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she arives at thirty. The counsel for the appellee insists, that her right to freedom was consummated by her mother Lucy's ariving at the age of thirty.

The component parts of the sentence of the will reduced by grammatical rule, from the complex to the simple and natural order and arrangement, stand thus: "Alsey, Lucy, Ann, and Selinn, shall be emancipated as soon as they shall severally arrive at thirty years of age, with their children, if they should have any." The sentence thus arranged and simplified, expresses what we think the testator intended, and what is expressed by his words. After the most attentive examination, we are satisfied with the opinion that the right of Fanny Ann to her freedom is not to be postponed till she arrives at thirty years of age, but was complete on her mother's attaining thirty years. Judgment affirmed.

13.

NEGRO GEORGE et al. v. CORSE'S ADM'R. June T. 1827. 2 Har. & Gill's Rep. 1.

Petition for freedom.

numitted

where the

not suffi-/

pay the testator

debts of the

are not en

titled to

The plaintiffs claimed their freedom under the will of James Slaves maCorse, which contained the following words: "Imprimis, I hereby by will set free all my negroes of every description, in the following man- personal ner, which is to say, the men, George, David, Jim, and Henry, at estate is my death; also the women, to wit, Maria, Beck, and Mary, with cient to their issue in case they should have issue between this time and the period of my death; and the boys, as they severally attain the age of twenty-one; to wit: Isaac eighteen years old, Levi fifteen years old, Sandy, &c.; and the girls at the age of eighteen, with their issue, in case they should have issue; to wit: Phillis fourteen years old, and Sally twelve years old. And it is hereby provided, that if my personal estate, exclusive of the negroes, should not be sufficient to discharge all my just debts, then my will is that my executor or administrator, as the case may be, may sell so much of my real estate as will pay my debts, so as to have my negroes free as before stated."

It was admitted that the personal estate of the testator, either including or excluding the negroes, was not at the time of his death, or at any time since, sufficient to pay his debts; but that his real estate, including his personal property, and excluding the negroes, were at the time of his death, and still are, sufficient to pay his debts. Verdict for defendants and the petitioners appealed.

freedom.

After argument the Court, Dorsey, Archer, and Earl, Js., affirmed the judgment.

They observed that until the act of 1796, ch. 67., the manumission of slaves by will was prohibited, and by the act it could only be upon condition that it shall not prejudice creditors. And they had a right to their demands out of the personal estate; and it was not in the power of the debtor (testator) to transfer their claims to the real estate; that the executor or administrator had no means of knowing whether the real estate would be sufficient. And the personal estate is the first fund for the creditor to look to for the satisfaction of his demand.

Earl, J., observed, that it is not in the power of the testator to confine the creditors to a particular fund for the satisfaction of their debts to whose demands the whole of his estate was equally liable. More particularly was it not for him to turn them over from the natural fund, to one more uncertain and less accessible.

14.

Of dower

ed slave.

NOEL AND WIFE V. GARNETT.

Rep. 92.

Oct. T. 1786. 4 Call's.

Garnett devised to his wife certain slaves during her life or in undivis widowhood, and died intestate as to other slaves. She did not renounce the provision under the will, but held the estate devised nine years. She married Noel, and she and her husband commenced this suit to recover her dower in the undevised slaves. The court of chancery dismissed the bill, and the plaintiffs appealed to this court.

A slave cannot be emancipated by a

The court of appeals were of opinion, that the appellant, by not renouncing her first husband's will, was barred from recovering dower in the undevised slaves.

15.

COOKE, (a person of color,) v. CoOKE. Spring T. 1823. 3 Littell's Kentucky Rep. 236.

Per Cur. William Cooke entered into an agreement with his nuncupa- slave, Peter, to emancipate him, on the payment of two hundred tive will, nor by an and fifty dollars; or, rather, the contract was made with Seth executory Cooke and Abraham Bohannon, as agents for the slave, and was reduced to writing, and signed by them in these words: "A statement of a contract made by William Cooke and us, Seth Cooke

or condi

tional instrument

writing.

and Abraham Bohannon, as agents for Peter, a slave, on the terms following: Said Cooke agrees to emancipate Peter, for two hundred and fifty dollars, with interest on one hundred and twenty-five dollars from the 4th of June 1815, until paid the balance of the above two hundred and fifty dollars. Signed, SETH COOKE, June 4th, 1815. ABM. BOHANNON."

In his last illness he made his nuncupative will, reduced to writing at the time it was spoken, but not signed by him, in which he directs that "Peter should be free, on the payment of fifty dollars, a balance of $250 which Seth Cooke and Abraham Bohannon, as agents for Peter, had undertaken to pay; which is all paid but the aforesaid fifty dollars." After his death Peter paid the remaining fifty dollars to his widow, and executrix, and brought this action of trespass, assault, battery, and false imprisonment, against the appellee, to assert his right of freedom. On the trial, it was proved, that after the date of the aforesaid contract, Peter went at large as a free person, by the indulgence of his master, who until his death always recognized the rights of Peter to freedom, on the payment of two hundred and fifty dollars. The court, on the application of the appellee's counsel, instructed the jury, that Peter could not support his claim to freedom, under the writing aforesaid, because it was an executory contract; and that the plaintiff's remedy, if any, was in a court of equity; and that slaves, when they pass by last will and testament, being considered as real property, could not pass by a nuncupative will. The jury found a verdict, and a judgment was thereupon rendered against Peter, and he has appealed to this court.

