The bill was filed by Ezekiel Myers and his wife, Elizabeth K., who is the daughter of the defendant N. L. Williams, and was formerly the wife of the late John A. Lillington, on whose estate they administered, and they sue, also, as the representatives of that estate against N. L. Williams, as the executor of Hon. Lewis Williams, and against his other children and against the solicitor of the Sixth Judicial Circuit of the State as the legal representative of certain negroes proposed to be emancipated by the will, praying for an account and settlement of the said estate and the satisfaction of the legacies, consisting of land and personal property devised and bequeathed in said will to the feme plaintiff. The matter involved as to the lands devised was settled by an interlocutory decree heretofore made, and therefore only the bequests as to the personalty were considered on the hearing at this term. The clauses of the will of Mr. Williams out of which the questions under consideration arise are as follows:
"Fourth. In regard to my negroes, my will is as follows, to wit: That all of them who are above 25 years of age shall be left to my brother, *Page 287 N. L. Williams, in trust for the use of his children, now born or to be hereafter born, of the body of his present wife, Mary G. Williams; but he, the said Nicholas, is not to be accountable to his children for the proceeds of the labor of said negroes until the said children are 21 years of age, my object being that the said Nicholas should (363) use the proceeds of the labor of the said negroes to enable him the better to educate his children, as well as to support the said negroes. In the next place, it is my will and desire that all of my negroes who are under 25 years of age now should, when they arrive at 25 years of age, be emancipated and sent to Liberia, on the coast of Africa: provided they should choose to be emancipated and to be sent to Liberia, their choice or option in the matter is to be ascertained by a private examination by three justices of the peace to be appointed for that purpose by the county court of Surry. If the said negroes should not choose to be emancipated and sent to Liberia in the manner above pointed out, then they shall be held in trust by my brother, N. L. Williams, for the use and benefit of his children, now born or hereafter to be born, of the body of his present wife, Mary G. Williams; and the trust hereby delegated to him, the said Nicholas, is to be subject to the same conditions in all respects as is the other trusts concerning the negroes who are above 25 years of age.
"My reason for making the distinction between the negroes above 25 years of age and those who are under that age is, that those over 25 years would not perhaps better their condition in life, and they might be too sickly if sent to Africa, while those under 25 years of age might be less sickly and might make out better in Africa. . . .
"Sixth. The issue, or increase, of my negroes, as well of those over 25 years as those under 25 years, are all to be emancipated and sent to Liberia if they choose to go, and consent to go, to be ascertained by private examination in the manner before pointed out, after they shall arrive at 25 years of age.
"Seventh. If the laws of the State prohibit emancipation, so that my will cannot be carried into effect, then all my negroes must go to the children of my brother, N. L. Williams, now born or hereafter to be born, of the body of his present wife, M. G. Williams, and to be held by my said brother in trust for the use and benefit of his children according to the conditions of the preceding parts of this will; (364) that is, that the said Nicholas is not to be liable to the children for the proceeds of the labor of the said negroes until the children arrive at the age, severally, of 21 years, but he is at liberty to use and appropriate the said proceeds in any manner he may think best for the education and support of his children." *Page 288 of distributions he is entitled to her share of the legacies in the personalty.
CODICIL.
"If any of the negroes choose to go to Liberia as above stated they are to be hired out for one year to raise the money necessary for that purpose, and my executor witness the execution of this part of my will." Dated on the same day with the will, to wit, 21 May, 1841.
The plaintiffs insisted that the foregoing provision of the will, as to the emancipation of the slaves, was void as being against the policy of the State and as being impossible of execution according to the terms prescribed. As to them, therefore, the bill prays that the executor shall account.
