12 Gratt. 117 | Va. | 1855
Lead Opinion
The appellants’ counsel in the argument here insisted, that the slaves were improperly made parties in this ease, (referring to the case of McCandlish v. Edloe, 3 Gratt. 330,) and that a decree of emancipation can be rendered only in a suit brought in forma pauperis for the recovery of freedom; and that, for these reasons, the Circuit court erred in deciding the question as to the condition of the slaves. In answer it may be said that Hancock having the alleged
It may be further said that this suit was pending on and before the 1st July 1850, when the Code of 1849 took effect, and the answer of the appellants was filed after that day. It is therein provided, ch. 216, § 2, p. 800, that subsequent proceedings in pending suits shall conform as far as practicable to'the provisions of that act; and in ch. 171, § 19, p. 648, 649, it is enacted that when a bill shows on its face proper matter for the jurisdiction of the court, no exception for want of such jurisdiction shall be allowed, unless it'be taken by plea in abatement; and the plea shall not be received after the defendant has demurred, pleaded in bar or answered the bill. The bill in this case shows matter proper for the jurisdiction of the court, in this, that Hancock held slaves who claimed their freedom
If however it be conceded that the slaves were not necessary or proper parties, then the case must be considered as if they had been omitted as such. If they had been thus omitted, the omission would not have precluded the court from decreeing their emancipation in a proper case in whicli the persons claiming them were parties. This was done in Pleasants v. Pleasants, 2 Call 270, (Tate’s edition.) The bill in that case was filed against the claimants, but omitted to make the slaves parties; their emancipation was nevertheless decreed. In Elder v. Elder’s ex’or, 4 Leigh 252, the bill was filed by a legatee against the executor, omitting the slaves as parties, yet the court decreed the freedom of the slaves.
The objection by the appellants, next in order is, that the slaves, or some of them, are not emancipated by Taylor’s will; that even if such of them as were in being at his death were emancipated from and after Mrs. Johnson’s death, yet that such of them as were bom after Taylor’s death and before Mrs. Johnson’s death, being the issue of mothers in the condition of slavery, are themselves slaves.
The first branch of this objection is insisted on, because, as is alleged, the slaves were left by the will in the condition of slavery at the death of Mrs. Johnson, with the capacity to become free upon their election to become so; and until the election shall be made,
It is said by the appellants’ counsel, that although all the slaves in being at the time of Mrs. Johnson’s death be emancipated from that time, yet they were held in slavery and hired out for some time after their right to freedom accrued; and that the appellants, the next of kin, are entitled to the hires as part of Taylor’s estate not disposed of; there being no creditor to claim them or any part of them. To sustain this position we are referred to Pleasants v. Pleasants, 2 Call. 270; Paup's adm'r v. Mingo, 4 Leigh 163; Peter v. Hargrave, 5 Gratt. 12. These cases settle the law as it formerly stood, against the right of freedmen to recover hires of a person holding them in slavery. The judges of this court, from time to time, whilst acquiescing in the decisions referred to, and admitting the expediency and policy on which they were founded, have nevertheless admitted that it would be but natural justice to allow hires to freemen wrongfully held in slavery. Eecognizing the cases cited as furnishing the rule in any case in which they apply, it must still be observed that the case before us presents features not found in any other case. In each one of the cases cited the hires claimed had accrued whilst the freemen were detained in slavery by the claimant, either in his own right or in autre droit. In oür case the hires did not accrue whilst the slaves were held by the administrator, representing the estate. On the contrary, those hires accrued whilst the slaves themselves were under the control of the court, where they had been placed by the administrator. That court took upon itself the duty of executing the trust theretofore confided to the administrator; and although the administrator was directed by the court to perform the duty of hiring out the slaves, still, in obeying the order of the court, he was acting merely'as the officer of the court; liis
If necessary for the decision of this case, it might be a question how far the assent to the legacy for life of the slaves to Mrs. Johnson enured to the benefit of the slaves who were to be manumitted at her death; whether the assent to the legacy for life should be regarded as an assent to the ulterior disposition of the
