12 Tex. 140 | Tex. | 1854
The case has been argued with great ability, and highly commendable industry and research, by the counsel for both plaintiff and defendants; and it is deeply to be regretted that we are compelled to decide it, without the advantage of many cases, in which the' points presented, or analogous ones, have been discussed and decided by other Courts similarly organized to our own.
The first point, insisted upon by the plaintiffs in error, is, that the District Court had no jurisdiction ; that the the matters presented by the suit, belonged exclusively to the jurisdiction of the Probate Court.
We do'not design to enter into an investigation of this question, because it cannot be regarded as an open one. This Court has, from its earliest organization, held, that where the matters presented by the petition were of such a character as could not well be decided by the Probate Court, from its organization and the powers vested in it, the District Court, by virtue of its general equity jurisdiction, could claim jurisdiction. It was so ruled at Galveston, after a review of all the
The next, and by far the most important objection urged, is as to the validity of the trust created by the will. Is it a valid trust ? Is it repugnant to the Constitution of the State, and the laws, and the policy of our institution of slavery ? The plaintiffs insist that the first of these interrogatories should be answered in the negative, and the others, in the affirmative. We believe that it is clear, beyond controversy, that the bequest to Mrs. Sherrod, the sister of the testator, is coupled with the express trust, that the negroes should be carried to a free State, or to the colony of Liberia, where there would be no legal impediment to their enjoying their freedom, the object of the testator in making the bequest; and that this trust is a valid trust, unless it is in violation of the laws of this State, or contrary to the manifest policy of its institutions i these impediments out of the way, the owner of property has ■an undoubted right to dispose of it in his lifetime, or direct its disposition after his death, at his pleasure. Before enter-ins' into the investigation as to how far this freedom of will in
It is urged by the counsel for the plaintiffs in error, that the trust is void, on the ground that the beneficiaries or eestuis que trust, as slaves, are incapable of taking; and to make the trust a valid trust, the beneficiaries must be in existence at the time of the creation of the trust, that is at the time of the testator’s death. This position is enforced by the argument that the ownership of the property passes, directly on the death of the owner, into some one, and cannot be suspended ; that slaves, as property, are incapable of taking at that time, and their subsequently being placed in a condition to take, cannot impart validity to the trust; and that on the failure of the trust, the property remained to the heirs as though no trust disposition had been made. These propositions and conclusions are certainly subject to many exceptions; they •seem, however, to have been adopted, without qualification, by the Supreme Court of Alabama, further than the case of taking by descent, where the person not in esse may take on his coming into existence. (See Trotter, Adm’r, v. Blocker and Wife and others, 6 Porter, 269.) We apprehend, however, that this is not the only exception, and that one may take by deed, or by devise, who is not, at the time of making •the deed or testament, in existence, provided the time for taking is not so remote as to create a perpetuity, and lock the property up from trade and commerce. A devise to a child to be born of a certain woman in being, would be a good devise, because not too remote, or beyond the limitation against perpetuities ; which time has been established to be within the period of twenty-one years, and the ordinary period of gestation added thereto, after the death of a person then in being. And although before the time arrived, the property would be vested in the heir, if no trustee had been made, it
We believe these views are fortified by the opinion of Judge Haywood, in the case of Hope v. Johnson, a case in its main features very much like the one before us, particularly on this question, where the very grounds we have been discussing were urged against the validity of a trust. The clause in the wdll creating the trust was as follows, i. e.: “I will and be- “ queath, that the plantation I now live on be sold by public or “private sale, to the best advantage, and the proceeds there- “ of be laid out in land in the Indiana Territory, as well sitn- “ ated as can be procured, and the right thereof vested in my “ negroes which I now own, viz: (naming them) each or all of “them, with their increase, to whom I give their entire free- “ dom ; and the settling of them on the above named land, un- “ der the direction of my executor &c.” Johnson, the Executor, sold the land directed by the will to be sold for purchasing another tract in Indiana for their maintenance ; the negroes were carried by him to Indiana, where they now are emancipated and free. Judge Haywood, who delivered the opinion of the Court, says: “And the question now is, “ whether such power, given to Johnson for such purposes, “ was a good and legal power; which general question is sub- “ divided by the argument into two more minute ones: First, “ in whom the land vested till the sale ? Secondly, whether “ the trust did not fail for want of persons capable, to take it “ when the testator died ?
