| La. | May 15, 1856
In 1889, Aimé Quillet made his last will in the olographic form, which contains the following clause among the bequests to his wife: “ Je lui reeonnais en outre de ce, trois de nos domestiques a son choix, á l’exception d’une jeune enfant nomrnée Delphine, ágée de six á sept ans, et née de notre domestique appelée communcment Mimi, a qui je donne par le présent la liberté et qui sera émancipée par ma femme le plutót que fai.re se pourra.”
In 1847, the testator having died, the will was duly proved.
In 1854, Delphine brought this suit against the widow and heirs of Aimé Quillet, in which she invokes the benefit of the testamentary disposition in her favor', alleges that she has often applied to the Widow Guiltel to emancipate her, according to the will, but has met with a refusal, and prays that she he decreed by the court to he free, and for all such other relief as the nature of the ease or equity may require.
The answer of the defendants admitted the bequest, but averred that the plaintiff was not then twenty-one years of age; that by law she could not he emancipated until she attained the age of thirty years, and that (he respondents could assign no motive to the Police Jury or Municipality of New Orleans to enable them to authorize her emancipation sooner, nor could they consistently with duty declare that the said Delphine had behaved well any four years since the 28th August, 1839, the date of the will.
The plaintiff prayed for a trial by jury, and there was a verdict in these words. “We, the jury, find that the plaintiff is not free, hut that, under the will of Guillel, she is entitled to her freedom, and require that the defendant he instructed to institute such proceedings as will ensure the emancipation of the plaintiff.”
There was a judgment ordering the defendants to institute such proceedings without delay, and they have appealed.
It is now intimated that the plaintiff was a minor, and should have been assisted by a curator to give validity to the proceedings.
No exception was pleaded to her right to sue unassisted. If the law of minority intended for free persons could he held to extend to one in her condition, she has now attained the age of twenty-one years, and does not require the intervention of a curator.
It is said that the plaintiff has mistaken her right, and should therefore become
In a suit of this character, the prayer for general relief suggests a sufficient answer to such an objection. '
But the policy of the State has annexed conditions to the enfranchisement of slaves which the courts cannot permit to be disregarded. This the testator evidently knew, for he did not think the manumission would become complete under the will by the event of his death; he diracted his wife to emancipate Delphine so soon as it should become practicable.
According to judicial precedents, this bequest gave Delphine an inchoate right, a right which could be enforced in her favor by the tribunals when a proper time should arrive. But to secure the completion of her enfranchisement, she should show that it has become lawful.
We do not find the requisite proof in the record. But it is, probably, owing to the fault of the appellants in objecting to testimony which we think was erroneously rejected.
By a bill of exceptions we learn that the plaintiff offered to prove by witnesses that she was of good character and sober habits, and had always behaved well and conducted herself respectfully towards white persons, whereupon the defendant objected, on the ground that said facts were not alleged in the petition, and that the action was brought merely to have the plaintiff declared to be free, which objections were sustained by the court.
. The defendants themselves, by their answer, had put the plaintiff’s character and fitness for emancipation at issue, and we therefore think the testimony should have been received. '
Were this an ordinary case of private right, we might perhaps have presumed that the plaintiff was able to establish the facts which the defendants improperly objected to as inadmissible in evidence; but as it concerns the public that none but worthy persons should be admitted to the Status of freemen, it is our duty to exact the proof.
As the necessity for remanding the cause was occasioned by the act of the appellants in objecting to proper testimony, they must pay the costs of this appeal. Smith v. Leake, 4 L., 297; Parmele & Baker v. Johnstone, 15 L., 429.
It is therefore ordered, that the judgment of the District Court be avoided and reversed, and the cause remanded for a new trial according to law, the costs of appeal to be paid by the defendants and appellants.