38 N.C. 338 | N.C. | 1844
The following is the case presented by the pleadings:
The bill was filed by the next-of-kin of Sarah Freeman, (339) deceased, late the wife of Richard Freeman; and states that by her marriage settlement she was entitled to her separate use to a considerable number of slaves and other personal estate, consisting of money and debts, and other things to a considerable value; that she wished and intended that, after her death, her slaves should not serve any person in a state of servitude, but should be freed or held by some person in a state of qualified slavery, and have all the other parts of her personal estate. The bill states, that the defendant, Newlin, is a member of the religious society called Quakers, and that all the members of that society are opposed, and that the defendant is opposed, upon a religious principle, to slavery, and that the defendant will not hold slaves as property and for his own use; and that he had taken an active agency in procuring the manumission of slaves and had taken conveyances of slaves absolute, apparently, but had suffered such slaves to enjoy the privileges of freemen. The bill then states, that the testatrix well knew the said Newlin and the religious principles above mentioned of himself and the other members of his religious society, and that, in fraud of the slaves of the State and the public policy, she made her will, and therein bequeathed to the said Newlin all her slaves and other estate, but with the intention and understanding that the said Newlin should hold the negroes, not for himself, but for their own benefit and advantage, and for the purpose of their enjoying a qualified freedom, and that he *267 should hold the residue of the estate in trust for the said negroes. The bill also states that the plaintiffs contested the probate of the will, and that, upon the trial of the issue, devisavit vel non, the present defendant proved, as a part of his case in support of the instrument, that the testatrix had declared the intentions above mentioned as to her slaves after her death, and that she knew that he was a Quaker, and designed to bequeath the said slaves to a member of that society, who would not hold them as slaves, and therefore gave them to him.
The bill then charges that the bequests of the will were made upon a trust for the benefit of the slaves themselves, and that they might be kept here in a state of qualified (340) slavery, and should have the benefit of the other parts of the personal estate, and that such a purpose was unlawful and contrary to the policy of the State, and that a trust of the slaves and other personal estate results to the plaintiffs, as next-of-kin. The bill, therefore, prays a discovery, an account and relief.
The defendants put in a general demurrer to the discovery and relief for want of equity.
Upon the argument of the demurrer, his Honor held that Freeman, the husband, was a necessary party; and, also, that the allegation, and an interrogatory founded thereon, "that the defendant had taken an active agency in procuring the manumission of slaves, and had taken conveyances of slaves, absolute, apparently, but that such slaves were to enjoy the privileges of freedom," was impertinent, and that the defendant was not bound to answer thereto, because it would subject him to prosecution and penalties. But the Court allowed the plaintiff to amend the bill by making Freeman a party, and by striking out the allegation and interrogatory above mentioned, upon the payment of all the costs up to that time. And then the Court overruled the demurrer, but allowed the defendant an appeal to this Court.
