* This and the next case, Graham v. Little, were decided at the last term, but accidentally omitted in the reports of that term. The bill was filed by the plaintiffs, to wit, the next of kin *Page 142 and heirs-at-law of Nathaniel Lea, against his executor, and against the legatees mentioned in the 5th and 6th items of the will. The ground of claim was that, as to Fanny, Mariah, Mary Anne, c., and as to the land, given for their comfort and assistance, and as to the sum of $3,000, the legacies were void, as being against the policy of the law with regard to the emancipation of slaves, and asking for an account and distribution.
The defendants answered, setting forth the fact, that the slaves in question were not able to work and earn profits; some being passed the years of labor, and the others children, and insisting that it was only intended that they should be dealt favorably and humanely by as slaves, and that the land and money was not an unreasonable compensation for taking care of unprofitable slaves. They also contended, that if the said provisions were declared void, the property would not go to the next of kin and heirs-at-law, for that there was a general residuary clause that embraced it.
The following is the material portion of the will of Nathaniel Lea, viz:
"Item 2nd. I desire my executor to pay all my just debts.
"Item 3rd. The negroes bequeathed in this clause of my will, having been faithful to me and served me well, attended and nursed me in my long and painful sickness, I hereby bequeath to my friend Thomas J. Brown, of Caswell county, my servant Milly, Mariah and two children, Nat and Dilla, Mary Anne and her child Milly, Vic and old Fanny, and such other children as they, or any of them, may have after the date of this my will, and I hereby enjoin on my friend Thomas J. Brown, to take care of the said slaves, treat them kindly and humanely, as they have been to me faithful and obedient servants. It is further my will, in regard to the slaves mentioned above, that the said Thomas J. Brown shall have the use and benefit of the said slaves only during his life, and at his death, or in the event he should ever become so insolvent and unable to pay his debts without the sale of the aforementioned slaves, then, on the happening of either *Page 143 of the said events, the said Milly, if alive, shall select a master, and all of the above-mentioned slaves I hereby bequeath too the person she so selects; and should she be dead, then I desire Mary Anne to make the selection, and should she be dead, I desire Mariah to make it; each one to select in order as I have named, and all of the said slaves, and their increase, mentioned in this clause, to go together; my chief aim and object being to give the aforesaid slaves good masters, if possible, or a small reward for their faithful service to me. I further bequeath to my friend, Thomas J. Brown, three thousand dollars, to be paid out of any moneys I may have, to enable him to pay the expense of keeping the said slaves, they being women, and can yield no profit of great amount. But should the said Brown become insolvent, or should die, then I bequeath the said sum, or such portion as remains unexpended by him, to the person that may become the master of the slaves as provided for above, my desire being, and I so will it, that the said money, or the portion of it remaining, shall go to the person owning the slaves, as a compensation to them for their trouble inn part. I give to my friend, Thomas J. Brown, two hundred acres of land, at the south end or side of my home tract, beginning, c., (describing it). My will is, that the said Brown shall have the said land during his life only, or in case he remains solvent; but should he die, or become insolvent, then my will is, that the said land shall go, and it is hereby given, to such person as shall be, upon the happening of either of the said events, the master or owner of said slaves mentioned above. I bequeath to Thomas J. Brown my dining tables, all my silver-ware, castors, glass and earthen ware, knives and forks, and all the furniture of every description belonging to my table; one carryall, one cow and calf, one horse, one two-horse wagon and harness.
"Item 4th. I give to Dr. Nathaniel S. Graves five hundred dollars; to Nathaniel L. Johnston, to Nathaniel L. Lindsay, to Nathaniel L. Lea, son of Thomas Lea, each two hundred and fifty dollars.
"Item 5th. I give and bequeath the remainder of my slaves *Page 144 not herein specifically bequeathed, to the children of (my) deceased sister, Rebecca Williamson, wife of George Williamson, to the children of my deceased sister, Delila Graves, wife of Jerry Graves, to my sister Elizabeth Graves, to my brother Thomas L. Lea; my will being that the said slaves' shall be divided into four equal parts, and Thomas L. Lea to take one part, Elizabeth Graves to take one part, the children of my sister Rebecca to take one part, and equally divide the said part among themselves, but in no event to sell them for a division. The children of my sister Delila to take one part, and equally divide them among themselves, but in the division of this share, the children of A. C. Lindsay by his first wife, Elizabeth, are to have the share their mother would take were she living; but in this division there must be no sale for a division, as my desire is that all my slaves are to be kept in families as far as possible, and not to separate them unnecessarily.
