The case has been argued with great ability, and highly commendable industry and research, by the counsel for both plaintiff and defendants; and it is deeply to be regretted that we are compelled to decide it, without the advantage of many cases, in which the' points presented, or analogous ones, have been discussed and decided by other Courts similarly organized to our own.
The first point, insisted upon by the plaintiffs in error, is, that the District Court had no jurisdiction ; that the the matters presented by the suit, belonged exclusively to the jurisdiction of the Probate Court.
We do'not design to enter into an investigation of this question, because it cannot be regarded as an open one. This Court has, from its earliest organization, held, that where the matters presented by the petition were of such a character as could not well be decided by the Probate Court, from its organization and the powers vested in it, the District Court, by virtue of its general equity jurisdiction, could claim jurisdiction. It was so ruled at Galveston, after a review of all the *160previous cases. Aud in the State of Mississippi, where the .jurisdiction of the Probate Court is very much like our own, the original jurisdiction of the Circuit Court was sustained in a case precisely like the present; (see Wade et al. v. American Colonization Society, 7 Smeedes & Marshall, 663 ; and also so ruled in Alabama. (Trotter v. Blocker, 6 Porter, 269.) It was not the intention .of the framers of our Constitution, nor will a fair interpretation of it bear the construction, that important rights should be denied a remedy for their enforcement, from a defect of jurisdiction, which would be the result, if in such cases, the general equity jurisdiction of the District Court could not be resorted to. The argument, that it would not be a case without a remedy, even if the Probate Court could not afford the relief sought, as an appeal would lie, is not sound ; because it is well settled, that, on an appeal, if the Court a quo had not jurisdiction, it could not be revised by the appellate tribunal. With these remarks, we will dismiss the question.
The next, and by far the most important objection urged, is as to the validity of the trust created by the will. Is it a valid trust ? Is it repugnant to the Constitution of the State, and the laws, and the policy of our institution of slavery ? The plaintiffs insist that the first of these interrogatories should be answered in the negative, and the others, in the affirmative. We believe that it is clear, beyond controversy, that the bequest to Mrs. Sherrod, the sister of the testator, is coupled with the express trust, that the negroes should be carried to a free State, or to the colony of Liberia, where there would be no legal impediment to their enjoying their freedom, the object of the testator in making the bequest; and that this trust is a valid trust, unless it is in violation of the laws of this State, or contrary to the manifest policy of its institutions i these impediments out of the way, the owner of property has ■an undoubted right to dispose of it in his lifetime, or direct its disposition after his death, at his pleasure. Before enter-ins' into the investigation as to how far this freedom of will in *161the disposition of one’s property is controlled by the Constitution and laws of this State, or its policy in reference to our institution of slavery, we will notice, and dispose of an objection, taken to the validity of the trust, arising from the rules of the Common Law.
It is urged by the counsel for the plaintiffs in error, that the trust is void, on the ground that the beneficiaries or eestuis que trust, as slaves, are incapable of taking; and to make the trust a valid trust, the beneficiaries must be in existence at the time of the creation of the trust, that is at the time of the testator’s death. This position is enforced by the argument that the ownership of the property passes, directly on the death of the owner, into some one, and cannot be suspended ; that slaves, as property, are incapable of taking at that time, and their subsequently being placed in a condition to take, cannot impart validity to the trust; and that on the failure of the trust, the property remained to the heirs as though no trust disposition had been made. These propositions and conclusions are certainly subject to many exceptions; they •seem, however, to have been adopted, without qualification, by the Supreme Court of Alabama, further than the case of taking by descent, where the person not in esse may take on his coming into existence. (See Trotter, Adm’r, v. Blocker and Wife and others, 6 Porter, 269.) We apprehend, however, that this is not the only exception, and that one may take by deed, or by devise, who is not, at the time of making •the deed or testament, in existence, provided the time for taking is not so remote as to create a perpetuity, and lock the property up from trade and commerce. A devise to a child to be born of a certain woman in being, would be a good devise, because not too remote, or beyond the limitation against perpetuities ; which time has been established to be within the period of twenty-one years, and the ordinary period of gestation added thereto, after the death of a person then in being. And although before the time arrived, the property would be vested in the heir, if no trustee had been made, it *162would only vest in the heir sub modo, to be divested on the happening of the contingency; and in holding the property, the heir would be regarded as holding subject to the trust.
