Very clearly, Mr. Ellis has no claim in his own right, under this will. If the provisions of the clause referred to can be carried into effect at all, it would be a most glaring perversion of the intent of the testator, to permit his bounty to go to the individual use of the trustee, who was clearly only looked upon as a mere agent. The testator only casts the duty upon him after the death of his own widow. If the trustee dies he provides for a successor.
We are not sure that this will was void, ab initio, as against the policy of the Acts, then in force, prohibiting domestic emancipation of slaves. We are inclined to the opinion that it rather comes within that class of cases which are only instances of the mode in which the testator intends that the duty of every master to old and infirm slaves shall, in his case, be performed. Here were, without doubt, infirm and helpless slaves, whom it was the duty of the testator to take care of while he lived, and whose support was a legal charge upon his estate at his death. Why should he not provide a mode of his own choosing by which that charge should be executed? Clearly, in doing this, he must not make the slaves practically free. But does he do this? He sets aside the use of certain lands, he names the slaves by name, including with those who are infirm some that are able to work. He provides provisions, tools, etc., and directs that the agent or trustee keep them on the place, work them, direct and control them. They are to be compelled, as a body, to earn their own support. We can easily conceive that, under certain very usual circumstances, this might have been a very legitimate mode of performing the duty which every man, both by the laws of humanity and by the laws of the State, owed to his infirm slaves.
*179But admitting that this might, under certain circumstances, have been a legal will, we think, for that very reason, it cannot now be enforced.
These negroes are now free. The duty — the legal duty — of the master to them has ceased; his mode of performing that duty was to put them in charge of a trustee, who should control them, compel the strong ones to work for the weak, and to act as a master over them all. This is now impracticable. They are, by law, their own masters. They cannot, by the trustee, be compelled to work. Nor is it probable that the strong ones will now be willing to work for the support of the weak and infirm ; and, yet, this was the scheme of the testator, if it was legal.
If, on the contrary, his scheme was to make them practical! y free; to permit each one to do as he pleased, and to enjoy the proceeds of his own labor, then the will was illegal; and having been illegal then, it is illegal still. In either view of it, this provision of the will cannot be enforced, and we, therefore, think Judge Bigby did right in sustaining this demurrer.
Judgment affirmed.