"Item 6th. I desire that all my personal estate, not herein bequeathed, be sold, and the proceeds, after payment of my debts and special legacies, to be equally divided among the same persons, and with the like equality as my slaves are, as mentioned in the fifth clause of my will. I desire, and hereby bequeath, all money arising from any source to be divided in the same way, but I hereby release to each and every person that may have any account on my shop-book, the respective sums that may be charged in the said book against them, and I hereby enjoin upon my executor not to collect any of the said charges on the said shop-books, for the reason that I am certain they have not been kept accurately, and as my health has been too feeble to give to it the close attention it deserved: I therefore release all the claims to the persons who stand charged.
"Item 7th. I give to my friend, Dr. James E. Williamson, sen'r., five hundred dollars.
"Item 8th. I devise to my nephews, James Williamson, John L. Williamson, George Williamson, Ben. Williamson, Thomas L. Williamson, Weldon E. Williamson, sons of Geo. *Page 145 Williamson, all my real estate, of every kind, wherever it may be, except what is herein specifically bequeathed to Thomas J. Brown, to be equally divided among them, share and share alike.
"Item 9th. I hereby strictly enjoin upon my executor to see that in the division of my slaves, families are to be as little separated as possible.
"Item 10th. My will and desire is, and I so declare it, that should any of my next of kin, either directly or indirectly dispute, or in any way attempt to set aside, this my last will and testament, then, should they fail, the said party or parties, if they take any legacy under this will, for their unkind way in trying to defeat my intentions, shall forfeit all interest and legacies hereby given them, and the part so forfeited shall be divided among my next of kin and legatees named in the fifth clause of my will; but should either, or any of the parties mentioned in said clause, be the party so attempting to defeat my intentions, then my desire is, and I hereby so devise and bequeath it, that the part so forfeited, shall go to the others mentioned, who do not join in defeating my will.
"Item 11th. I hereby nominate and appoint my friend Thomas J. Brown, the executor of this my last will and testament, being fully assured that he will faithfully execute my last will, as far as he has the power; and for the purpose of giving him a full compensation for his trouble, I hereby bequeath to him, in addition to the commissions that may be allowed him by the court, five hundred dollars."
The cause was set down for hearing on the bill, answers and exhibit, and sent to this Court. It may seem hard that one is not allowed to dispose of his own property as he pleases; but private right must yield to the public good. The policy which forbids emancipation, unless the freed negroes are sent out of the State, *Page 146 and the policy which forbids quasi emancipation, by which particular negroes are to be allowed privileges, and are not to be required to work like other negroes, but to some extent are to have a discretion either to work or not to work, as they may feel inclined, is fully settled by the numerous cases which have been before our Court, and is strongly enforced by the Legislature. Rev. Code, ch, 107, see. 28: "No person under any pretence whatever shall hire to his slave, or to a slave under his control, his time, on pain, c." " It shall be the duty of all grand juries to make presentment of any slave who shall be permitted by his master to go at large, having hired his own time, c." Sec. 29: "No slave shall go at large as a free man exercising his own discretion in the employment of his time; nor shall any slave keep house too him, or herself, as a free person, exercising the like discretion in the employment of his or her time; and in case the owner of the slave shall consent to the same, or connive thereat, he shall be deemed guilty of a misdemeanor."
In our case had the testator tried on purpose, he could not have more directly violated the provisions of this Statute, or more effectually contravened the fixed policy of the State. Here we have a family of negroes with two hundred acres of land, and three thousand dollars in money, to provide for their support, so that they may not be made to work like othernegroes.
But it is said for Mr. Brown, the slave Fanny was near sixty years of age, Milly, forty-five, Mariah and Mary Anne, each, twenty or twenty-five, and the rest small children, and the bequest being to him only for life, during which time they would probably be a charge, the use of the land and money was not an unreasonable provision. Concede that, if the matter had stopped here, this provision would not have been much out of the way, how is it to be accounted for, that upon the death or insolvency of Mr. Brown, he is to have a successor, who is to be chosen by Milly, if alive, if she be dead, by Mary Anne, and in case of her death, by Mariah? Such a provision is unusual, and proves that the object was to confer a benefit upon the slaves, and that neither Mr. Brown nor his successor were the *Page 147 objects of the testator's bounty, and were but "nominal donees." Sorry v.Bright, 1 Dev. and Bat. Eq. 113. Add to this, that the successor so to be chosen is to have the two hundred acres of land, and $3000 in money, for, and in consideration of, his accepting the absolute ownership of some ten or a dozen slaves. Under these circumstances, could Mr. Brown, or his successor, with a clear conscience towards the testator, make the negroes work like other negroes do? The thing is too plain for discussion.
