"I will unto my son Samuel Wilson, one-third part of the valuation of all my negroes. *Page 151
"I will and bequeath to my son Moses Wilson (the defendant) one-third part of the valuation of all my negroes.
"I will that the other third part of the valuation of my negroes to be placed in the hands of my executors, for the support of my son Hugh L. Wilson, the plaintiff, and my executors to pay the interest of the amount annually during his life, then the principal to be equally divided among my children Samuel, William, and Polly. It is also my request that my son Moses take the negroes that may be valued for the support of Hugh L. Wilson, and pay the valuation into the hands of my executors" — and that he appointed the defendant Moses and other executors; (182) that Moses only proved the will; that after the death of the testator the negroes were divided, when two girls were allotted for the support of the plaintiff; that the defendant Moses never had never paid the valuation of those negroes to any person in trust for the plaintiff; that because of the renunciation of the other executor there was no person to whom it could be paid, and that therefore the defendant Moses held the slaves in trust for the plaintiff; that the defendant Moses had never paid the plaintiff any of the hire of the negroes, but had become insolvent, and for a nominal consideration had sold the slaves to the other defendants, who had notice of the plaintiff's claim. And the prayer was that another trustee might be appointed in the room of the defendant Moses, and the other defendants be compelled to reconvey to such trustee; and also for an account of the hire of the slaves and for general relief.
The defendant Moses, in his answer, set forth a valuation of the negroes of the testator, whereby two female slaves, the eldest of which was not 5 years old, were allotted to the plaintiff at $420, one-third of the whole value being $373.33. The defendant insisted that upon the true construction of the will he was only responsible to the plaintiff for the interest upon the latter sum for his life; and he averred that on 24 October, 1821, he for a full and fair consideration purchased of the plaintiff his interest in this annuity. The sales to the other defendants were admitted.
A general replication was taken to the answer, and the plaintiff filed proofs tending to impeach the fairness of the release set up by the defendant. A gentleman of the bar, who drew up the release and attested its execution by the plaintiff, deposed that at its execution the plaintiff was perfectly competent to make any bargain; that he, the witness, took the plaintiff aside and cautioned him against executing the release, which was disregarded by the plaintiff. The bill assumes as the construction of the will that the negroes are bequeathed to the plaintiff; at least, that they are bequeathed to Moses in trust for him. If that were true, the defendants who purchased from Moses, with knowledge that he claimed the slaves under his father's will, would hold them subject to the trust declared in it. But I think it plain that the testator meant a sale of those slaves which should be allotted as the third provided for the plaintiff's support. He says that "one-third of the valuation of his slaves shall be placed in the executor's hands for Hugh's support." This is inaccurately expressed, but means that the executors should get and keep the value of those slaves in their hands. Then they could not keep the slaves themselves. But this is rendered clear by the further provision, "that the executors are to pay Hugh annually during the life the interest of the amount" — not the hire of the negroes and their increase. And then comes a disposition of the fund after Hugh's death, which is not of the negroes and their increase, but of "the principal," to be divided among three other children. If the will had stopped here, there could be no doubt that it would have been the duty of the executor to sell the negroes and put the money at interest for a life annuity to the plaintiff. Is this altered by the subsequent provision? That provision is expressed by way of request that the defendant Moses should take those negroes, valued (184) for the support of Hugh, and pay the valuation into the hands of the executors; and Moses and another are appointed executors, of whom the former proved the will. It is argued that if a sale was intended, a case has happened in which it was not so meant, and could not be made, because there was nobody who could sell to Moses, nor to whom he could pay the price. No act was necessary to complete the sale to Moses, but his own assent. The testator had already provided for that, and the terms, namely, that the negroes should be valued; which was only necessary in case Moses, being an executor, should take them under the bequest in the will. There is no complaint of an improper division or unfair valuation. That would be a distinct ground of relief, if it existed. But the bill affirms the division and valuation, and seeks the specific negroes allotted for Hugh. The meaning of the request to Moses to take those negroes could not be that he should hold them upon terms different, and with a less perfect and disposable interest than another