23 Tenn. 208 | Tenn. | 1843
delivered the opinion of the court.
This is a bill filed by the complainants against the executors of the last will and testament of William Conway, deceased, and the devisees of the real estate under the will, for an account for the proceeds of the land belonging to the estate of the said WiHiam- Conway, from the date of. his death, and the appropriation of the same to their benefit.
Complainants were the slaves of the said William Conway in his lifetime, but were by his will made and published on the 13th day of January, 1838, directed to be emancipated by his executors. It is obvious, from the whole context of the will, that the happiness and prosperity of his slaves was the chief object of anxiety with the testator. He says: “It has been my desire for the last twenty years, that at my death all my slaves should be liberated.” “In accordance with my constant desire for the last twenty years, I will that at my death all the negroes then belonging to my estate shall be liberated; and inasmuch as the present laws of the State of Tennessee do not allow slaves liberated by their owners to remain within the limits of the
Having thus made ample provision for the emancipation of his slaves, and their sustenance and comfort until that event should be consummated, either in the United States or out, and having charged his estate, both real and personal, with the expenses necessary thereto, the testator, by a second clause in his will, devises all his real estate to the children of his nephew William C. Hogan and to W. Conway Hale. As was anticipated by the testator, insuperable difficulties arose to the emancipation of his slaves in the United States, and his executors found it necessary, in order to carry his intentions relative thereto into effect, to procure an order from the county court of Green,
The point in dispute in this case arises out of the conflicting rights of the slaves and devisees under the will, the slaves claiming the proceeds of the real estate under the provisions of the will in their favor, and the devisees claiming the land under the devise in their favor, discharged from any liability for the use and benefit of the slaves from the date of the death of the testator.
A rule for the construction of wills of long standing, and one based upon principles of truth and justice, is, that the intention of the testator shall always be carried into effect, when it can be fairly ascertained, unless it be in violation of some established principle of law. That in the disposition of his property, the testator’s chief object in the'case under consideration, was the freedom and comfort of his negroes, is certain, for he says so: to defeat, then, any provision in his will made in their favor, would be to counteract the primary intention and object of the testator. This we cannot do, unless there be some principle of construction which forces such action upon us. This it is argued there is in this, that the clauses of the will appropriating the proceeds of the real estate to the use and benefit of the slaves until the period of their emancipation, and that devising the same to others in fee, are inconsistent and contradictory, and cannot therefore stand together, and that by all principles of construction the last must prevail over the first. This would certainly be true, if the two clauses of the will were inconsistent and contradictory; but we do not think they are, but that both clauses can be carried into effect without any contradiction and without defeating any expressed or implied intention of the testator. We think it certain, that the testator intended to charge his real estate to the full extent of its clear proceeds for the use and benefit of his slaves till they should be emancipated, anticipating delay in the completion of that event, and that the devise of the land in fee to others was with this charge upon it and that they take it cum onere, or in other words, that although the fee passes by the-devise to the devisee under the
We therefore affirm the decree of the Chancery Court, and direct an account to be taken by the Clerk and Master of the Court, as is therein prescribed.