11 S.C. 375 | S.C. | 1879
The opinion of the court was delivered by
The appellants, Jacob and Isaac Blair and Jane Woody, were slaves, belonging to the testatrix, and claim under the second section of her will, which is as follows: “ I will and enjoin that the sum of two thousand dollars be reserved by my executors and placed in the hands of William Wright and William H. McCorkle, who are earnestly requested and directed to place said sum of money at interest, and expend the interest, as it annually accrues, in providing clothing, sugar, coffee, and such other necessaries and articles as they may deem proper for the comfort of the negroes, Isaac, Jacob, Adeline, and such other of my negroes that may be alive at my death, during their natural lives, and at their death, or if my executors or the individuals first named in this section of my will be prevented by any legal action and determination from carrying out the provisions and injunctions of this ‘second’ section, then, and in that case, the said principal and interest not expended by said legal proceedings, or otherwise, are to be equally divided between Mary, Margaret and John Blair,” and others.
The action is brought by these legatees or their legal representatives. The former slaves are made parties, and their right, if they have any, is the question before this court, they being the only parties who appeal. The Circuit judge decided that as regards these appellants, the second section of the will which relates to them is null and void under the fourth section of the act of 1841, which is as follows: “ That every devise or bequest to a slave or slaves, or to any person upon a trust or confidence, secret or expressed, for the benefit of any slave or slaves, shall be null and void.” 11 Stat. 154. It is argued in behalf of the
For the distinction between precatory and mandatory expressions, “the one inclining, the other compelling” the donee “to execute the purpose,” we need only refer to the language of Lord Eldon, as cited in Ford v. Porter, supra, and Ford v. Dangerfield, 8 Rich, Eq. 102, and, to the authorities collected together upon the whole subject under the case of Harding v. Glyn, 2 Lead. Cas. in Eq., Part II., 1833, (4th ed.) *946, 957. In this ease the words are imperative, the subject matter of the wish or direction is certain, the object or persons intended to have the benefit of the directions or wishes expressed are certain, and finally the taker has no discretionary power to withdraw the subject from the object to which it is directed by the testatrix. Those are the usual tests, and when they all exist, as in this case, the intention, to create a trust cannot be questioned. Such trust is inhibited by the act of 1841, the cestuis que trust being slaves. The case of Fable v. Brown, 2 Hill Ch. 389, was decided in 1835. It held that a bequest to a slave ivas not void, and that a trust in his favor might be executed. The fourth section of the act of 1841 reverses such propositions directly, and that case is no longer authority upon the point.
The next ground is, that even if the section of the will under consideration be contrary to the act of 1841, still it is not void but voidable, and that being merely voidable the parties in interest may be estopped by actual acquiescence, or by what jnust be legally construed to be acquiescence. The case of Ford v. Porter,
It is contended, however, in behalf of the appellants, that there has been acquiescence by operation of law. That more than four years having elapsed since the probate of the will, and since the parties have all been of age, that they are barred, and they rest upon the case of Kinard v. Riddlehouver, 3 Rich. 258, and the act of 1839. That case and the act mean nothing more than that parties are barred from requiring proof in solemn form after four years’ acquiescence in the probate in common form; time running against those who were infants at the time of probate after they come of age. Parties are only precluded from disputing the testamentary character of the instrument, the execution of the will; but the court before which the will is brought for construction is not precluded, nor are the parties in interest. The testamentary character of the instrument is not in question at all. The parties claim under it. The executors ask instructions as to its legal meaning. Acquiescence in the probate is not acquiescence in all or any of the provisions of the instrument. It may be a will and yet all its provisions may be void. Examination of Kinard v. Riddlehouver, supra, and the subsequent proceedings between the parties, in 1 Hill Ch. 376, will show clearly
The last ground is, that whatever may have been the law when the will went into effect, it does not now prohibit a bequest to these persons who have been emancipated and are able to take and to hold property. That question has been conclusively determined in Blakely v. Tisdale, 14 Rich. Eg. 95. Nothing is more familiar than that “ if the testator meant to create a trust and not to make an absolute gift, but the trust is ineffectually created or is not expressed at all, or fails, the next of kin take.” The testatrix in this case evidently was in doubt as to this bequest, and has selected the legatees to whom the money should go in the event that her bequest for the benefit of the slaves should not be' sustained. The will was probably drawn before the case of Ford v. Porter was decided, and the testatrix died before the case was reported. The provision she attempted to make was, however, so dubious in its validity that she went on, and in that event disposed of the property. But the bequest was unquestionably void under the act, and that view is fully sustained by the reasoning throughout in Ford v. Porter. The money, therefore, or the right to the money, went at once to the parties entitled under the statute of distributions or the provisions of the will,* as the case might be. The constitutionality of the act of 1841 is made a question, but no reason being advanced to support it, and the court perceiving none to sustain such a view, it is deemed unnecessary to further discuss it. The judgment, so far as the appellants are concerned, is affirmed. Motion refused.
Appeal dismissed.