| Ala. | Jan 15, 1848
The plaintiffs contend that the testator intended a legacy to the slaves, to wit, their freedom — but as the laws of this State prohibit this, and they cannot take this legacy, or bequest, for want of legal capacity; that the testator died intestate as to his slaves, and therefore their services, and the slaves themselves, are liable to pay the legacies. If the hire of the slaves be assets for the payment of the legacies, then the slaves themselves would necessarily be so, and it' is only necessary to inquire whether the slaves named in the will are subject to pay the legacies. It is certainly very clear that the testator never intended that the slaves named in his will should be sold for this purpose, for he forbids their being sold under any circumstances. It is true he did intend to give them the option of freedom or servitude, but they have not the legal capacity or power to choose — the law forbids this, (see 6th Porter, 269,) hence it is contended, that the testator died intestate as to them. But if we take the intention of the will for our guide — and this we can do when that intention does not contravene the law — we will find, that the testator intended, that if they remained in servitude, they should be subject to his daughter, as they had been to him. How had they been subjecl to him ? They had been subject to him as his slaves. It was then his will, that they should be subject to his daughter in servitude, as her slaves. We can give effect to this intention of the will, but we could not give effect to the intention that the slaves should be free. But suppose the law would permit the slave to accept free
It results from this, that there is no error in the decree of the orphans’ court, and it is consequently affirmed. .