PLEASANTS against PLEASANTS.
Nov'r. Term 1798. The doctrine of perpetuities and executory limitations considered.
THis was an appeal from a decree of the High Court of Chancery in a suit brought by Robert Pleasants son and heir of John Pleasants deceased against Charles Logan, Samuel Pleasants junior Isaac Pleasants and Jane his wife, Thomas Pleasants junior and Margaret his wife, Elizabeth Pleasants, Robert Langley and Elisabeth his wife, Margaret Langley, Elizabeth Langley the younger, and Anne May. The bill states, that the said John Pleasants by his last will devised as follows, "my further desire is, respecting my poor slaves, all of them as I shall die possessed with shall be free if they chuse it when they arrive to the age of thirty years, and the laws of the land will admit them to be set free without their being transported out of the country. I say all my slaves now born or hereafter to be born, whilst their mothers are in the service of me or my heirs, to be free at the age of thirty years as above mentioned, to be adjudged of by my trustees their age." That the said John Pleasants in a subsequent part of his will devised to the plaintiff eight of the said slaves upon the same condition, that he should allow them to be free is the laws of the land would admit of it. That the testator then devised to his grand son Samuel Pleasants
— page 320 —one third part of his slaves not otherwise dispose of, on the same conditions on which he devised the said eight slaves to the plaintiff. That the testator devised to his daughtors Elisabeth Langley the use of all the slaves conveyed to him by Robert Langley and also the slaves sold by the said Robert Langley to John Hunt or Samuel Gordon during the term of her natural life, and after her death to her children upon the same limitations and conditions relative to their freedom, as are mentioned in the other bequests. That the said testator then devised to his son Jonathan Pleasants, when he should attain the age of 21, one third part of all the slaves not otherwise disposed of by that will including his mothers jointure negroes and those given to her by her father to be reckoned as part of the share or third part of the said Jonathan Pleasants in the share of the said slaves. That the testator devised to grand daughter Jane Pleasants a negro girl named Jenny upon condition, in addition to the general condition first mentioned respecting the freedoms the said slaves, that the said Jane as one of the children of her deceased father John Pleasants should release all claim to any dividend in a copartnership mentioned in the said will. That he devised four slaves to his daughter Mary Pleasants; to his grand daughter a negro woman named Pender and her children; and to Elizabeth Pleasants wife of Joseph Pleasants a mulatto woman named Tabb and her child Syphax. That the said testator then devised as follows. "Item I give and bequeath unto my son Thomas Pleasants the remaining third part of my negroes, before directed to be equally divided between my grandson Samuel Pleasants and son Jonathan, with the same proviso and limitations respecting their freedom as is before mentioned and intended towards the whole by this will given or devised." That the several devisees became possessed under the will aforesaid, and the said Jonathan Pleasants in the year 1777 by his last will, made
— page 321 —the following devise "And first believing that all mankind have an undoubted right to freedom and commisserating the situation of the negroes which by law I am invested with the property of, and being willing and desirous that they may in a good degree partake of and enjoy that inestimable blessing, do order and direct, as the most likely means to fit them for freedom, that they be instructed to read, at least the young ones as they come of suitable age, and that each individual of them that now are or may hereafter arrive to the age of thirty years may enjoy the full benefit of their labour in a manner the "most likely to answer the intention of relieving from bondage. And whenever the laws of the country will admit absolute freedom to them, it is my will and desire that all the slaves I am now possessed of, together with their increase, shall immediately on their coming to the age of thirty years as aforesaid become free, or at least such as will accept thereof, or that my trustees hereafter to be named, or a majority or the successors of them may think so fitted for freedom, as that the enjoyment thereof will conduce to their happiness, which I desire they may enjoy in as full and ample a manner as if they had never been in bondage, and on these express conditions and no other I do make the following bequests of them." That the testator then proceeds to dispose of his slaves among the following persons to wit, Mary Pleasants, Anne Langley, Elizabeth Langley, Mary Langley, Jane Pleasants, David Woodson, Anne Woodson, Joseph Pleasants, Samuel Pleasants and the plaintiff; again expressing in almost every particular devise the same possitive condition in favor of their freedom. That the said Anne Langley hath Intermarried with May, Margaret Langley with Teasdale, Anne Woodson with Pope, and Mary Pleasants with Logan. That the plaintiff is heir at law and executor of the said John Pleasant
— page 322 —deceased, as well as executor of the said Jonathan Pleasants, and in those characters in the year 17 applied to the Legislature for the manumission of the said slaves; but the Legislature were of opinion that it belonged to the judiciary. That the plaintiff hath been much embarrassed as to the mode of bringing the question before the Courts, as the slaves could not sue at common law, 1. On account of their not being capable of being manumitted, but upon the terms mentioned in the act of Assembly. 2. As they claimed their freedom in the nature of a legacy. That the devises to the defendants were only on condition that they would emancipate them when they arrived at a certain age and the laws would permit it. Of course that they have no title to them, but either the plaintiff is entitled, for a breach of the condition, or as executor, on whom the legal estate vested to perform the will. That there are no debts due from the said John and Jonathan Pleasants now unsatisfied. That the plaintiff hath applied to the defendants to emancipate the said slaves, but they refuse. Therefore the bill prays that the slaves may be delivered up to the plaintiff to be holden in trust for the purposes of the wills of the said John and Jonathan Pleasants; that the Court would direct the manner of their manumission; and for general relief.
