Upon the questions of fact relating to the formalities required by law for the confection of a nuncupative testament under private signature, having been observed in the present instance, we concur in the conclusions of the District Judge, from the voluminous, and to some extent, contradictory testimony before him.
The will of André Deshotels is valid in form, and has been duly probated.
Several questions of law are presented to us, upon the following clause of that will:
“ Fourth. I will and bequeathed unto my nephew, André Hildevert Deshotels, and to his wife, Marie Fidile Soileau, in equal portions, all the residue of my estate, both personal and real, of every description whatever, including slaves, lands, cattle, horses, hogs, sheep, and movables. This bequest is given and made with the following conditions, that is to say : that they, the said André Hildevert Deshotels, and his wife, Marie Fidile Soileau, immediately after my death, take such steps as shall be necessary, under the then existing laws of the State of Louisiana, to emancípale and set free the following slaves, to-wit, Harriet, Louise, Hyacinthe, Lucy, Jean Pierre, Eliza, Pauline, Coralie, Louison, Aimie, Jean Batiste, Valmont and Louisa, upon such terms as will permit them to remain in the State of Louisiana; and should this not be permitted by the laws, then they shall have them emancipated, and furnish each one of the said slaves with one hundred and fifty dollars, to remove them from the State of Louisiana. And upon the further condition, that the said legatees shall, during the time from the date of my death and the emancipation of my slaves, furnish them all necessary food and clothing, and treat them with kindness and humanity : and on their failure to comply with the above conditions, this legacy is to become null and void, so far as the said André H. Deshotels and Marie Fidile Soileau are concerned. And in order fully to carry out this provision of my will, I give and bequeath unto my said slaves their liberty, with the right to claim the same from my said legatees, immediately after my death. I will, however, in the event my said slaves refusing to leave the State, should the laws of the State require this as a consideration of their emancipation, then I will them to my said nephew and neice, and discharge them from the conditions above, and only require them to have said slaves emancipated, whenever the law of the State will permit them to remain in the State.”
And in a codicil, there is a similar testamentary disposition in relation to a slave named Marie.
The heirs-at-law of André Deshotels contend, that the legacy of freedom to the several slaves named in these clauses of his will and codicil, has lapsed, from the incapacity of the legatees to receive, (O. 0.1696,) the emancipation of those slaves being now a legal impossibility, under the provisions of the statute of the 6th of March, 1857. Session Acts, p. 55.
On the part of the executor, it is contended that the right of the slaves to their freedom, became vested and indefeasible, upon the death of the testator, which took place on the 6th of April, 1855, about two years previous to the passage of the Act of the Legislature in question : and that it would be contrary to the 105th Article of the State Constitution, to give to that statute the effect of defeating a right thus vested.
*756The operation of the Act of 6th of March, 1857, has boon considered by us in various cases, commencing' with that of Delphine v. Guillet. The constitutional view of the subject now presented, was lately considered by us in several cases decided during- the last spring in New Orleans — the cases of the Succession of Baker Woodruff, and that of Johnson v. Johnson. The same point was raised in the case of slave Minnie and others v. John Ray, Executor, lately decided at Monroe. We then held, and wo adhere to -the doctrine, that the right of a slave to freedom under the will of his master, was not vested, until the formalities required bylaw for consummating the emancipation had been complied with.
' The right of the owner of a slave to give the slave his freedom, was always a qualified right in Louisiana, subject to the action of the constituted authorities, and by the Act of the 6th of March, 1857, the right, qualified as it was before, has been annihilated. Dating from the passage of that Act, we understand the policy of this State to be, that the slaves within her borders shall remain slaves. In this, there is nothing unconstitutional.
The Legislature has not pretended to say, that those who were formerly slaves, and who, having been solemnly emancipated with all the forms of law, have become free, shall returnin to slavery. It has merely rendered it impracticable for the future, to consummate the emancipation of a slave, by withholding that sanction which was always necessary to the consumation of emancipation.
And the last will now under consideration, affords internal evidence that the testator was aware of his inability to give complete and perfect freedom to his slaves, and desired to provide against every legal contingency that might occur, to prevent the accomplishment of the object which he had in view. For,
First. He devises these slaves, with other property, to certain persons, on condition that the devisees shall take the necessary legal steps to have the slaves emancipated, with permission to remain in the State.
Secondly. On condition, (in case the law will not permit the slaves, when enfranchised, to remain in the State,) that the devisees shall have them emancipated, with the obligation to remove from the State, and shall furnish the slaves with necessaries funds to operate such removal.
Thirdly. For fear the devisees should disregard the preceding conditions of the devise, the testator gives to these slaves the right to sue the devisees for their freedom, immediately after the death of testator; and,
Fourthly. Should it ever happen that the slaves themselves would refuse to accept the boon of liberty, coupled with the obligation to remove from the State, the testator makes a special devise of the slaves to certain persons, upon trust. that the devisees will have the slaves emancipated, whenever the law shall be so changed, as to permit them to remain in the State after enfranchisement.
The whole of this complicated machinery has been constructed with reference to the peculiar legislation on this subject, as it existed when the will was made, and the modifications which that legislation might undergo thereafter. One contingency alone was omitted ; that the'Legislature should think proper to take away the power of emancipation altogether. This contingency has happened ; and the will has made no provision for such a case. The special devise of the slaves to the nephew and neice of the testator, has no application nor effect to this state of the case, because it is only made in event, that the negroes should refuse to leave the State as a legal condition of their emancipation.
It is argued by the able counsel for the testamentary executor, that the will has conferred upon his client, the power which the testator might unquestionably *757liave exercised in Ms lifetime, of taking tlie slaves in question out of tlie State. But we do not so understand tlie clause referred to, and which we have copied above.
The residuary legatees are directed, in a certain contingency, to remove the slaves from the State, after having had them emancipated. This is a very different thing from authorizing the executor to remove the slaves without being emancipated.
The only question which remains to be considered, is one raised by the inter-venors, the residuary legatees, namely : that the legacies of freedom to the slaves named in the will, having lapsed, to whom do the said slaves belong — to the residuary legatees, or to the heirs-at-law ? This question is settled in favor of the heirs-at-law, by the decision in Turner v. Smith, 12 An., which affirmed the doctrine of the case of Compton v. Prescott, 12 Bob ; also, case of Josephine Lewis v. Heirs of Williams, lately decided at Alexandria.
It is, therefore, adjudged and decreed, that the judgment of the District Court be amended ; that the will and codicil of André Deshotels, admitted to probate and execution by decree of the District Court of St. Landry, be recognized as valid in form ; that the defendant, Jean Baptiste Soileau, as testamentary executor of said last will and codicil, do account to plaintiffs, as heirs-at-law, and to intervenors, as residuary legatees of said André Deshotels; that the legacy of their freedom, to the several slaves named in the last will and codicil, be declared to have failed; and the said slaves to be the property of plaintiffs, in the proportions in which they are severally heirs-at-law of the testator. It is lastly decreed, that the costs of this suit, in both courts, be borne by the succession of André Deshotels.