We believe these views are fortified by the opinion of Judge Haywood, in the case of Hope v. Johnson, a case in its main features very much like the one before us, particularly on this question, where the very grounds we have been discussing were urged against the validity of a trust. The clause in the wdll creating the trust was as follows, i. e.: “I will and be- “ queath, that the plantation I now live on be sold by public or “private sale, to the best advantage, and the proceeds there- “ of be laid out in land in the Indiana Territory, as well sitn- “ ated as can be procured, and the right thereof vested in my “ negroes which I now own, viz: (naming them) each or all of “them, with their increase, to whom I give their entire free- “ dom ; and the settling of them on the above named land, un- “ der the direction of my executor &c.” Johnson, the Executor, sold the land directed by the will to be sold for purchasing another tract in Indiana for their maintenance ; the negroes were carried by him to Indiana, where they now are emancipated and free. Judge Haywood, who delivered the opinion of the Court, says: “And the question now is, “ whether such power, given to Johnson for such purposes, “ was a good and legal power; which general question is sub- “ divided by the argument into two more minute ones: First, “ in whom the land vested till the sale ? Secondly, whether “ the trust did not fail for want of persons capable, to take it “ when the testator died ?
“First, did the land vest in Johnson, so far as regards “ the legal estate, in fee ? The land was not given to him to “ use, but he was directed to sell. The legal estate did not “ vest in him, but a power to sell; and when he sold by vir- “ tue of the power, and conveyed by it a fee, the purchaser “was in by and from the testator, by a title anterior to “ that which came to the heir by descent; and this puts an end “ to the claim of the heir, unless the power be void, it being *163“ for some illegal purpose.” He then refers to the laws of Tennessee, to show that the purpose was not illegal, and proceeds : “ Secondly, did the trust fail for want of persons to “ take it ? Suppose the direction had been to purchase land u in Indiana, for the use and benefit of a child of a free per- “ son, which should be born in the lifetime of these negroes, “and such child should be born in their lifetime; the trust “ would vest in him, such birth being within the time limited “ to prevent perpetuities. So here, if the negroes be made “ free at all, it must necessarily be in their lifetime, and the “ estate will not be inalienable, waiting for the trust to attach, “ beyond the time limited, and so is not void as tending to “ lock up the estate in perpetual seclusion from the purposes “ of commercial enterprise. If the trust be not void on ac- “ count of its tending to a perpetuity, then the objects of the “ testator’s bounty were incapable to take in a reasonable time “ after his death, though not capable at the time of his death “ and before emancipation; and there is more reason that “they should take according to the will of the testator, than “ that the heir should take against his express purpose that “ she should not take. But it is said that the property vested “ in Ann Hope, and could not afterwards be taken from her. “ Answer: It vested in her sub modo, as it does by descent “ to a more remote heir until a nearer be born: as, suppose it “ vest in the brother of the deceased, and six or eight months “ afterwards the wife of the deceased is delivered of an heir. “ So here, the land vests in the heir until a purchaser comes “ into esse under the power, and then in the purchaser, im- “ mediately by and from the ancestor.” (See Hope v. Johnson, 2 Yerger, 123.)
We have extracted nearly the whole of the opinion of the Court in the case just cited, because it was the unanimous opinion of a Court composed of seven Judges, all of whom justly deserve the reputation of being able Jurists; and of the Judge who prepared the opinion of the Court, it may well be said that, for learning and profound research into *164the principles of jurisprudence, no one has enjoyed a more enviable rank. And further, although the Supreme Court of Alabama, in the case cited from 6 Porter, believed that this case did not lie in their way, and forbore the criticism to which they supposed it obnoxious, we believe that, in the particular branch of the ease under consideration, it lies immediately in our way, and we see no escape from it, and yield our unqualified assent to it as a sound and clear exposition of the law-on the question. Uor is it perceived how it could have been regarded by that Court, as not to lie in their way. One of the questions presented and discussed in that case, was, the validity of the trust at common law; and it was discussed and decided upon, (in the opinion of the Court,) on the application of the common law to it, and held to be invalid ; in fact, it was the same question we have been discussing. The Alabama Court, after arriving at the conclusion that the trust was void on that ground, need not to have proceeded further, as it disposed of the case, and their decision against its validity under the Constitution and laws of the State, were not at all necessary to the disposition of the case before them.— We shall, however, have occasion again to return to this Alabama case, in the discussion of the other branches of the case before us. We conclude that the trust conferred on Mrs. Sherrod by the will of her brother, was a good and valid trust at common law; and we shall next proceed with the inquiry, whether it was in violation of the Constitution and law's of the State, or repugnant to its policy.