However strong an appeal the claim of Peter may make to the conscience or moral sense, we must accord with the court below in each of these instructions. It has been settled in this country, by the case of Donaldson v. Jude, 2 Bibb's Rep. 57., that the signing, sealing, and even the acknowledgment or proof of the deed or will of emancipation, were all necessary requisites to annul the relation of master and slave. It has been since decided, in the case of Winney v. Cartwright, Spring T. 1821, that the proof or acknowledgment of the instrument was no longer necessary, or even a seal, under a subsequent statute; but that the right acrued at the signing of a writing expressing an emancipation. Still, however, it is necessary that the writing should declare the act done, and not merely a stipulation that it shall be done conditionally, or on the happening of some contingency. So that this

And are

debts of

testator.

writing, even if signed by the deceased master, could not be con-
strued to be more than an engagement to do the very act which
by law would emancipate. And however strong an acknowledg-
ment the nuncupative will may contain, of the obligation of the
contract, and that Peter has fulfilled the greater part; yet, that
slaves, as far as respects wills, must be deemed and held real estate,
is expressly declared by the provisions of a statute passed the 26th
day of November, 1800. 2 Dig. L. K. 1247. And it is a doctrine
so well established, that real estate cannot pass by a nuncupative
will, both according to the provision of our acts of assembly regu-
lating wills, and by former decisions on similar statutes, that there
can be no need of quoting authority to support it.
Judgment affirmed.

16.

DUNN V. AMY et al. Nov. T. 1820. 1 Leigh's Rep. 465.

Amy, James, and Ned, negroes claiming to be free, brought subject to their bill in the superior court of chancery of Richmond, charging, that they had been slaves to one Campbell; that Campbell died in 1819, having previously made his will, and devised as fol.lows: "I wish Mr. Shipherd, my executor, to emancipate the above-named Amy and her child James, as also her sister Polly, and her brother Ned, and all their offsprings, should they have any; and if possible to have leave granted to remain in the state; if that cannot be granted, I wish them (I mean Amy the principal) to have the sum of $1,000 as soon as it can be made after my just debts are paid; the residue of the money to be converted into United States Bank stock, the dividend to the use of Amy and her child James, until James arrive at the age of twenty-one years; at which time I wish them equal in the stock until her death, at which period I wish James to have all the stock, and Polly the house, that is to be left to Amy for her life. If Amy and James should die, I wish Polly and Ned to have the stock and house."

The executor, in pursuance of the will, executed deeds of emancipation of the slave, dated January 4th, 1820, and in May Term, 1821, Mitchell recovered judgment, the executoin to be levied of assets, quando occiderint, and the judgment was assigned to Dunn ; and in May, 1826, a fi, fa was sued out, and levied upon the slaves.

The court, Cabal, J., decided, that the slaves were manumitted by the will of Campbell, the testator, and not by the deed of emancipation of the executor; but the slaves were subject, nevertheless, to the testator's debts.

(C.) BY CONTract.

1.

BUTLER et al. v. DELAPLAINE. Oct. T. 1821. 7 Serg. &
Rawle's Rep. 378.

freedom

Per Cur. Duncan, J. Though this is a claim of freedom, we Claims for are not so much in favor of liberty as to lose sight, that this class of are favorpeople are acknowledged as slaves. The master has a property in ed. them, and contracts respecting this species of property are to be construed by the same rules of interpretation that contracts respecting any other species of property are.

2.

BEALL V. JOSEPH. Spring T. 1808.

Hardin's Rep. 51.

ration or

Trespass to try Joseph's right to freedom. He had been a slave No declato one Woods, who agreed to let Edwards have him for four years, promise after which he was to be free. parol declarations to this effect. to Beall.

Both Woods and Edwards made
But Edwards sold him as a slave

made to a slave, or for his be-,

nefit,

can be en

forced in a court of

Per Cur. It appears that Joseph was born a slave, and it not appearing that he was ever out of the limits of the state, there is law. no law by which slaves in that situation can obtain freedom, or enjoy the rights of free persons, only by deed in writing, or the last will and testament of the owner, duly authenticated and recorded ; but no such deed, or will, or certificate of freedom, in favor of Joseph, was produced at the trial. It is, therefore, clear, that no declaration or promise made to the slave in this state, or for his benefit by the owner, or any other person, can be enforced by a court either of law or equity. And see Will v. Thompson, in a note at the end of the case, where it was held, that where a purchaser in writing contracted with the seller to manumit the slave at a specified time, is not a ground for a suit at common law; but equity will enforce the contract, and give damages for the detention of the negro.

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