The testator betrays a consciousness that his purpose was questionable by denouncing a forfeiture against all who should oppose his wishes. But his was a mistaken charity which the law forbids. The result, if his intentions are to be carried out, will be to establish in our midst a set of privileged negroes, causing the others to be dissatisfied and restless, and affording a harbor for the lazy and evil disposed.
We had some difficulty as to the construction of the will in regard to "the dining tables, silver-ware, glass, and carryall, c.," given to Mr. Brown. Were they intended for the use of these negroes, or a beneficial gift to him? They are put in the same clause with the bequest of the negroes, and the land and money intended for them, and there is a distinct legacy of $500 given to him as a compensation for his trouble, in addition to the commissions allowed by law; but on the other hand, he was an intimate friend of the testator, as appears from several parts of the will. Articles like these are such as one usually leaves to his friend, and are not at all suitable for negroes; besides, they are not made subject to the provision by which to follow them, and do not pass with the land and money to the successor of Mr. Brown. These considerations satisfy us that the beneficial use was intended for him, and such will be declared to be the opinion of the Court.
The disposition which the testator attempts to make of these slaves, money and land, being void, the question is presented, does the right devolve upon the next of kin and the heirs-at-law, for whom Mr. Brown will be declared a trustee? or are the legatees *Page 148 named in the 5th item, entitled to the slaves and money, and the devisees named in the 8th item, entitled to the land?
In regard to the land there is no difficulty; for it is a well settled rule that all real estate which is not effectually disposed of by the will, devolves upon the heir-at-law, and a residuary devise can take nothing except what appears from the will it was intended for him to take. So that, if a devise fails to take effect because it is void, or by reason of the death of the devisee, the subject devolves upon the heir, and the residuary devisee is not entitled to it — there being no reason for substituting a presumed general intention in place of the particular intention which has failed.
But it was insisted that in regard to the personal estate, a different rule is well settled by the courts of England, and has received the sanction of several cases in our own courts, by which the residuary clause is enlarged so as to embrace all property not effectually disposed of, and thereby give to the residuary legatee the benefit of all legacies that failed either by reason of lapse, or of being declared void on the ground of a presumed general intention against intestacy; and it was contended that, according to this rule, the legatees named in the 5th item became entitled to these slaves and the money by force of the 6th item. As the intention of the maker of a will ought to govern its construction, both in respect to personal and real estate, it would seem that the same rules of construction ought to be applied without reference to the different kinds of property, and the conclusion that, according to the rules which have been adopted in respect to personal property, these slaves, whom it was specially the intention of the testator to favor, are to be sold to the highest bidder, like so many horses and hogs, in pursuance of his presumedgeneral intention, is so monstrous as to furnish an instance of thereductio ad absurdum. From these considerations we held the question under an advisari, for the purpose of examining the cases and reflecting upon the reason of the thing.
In case of intestacy, the whole personal estate devolves upon the administrator, and by the old law, after paying the funeral *Page 149 expenses and debts, the administrator kept the surplus for his own use. So, in case of a will, the whole devolved upon the executor, who, after paying the funeral expenses, debts and legacies, kept the surplus for his won use. The law was changed in respect to administrators by the 22, Charles II, (called the statute of distributions), and by it administrators, were required to divide out the surplus among the next of kin. But this statute did not apply to executors, and they still kept the surplus for their own use in this State until 1789, when they were required to divide the surplus among the next of kin; Rev. Code, ch. 46, sec. 24. The law remained unchanged in England by any statutory provision until 1832, Will. IV, when executors were required to divide the surplus among the next of kind.
But, in the mean time, the Chancellors in England, upon the idea that it was not just for executors to keep the surplus for their own use, took the matter in had, and exerted their ingenuity, when there was no residuary clause, to convert executors into trustees for the next of kin whenever it was possible to do so; and where there was a residuary clause they enlarged it so as to include every thing that was not effectually disposed of by the other parts of the will, for the purpose of preventing the executor from keeping it for his own use. This was done upon a principle similar to the doctrine of cy pres, according to which, if the particular purpose intended cannot be carried into effect, the fund will be applied to some other purpose as near like it as may be. So, if the particular individual, for whom a legacy was intended, could not take it because of his death in the testator's life-time, or because the legacy was void, it was held that it should pass to the next object of the testator's bounty and fall into the residuum, upon the presumption that the testator had a general intention to give this additional bounty to the residuary legatee, rather than die intestate in respect thereto, and let it remain in the hands of the executor for his own use. Under the operation of this rule, residuary legacies, which are usually intended to embrace such small matters as may have been forgotten, or were too tedious to *Page 150 mention, oftentimes become an important part of the will and passed the bulk of the estate; Cambridge v. Rous, 8 Ves. 14. is an apt instance. This reasoning may be sound in regard to lapsed legacies, on the ground that the will speaks at the death of the testator, when he may be supposed to have been made aware of the death of the legatee, and for that reason, to have an intention to include the subject of the lapsed legacy in the residuary clause, but it is not sound in regard to legacies declared void; for at the death of the testator he supposes that he has made an effectual disposition of the subject to one, and cannot be presumed to intend to give it to another.
