| Ark. | Jul 15, 1860
delivered the opinion of the Court.
On the 27th of September, 1853, Joshua Averett of Union county is alleged to have made his last will and testament, in which is the following clause.
“Item 3rd. It is my wish and desire that all my slaves both in Louisiana and Arkansas, or wheresoever the same may be, should be set free at the expiration of seven years after my death, my nephew, William Jacob Averett, to have charge of said slaves, to receive the revenue arising from the same.”
Relying upon the above clause as a testamentary grant of freedom to them, Phebe and eighteen others, her children and grand children, on the 20th September, 1857, filed their bill on the chancery side of the Union Circuit Court, against William Jacob Averett, and others, as heirs of Joshua Averett, the deceased testator, and.against John Quillin and Thomas A. W. Sledge, the last two of whom are charged to be holding them in a State of slavery with intent to make that condition permanent; that they have divided the plaintiffs among them in some way unknown to the plaintiffs, with the viéw of appropriating them as slaves for life to the use and disposition of themselves, the said Quillin and Sledge.
Sledge is charged to have the general control of the plaintiffs, and under letters of administration annexed to the will, although Quillin and Sledge claim the right of property in them by virtue of a purchase from William Jacob Averret, who was the general legatee of the testator, Joshua Averett.
It is further alleged that William Jacob Averett never qualified as the executor of the will of Joshua Averett, that he never took control of the plaintiffs as authorized in the will, and that he never claimed to hold them as slaves for life, and that when he sold his interest to Quillin and Sledge he only sold it as a right to the plaintiffs for the term of years specified in the will, and that Quillin and Sledge, or one of them, have recognized the right of the plaintiffs to be free, by promising them freedom if they would serve Quillin and Sledge three years after the expiration of seven years from the death of Joshua Averett. The bill prays that the plaintiffs be emancipated by the court.
A demurrer to the bill was interposed by all of the defendants but William Jacob Averett, which was sustained by the court, the bill was dismissed, and the plaintiffs appealed to this court.
Several objections are made, on the part of the appellees, to the proceeding of the plaintiffs, which do not arise upon the pleadings.
And the gravest of these objections is, that under the laws enacted in 1859, forbidding any further emancipation of slaves— annulling any deed or will that provides for such emancipation, this suit intended to make effectual the emancipation in the will prescribed or recommended, cannot be sustained.
Notwithstanding the broadness of the words of the acts of 1859, we do not understand them as affecting instruments of emancipation made before the acts, though the emancipation was not to be completed till after their passage. The construction of laws should be such as to give them effect in future, and not to act upon rights vested under former laws, or upon privileges or expectations that have been enjoyed and permitted as common and legal.
Besides, it is expressly provided by statute, that no proceeding civil or criminal, pending at the time of the repeal of a statutory provision, shall be affected by such repeal, but shall proceed as if the repealed statute were in force. Gould’s Dig. chap. 165, sec. 9.
And though this statute may seem to have special reference to such legal proceedings, as would be pending when the first Revised Statutes should come into force, and take the place of the Territorial and previous State statutes, yet the generality of its terms, we think, makes it an existing binding law. And the act of 1846, contained in the section before the one just cited, upholding criminal prosecutions on repealed statutes, strongly favors this construction of the present efficacy of the statute above cited.
The argument is, moreover, only the same, though brought into stronger light bj the nearer relation to this case of the acts of 1859, repealing the law permitting emancipation of slaves, that was urged in Campbell vs. Campell, 13 Ark. 518, that emancipation was forbidden by the law that prohibited the emigration of free persons of color into the State. That argument was then held by this court to be unsound, and we hold in this case, upon the same principle, that slaves emancipated previous to the acts of 1859, have a right to their freedom and to have it adjudged to them by the proper courts, the courts having nothing to do or to consider relative to the condition of emancipated slaves, wdien made free.
It is also urged in argument that the will exhibited with the bill, is no will, as it is unaccompanied wdth any probate or cer: tificate of registry' — and that nothing is shown in the bill to confer the right to freedom upon the plaintiffs.
Without doubt, upon proper issues, a waiting purporting to be a wall, must be probated to have effect as a will. But the bill does allege that the original of the will copied in the bill, was on file in the District Court of the Parish of Jefferson, in Louisiana, where by the laws of Louisiana it was required to remain, that it was duly probated and admitted to record.
And the bill alleged further, that, after the lapse of some years, and the existence of two administrations upon the estate of Joshua Averett, in Union county, participated in by Quillin and Sledge respectively, one or the other of them produced the will to the Probate Court of Union county, and caused it there to be proved and recorded as the last will of Joshua Averett, deceased; that upon such probated will, lettei’s of administration wdth the will annexed were granted by said court to the defendant, Sledge, and that as such he is still acting, and exercising control over the plaintiffs, holding them as slaves belonging to the estate of Joshua Averett. These allegations are sufficient to have introduced upon them in evidence a certified copy of a probated will of Joshua Averett, like the uncertified and unprobated copy filed as an exhibit; and as the plaintiffs rely upon the will as creating and proving their right to freedom, a properly authenticated copy of the will and its probate should have been filed with their bill and as part of it, and must have been before any decree could have been made in their favor.
