Cox v. Harris, 17 Md. 23

Cox v. Harris

17 Md. 23 | Md. | 1861

Goldsborough, J.,

delivered the opinion of this court.

The record in this case shows, that a certain William W. Cox, late of Charles County, deceased, died in the year 1857, having made his last will and testament, which, after his death, was admitted to probate in the orphans court of that county, in September of the same year.

By the 2nd clause the testator devises and bequeaths as follows: “I devise and bequeath'tliat my negro woman Kitty, and her children, John, Catharine, Sarah and Charles, shall work for themselves, by paying my executors annually, one cent per year hire;” and by the 5th clause, he devises and bequeaths as follows: “the balance of my property, real, personal and mixed, shall be equally divided between Sarah Harris, Marbury Harris, Samuel N. Cox and Mary Cox.”

- And “lastly, I constitute and appoint my sister, Mary Cox, and Samuel N. Cox, my sole executors of this, my last will and testament.”

Samuel N. Cox, one of the executors named in the will, renounced the executorship, and letters of administration, with the will axnexed, were granted to Mary Cox and Richard T. Tubman, the defendants below and appellants, who took upon themselves the burden of the administration, and it is admitted by the solicitors for the complainants and defendants in this record, that “the administrators of William W. Cox, have paid over to the complainants their proportion of all the personal estate belonging to William W. Cox, deceased, except the portion of negroes Kitty, John, Catharine, Sarah and Charles,” which the complainants claim under the will, and the right of the complainants thereto is denied by the answer.

*29The bill of complaint was filed by Sarah Harris, Marbury Harris and Samuel N. Cox, on the equity side of the circuit court for Charles county, on the 2nd day of November 1858, and amongst other allegations, the complainants “especially charge, that negro woman Kitty and her children John, Catharine, Sarah and Charles, mentioned in the second clause or item of said will, by the true construction of the same, belong to the complainants and Mary Cox, as residuary legatees. of said testator, William W. Cox,” and that the complainants are entitled to three-fourths of said negroes.

The complainants then pray the court to pass a decree directing the defendants to pay over to the complainants three-fourths in value of negroes Kitty, John, Catharine, Sarah and Charles.

The defendants filed their answer, and admit the renunciation of the executorship as stated in the bill, their appointment as administrators with the will annexed, and their administration of the personal estate. They allege in the concluding part of their answer, that they believe and arc advised, that under a fair construction of the said will, the said negroes Kitty, John, Catharine, Sarah and Charles, are entitled to their freedom, and submit to the court the construction of said last will and testament, and what interest the complainants have in said negroes under said will.

The cause was set down for hearing, by consent, upon bill, answer and agreement of counsel, heretofore mentioned.

The court below, on the 24th day of May 1859, passed a decree in conformity with the prayer of the complainants, directing the defendants to account with the complainants for three-fourths of negroes John, Catharine, Sarah and Charles, mentioned in the proceedings, or three-fourths of the value of said negroes, and referred the case to the auditor, to ascertain the value of said negroes or three-fourths of them, and directed the auditor to take proof as to the value of the same. From this decree the defendants appealed to this court.

The counsel for the appellants insists, that the decree of the court below should be reversed, because the negroes mentioned in the 2nd clause of the will, take their freedom *30by implication, and that the condition thereto annexed is void: that this court could not deprive them of their right to freedom in a proceeding to -which they were no parties; that if they are not free under the will, the court beloW erred in recognizing the right of the appellees to claim their proportion of the negroes or their value, under the residuary clause of the will. We should regard with favor,- the propriety of the point made by the appellants’ counsel, that the negroes would take their freedom by implication, if the testator had confined himself to that provision of his will, ir£ which he bequeathed that the negroes should “work for themselves,” bestowing upon them, thereby, such a privilege as would be equivalent to a gift of the.fruits of their labor, which they could only enjoy in a state of freedom. Such a bequest would have brought the case within the ruling of this court on former occasions: — See Hall vs. Mullen, 5 H. & J., 190. Burroughs vs. Negro Anna, 4 H. & J., 262. But the condition annexed, justifies us in distinguishing between the intent of the testator, inferable from the will and the intent as implied by law; if they conflict the last must prevail. The negroes are to take their freedom, if at all, in a particular way — they are to work for themselves, paying hire to the executor. , The testator himself could not have suffered his negroes to go at large and work for themselves. It would have been in direct contravention of the Act of 1817, ch. 104. Neither can he impose upon his executor • such a responsibility; they could not be employed without the as>sent of the executor, he to receive part of the compensation as hire. The testator, doubtless, intended to discharge his negroes from servitude; that they should be free in fact, but not in law. In such case, the intent contrary to the law, or its policy, must render the whole bequest void, and we are of opinion, that the will, if executed, would be in violation of the Act of 1817, ch. 104, and the Act of 1831, ch. 281.

There is no force in the objection made by the appellants, that the negroes are necessary parties to this proceeding, as their right to freedom under the will is involved. In this case we are dealing with them as property; and the jurisdic*31tion of the court to pass upon the rights of the parties litigant arising under the will, cannot be ousted by reason of the necessity of incidentally passing upon the status of the negroes. According to our construction of the will they take-no rights under it, and being slaves, could not properly be made parties to the proceeding.

(Decided March 1st, 1861.)

As to the question, whether the appellees are entitled, as residuary legatees, to their share of the negroes or their value, the bequest being void, we are of opinion, that their right is recognized by the whole current of authorities, both in England and in this country.

See Brown vs. Higgs, 4 Vesey, 708, Sumner's Edition, and the cases there cited in note 6, also Holmes vs. Franciscus, 2 Bland, 560.

The counsel for the appellants referred, in their argument, to the case of Tongue vs. Nutwell, 13 Md. Rep., 415. That was an action of ejectment, brought to recover real estate upon a void devise; we do not intend to disturb the law established by that case. The rights of an heir at law have always been regarded, even in this State. We consider the distinction between a void devise of real estate and a bequest of personal property, as one which should be maintained, and the authorities above referred to, justify the distinction.

Concurring with the judge below in his interpretation of the will, and also as to the mode of making the said distribution, we should affirm the decree, but that there appears to have been five negroes mentioned in the will, and four only mentioned in the decree. Therefore, to give the parties the full benefit of the will, we will remand the case without affirming or reversing the decree, that it may be proceeded with in the court below, according to the principles of this opinion, as to all the negroes, in respect to whom relief was sought by the bill.

The costs are to be paid out of the estate.

Cause remanded.