Regarding the case as standing upon the law existing at the date of Taylor’s will, I should have no hesitation in deciding that the freedmen, under the circumstances of this ease, are entitled to their own hires. The law since that time, however, has been so changed as to leave less room for doubt. The Code of 1849, ch. 106, § 8, p. 465, by giving a new capacity to freedmen improperly held as slaves under the circumstances of this case, has removed perhaps the only reason not yet considered, for the decisions heretofore made. In' Pleasants v. Pleasants, before cited, at the •date of the will and at the death of the testator, manumission was not permitted by law: yet the testator, anticipating a change in the law, gave directions for the emancipation of his slaves when the law should permit it to be done. When, therefore, the law subsequently permitted freedom to be given by the master and accepted by the slave, it was held that the slaves were free. In our case, the will gives freedom, which contains in itself the right to enjoy the fruits of their own labor. The capacity of the freedman is a subject within the scope of legislative authority; and when that capacity is enlarged by subsequent laws, so as to give them a right to their own hires accrued whilst improperly held in servitude, we should do no more than was done in Pleasants v. Pleasants, if we carry the law into effect. In that case the incapacity prevented the slaves from receiving freedom at all; yet when it was removed, the grant became effectual. In our case, as is said, the incapacity was confined to the claim of profits only; this incapa
I am of opinion, moreover, that the .court should not have decided the question of succession to the residue of Taylor’s estate, (other than slaves,) without having before it all parties who are interested in the question. That residue is claimed on behalf of Mrs. Johnson’s estate, and it has, in part, been decreed to the estate; it is claimed by the appellants, the next of kin; and it appears in the record, that Philip T. Hancock has such interest, or color of interest, as to make him a necessary party; a part of the real estate having been decreed to him, although he is no party to the suit. The residuary legatees named at the foot of the sixth clause of Taylor’s will, including the emancipated slaves, have also such interest or color of interest in the residue above mentioned, as to make it proper they should be parties to any proceeding for the final adjudication of the conflicting claims thereto.
Thus I am of opinion to affirm so much of the decree as gives freedom to the slaves, and gives them their hires; and to reverse so much of the decree as disposes of any part of Taylor’s estate, real or personal, (other than slaves,) with costs to the appellants against Mrs. Johnson’s estate; and to remand the cause, with directions to allow the defendants or any of them to file a cross bill, if they shall be advised to do so, to bring more distinctly before the court the subject and questions in controversy, and to cause Philip T. Hancock to be made a party.
Concurrence Opinion
concurred in the opinion of Samuels, J. except as to the hires of the negroes. He thought that this case was not to be distinguished from the cases which had been decided in this court. He did
Concurrence Opinion
concurred in the decree to be rendered, except as to the hires of the negroes before the act of 1849.
Concurrence Opinion
concurred in the opinion of Samuels, J.
The decree was as follows:
The court is of opinion there is no error in so much of the decree as gives effect to the emancipation of the slaves, as provided for in the will of Thomas. O. Taylor, nor in so much of the decree as gives to. the. emancipated slaves the hires accrued after the death, of Mrs. Johnson. It is therefore adjudged and ordered that to that extent the decree be affirmed. But the court is further of opinion that the Circuit court erred in deciding upon the rights of parties to the residue of Taylor’s estate, real and personal, (other than slaves,) without having Philip T. Hancock as a party before the court, he having such interest, real or apparent, therein as to make him a necessary party. It is therefore adjudged, &c. that so much of the decree as is declared to be erroneous be reversed and annulled, (with costs to the appellants against Mrs. Johnson’s estate,) and cause remanded, with directions to cause Philip T. Hancock to be made a party, and to give leave to the defendants, or any of them, to file a cross bill, if they shall be advised to do so, for the purpose of bringing more distinctly before the court the nature and extent of the subjects in controversy, and for further proceedings.