Yet as the decree is to be affirmed upon another and single point in the case, and without concluding the plaintiffs from bringing their claim to freedom again before a proper tribunal, we shall, under the allegations of the bill admitted bj the demurrer to be true, decide the point contested before us, as to the right granted to the plaintiffs by the will supposing it to be capable of proof and authentication as the last will of Joshua Averett.
And our opinion is that the terms of the will clearly indicate the testator’s intention that the plaintiffs should be made free at the expiration of seven years from his death, that the expression of such intention conferred the right of freedom upon the plaintiffs at the time mentioned, at which time it became the •duty of the administrator with the will annexed to execute the will, and that if he failed in the discharge of this duty, the law, acting through its courts, would declare and secure the right of the plaintiffs.
The foregoing proposition involves two points: That the words, “ It is my wish and desire that my slaves should be set free at the expiration of seven years from my death,” are not only expressions of the the testator’s wish and desire, but an actual gift of freedom to the slaves.
And that a prospective emancipation is legal and effectual.
Upon the first point, see 2 Lomax on Exr’s 322; Elder vs. Elder, 4 Leigh 256, 260, 261; Nancy vs. Snell, 6 Dana 152; Cobb on Slavery, sec. 366; Wood vs. Humphrey, 12 Grattan 333.
The principle of the second point is fully sustained by the decision of this court in Bob vs. Powers, 19 Ark, 424; also see Pleasants vs. Pleasants, 2 Call 348; Maria vs. Luchbaugh, 2 Randolph 241; Mayho vs. Sears, 3 Iredell Law Rep. 227; Johnson vs. Johnson, 8 B. Mon 471.
We hold that the plaintiffs were to be free in seven years from the testator’s death, and it necessarily results from that, that till that time had passed thej would be in their natural state of slavery. The testator died about the 2d of October, 1853. Then until the corresponding time, in 1860, the plaintiffs had no right to freedom, could not sue for it, and this suit being brought the 20th of October, 1857, was prematurely brought. The plaintiffs had no right upon which to found a suit; they were not persons capable of promoting a suit for any purpose.
And upon this ground, solely, as brought to our notice by the second and fourth causes of demurrer specially set down, do we affirm the decree of the court below.
Many of the authorities cited above, and all that numerous class of cases in the books, which determine the condition of children, born between the act conferring future emancipation and its completion, sustain this construction of the will, and without authority we must have held such to be the plain meaning of the will.
The reason set up in the bill for the suit being brought before seven years from Joshua Averett’s death, is not a good one, it has no foundation in the will. What was the reason operating upon the testator to defer the gift of freedom is not to be gathered from the will, and cannot therefore be known. Yet the most natural construction of it entirely destroys the thecry of the bill that the emancipation was deferred to obtain a fund to pay the testator’s debts, for the will gives to William Jacob Averett the use of the negroes, until the seven years should have passed. Speculation upon the motives for making the will as it is, is unprofitable; the will is the law and reason for itself.
We should be slow to decide that negroes entitled to freedom but held in slavery, could not, in any case, come into equity for relief, yet from the difficulty of supporting such a suit, the statutory remedy ought to be pursued, when it can be.
In this case, unless the assent of the administrator with the will annexed were necessary to maintain the action, we see no reas,on why the nineteen negroes could not sue under the statute, if they could sue together, as did Abby Guy and her children in Daniel vs. Guy, in 19 Ark. 122. And we believe this to be consonant with the authorities, and a practice much to be desired for its convenience to all parties, where the plaintiffs claim under the same instrument, and complain of the same defendants.
Much has been said, by the counsel for the respective parties, upon the liberality and strictness with which suits for freedom should be treated by courts.
In the earlier cases, the general rule of the courts, in States that are now slave States, seemed to be and was often so announced from the bench, that the courts would lean towards the grant of freedom, while, in the later decisions, there would seem to be reason to fear that the great reaction in public sentiment, in the southern States, relative to the emancipation of slaves, may produce a habit of construction so stringent as to endanger the even balance which should ever be extended to the rich and the poor, the white and the black, the free and the bond.
The question of freedom should be determined, like every other question made before the courts, solely upon its legal aspects, without partiality to an applicant for freedom, because he may be defenceless, and a member of an inferior race, and certainly without prejudice to his kind and color-, and without regard to the sincere convictions that all candid, observing men must entertain, that a change from the condition of servitude and protection, to that of being free negroes, is injurious to the community, and more unfortunate to the emancipated negro than to any one else.
Let the decree be affirmed, without prejudice to the rights of the plaintiffs to institute such further legal proceedings as they may be advised may be necessary to secure their rights.