The answer of N. L. Williams, who is the executor, submits to the judgment of the court in respect to the clauses of emancipation, and professes a willingness to have the desires of the testator carried into effect as fully as he may be able to do so under the directions of this honorable court, provided the same be considered valid. The only other matter in the said answer pertinent to the personal estate is this: It sets forth that the defendant N. L. Williams had a daughter, by the name of Mary Lewis, born of his wife, Mary G. Williams, who was alive at the death of the testator, but who died under age and without being married or having had child or children. He insists that by the statute
The cause was set down to be heard on the bill and answer of N. L. Williams and the exhibit and sent to this Court. Upon the first question argued before us by the counsel we entertain no doubt. The terms of the bequest to the children (365) of the defendant Nicholas L. Williams import a present gift, though the slaves are not to be allotted to them and put into their possession until they should respectively come of age. In the meantime the profits were to be applied towards their education, and the provision in favor of the father, that he was not to be accountable to his children during their minority, cannot have the effect contended for by the counsel for the plaintiffs; of preventing the legacy from being vested. Anderson v.Felton, 36 N.C. 55, relied upon by the counsel in support of the view that the legacy to each child was contingent upon the event of his living to attain the age of 21 years depended upon very peculiar language of the will, as appears not only from the opinion of the Court in the case itself, but also from the comments upon it in other cases in which it has been cited. See particularly Devane v. Larkins, 56 N.C. 377. *Page 289 The legacy having been vested in the children of the defendant Nicholas L. Williams who were living at the testator's death, the share to which his daughter Mary Lewis was entitled devolved, upon her death, to him upon his taking out letters of administration upon her estate, and, of course, will belong to him as her next of kin.
The question of emancipation which arises upon the construction of the will is one of much more importance and difficulty. It has been ably argued by the counsel who oppose the claim of the slaves to be set free in the manner and upon the terms prescribed by the testator, and we regret that we have not been favored with an argument from the public officer who was made a party to the suit for the purpose of protecting the rights and interests of the slaves. The clauses of the will which relate to the question which we are now to consider are as follows:
"In the next place, it is my will and desire that all my negroes who are under 25 years should, when they arrive at 25 years of age, be emancipated and sent to Liberia, on the coast of Africa; provided they should choose to be emancipated and sent to Liberia, their choice or option in the matter is to be ascertained by a private examination (366) by three justices of the peace to be appointed for that purpose by the county court of Surry. If the said negroes should not choose to be emancipated and sent to Liberia in the manner above pointed out, then they shall be held in trust by my brother, N. L. Williams, for the use and benefit of his children," etc.
"My reason for making the distinction between the negroes above 25 years of age and those who are under that age is, that those over 25 years of age would not perhaps better their condition in life, and they might be too sickly if sent to Africa, while those under 25 years of age might be less sickly and might make out better in Africa."
"Sixth. The issue, or increase, of my negroes, as well of those over. 25 years as of those under 25 years, are all to be emancipated and sent to Liberia if they choose to go and consent to go, to be ascertained by private examination in the manner before pointed out, after they shall arrive at 25 years of age."
The testator then provides that if the laws of the State prohibit emancipation, so that his will could not be carried into effect, the negroes should go to his brother upon the same trust as he had already prescribed for his slaves who were above 25 years of age.
The objections to the provisions in favor of the emancipation of the testator's slaves who were under the prescribed age are mainly of three kinds:
First. Because it is against the policy of our law to establish a nursery of young negroes, with a view to their being emancipated at a certain age if they should so desire. *Page 290
Secondly. Because the sixth clause of the will created a perpetuity which our law abhors and will not permit to be carried into effect.
Thirdly. Because, with regard to most, if not all, the slaves embraced in the provision for the emancipation, the will cannot be carried out in the manner prescribed without great difficulty and without doing violence to the humane wishes which the testator has expressed in favor of all his slaves.