In the 8tli Art. of our Constitution, on the powers of the Legislature on the subject of slaves, in the 1st Section is the following, i. e.: “ They shall have the right to pass laws to “ permit the owners of slaves to emancipate them, saving the “ rights of creditors, and preventing them from becoming a “ public charge.” This is the only provision in the Constitution having any reference to the subject of emancipation, and if the question of the right of the owner to emancipate his slave, unconditionally, depended upon any thing like a fair *165judicial construction of this provision, it would he difficult to derive from it any such restrictive effect. The language does not assume to be restrictive on the owner. It gives authority to the Legislature to do, clearly what they would have had the power to do before or without it; for it cannot be doubted that it is competent for the Legislature, in view of our institution of slavery and for its protection, and better regulation, to impose such restrictions on emancipation, as, in the opinion of that department of the State Government, expediency or sound policy may require. If there is any restriction, it is found in the last member of the sentence, “ saving the rights of creditors, and preventing them from becoming a public charge.” This would seem to be restrictive to this extent, that they should not grant the permission without securing the two objects mentioned, the rights of creditors, and the public from being burthened and taxed with their support. Constitutions, as well as Acts of the Legislature, restraining the natural right of the owner to dispose of his property as he pleased, should be clearly expressed ; the intention to do so should never be presumed. The mere fact that authority was given to the Legislature to pass laws permitting the right, cannot be construed as inhibiting a right previously existing. Had such been the object of the framers of the Constitution, they would have made use of language such as, “ emancipation of a slave shall not be allowed to be made, “ only by permission of the Legislature, or under such regu- “ lations as shall be prescribed by the Legislature.” If so expressed, there can be no doubt that it would have prohibited emancipation within the jurisdiction of the State. There is no aid to be derived, to support the conclusion, that the restriction is in the words of the Constitution per se, from the supposed analogy to the case of a jurisdiction being granted to a Court by the Constitution, under such regulations and restrictions as the Legislature might enact. In the last case, there would be no restraint on a right existing, if the exercise, of the jurisdiction granted, was dormant and could not be ex*166ercised until the Legislature had acted. It is however most likely that the State Convention had in view the provisions of the Constitution of the Republic, and the Acts of Congress still of'force, on the subject of emancipation and free negroes, and we consider it not improper to look to these sources to arrive at the meaning of the provision of the Constitution so vaguely expressed.
The Constitution of the Republic in Section 9 of the General Provisions, is in the following language: “ All persons “ of color who were slaves for life previous to their emigra- “ tion to Texas, and who are now held in bondage, shall remain “ in the like state of servitude: Provided, the said slave shall “ be the bona .fide property of the person so holding the said “ slave as aforesaid. Congress shall pass no law to prohibit “ emigrants from bringing their slaves into the Republic with “ them, and holding them by the same tenure by which such “ slaves were held in the United States; nor shall Congress “ have power to emancipate slaves ; nor shall any slaveholder “ be allowed to emancipate his or her slave or slaves without “ the consent of Congress, unless he shall send his or her “ slave or slaves without the limits of the Republic.” This organic law was superseded by the Constitution of the State, yet it may be referred to, not only to show the true meaning of the State Constitution, upon the same subject, but also the policy of the restriction, on emancipation; that it was only designed so far to restrict emancipation as to prevent free negroes from remaining in the State; and that this was the object is further manifested by the Act of Congress .of the Republic (still believed to be in force) of the 5th February, 1840. (Articles from 2546 to 2550, inclusive, Hart. Dig.) This Act prohibits free negroes from emigrating to the country ; provides how they shall be' punished, and if persisting in remaining here, shall be sold as slaves for life. But it may be said that as the Act referred to does not mention or refer to emancipation in prohibitory terms, and the Constitution of the Republic being abrogated by the new government and its *167new Constitution, there is nothing left to prohibit emancipation without any qualification ; to which we answer, that as the Act is believed to be still in force, and it forbids free negroes from coming into the country, taken in connection with the old Constitution and the new, the prohibition of emancipation, unless the emancipated slaves shall be removed from the State, is implied, as their residence in the State is not permitted.
But if we admit that the State Constitution prohibits emancipation, would it follow that the owner would not be allowed to emancipate them, on their being removed from the State, or by testament provide for its being done after his death ? In the States of Mississippi, Georgia, and South Carolina, they have no constitutional provision regulating or controling the right of emancipation ; but in each of those States, they have legislative enactments, expressed in much stronger and more explicit terms, prohibiting the emancipation of slaves, or regulating the mode in which it must be done. We will see what has been the construction, in those States, of their respective Acts of the Legislature on this subject.