The denfendant Mary Logan demurred to the jurisdiction; and by answer lays that her late husband died indebted to several persons.
Isaac Pleasants also demurred to the jurisdiction; and by answer says that the increase of the slaves devised to the said Jane are under thirty years of age.
Samuel Pleasants likewise demurred for want of jurisdiction; and by way of answer states, that some of those in his possession are under 30 years of age.
— page 323 —Elisabeth Pleasants, says that Tabb and her increase were given to the defendant by the said John Pleasants in his lifetime as by his letter will appear. And that the will of John Pleasants doth not operate to give freedom to the other slaves.
The defendant Teasdale denies his responsibility to the plaintiff, either as heir or executor. By amended answer he says, that T, Atkinson has by virtue of a mortgage recovered part of those held by the defendant, and the defendant hath since paid him a valuable consideration for them.
A suit was afterwards brought by Ned one of the slaves in forma pauperis against Elizabeth Pleasants widow of Joseph Pleasants, setting forth the clauses of the will of Jonathan Pleasants, stating the act of Assembly authorizing the manumission of slaves, and that the plaintiff is now upwards of 30 years of age; and hath so demeaned himself as to shew that freedom would be conducive to his happiness. The bill therefore prays the court to decree the defendant to release him from slavery.
The Court of Chancery overruled the demurrers, and declared itself of opinion, that, in equity, of the slaves, on whose behalf the suit was instituted, they who were thirty years old or older in the year 1782, when the act authorizing manumission was enacted, were, at that time, entitled. They, who, born before the testators death, were not 30 years old at the time of the decree, would, when they should attain the same age, he entitled to freedom, and that they who had been born since the statute was enacted, were at their birth entitled to freedom: That the plaintiff Robert Pleasants heir and executor as aforesaid, was the proper party to vindicate that freedom. It therefore referred it to a commissioner to ascertain their ages, and to take an account of their profits since their respective rights to freedom accrued. From which decree the defendants appealed to this court.
— page 324 —WICKHAM for the appellants. If the plaintiffs were entitled to their freedom it was either by the common law, or by statute; and either way they could have asserted it at common law. Consequently their remedy was at common law, and they ought not to have resorted to the Court of Chancery.
It will be said that the legatees are trustees; and therefore that the Court of Equity had jurisdiction upon the ground of a trust. But the history of uses, which were invented to avoid the statutes of mortmain, shews that a Court of Equity only exercises jurisdiction, where the beneficial interest is in one person, and the legal in another. Now it cannot be said that the legatees have the legal estate, and that the beneficial interest, that is the labour of the slaves, is in the slaves themselves. Of course it is not a case which consists with the nature and foundation of trusts.
Perhaps it will be said, that several may join in one suit here; and that, that circumstance will give the jurisdiction. But that will not alter the case; because several may sue at law also. Coleman vs Dick and Pat. I. Wasb. 233. Therefore the Court of Chancery ought not to have sustained its jurisdiction, but the decree is erroneous, Upon that ground.
Then as to the right of the plaintiffs to have their freedom. It may be proper to premise, that, although it may be true that liberty is to be favoured, the rights of property are as sacred as those of liberty; and therefore, that this cause should be decided on the same principles of law, that other causes are.
Emancipation of slaves was prohibited by the act of Assembly in 1748. p. 261. edit. 1769: Which act was in force at the time of making this will; and therefore the condition, annexed to the bequests, is void.
— page 325 —There is a distinction in law, which is well known, between conditions precedent and subsequent. The first must be performed, before any estate at all vests; but it is otherwise as to the latter, because then the condition must happen to destroy the estate which has already vested. In our case the condition was precedent, and it remains to consider, whether the title, depending on it, could ever take effect?