“First, did the land vest in Johnson, so far as regards “ the legal estate, in fee ? The land was not given to him to “ use, but he was directed to sell. The legal estate did not “ vest in him, but a power to sell; and when he sold by vir- “ tue of the power, and conveyed by it a fee, the purchaser “was in by and from the testator, by a title anterior to “ that which came to the heir by descent; and this puts an end “ to the claim of the heir, unless the power be void, it being
We have extracted nearly the whole of the opinion of the Court in the case just cited, because it was the unanimous opinion of a Court composed of seven Judges, all of whom justly deserve the reputation of being able Jurists; and of the Judge who prepared the opinion of the Court, it may well be said that, for learning and profound research into
In the 8tli Art. of our Constitution, on the powers of the Legislature on the subject of slaves, in the 1st Section is the following, i. e.: “ They shall have the right to pass laws to “ permit the owners of slaves to emancipate them, saving the “ rights of creditors, and preventing them from becoming a “ public charge.” This is the only provision in the Constitution having any reference to the subject of emancipation, and if the question of the right of the owner to emancipate his slave, unconditionally, depended upon any thing like a fair
The Constitution of the Republic in Section 9 of the General Provisions, is in the following language: “ All persons “ of color who were slaves for life previous to their emigra- “ tion to Texas, and who are now held in bondage, shall remain “ in the like state of servitude: Provided, the said slave shall “ be the bona .fide property of the person so holding the said “ slave as aforesaid. Congress shall pass no law to prohibit “ emigrants from bringing their slaves into the Republic with “ them, and holding them by the same tenure by which such “ slaves were held in the United States; nor shall Congress “ have power to emancipate slaves ; nor shall any slaveholder “ be allowed to emancipate his or her slave or slaves without “ the consent of Congress, unless he shall send his or her “ slave or slaves without the limits of the Republic.” This organic law was superseded by the Constitution of the State, yet it may be referred to, not only to show the true meaning of the State Constitution, upon the same subject, but also the policy of the restriction, on emancipation; that it was only designed so far to restrict emancipation as to prevent free negroes from remaining in the State; and that this was the object is further manifested by the Act of Congress .of the Republic (still believed to be in force) of the 5th February, 1840. (Articles from 2546 to 2550, inclusive, Hart. Dig.) This Act prohibits free negroes from emigrating to the country ; provides how they shall be' punished, and if persisting in remaining here, shall be sold as slaves for life. But it may be said that as the Act referred to does not mention or refer to emancipation in prohibitory terms, and the Constitution of the Republic being abrogated by the new government and its
But if we admit that the State Constitution prohibits emancipation, would it follow that the owner would not be allowed to emancipate them, on their being removed from the State, or by testament provide for its being done after his death ? In the States of Mississippi, Georgia, and South Carolina, they have no constitutional provision regulating or controling the right of emancipation ; but in each of those States, they have legislative enactments, expressed in much stronger and more explicit terms, prohibiting the emancipation of slaves, or regulating the mode in which it must be done. We will see what has been the construction, in those States, of their respective Acts of the Legislature on this subject.
To begin with Mississippi, the Act of the Legislature, in restraint of emancipation, is as follows: “It shall not be law- “ ful for any person or persons, being the owner or owners of “ slaves, to emancipate them or any of them, unless by his or “ her last will and testament, or by any other instrument in “ writing under his or her seal, attested and proved in the manner required by law by two credible witnesses, or the “ instrument of writing acknowledged by the party or parties “ in the Court of the County or Corporation where he, she or “they reside; and also prove, to the satisfaction of the gen- “ eral assembly, that such slave or slaves have done and performed some meritorious act for the benefit of such owner “ or owners, or some distinguished service for the benefit of “ this State : and the last will and testament, or other instru “ ment in writing, as aforesaid, shall not have validity until “ the same shall be sanctioned by an Act of the General As-
We have been unable to procure an exact transcript of the Acts of 1801 and 1818, of the State of Georgia, but their purport, so far as it can be collected from the comments of counsel and the opinions of the Judges in reported cases, is that the manumission of slaves is absolutely prohibited, without the consent of the Legislature, and wills containing a direction, or provision manumitting them, are declared to be void. These statutes received the judicial construction of the-Supreme Court of that State, in the case of Vance v. Crawford. (4 Georgia R. 445.) The contest arose on a clause in the will of Marshall Keith, as follows: “ I give to the Secre
Judge Lumpkin, who delivered the opinion of the Court, says, “As to so much and such parts of the will as authorize- “ the emancipation of three of the testator’s slaves, in Liberia, “we are clear, that it was entirely competent for him to “ make such post mortem disposition of his negroes. Owners “ can, in their lifetime, cany or send their slaves to the coast “of Africa to be colonized, or elsewhere, for the purpose of “ freeing them; and they can appropriate the whole or any “ portion of the remainder of their property, if they so please, “ to their transportation and maintenance in their new homes. “ We hold it equally certain that they can direct the same- “ thing to be done by their executors, after their death. For- “ eign emancipation conflicts neither with the letter or spirit “of our municipal regulations, relative to this subject.”