purchaser. If he would not keep them himself, he might and ought to sell them, by the terms of the will; and in that case the purchaser would take them absolutely, and subject to no trust. If he kept them, why should his interest be less, or his title not as perfect? It is said, because he was executor. Not so. That might be a reason why they should be valued to him, and not to another; but none at all why he should not have *Page 153 an indefeasible title, when he took them at valuation. The testator trusted him without security with the price, if sold to another. There seems to be no reason why he should not equally do so with the price in his own hands. I speak now of the meaning of the testator himself. Indeed, had the other executor proved the will, the defendant Moses would have been as much entitled as he to keep the price of the negroes. The intention, then, seems to be to sell those negroes to provide a certain support for Hugh by placing the value at interest. And this is the more reasonable inference when we find by the proofs that there were only five altogether, and that four of them were of little service. The two that were allotted for Hugh were young females, the eldest of (185) which was not 5 years of age, and would have been expensive for several years, instead of yielding anything towards the plaintiff's maintenance. But the testator wished the slaves to remain in his family, if his son was willing and able to buy them. This he requested him to do; but that request did not constitute a trust of the slaves, if the son took them as his own. The will is to be construed as a mode of proposing a sale, and not as encumbering the property with a trust, or embarrassing the purchaser in the disposition of it. Such a purpose would be inconsistent with the apparent strong desire that Moses should take them. For what more likely to prevent him than attaching such a trust to two slaves of their age and sex?
The interest of the defendant Moses must be declared to be an absolute one, if he assented to the purchase at all.
That he made an election in a reasonable time, and fairly, is placed beyond doubt by the contract and release executed to him by the plaintiff. The testator died in September, 1820. The negroes were divided and valued 25 October, 1820. And on 24 October, 1821, the plaintiff by his deed, in consideration of $107.50, released to his brother "the annuity" bequeathed by his father, and in his hands as the executor. From this it must be concluded that at that time it was perfectly understood that Moses had taken the negroes as his own property, and that all parties understood him to be responsible for the value. Upon the matter of the bill, therefore, touching any trust in the slaves, it must be dismissed as against all the defendants.
The bill, however, charges the insolvency of the executor, and prays general relief; which may be considered as a prayer to secure the fund and the annuity, if a proper case appears.
In the answer the release of October, 1821, is specially set up as a bar against this demand. While it remains in force, it is an absolute bar. Nor can it be annulled but upon a bill expressly impeaching it upon the ground of fraud, unless upon its face or from the *Page 154 (186) relation of the parties, the Court can declare it void. The fair execution of this instrument is proved by both of the subscribing witnesses; one of whom, an attorney, prepared it at the instance of the plaintiff himself. Other evidence has been taken by the defendant, going to show that the agreement on which it was founded was bona fide and fair; and the plaintiff has offered no proof to impeach it. If, therefore, the decision turned on the merits of the release, there seems to be no reason to suspect it upon the present state of the proofs. But the Court does not enter into that, because the pleadings do not impeach it, and the only matter in issue upon it is that made by the answer and replication, which is the fact of execution. The plaintiff cannot, therefore, offer proofs in this case impeaching the release; nor can the depositions of the defendant tending to sustain it be considered, because the whole is out of the pleadings. If the witnesses have sworn falsely, they have not been guilty of legal perjury, since they have been interrogated to facts not stated in the bill or answer nor in any manner put in issue. The Court cannot hear the proof; it would be error if we did. James v. McKernon, 6 Johns., 543;Lyon v. Tallmadge, 14 Johns., 501.
The relation between these parties was not such as to prohibit their bargaining altogether, and invalidate every treaty between them, however fair and advantageous to the plaintiff. The relation makes a dealing suspicious, and imposes the burden on the executor of showing very clearly that no advantage has been taken by him. The release is not therefore void, without proof aliunde. No proof has been or could be offered here. The release must, therefore, be established as a bar to this bill. But because the circumstances on which its validity depends are not open in this suit, the bill will be dismissed, without prejudice to filing another for the security or recovery of the annuity, and impeaching the release.
PER CURIAM. Decree accordingly.
(187)