This condition was contrary to the nature of the estate, for it tended to bar the alienation of the property, and therefore was void. Shep. touch. 129. 1. Co. 83. 1. Inst. 223. During all the period, between the death of the testator and the happening of the contingency, it was wholly uncertain, whether the law would pass, or not; and consequently the condition operated as a bar of alienation, for that time; which the authorities declare will render it void. For it is, in effect, but a devise of the slaves in absolute property, with a condition, that the devisee shall not alien. In Co. Litt. 224 it is said, that a privilege, inseparable from the estate, cannot be restrained; and the right of alienation is a privilege inseparable from the right of property.
But the condition is void, upon another ground; namely, that it was illegal and contrary to the act of Assembly; which having forbid emancipation, every attempt to effect it, was repugnant to the *ct, and therefore void.
If it be said that the act only respected absolute and not conditional emancipations, the answer is, that the latter is comprehended in the former, for every lesser is contained in the greater. So that this was an attempt at emancipation, which was void on account of its repugnancy to the law.
Perhaps it will be said, that the law permitted manumission at the time, when the emancipation took effect in point of operation, although there was no such law at the death of the testator; and
— page 326 —therefore that the case is out of the meaning of the act of 1748. But this is not so; for there is no limitation, for the happening of the event; and the question is not, whether subsequent events, can make it lawful? but whether the devise was good upon the face of the will? for posterior events could not make it good, if it were not so at its creation; that is, at the death of the testator. This is evinced in the common cases of remainders and personal estate, where the events may actually take place, within the limits allowed by law, but the remainders will, nevertheless, be void, because too remote in their creation. This principle was adhered to, by the Court in the case of Carter vs. Tyler; * in which it was clearly held, that posterior events would not alter the construction from what it ought to have been, at the death of the testator.
Thus then it appears, that during all the period between the death of the testator and the passing of the act of Assembly, the legatees had property, to which there was a repugnant and illegal condition annexed; which was consequently fruitless and void.
By the act of Assembly in 1782 for emancipation of slaves, there is nothing which either manumits the plaintiffs in terms or obliges the legatees to do it; for the act has certain prescribed terms, and the present case is not within any of them: But the plaintiffs must shew, that they are within the requisites of the act; and this they cannot do.
It is a rule that all acts upon the same subject shall be construed as one act; because the whole are only parts of the same system. Therefore this act of Assembly and that of 1748, are to be taken as one law. It will then be correct to say in the language of 1748, that it is generally true, that there shall be no emancipation; but that there may be certain specified emancipations, according to the
* 1. Call's Reports p. 165.
— page 327 —Act of 1782. So that the provisions of the act of 1748 will still be the general principle; and those of the act of 1782 will only operate as exceptions out of that of 1748. Therefore any case which is not strictly within the terms of the act of 1782 will come within the operation of that of 1748. Thus if a man were to attempt to emancipate his slave by parol, this, not being within the terms of the act of 1782, would be void by that of 1748.
Besides the act of 1782 is prospective, and not retrospective. It was not intended to embrace any prior cases.
Again the act is permissive, and not compulsory. So that the proprietor may do it or not, as he pleases; for there is no obligation upon him; and therefore the legatees may refuse.
But the act of Assembly imposes certain conditions upon the owner who emancipates, such as the maintainance of the young and aged slaves. Now this the proprietor may do or not, as he pleases, and no person can complain if he will not. But the construction made by the Court of Chancery, upon this will, would go to compel the legatees to give this security; for it cannot be dispensed with, if they are emancipated; or else the helpless and aged will be thrown as a burthen upon the public, contrary to the intention and express provisions of the act of Assembly.
The court cannot compel the administrators to emancipate. No person but the proprietor can do it by law, and, for the reasons already given, the court cannot force him to do it.
The decree of the Court of Chancery, does not follow the testators intention. He intended to erect the slaves into a distinct kind of property; that is to say, they were to be slaves till 30, and free men afterwards; but this idea is not pursued by the decree, which has not only changed the law, but the will too. For a mother having chil
— page 328 —dren before thirty, those children will be subject to the term of slavery too. The word hereafter takes in all future generations.
As the decree of the Court of Chancery is clearly wrong, how will the court mould another? Must it be, that the plaintiffs and their progeny to all generations shall, in succession, be entitled to freedom at thirty? This would be to allow the testator to create a new species of property, subject to rules unknown to the law. But this is what no man can do.