But, our courts having discarded the doctrine of cy pres, we will not stop to inquire how far every corollary, or emanation from it, is affected. Nor will we stop to inquire how far the act of 1789 renders the rules of construction, adopted in England prior to 1832, inapplicable here; (Ralston v. Telfair, 2 Dev. Eq. 255, shows that the act of 1789 affects the English rule to some extent, and Kirkpatrick v. Rogers, 6 Ire. Eq. 130, Hudson v.Pierce, 8 Ire. Eq. 126, Pippin v. Ellison, 12 Ire. Rep. 61, Lowe v. Carter, 2 Jones' Eq. 377, all make exceptions to the general rule,) because the doctrine, if it be unimpaired and of full authority in our courts, has no application to this case; for in the will now under consideration, there is no general residuary clauses, or as RUFFIN, C. J., expresses it in Sorry v.Bright, "no express general gift of the residue," which is necessary in order to make the doctrine applicable; and this will has, upon its face, full proof to rebut the presumption of any intention that these slaves and money were to pass under either the 5th or the 6th items.
The testator, having given the slaves in controversy, and the money and land, to Mr. Brown, and made other specific and pecuniary legacies, divides the residue of his estate into four classes, 1st: His slaves; 2nd, his personal estate, that is, such as he intends to be sold, viz: horses, cattle, farming tools, c.,: 3rd, debts due to him viz: notes, accounts,c.: 4th his land.
By the 5th item he gives the "remainder of my slaves not hereinspecifically bequeathed," to certain legatees- among whom *Page 151 he directs they shall be divided so as not to separate families, and "in noevent to sell them for a division;" and in providing a subdivision, he again repeats, "in this division there must be no sale," c. This is not a general residuary clause, and the mind rejects at once the suggestion that it was intended to include in it the slaves in controversy. They are as clearly excluded from it as if the testator had specially excepted them by name.
By the 6th item, "I desire that all my personal estate not hereinbequeathed be sold, and the proceeds, after paying debts and special legacies, to be divided among the same persons as my slaves are, as mentioned in the 5th clause." This is not a general residuary clause. The words "as my slaves are," referring to the 5th item, prove that this only includes articles of personal property, other than slaves — such as he intended to be sold; and the fact that he directs these articles of personal property to be sold, demonstrates that it was not his intention to include in it the slaves that he intended to favor more than his other slaves. In fact it demonstrates his intention to be to exclude them. For if he is so regardful of his other slaves as to separate them from the rest of his property and put them in a class to themselves so as to have them divided without being sold, although the same persons are to have them as are to get the proceeds of the sale, much more must it have been far from his intention to class with these articles his favorite slaves. In Pippin v. Ellison, supra, and Lowe v. Carter, supra, it is held that a direction to sell the residue excludes from a general residuary clause choses inaction, because such things as accounts, debts, c., are not the subject of sale by executors and administrators. The principle applies here, because the testator expressly declares that even his less favored slaves are notto be sold.
In the same item he adds, "I desire all money arising from any source to be divided in the same way," except the accounts due on his shop-books, which he releases. This exception shows what is meant by "money arising from any source," and proves this not to be a general, but a restricted, residuary *Page 152 clause, having reference only to what was due him on bonds and accounts, (other than shop accounts), but certainly having no reference to the money that might be made by the sale of his favorite negroes; in the same way that the 8th item, "I desire all my real estate of every kind, whatever it may be, except what is herein specifically bequeathed to Thomas J. Brown, to be equally divided between" certain devisees, cannot, by any effort or ingenuity, be made to embrace the 200 acres devised to Mr. Brown.
The legacy of $3000 is given to Mr. Brown on account of the slaves, to attend them as an incident; it follows that that amount is likewise excepted out of the above items on the ground that the incident follows theprincipal. For as there is a plain intention that the legatees, named in the 5th item, shall not take the negroes, there is the same intention in respect to the money.
There will be a decree declaring that Mr. Brown holds the negroes and money in trust for the next of kin, and the land in trust for the heirs-at-law.
PER CURIAM, Decree accordingly.