To begin with Mississippi, the Act of the Legislature, in restraint of emancipation, is as follows: “It shall not be law- “ ful for any person or persons, being the owner or owners of “ slaves, to emancipate them or any of them, unless by his or “ her last will and testament, or by any other instrument in “ writing under his or her seal, attested and proved in the manner required by law by two credible witnesses, or the “ instrument of writing acknowledged by the party or parties “ in the Court of the County or Corporation where he, she or “they reside; and also prove, to the satisfaction of the gen- “ eral assembly, that such slave or slaves have done and performed some meritorious act for the benefit of such owner “ or owners, or some distinguished service for the benefit of “ this State : and the last will and testament, or other instru “ ment in writing, as aforesaid, shall not have validity until “ the same shall be sanctioned by an Act of the General As- *168“ semblv, nor until the owner or owners shall have complied “ with the conditions which may be specified in such Act.” In the case of Jane B. Ross et al. v. Vertner et al., 5 Howard, 357, on the will of Isaac Ross without having observed the conditions prescribed by the statute cited, the part of the will contested by the next of kin, “ Directs the executors of “ the same to transport to the coast of Africa, such of the slaves “ of the testator as shall elect to go ; and there to be settled “in Liberia and remain free.” It was held by the Supreme Court, that this was a valid trust, that it did not come within the policy of the statute above cited ; the trust, although created by the will of the testator within the State, was to be executed without its limits ; that the object of the law was to prevent free negroes remaining in the State. The case was argued by eminent counsel, and was one involving the freedom or slavery of about one hundred and sixty slaves. The doctrine of this case was considered as conclusive of the question, in Wade and others v. The Colonization Society, 7 Smeedes & Marshall, 663. And in the last case, it was further held, that a “ bequest made to slaves, who are directed “ by the will to be transported to Africa and remain there, are “ not void for want of capacity in the legatees to take; the “ slaves have an inchoate right to freedom under the will, “ which is complete as soon as they are removed out of the “ State.”
We have been unable to procure an exact transcript of the Acts of 1801 and 1818, of the State of Georgia, but their purport, so far as it can be collected from the comments of counsel and the opinions of the Judges in reported cases, is that the manumission of slaves is absolutely prohibited, without the consent of the Legislature, and wills containing a direction, or provision manumitting them, are declared to be void. These statutes received the judicial construction of the-Supreme Court of that State, in the case of Vance v. Crawford. (4 Georgia R. 445.) The contest arose on a clause in the will of Marshall Keith, as follows: “ I give to the Secre*169tary of the Colonization Society the following negroes, viz: Alfred, Daniel and Thornton, for the purpose of being sent to Liberia, and also five shares of the Mechanics Bank of Au- “ gusta, for each—the proceeds to be paid to them or the survivors, on their arrival in Liberia,'and for no other purpose.” The Superior Court of Columbia county sustained the will, and decided, “That the clauses of a will containing bequests “ of slaves and other property to executors as trustees for the “ use of the slaves, were not utterly void under the Acts of “ 1801 and 1818, unless it appeared to be the absolute inten- “ tion of the testator that the slaves should remain in Georgia.” On appeal to the Supreme Court of the State, this judgment was affirmed.
Judge Lumpkin, who delivered the opinion of the Court, says, “As to so much and such parts of the will as authorize- “ the emancipation of three of the testator’s slaves, in Liberia, “we are clear, that it was entirely competent for him to “ make such post mortem disposition of his negroes. Owners “ can, in their lifetime, cany or send their slaves to the coast “of Africa to be colonized, or elsewhere, for the purpose of “ freeing them; and they can appropriate the whole or any “ portion of the remainder of their property, if they so please, “ to their transportation and maintenance in their new homes. “ We hold it equally certain that they can direct the same- “ thing to be done by their executors, after their death. For- “ eign emancipation conflicts neither with the letter or spirit “of our municipal regulations, relative to this subject.”
The same question again came up before that Court, in the case of Carper v. Blakey, 10 Georgia R. 263. Jndge Warner, who delivered the opinion of the Court, says: “ The objections urged against the will of the testator, in this case, “ are precisely the same as were urged befoi-e this Court in “ the case of Vance v. Crawford, in opposition to the will of “ Marshall Keith. It was held by this Court, in that case, “ that it is not against the policy of the State of Georgia, for “ the owner of slaves to remove them out of the State for *170manumission, and that he may direct it to be done, by will. In the case of Jordan v. The Heirs of Bradley, (Dudley R. “ 170,) the same decision was made by the Judges in conven- “ tion. We Rave examined the question as decided in both “ of the cases above referred to, and, with increased confidence, “re-affirm the judgment of the Court in Vance v. Crawford. In that case, as in this, there was a bequest to the slaves, “ by the testator, of a portion of his property, which was held “to have been a valid bequest.”