In the discussion of the first of these objections, it should be assumed as the settled law of the State that a direction contained in a will (367) for the liberation of a single slave, or of a family of slaves, at some future prescribed time is legal, and may be carried into effect by the executor or other person charged with the duty. Thus a testator, grantor, or donor may, by will or deed, bequeath or convey slaves to a person for life, and direct that at his or her death they shall be emancipated. It should, also, be assumed that the boon of freedom may be left to the election of the slaves themselves. See, among others, the recent cases of Caffey v. Davis, 54 N.C. 1; Cromartie v. Robinson, 55 N.C. 218;Redding v. Findley, 57 N.C. 216. It will be proper for us, also, to bear in mind what we said in Cromartie v. Robinson, above cited. In that case, which involved the construction of the will of the late General McKay, we used the following language: "We think proper, also, to say, in putting a construction on the will now before us, we have a single eye to the intention of the testator, without reference to the notion that courts should favor charities and lean in favorem libertatis, for however humane we may suppose the feeling that prompts, it is not established that public policy favors the emancipation of slaves. And although the principles of the common law look with favor upon the transition of a bondsman or villein to the state and condition of a free white man, yet very different considerations may be involved where the question is between the condition of a slave and that of a free negro."
That the true principle of our law in relation to the emancipation of slaves is that it permits, but does not favor it, may be seen by any one who will examine the numerous cases on the subject which have come before our courts for adjudication, commencing with Haywood v. Craven,4 N.C. 360, and coming down to the recent case of Lea v. Brown,56 N.C. 141. In every will or deed where the Court has been able to detect a trust, open or secret, for a state of qualified slavery, in favor of slaves, it has been held to be against the policy of our law and void. "The policy which forbids emancipation, unless the freed negroes are sent out of the State, and the policy which forbids quasi(368) 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 *Page 291 may feel inclined, is fully settled by the numerous cases which have been before our Court, and is strongly enforced by the Legislature." See Lea v.Brown, above referred to. The grounds upon which this policy are based are manifest. It has regard, not only to the favored slaves themselves (being thereby rendered idle and worthless), but also to other slaves, who are thereby induced to become discontented with their condition, disobedient to their masters, and unfit for the social state which is essential to the well being, the happiness, and even the very existence of both master and slave. We cannot help seeing and feeling that the provisions for emancipation in the will now before us have a necessary tendency to produce similar results. It is true that the slaves are ultimately to be carried out of the State, but that is not to be done immediately, nor as to all the slaves at any one fixed time; as, for instance, at the death of the tenant for life, but it is to be done at constantly recurring periods for perhaps a century to come. The very fact that the same person who is to have the services of the slaves until they arrive at the age when they may choose their freedom is to carry out the trust for emancipation will have a strong tendency to induce him to relax the reins of a necessary discipline, with the hope of influencing their choice of bondage for the benefit of his children. This will be an evil as long as he may live, operating injuriously not only to the favored slaves themselves, but, by way of bad example, to his other slaves and to those of his neighbors. In our opinion, the policy of allowing the prospective emancipation of slaves is carried far enough already; and while we do not feel at liberty, or even inclined, to disturb what has been settled by the adjudication of our courts, we do not feel disposed to go further and support a scheme of emancipation which is likely to be attended with such bad results as the present.
This view of the case renders it unnecessary that we should (369) consider particularly the other objections to the bequest for emancipation. One or two considerations with respect to the difficulties in the way of its practical execution will readily suggest themselves to those who pay even a slight attention to the provisions of the will. Besides the trouble and inconvenience of applying to the county court of Surry every time one of the favored slaves shall attain the age of 25 years, there will be an insuperable difficulty in every instance of a female to prevent her making a choice of freedom. In nine cases out of ten, a female of that age will have one or more very young children, which, if she elected emancipation, she would have to leave, because the executor, or person charged with the trust, would be compelled to send her to Africa within ninety days. In most cases, too, her hire for one year, which is the fund provided by the testator in a codicil to his will *Page 292 for the expense of transportation, would be insufficient for that purpose. We need not, however, pursue the subject, because, as we have already said, our opinion is that the whole trust for emancipation, upon the scheme declared in the will, is against the policy of the law, and therefore void. It follows that the executor must hold the slaves upon the alternative trust indicated by the testator. A decree may be drawn upon the principles announced in this opinion.
PER CURIAM. Decree accordingly.
Cited: Whedbee v. Shannonhouse, 62 N.C. 287; Conigland v. Smith,79 N.C. 304.
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