Sarah Freeman, by marriage articles with her intended husband, Richard Freeman, became entitled to her property to her separate use, with the power of disposing of it by a will during her coverture. She had some real estate, about thirty slaves, and money or securities for money to the amount of some $7,000 or $8,000; and by her will, dated May, 1835, she devised a piece of land to her husband during his life; and the remainder therein, and all her other land, her negroes, money, debts, and every other part of her estate she gave to the defendant John Newlin, and appointed him her executor. She died in 1839, and the executor propounded the will, which was contested by her husband, and heirs, and next of kin; but the will was finally established early in 1843. In August following this bill was filed by her next of kin against Newlin and Freeman, and charges, that, although the devises and bequests to Newlin are absolute in their terms and without any trust expressed in the will, yet they were all upon the secret and unlawful trusts following: That the negroes should be held here, not for the benefit of Newlin, the apparent donee, but for the benefit of the negroes themselves, and in a state of quasi freedom, and that the devises and bequests of the other parts of the estate were in secret trust for the use and benefit of the negroes. The bill prays a discovery of those trusts, and that *Page 271 they may be declared unlawful and void, and also that it may be declared that a trust resulted to the plaintiffs, and for an account and distribution of the slaves and other personal estate.
The answer of Newlin admits that the bequest of the slaves to him was not to his own use, and states that the testatrix wished them to be emancipated, and gave them to him in trust that he should have them emancipated according to law. The defendant states that the testatrix and he frequently had consultations together upon the subject of empancipating them, and at one time she had determined to (382) manumit and send them out of the State, but afterwards abandoned that purpose, with the view that the defendant should have it done after her death. He states that both the testatrix and he were fully informed that the negroes could not remain in North Carolina as free persons; and that it was at no time intended by them that they should remain here, but that they should go out of the State; that the defendant told the testatrix she might express the trust in the will that the slaves should within a certain time be sent out of the state, according to law, to any other State or country in which they might enjoy freedom; that the testatrix preferred not to express the said trust in her will, but to confide in the defendant to execute her wishes and to take the necessary steps to carry them into effect; which he undertook and promised her to do; and that upon the faith thereof she executed her will in the terms in which it appears. The defendant states further that the testatrix seemed to prefer Liberia as their place of destination; but that she left to the defendant's discretion the place, and also the manner of transporting the negroes to some other country than North Carolina. He further states that, having accepted the said trusts with the purpose of executing them to the best of his ability, he would long ago have done so by sending the negroes out of the State, if he had not been prevented by the continued litigation at the suit of the plaintiffs touching the will and property; and that it is still his purpose to execute the trusts according to the laws of the State; and he submits to do so under the direction of the court. He denies that there was at any time an understanding between the testatrix and himself to violate or evade the law by holding the negroes in a state of qualified slavery.
The answer further states that the devises and bequests of the (383) parts of the estate were upon the trusts to apply as much thereof as should be required to defray the expenses of removing the slaves and making some provisions for them, and in part to compensate the defendant for his trouble for carrying into effect the wished of the testatrix.
The reporter, at the request of one of the judges, annexes a full copy of the will, as follows: *Page 272
"I, Sarah Freeman, of the county of Orange and State of North Carolina, being of sound and disposing mind and memory, do make, publish, and ordain the following to be my last will and testament, that is to say: First, I give and bequeath to John Newlin all my negro slaves, to him, his executors, administrators and assigns forever.
"Secondly. I give and devise all my lands or other real estate of which I may be seized or possesed [possessed] unto John Newlin, his heirs and assigns forever.
"Thirdly. I give and devise unto Richard Freeman, my husband, during the term of his natural life, my lands on Rocky River in Chatham County, and after his death then to John Newlin, his heirs and assigns forever.
"Fourthly. I give and bequeath unto John Newlin, his executors, administrators, and assigns, all my moneys, notes, bonds, stocks, household furniture and all my personal property of whatsoever denomination it may be. And I do hereby revoke and make null and void all former wills by me at any time heretofore made.
"Lastly. I do hereby appoint the above named John Newlin the devisee of all my estate, real and personal, to be the executor of this my last will and testament, and to which I have set my hand and seal this 20 May, 1835." If the trusts charged in the bill had been those on which the gifts were made, they would have been contrary to the policy of the law and void; and, of consequence, there would be a resulting trust for the plaintiffs. But the trusts disclosed in the answer for the emancipation and removal of the slaves are not unlawful. They are, indeed, in accordance with the policy, plainly appearing in the act of 1830, which, moreover, always prevailed here, provided only the emancipated slaves were carried, and kept, without our borders. If those trusts had been expressed in the will, they would undoubtedly be valid, and the executor and donee in trust would be compelled to execute them. Cox v.Williams, 39 N.C. 15. When this case was here before, it was held that the trusts would be no less obligatory on him in conscience and by the law of this Court, if the gifts were in fact made upon such express trusts, though not declared in the will, but resting in personal confidence between the parties. The defendant, when he acknowledges the trust, cannot be allowed to hold the property to his own use. The only questions in such a case are as to the effects of his breach of trust in not emancipating the slaves according to the laws of the State *Page 273 and deporting them, and as to the modes of enforcing the execution of the trust. We suppose that one who accepts the property upon such trusts is bound to execute them, and that, having once undertaken the trust, he may be compelled to perform it in those methods which the law prescribes for the benefit alike of the subjects of the trust and the public security; and it would seem that he could certainly be thus compelled, either at the instance of the Attorney-General, by regarding such dispositions in the light of charities, or at the suit of the negroes themselves, upon the capacity imparted to them by heir incipient right to freedom under the will of their former owner, as authorized by the statute. If that be so, the right of the next of kin would seem to be extinguished by the creation of such a trust, for it does not belong to them to enforce it, nor does the breach of it work any injury (385) to them, but only to the negroes or the State. However, it is not incumbent on the Court now, nor, perhaps, is it proper, to discuss the rights of the next of kin in the event the defendant should fail to emancipate the negroes and carry them away after he may do so without impediment, since this defendant submits to perform those trusts according to law, under the direction of the court, and it is to be presumed for the present that he will. "The act of 1830 authorizes the owner of a slave to direct the emancipation by will, and, of course, it is obligatory on the executor to do what is necessary to effect it. But the act further requires that, in order to obtain a grant of the emancipation from the court, the executor shall give bond to answer to the creditors of the testator for the value of the slave, and also a bond in the sum of $1,000 for each slave, that such slave shall be of good behavior while in this State, and will leave it within ninety days and never return. Where a person acting in the character of executor and trustee submits to proceed in the execution of the trust under the direction of the court, those acts must of course, be included in the directions, as they are for the security of creditors and in furtherance of the public policy; and a reasonable time allowed for procuring the emancipation and effecting the removal of the negroes — which, as the proceedings are to be in the Superior Court, one year would, in this instance, probably be. It must be declared, therefore, that the trust to emancipate the slaves in question, as disclosed in the answer, is lawful and proper to be executed by procuring or making the emancipation in the manner prescribed by the statute in such case made and provided; and the defendant is allowed one year from this time to effect the same. When he shall have refused or failed to do so, it will be time enough to consider whether the present plaintiffs can take benefit thereby; and, until that period, that point is reserved. It will be time enough then, because, if the defendant should in that manner perform the trust, the next of kin would certainly (386) *Page 274 have no rights in the matter, and it is not to be supposed the defendant will not perform a trust which he submits to perform and about the execution of which he professes a sincere and conscientious desire.