The whole amount therefore is, that the testator has wished to do, what the law will not permit him to do; and, consequently, the attempt is void.
Upon principles of convenience, the construction of the plaintiffs ought not to prevail. For suppose Logan had contracted debts, between the death of the testator and the passing of the law, ought the creditors, who had trusted him on a fair presumption that no law of emancipation would pass, to lose their debts?
The will of Jonathan Pleasants ought to receive the same construction.
With respect to the account of profits, who are to repay the expences of those that were chargeable? It could scarcely have been intended by the testator, that this burthen should be borne by the legatees.
But the general idea of the country and the practice in the courts of law are opposed to such a demand; and therefore damages are never given, in actions of this kind, by the juries who decide them.
Randolph on the same side. By the act of 1717 §. 3. slaves can only be conveyed as chattles; and as such a limitation of a chattle would be too remote and therefore void, it follows that this is so
— page 329 —likewise. The act of 1748, instead of curtailing, rather extended the power of emancipation. For prior to that law a man could not manumit his slave.
Warden for the appellee. This was the case of a trust which gave the Court of Chancery jurisdiction. The nature or kind of the trust does not make any difference, in this respect Saund. trusts. 14. 18.
This was a trust to perform a certain act, when, the trustee should be enabled to do it: Which trust was not inconsistent with law; and the act of 1782, having enabled the legatees to do it, their conscience is affected, and, consequently, they are bound to perform it.
The application to the Court of Chancery, therefore, in order to compel an observance of this equitable obligation, was proper.
The act of 1748 has not the effect, which is contended for, by the other side. It does not ipso facto make void the deed of emancipation. On the contrary, the right of the proprietor is extinguished thereby; although, the freedom of the slaves is liable to determine by the officers of Government exercising the powers given by the act of Assembly, and selling the slave. Which not having, been done in this case, and the act of '48 being now repealed, it follows that the devise, which, at first, was effectual to pass the testators right, continues to be effectual.
The decree pursues the intention of the testator; which was, that all above thirty should have their freedom.
The plaintiffs have a right to the profits of their labour. The decree, therefore, as to this point, is right; especially, as it only directs the commissioner to enquire which of them are entitled to their freedom, and to profits: This, in effect,
— page 330 —is no more, than instituting an enquiry, which of them came up to the cases contemplated by the testator.
The notion of the perpetuity, contended for by Mr. Wickham, is without foundation. Because, from a fair construction of the devise, the contingency was confined to a reasonable period.
Marshall on the same side. As to the point of jurisdiction, there can be no question, but that the ordinary principles, founded on the general doctrines of trusts apply; and the rather, perhaps, because, being a suit for freedom, the forms of proceeding will not be so strictly adhered to, as in other cases. This was decided in the case of Coleman vs Dick & Pat, cited by Mr. Wickham. But it was clearly a trust; and therefore upon that ground, the Court of Chancery properly sustained its jurisdiction. Besides the difficulty of deciding the nature of the case, as whether freedom was actually given, so as that there might be a common law remedy? Or, whether it was not rather in the nature of a contract to be enforced in equity upon the happening of the events? Whether the property was in the heir or administrator? and which of them should perform the act? All these circumstances rendered the resort to the Court of Chancery proper.
As to the question upon the right to freedom, The right of the testator clearly passed by the will. That was irrevocable; although the slaves would not have enjoyed their freedom, had the officers of government chosen to exert their powers, and sold them as the act directed. But as the act of 1748 was repealed, without this being done, on the part of the officers of government, if they had the power in this case, the right of the paupers to their liberty continues,
The question then is, whether the condition shall be performed ?
— page 331 —If not, it must be, either, because it is against law, or because it is an attempt to create a perpetuity.
As to the first there is nothing malum in se, in it: and therefore, it is not void upon any principle of morality: Neither is it void, upon the ground of the statutary prohibition. Before the act of 1748, every person, who pleased might have emancipated his slave , and that statute does not say, that the testator may not give his slave liberty, when the law shall permit. The old rule of devises to a child in ventre sa mere is, in principle, not unlike this case. For, according to that rule, an executory devise to such a child by words de presenti was void; but it was otherwise, where the devise was future. So here an immediate emancipation was liable to be defeated by the statute, but a future one, like this, was not.
The great question therefore is, as to the perpetuity; Now a perpetuity is a condition which may run forever, or to an unreasonable time. But this does not For the will relates to several subjects; and therefore may be construed severally.
