GOLDTHWAITE, J.
Malinda and Sarah could not claim as heirs proper of their father, for the reason that both the *724father and mother were slaves, and persons in that condition are incapable of contracting marriage, because that relation brings with it certain duties and rights, with reference to which it is supposed to be entered into. But the duties and rights which are deemed essential to this contract, are necessarily incompatible with the nature of slavery, as the one cannot be discharged, nor the other be recognized, without doing violence to the rights of the owner. In other words, the subjects of the contracts must cease to be slaves, before the incidents inseparable to the relation of marriage, in its proper sense, can attach. This has always been the doctrine of the civil law (Taylor’s C. L. 429; Cooper’s Justinian 411, 420 ; Puff. B. 2, c. 7, § 11); and in every State where slavery exists, and the question has been presented, it has been so decided.—Bynum v. Bostick, 4 Dess. 266; Cunningham v. Cunningham, Cam. & Nor. 353; State v. Samuel, 2 Dev. & Bat. 177; Girod v. Lewis, 6 Mart. La. Rep. 559; Smith v. The State, 9 Ala. 990" court="Ala." date_filed="1846-06-15" href="https://app.midpage.ai/document/smith-v-state-6502961?utm_source=webapp" opinion_id="6502961">9 Ala. 990. There was, indeed, among slaves a permitted cohabitation called contubernium, but it brought with it no civil rights. The cohabitation, therefore, between Tom and the mother of Malinda and Sarah, in a state of slavery, was not marriage, or evidence of marriage. It conferred no rights upon the offspring, and created no legal disabilities on the part of the father from forming a valid marriage, whenever he became in a condition which would au* thorize him to contract one. But the record contains no evidence that this relation existed between himself and the mother of the appellants, at any time after their emancipation; on the contrary, the testimony shows, that before he became free he ceased to cohabit with her, and formed a connection with Charity, one of the appellees, which continued up to his death. As the last woman referred to was also a slave, there could have been no marriage with her, and the children of that connection had no inheritable blood; and the necessary consequence would be, if there were no persons who could claim as heirs at Tom’s death, his property would escheat to the State. The State, however, by the act of 12th of January, 1852, relinquished all its right to the property, and conferred upon the appellants and certain of the appellees the right to take the same, which was equivalent to surrendering to them all the rights which it had acquired by the death of Tom without heirs $ and the appeb
*725lants do not stand in a position which will authorize them to insist upon an inquisition as necessary to vest the title in the State; since, having no inheritable blood, they can only take by virtue of the relinquishment made by the State, and if the latter has no title they have none.
Neither can the argument which has been urged on the part of the appellants, that the act of 1852 did not operate to emancipate Charity and her children, Oi’gan, Miles, and Rebecca, be sustained. The act, in express terms, emancipates them, and operates as a grant of freedom to them, subject to be defeated by the non-performance of the conditions which are annexed, but which the record shows have been complied with. It is true, that the constitution prohibís the manumission of slaves without the consent of their owners. — Con. Tit. Slaves. But in the present instance, the Legislature regarded the slaves as the property of the State, and in the capacity of owner the State emancipates them. The validity of this act is not to be questioned, except by one who shows a right of property in himself; and, as we have seen, the appellants do not stand in that situation. The court below, therefore, committed no error, in holding that Charity and her children were entitled to take under the act of 1852.
The only remaining question is, whether the administrator should have been charged with the legacy left to the intestate by the will of Bartholomew Smith. This will, as the evidence shows, was admitted to probate in 1847. Gardner, the appellee, administered upon Tom’s estate in 1850; and there is no evidence whatever that he knew the bequest had been made. That the administrator may subject himself to be charged with a debt due his intestate, which has been lost by his negligence or mismanagement, is a clear proposition (Duffee v. Buchanan, .8 Ala. £7); but here there is no proof of either the one or the other. It certainly could not be expected of the administrator, that he should examine every will which was probated, in order to ascertain whether his intestate was entitled to anything under it. Knowledge of the bequest not being brought home to Gardner, we do not think he should be charged with it.
Judgment affirmed.