The Court is of opinion that the demurrer was properly overruled. The bill charges a bequest upon a secret trust for the benefit of the slaves; and the defendant must answer as to the truth of the charge. If the trust was expressed upon the face of the will, being against the public policy, the Court would hold that it was void, and that a trust resulted to the next-of-kin. Haywood v. Craven,
But the trust is not expressed directly in the will, nor is there anything said in that instrument or any other, as alleged, (342) by which it appears by implication; and the question is, whether the defendant shall be obliged to discover it? We have no doubt that he must. Both upon principle and authority, it is clear that he must be required to answer as to the fact, because, if he admits it, the same duties of conscience *269
are unquestionably established against him, as if the trust was express on the face of the instrument. The law will not allow itself to be baffled, and its policy evaded, by secret agreements, the very objects of which are to defeat the law itself. Therefore, a legatee must say, whether he took the property for himself, as his property in the beneficial sense of the term, and not in the hollow and delusive sense of a mere legal title, in trust for some other person or purpose forbidden by law. It is said that compels him to make a discovery, by which he forfeits the property conveyed to him by the will. But that is a mere play upon words; for, in the view of this Court, if he took upon a trust, no matter what, he has no property in the thing, but merely holds it as the property of another, the cestui que trust. He forfeits nothing, therefore, unless every trustee may be said to forfeit what the Court compels him to convey, in execution of the trust assumed by him. The question is not, now, as to the evidence, by which a secret trust may be established against a party, who denies it by his answer, but is merely whether the party may be called on to say yes or no to the charge of such a trust. The defendant does not even plead that the gift is absolute upon the will; in which case, indeed, his plea would not be allowed, peremptorily, but only suffered to stand for an answer, with liberty to except. Strickland v. Aldridge, 9 Ves., 516. But he demurs and admits the facts for the purposes of a decision, whether, if they be true, the plaintiffs can have a decree. Now, if all this bill be true, there can not be a doubt that the plaintiffs are entitled to the relief they ask; and, therefore, the defendant must either admit or deny the truth of the charges. That the Court will enforce such secret trusts, where they are not unlawful, and will, when they are void in law, declare them so, and decree a resulting trust for the heir or next-of-kin, has been long established. We have had (343) a recent instance of the former kind before us, the case of Cook v. Redman,
Some minor objections were taken to the bill, which, though not necessary, it may be proper to notice. First, it is said the plaintiffs have no right to a discovery of the defendant's belief, as it is not a legal test of his right to hold property. The answer is, that the charge of the defendant's religious creed is not inserted for the sake of a discovery, which can produce a forfeiture, or subject him to a penalty, for in our law no such consequence follows from the professing of any (345) religion. Nor is it even to expose him to opprobrium, for it is to the single point, whether he does not in conscience scruple to hold men in bondage, and whether that was not known to the testatrix and formed, in his belief, an inducement to her to make this disposition to him. Now, there is certainly nothing criminal or discreditable in the eye of the law, or of any person, that one should, out of tenderness of conscience for the rights of his fellow man, refuse to have a property in him, though allowed by human laws; but rather the contrary, it is much to the credit of his disinterestedness and Christian charity, if the principle be truly carried out in practice. The only possible imputation that can be made, on this transaction, against the defendant is, not as to this article of his creed, but as to projecting by a secret contrivance to evade the law of the country, or in agreeing and giving the party, who projected it, to understand that he would endeavor to execute the contrivance. The sole subject, therefore, of making this inquiry is to ascertain from it, as evidence, whether the testatrix did not make this bequest upon some secret understanding with the defendant, that he would not hold the negroes in servitude. No discovery upon it can be a detriment to his property or his privileges as a citizen.
It is next said, that under the Statutes, Rev. St., ch. 111, secs. 31, 32, there are penalties on owners of slaves, who hire to them their time or let them keep house and go at large as free persons, and therefore the defendant is not bound to answer. But in relation to these slaves, there is no charge in the bill of that sort. It only alleges that the bequest was made upon a trust that they should be allowed to labor for their own benefit, and act as free persons, and not that the defendant *272 has, in fact, allowed them thus to act. There are charges of that character in relation to some other negroes, for which it is said the defendant had accepted conveyances from other persons. But that is to be considered as struck out of the bill by the plaintiffs themselves, by way of amendment, under leave of the Court, and no longer presents the objection, if it ever did. Indeed, we must say, that (346) if the plaintiffs had appealed from that part of the decree, it could not have been sustained, for, with a very few exceptions, and those founded on favor, the rule has long been settled, that a demurrer, unlike a plea, must be overruled in toto, unless it be good in its full extent. If it cover too much, as if it be to the whole bill, when the plaintiff is entitled to discovery and belief upon some part, it must be overruled, for it can not be held bad in part, and good in part. Mayor ofLondon v. Levy, 8 Ves., 398. Todd v. Eyre, 19 Ves., 280. But with that we have no concern at present, as this is the appeal of the defendant from an interlocutory decree, and, under the act, brings up nothing more than the single question from which his Honor allowed the appeal to be taken. Upon that question we concur in the opinion of his Honor.
Cited: Cox v. Williams,PER CURIAM. ORDERED THAT THIS OPINION BE CERTIFIED TO THE COURT BELOW.
(347)