The Act of 1830 of the Legislature of South Carolina provides, “ that no slave shall be emancipated but by Act of the Legislature.” The case of Frazier at al. v. Frazier’s Executors arose on a contest between the heirs of the testator and his executors to invalidate the will of the testator. The bequest sought to be invalidated was as follows, i. e.: “ That the slaves of the testator should be hired out daring the lifetime of his widow, and that after her death the whole of them “ should be set free by his executors, &c., the interest of the “ money is to enable them, with the assistance of Government, to go to St. Domingo to be colonized, or to any part “ that they with the Government may choose.” Upon the death of the widow, the executors seized the negroes with the view of carrying the will into effect; and a bill was filed by the next of kin claiming the negroes, &c. The Court say that although the provision is general and might seem to prohibit emancipation out of as well as within the State by a citizen, yet such construction would be manifestly contrary to the spirit of the law. The evil was the increase of free negroes in the State, by emancipation. The removal of slaves belonging to citizens of the State, and their emancipation in parts beyond her territorial limits, was no injury to her. It will not be denied, say the Court, that the owner might have removed his slaves from this State, at any moment and for any purpose he pleased; and it is laid down as a general rule to which there is no exception, unless by express statutory provision, that the owner of property may, by his will, direct his *171executors to dispose of it in any way in which he could. (2 Hill’s Chan. R. 305.)
The principles deduced from these cases, are, that although a State by its Laws, may absolutely prohibit emancipation, or direct the particular mode in which it can only be done, yet a bequest of freedom not to be forfeited until the slave is removed beyond the territorial limits of such State, is nevertheless a valid bequest; and that a bequest to a slave is valid, if not to take effect until his removal from the State. The soundness of these principles has not been controverted by a single ease we have had an opportunity to examine, with the exception of the case of Trotter v. Blocker et al., cited before; and that case does seem to lie in our own way, and we must, therefore, examine it, and dispose of it as best we may. The provision in the Constitution of the State of Alabama, on which the opinion of the Court was given in the case referred to, is precisely in the language of our own previously recited ; and the Court ruled that a bequest in the will, of freedom and removal from the State, was invalid ; that the trust was in violation of the constitutional prohibition, and that emancipation could only be valid by an observance of the mode pointed out by the statute; that any other mode was repugnant to law, and void. It must be observed that the distinction between domestic and foreign emancipation, does not appear to have been noticed or discussed at all in that case ; but it is assumed, that because the slave had not the capacity to take the bequest at the death of the testator, he could not take at all. A more critical examination would have enabled the Court to perceive the want of application to the case, of the rule it laid down, that if the donee is not capable of taking at the time of the gift, the gift is void. That rule only applies where the gift is to be completed in presentí, and not in futuro. In the case then before the Court, the bequest was not to take effect in presentí, but it depended, for its completion, on something to be done at a future time; and although the beneficiary was not capable, at the time of the death of the testa*172tor, he was capable of taking under the will, if capable at the time of the execution of the trust, if the time of the execution was not postponed beyond the time prescribed to prevent perpetuities. The time and place, when and where the trust is to be executed, must be looked at, and not the place where it was created ; if not repugnant to law where it is to be executed, it is a valid trust. It may be said, that in a State where a contrary doctrine has been held from the ruling of the Court in the State of Alabama, they had no constitutional restraint on emancipation; to which we answer, that it is competent for the Legislature in those States to impose restrictions on emancipation, and all of them had imposed such restraints, and in most of them, much more stringent, than any construction of the Constitution of Alabama or of this State, would authorize. The laws of Mississippi and South Carolina, are particularly so. The error of the Court in Alabama, arises from not regarding the difference in where the bequest was made and the place it was to be consumated. We must, therefore, respectfully differ with the Supreme Court of Alabama, on this question.
On a fulldnvestigation of this case, and with the best light we have been able to derive from adjudged cases, we conclude that the trust to Mrs. Sherrod in favor of the testator’s slaves to be executed beyond our territorial limits, is not repugnant to the law or settled policy of this State, and that it is a good and valid trust; and that there is no error in the decree of the Court below, and it is therefore affirmed.
Judgment affirmed.