delivered the opinion of the court. ■
The plaintiffs are people of color, and claim their freedom under the will of one Timothy O’Hara, late a resident of the. state of Mississippi; and they allege, that one John Nugent, a testamentary executor of the said Timothy O’Hara, deceased, contrary to the provisions of said will, brought them to the state of Louisiana, as his slaves, and placed them as such on his bilan. ■ They have instituted this suit against the syndics of Nugent, demanding their freedom under the provisions of the will of their former owner.
The syndics resist their claim, under the plea of the general issue ; and aver, that they are part of the property surrendered by the insolvent; and further, urge that their emancipation under the will is absolutely null, having been made contrary to a law'of the state of Mississippi, in which the will was executed. The plaintiffs had judgment, and the syndics appealed.
The testator required his executor to emancipate the plaintiffs, if this could be legally done, under the existing laws ; otherwise to remove them to the state of Ohio. This direction of the will could only be carried into effect with the consent of the legislature. Revised Code of Mississippi Laws, page 385-6, section 75.
The executor made no attempt to obtain the consent of the legislature, but removed with the slaves to this state, where he procured money on a mortgage upon them.
It is clear that the plaintiffs did not cease to be slaves and . . part of the estate of their former master while they were in the state of Mississippi, and it is not pretended, that the formalities which the law requires for the emancipation of * A ' 1 slaves in this state, have been fulfilled in regard to them : Nevertheless, they have a right to stand in judgment for the pursuance of the provisions of the will, but this must be done contradictorily with the executor, whether the emancipation can take place without injury to the creditors of the estate of his testator; or that there are other just grounds which justify his refusal. The syndics purpose of compelling the executor to emancipate them, in rr i ‘iiai He, alone, Is able to show *66have an interest, adverse to the claim of the plaintiffs, as their emancipation will diminish the property surrendered by the insolvent, for the payment of the creditors ; but they cannot be listened to in the absence of a representative of the estate of tile testator or his heirs.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and that there be judgment for the defendants as in case of non-suit.