Walker v. Walker,

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| Ga. | Jun 15, 1858

Lead Opinion

By the Court.

Lumpkin, J.

delivering the opinion.

After argument and consideration, his Honor Judge Holt held, that the second clause in the will ofF. J. Walker, providing for the extra-territorial emancipation of apart of the testator’s slaves, was valid; and counsel for the caveators excepted. He further decided that the 4th and 5th clauses of the will were void, by reason of the legal incapacity of the trustee and cestui que trust to take and hold the property therein bequeathed. And to this ruling counsel for the executors excepted.

Counsel for the caveators having abandoned in open Court, their objections to the decision of the Court, upon the second item in the will, directing the executors to transport the slaves therein named, to Liberia, at the expense of testator’s estate, it only remains to examine the 4th and 5th items of the will.

*428It is argued that the direction that the proceeds arising from the sale of the balance of the testator’s property, should be held in trust for the support and maintenance of the slaves to be colonized in Africa, and their descendants, creates a perpetuity, and that, therefore, the legacy lapsed, and goes to the heirs-at-law.

We hold that this is not a legitimate conclusion. Such is not the meaning of the word “ descendants.” This term is equivalent to next of kin, or those who would take under the statute of distributions in this State. It means children and grand-children. 3 Bro. Ch. Cases, 169. This word was probably used in accommodation to the Act of 1819, (Cobb, 995,) which declares that real and personal property belonging to free persons of color, shall remain with such persons and their descendants.

But this is wholly immaterial. If decendants mean children, than the children of the legatees would take, as purchasers. If heirs of the body, the seven legatees named in the will, took an absolute estate, under the Act of 1821.

[1.] Can the American Colonization Society execute this trust? We are inclined to think not,under their charier, as expounded by this Court in the case of the American Colonization Society vs. Lucius J. Gartrell, adm'r, &., 23 Ga. R. 448. That society was authorized and empowered to take and receive property, for the purpose of colonizing, with their own consent, in Africa, free people of color residing in the United States, and for no other uses and purposes wha'ever. We will only add hero, that a corporation is the creature of the charter which gave it being, and is restricted within the bounds given to it; and has no capacities but those which the charter confers upon it. 2 Bac. Ab. Title Corporation, (D.) 9, sec. 12 ; Coke, 120; 3 Modern, 14. And a corporation has no right to take and hold property, except inthe manner, and for the purposes pointed out by the charter. Ibid, E. 3, 13.

*429■While it may be true, then, that the Colonization Society could not claim the bequest, under the trust, for any other purposes connected with the object so accurately defined in their charter, still, the bequest itself will not of course fail. It is clear, from the will, that the money given for the support and maintenance of the testator’s negroes, was not to take effect until they were made free, by being colonized in Liberia. And then, according to all the past adjudications of this Court, they would be capable of taking. Crawford and others vs. Vance and others, 4 Ga. Rep. 446; Cooper vs. Blakey, 10 Ga. Rep. 263.

In the latter case cited, this Court held, that when a testator, by his will, directed one of his slaves to be removed to a State, in which the law would allow his manumission, and there set free ; and also bequeathed the sum of two thousand dollars to said slave, to be invested by a trustee, to be appointed for that purpose for the benefit of such slave, .when liberated as directed by said will, the bequest was good. That is this case.

As to the best mode of executing this trust, it will become a matter for the discretion of the Chancellor below. We would suggest the following : 1st. That the executors be ap-l pointed trustees in lieu of the Colonization Society, provi-1 ded they be entirely reliable, and are willing to undertake] the office. 2d. That they be instructed to invest the fund in * State or municipal corporation bonds, and apply the interest annually, or so much thereof as may be necessary, to the support of the legatees in Liberia during their minority; and to invest the surplus of unused income, (if any,) as an addition to the corpus of the estate. Sd. As each male cestui que trust arrives at age, let his share be given off to him, and consequently, his interest in the trust cease, except in the event of some one of the children dying in minority, when his distributive share of the portion of such deceased minor, shall be given off to him. So upon the coming of *430age of any female cestui que trust, or her marriage, let the same thing be done.

This plan seems to us to have the merit of distinctness, simplicity, and finality of the trust, within a reasonable time.

If it is thought better to order the executors to to pay it over at once to the legatees, on their arrival in Liberia, or to authorize them to doit then, or at any future period, at their discretion, it would be lawful to do so. But knowing the thriftless habits of these people, and entertaining as we do, serious apprehensions as to their future, we would greatly prefer the scheme which we have proposed, provided the executors can be induced to embark in it.

Judgment reversed.

Concurrence Opinion

McDonald J.

concurring.

Dissenting Opinion

Benning J.

dissenting.

I think this will void under the Acts of 1801 and 1818. My reasons for this opinion, are to be found fully stated in Sanders vs. Ward, (Atlanta, Mar. 1858,) and in Adams vs. Bass, 18 Ga. 147. To repeat them here is therefore unnecessary.