1 N.C. 353 | N.C. | 1801
I think that the devise in question is void, and cannot take effect. The maintenance and education of some of the devisees, is what the testator appears to have been anxious for. How can it be effected? They are slaves, and their owners have a right to them and their services; if they are educated, it must be by his permission, and if it is attempted without, it is a violation of his right. If this property had been conveyed in trust for the same purpose, a performance of the trust could not be compelled in a Court of Equity, for the same reason. Admit that they could bring a suit to recover this property, after a recovery, could they have a right to enjoy it ? Suppose the owner took it from them, would they have a remedy against him? They certainly would not.
The intention of the testator seems plainly to have been, to transfer the beneficial interest in the lands to Rachel and her children ; and were there no legal impediments to the effecting of such an object, I should think the words made use of equivalent to an express devise of the land. But it is indispensible to the validity of every devise, that there be a devisee appointed who is competent to take : Slaves have not that competence; for a civil incapacity results from the nature and condition of slavery.
In all these instances, the characteristics of slavery are different; for a slave can bring no action ; he can neither acquire nor transfer property, by descent or purchase ; nor will prescription avail him, to assert a title against his master. The devise cannot, therefore, in the present case, operate any thing.