) emanci in which I live, that after the death of my said wife Mary, it is my will and desire, that the following slaves owned by me, viz. Joan, Sen'r, Gary, Jack, Tom, and Peter, shall, as soon as they attain the age of thirty-one years, be freed; and I appoint my friends, J. Morris and E. H. Hendrick, trustees for the liberation of said slaves, and for them to make the necessary application to the court on said slaves' behalf, both as to their freedom and remaining in the state. If the laws of the state be against such procedure, then my will is, that said slaves be equally divided among my children." After the death of the testator's widow, his children brought a bill against the executor, Morris, in the county court of Buckingham, who decided they were not entitled to their freedom, and decreed a division among the plaintiffs. The executor appealed to the superior court of chancery of Richmond, which affirmed the decree, and then he appealed to this court.

Per Cur. Cabel, J. The testator, by his will says, if the law will suffer my slaves, if emancipated, to remain in Virginia, I free them. If the laws will not suffer it, I give them to my children.

Per Green, J. The question is, whether the tes tator intended that the slaves in question should be freed (to use his own expression) upon his wife's death at all events, unless the law in force

when that happened should prohibit emancipation upon any terms? or, that they should be freed only in the event that the laws should then permit emancipation, and those emancipated to remain in the state, by leave of the courts, or otherwise. This last was the construction adopted by the courts below, and I think the construction the correct one. The expression, "If the laws of Virginia be against the said procedure," refers to all which the testator had directed to be done, both to the emancipation of the slaves, and procuring permission to them to remain in the state. And by the law at the date of the will, and the testator's death, the slaves could not be allowed to remain in the state. They are not entitled to their freedom, and the decree ought to be affirmed.

As to be free at the

testator.

7.

RUCKER'S ADM'R V. GILBERT. May T. 1831. 3 Leigh's

Rep. 8.

Rucker by his will declared, "Item, it is my will and desire death of the that my mulatto man, James Gilbert, should be free; but finding there would be some difficulty for it to be so, and for him to remain here, I therefore request my executors to lay off three acres of land for said James Gilbert, at any corner of my land, and let him settle on it, that he may think proper, and he is to have it during his natural life, on good behaviour, and then to return to my estate.”

After the death of the testator, Gilbert brought a suit in forma pauperis, against the administrator to recover his freedom, and the county court gave judgment in his favor; and the administrator appealed to the circuit court, which affirmed thejudgment, and he appealed to this court..

Per Cur. Brooke, J. Did the testator intend Gilbert should be free at his death? If he did, the provisions in the will were very inconsistent. He says, "It is my will and desire that my mulatto man, James Gilbert, should be free." If he had stopped here, there would have been no doubt, that James Gilbert would have been free: and here he would have stopped if he had simply intended to emancipate him; but finding, as he says, "there would be some difficulty for it to be so, and for him to remain here" that is, as a freeman, he does not desire his executors to remove that difficulty, by sending him out of the state, but desires them to lay off three acres of land, which he is to have on good behaviour; certainly not as a freeman, because, as such, he could impose no