The same question again came up before that Court, in the case of Carper v. Blakey, 10 Georgia R. 263. Jndge Warner, who delivered the opinion of the Court, says: “ The objections urged against the will of the testator, in this case, “ are precisely the same as were urged befoi-e this Court in “ the case of Vance v. Crawford, in opposition to the will of “ Marshall Keith. It was held by this Court, in that case, “ that it is not against the policy of the State of Georgia, for “ the owner of slaves to remove them out of the State for
The Act of 1830 of the Legislature of South Carolina provides, “ that no slave shall be emancipated but by Act of the Legislature.” The case of Frazier at al. v. Frazier’s Executors arose on a contest between the heirs of the testator and his executors to invalidate the will of the testator. The bequest sought to be invalidated was as follows, i. e.: “ That the slaves of the testator should be hired out daring the lifetime of his widow, and that after her death the whole of them “ should be set free by his executors, &c., the interest of the “ money is to enable them, with the assistance of Government, to go to St. Domingo to be colonized, or to any part “ that they with the Government may choose.” Upon the death of the widow, the executors seized the negroes with the view of carrying the will into effect; and a bill was filed by the next of kin claiming the negroes, &c. The Court say that although the provision is general and might seem to prohibit emancipation out of as well as within the State by a citizen, yet such construction would be manifestly contrary to the spirit of the law. The evil was the increase of free negroes in the State, by emancipation. The removal of slaves belonging to citizens of the State, and their emancipation in parts beyond her territorial limits, was no injury to her. It will not be denied, say the Court, that the owner might have removed his slaves from this State, at any moment and for any purpose he pleased; and it is laid down as a general rule to which there is no exception, unless by express statutory provision, that the owner of property may, by his will, direct his
The principles deduced from these cases, are, that although a State by its Laws, may absolutely prohibit emancipation, or direct the particular mode in which it can only be done, yet a bequest of freedom not to be forfeited until the slave is removed beyond the territorial limits of such State, is nevertheless a valid bequest; and that a bequest to a slave is valid, if not to take effect until his removal from the State. The soundness of these principles has not been controverted by a single ease we have had an opportunity to examine, with the exception of the case of Trotter v. Blocker et al., cited before; and that case does seem to lie in our own way, and we must, therefore, examine it, and dispose of it as best we may. The provision in the Constitution of the State of Alabama, on which the opinion of the Court was given in the case referred to, is precisely in the language of our own previously recited ; and the Court ruled that a bequest in the will, of freedom and removal from the State, was invalid ; that the trust was in violation of the constitutional prohibition, and that emancipation could only be valid by an observance of the mode pointed out by the statute; that any other mode was repugnant to law, and void. It must be observed that the distinction between domestic and foreign emancipation, does not appear to have been noticed or discussed at all in that case ; but it is assumed, that because the slave had not the capacity to take the bequest at the death of the testator, he could not take at all. A more critical examination would have enabled the Court to perceive the want of application to the case, of the rule it laid down, that if the donee is not capable of taking at the time of the gift, the gift is void. That rule only applies where the gift is to be completed in presentí, and not in futuro. In the case then before the Court, the bequest was not to take effect in presentí, but it depended, for its completion, on something to be done at a future time; and although the beneficiary was not capable, at the time of the death of the testa
On a fulldnvestigation of this case, and with the best light we have been able to derive from adjudged cases, we conclude that the trust to Mrs. Sherrod in favor of the testator’s slaves to be executed beyond our territorial limits, is not repugnant to the law or settled policy of this State, and that it is a good and valid trust; and that there is no error in the decree of the Court below, and it is therefore affirmed.
Judgment affirmed.