10 La. Ann. 415 | La. | 1855
The record of the probate of F. Gay's will was properly admitted in evidence. The Alabama Code which requires the depositions of the witnesses who prove the will to be signed by them, was not promulgated until after the probate of the will in question.
Francis Gay, a resident of the State of Alabama, made his will on the 22d November, 1850, which was proba'ed on the 2d December, 1850, in the Probate Court of Mobile countjq in said State, and which contained the following clause:
“ I give and bequeath my negro slave, named Albert, to my friend Stephen Gharpentier, (barber in Mobile,) for him, said Stephen, to hold in his own right. Hereby requesting him, said Stephen, however, as soon as ho can with convenience, to have the said slave taken to some Slate or country, where slavery and involuntary servitude is not known, there to be and remain free and emancipated forever. And I do hereby will, give and bequeath unto my executor hereinafter named, the sum of one hundred dollars, for the purpose of having the said slave removed to a free country, and request him to apply the same accordingly.” After some other legacies, the testator names the same Stephen Gharpentier his universal heir and executor.
Stephen Gharpentier sold the slave Albert, named in this will, to McRae, Coffman, & Go., at New Orleans, on the 11th April, 1851; and he afterwards passed by several mesne conveyances, into the hands of the defendant J. G. Egan, whom he has sued in this action for his freedom, which he claims to be entitled to under the above clauses of the will of his former master Gay ; and also for five hundred dollars damages for illegal detention.
The form and effect of written instruments are governed by the laws and usages of the places where they are made, unless they have been made in one country, with the intention of being carried into effect in another country. Civil Code, Article 10. The exception contained in this Article of the Code does not apply to the case at bar. The testator lived and died in Alabama. 1-Iis will was intended to be carried into effect in Alabama, where his property was situated. The respective rights of Gharpentier and of the plaintiff under this will, are to be governed by the laws of Alabama.
The case last quoted, however, only went the length of declaring that the Courts of Alabama would not interfere, at the instance of the next of kin of the testator, to prevent the executor from executing such a trust. The language of the decision is as follows: “ Conceding in this case, that there is no one who could compel the executor, or the administrator with the will annexed, to carry this trust into execution, and that he must be left to his own conscience, and to the obligation imposed by his official oath, yet as we have seen that the trust is not illegal, and the removal may lawfully be made by the representative of the deceased, it is clear the Court will not interfere to prevent the trustee from complying with and'carrying out the lawful desires of the testator. Whether it is such a trust as the Court may compel the execution of, against the will of the trustee, is not now presented before us; it is sufficient that the trustee is willing and proposes to carry it into execution. It is he who interposes the trust, and asserts its validity; and it only remains for the Court to direct him to do what, by his answer, he avers his willingness to perform.”
We think it may be fairly inferred from this language, that the trust to transport the slave out of the State for the purpose of his emancipation, was recog. nized by the Supreme Court of Alabama, as legal, only so far as it was not compulsory; and indeed, this conclusion seems to flow necessarily from the premises.' The law of Alabama prohibits emancipation of a slave by last will. Therefore, a legacy of-freedom to a slave, is null. But a testator bequeaths his slave to A., coupled with a condition or trust that A. shall remove the slave into a State where involuntary servitude is not recognized, there to he or remain free. The trust, if voluntarily executed, has nothing illegal in it; because a man may do what he pleases with his own; and if the devisee, who becomes the owner of the slave upon the death of the testator, choose to travel into another State of the Union, or into another hemisphere, with his slave, the courts will not prevent him from so doing. But if the devisee prefer, on the contrary, not to send or take his slave into a free State, hut to retain him in the State of Alabama, or in any other slave-holding State, and to enjoy his services, or to convey him to another, the same reason should prevent the courts from in., terfering. To treat this trust as compulsory, would be, to enable a testator to, do indirectly, and in freudem legis, that which he could not have done directly. In Louisiana, the trust contained in the legacy of the plaintiff to Charpentiei\ would he considered as not written ; and the bequest of the plaintiff to Chart penlier “to hold in his own right,” would alone stand. The bequest would viewed as an absolute one, and unqualified of the right of ownership in the plaintiff. Such was the decision of this court, in the case of the State of Louis*, iana v. McDomglt’s executors. And the principle was recognized as correqt under the common law, no less than under the civil law, by the decision of the Supreme Court of the United States, in the same ease, when the author-, ities were carefully and elaborately reviewed, in the opinion delivered by Mr, Justice Campbell.
Again, the words of the devise on which the plaintiff founds his claim to free-, dom, are precatory “ requesting him, the said Stephen, as soon as he can with,
It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, and that there be judgment for defendant and warrantors, with costs in both Courts.