6 Ga. 539 | Ga. | 1849
By the Court.
delivering the opinion,
If the situation of the parties is such that the testator may see the attestation by rising from his bed, it is not a good attestation. He must be able to see it in his actual position. In this case the testator was in bed and unable to rise without assistance, and by the testimony, the situation and circumstances of the testator and witnesses were such as that, in his actual position, he could not see the attestation. It is a plain case, and the decision of the Circuit Judge was right.
It is^our judgment that this clause is void, because it is in conflict with the Act of 1818. We arrive at this conclusion irrespective of the parol testimony which was admitted on the trial, and upon a construction of the clause itself.
By the Act of 1801, it is made unlawful for any person to manumit any slave, or any person of color who may be deemed a slave at the time of passing the Act, in any other manner or form than by an application to the Legislature for that purpose. Prince, 787. Penalties are prescribed in this Act for its enforcement. It is amended by the Act of 1818, which re-enacts the provision above referred to, with additional penalties. By the 4th section of the Act of 1818, it is declared that, “ all and every will and testament, deed, whether by way of trust or otherwise, contract, agreement or stipulation, or other instrument in writing, or by parol, made and executed for the purpose of effecting, or endeavoring to effect, the manumission of any slave or slaves, either directly by conferring or attempting to confer freedom on such slave or slaves, indirectly or virtually, by allowing and securing, or attempting to allow and secure to such slave or slaves, the right or privilege of working for his, her or themselves, free from the control of the master or owner of such slave or slaves, or of enjoying the profits of his, her or their labor or skill, shall be and, the same are hereby declared io be utterly null and void.’’ This section makes all persons executing such will, deed, &c. or parol stipulation, and also, all persons who may be concerned in giving effect to them, by accepting a trust or otherwise, liable to a heavy penalty. Prince, 794, ’5, ’6.
The intention is clearly, to my mind, declared in this will, and the insuperable difficulty is, that the declaration of intention is not legal. Upon the construction of the paper, then, we agree with Judge Holt, that this will, as to the bequest to Robinson and Wood, is void.
The Statute, as I have shown, makes void all kind of instruments in writing manumitting or attempting to manumit slaves; and also, all parol agreements or stipulationshaving the same objects, -and expressly forbids all trusts for the like ends, no matter how created. A will, then, which seeks to accomplish' on its face, any of these objects, is void because illegal. So, also, if unexceptionable on its face, it is void if there is a secret parol agreement, by creating a trust or otherwise, to accomplish the same ends. According to the spirit and policy of the laws of Georgia, and more particularly of the Act of 1818, we think it competent to show by parol, that a will is void, because against the law. No man can make a will against the law. That would be to make all men law-makers by their last wills and testaments. A paper purporting to be a'will, which is in conflict with the laws, is no will. It is competent, by parol, to show that a will is illegal. Not to give a construction to the words of the will, not to show what the testator meant in the provisions of a will, but to show that it is void — no will, because against the law. I believe there is no doubt but that the proposition stated is true upon general principles. The policy of the Manumission Laws of Georgia, imperiously requires such a rule, if it were not so true. Without it, the whole effect of the laws might be, would be defeated. Secret parol trusts would abrogate the laws. They (the laws) have declared, that all trusts, by parol or otherwise, are void- — this being so, the testimony is, by the Act itself, made admissible to prove them void. A law which makesa secret parol trust illegal, ex vi termini, authorises its proof. It has never been questioned
Let the judgment of the Court below be affirmed.
See Vance et al. vs. Crawford et al. 4 Ga. Reps. 445.