For instance as to those born, the devise is to be confined to a life in being; and for this purpose it may be taken distributively: So as to make the contingency with regard to them, fall within a life in being, or a reasonable period afterwards. Thus where a mother was born at the death of the testator, the most remote limitation would be a life in being, and thirty years afterwards. Which is a period not denied by any book. For the authorities are all affirmatively, that it may depend on a life in being and twenty one years afterwards; and not negatively, that it shall not depend on a longer time than a life, in being, and twenty one years afterwards. Therefore, as to the mothers born at the testators death, the bequest is good, upon the soundest principles of law.
The mothers born after the testators death may perhaps form a class of different cases; but that
— page 332 —very circumstance shews, that the account directed by the Court was proper.
The act of 1782 operated a clear repeal of that of 1748; and therefore the only impediment, which could be supposed to exist, is removed.
If justice requires it, the Court may compel the Administrators to emancipate; and the legatees, by taking the legacy, bound themselves to perform the trust. Of course they may be compelled to a specific performance of it. For if the testator was himself in that situation, he would be decreed to perform; and in principle, there is no difference.
With respect to the argument of inconvenience, from Logans having contracted debts, if that were the case, the plain answer would be, that the creditors having trusted a contingent estate, must be subject to the contingency.
Randolph in reply. Upon the question of jurisdiction; this was a plain legal question, and if the plaintiff had any right they might have asserted it at law. The nature of the subject did not alter the case; nor did the qualities of the parties as combining the rights of the heir and trustee. In a case concerning lands such an argument would not prevail, you cannot in equity join different rights in one suit; and if you do, it is cause of demurrer. The paupers might all have united in one suit at law. Besides numbers alone cannot give jurisdiction to the Court of Chancery. If it be said, that, being a legacy, it was properly sued for in equity, the answer is, that the executor has assented, and, consequently, that the remedy at law was sustainable. It follows therefore that the Court of Chancery had not jurisdiction.
The law of 1727 declares, that slaves shall pass as chattles; and it is most clear, that such a limitation of a mere chattle would be void, as tending to a perpetuity.
— page 333 —It is said that the act of 1748 only prohibits immediate, and not future emancipations; but this is not correct; and, before that act, it was not lawful to emancipate.
That statute was an existing prohibition, at the time of making this will; and, if a chattle had been devised upon such condition, that such a law should pass, the bequest would have been void. For it would have been a condition contrary to law, and therefore void. 2. Black. Com. 160.
Executory devises must take effect within a limited time or not at all. Thirty years is too long, and never has been allowed. If it were, you might go on to any extent. The period of a life, or lives, in being, and twenty one years afterwards, is the fixed rule; insomuch that it has now become a canon of property; and to alter it, would be to shake titles, and unsettle property.
In the present case, the devise is not to take effect within that period, and therefore the limitation is too remote. A law was first to pass; and when that should be, was wholly uncertain. The posterior event did not alter the nature of the case in its origin; it must be decided, by the will, at the testators death; at which time it would have been determined to be void, on account of the remoteness of the contingency.
Upon the whole, the devise is contrary to the policy of the law, as tending to create a perpetuity, and annexing conditions contrary to the genius and spirit of the acts of Assembly. It is therefore void; and of course the decree is erroneous, upon the general ground.
But, at any rate, the account of profits is contrary to practice, and the equity of this case in particular; because the defence was reasonable, and therefore the defendants justifiable in making it.
Cur; adv: vult.
— page 334 —ROANE Judge. This is a bill brought, by R. Pleasants the heir and executor of John Pleasants deceased, claiming title on behalf of the negroes, who were the property of the said Pleasants, at the time of his death, and their descendants.
This claim is sounded upon the will of the said John Pleasants, dated the 11th of August 1771; and which has this general clause, "My further desire is respecting my poor slaves all of them as I shall die possessed with; shall be free, if they chuse it, when they arrive to 30 years of age, and the laws of the land will admit them to it be free, without their being transported out of the country, I say all my slaves now born, or hereafter to be born, whilst their mothers are in the service of me or my heirs, to be free at the age of 30 years, as above mentioned, to be adjudged of, by my trustees, their age."
He then gives his son Robert the plaintiffs eight negroes "On condition he allows them to be free at the age of 30 years, if the laws of the land will admit of it." And, then, devises the residue of the slaves to various persons, under conditions similar to that last mentioned, in the devise to his son Robert.
The will of Jonathan Pleasants (who was a legatee under the will of John Pleasants of one third of his negroes on the same condition) dated the 5th of May 1776 has a general clause respecting the freedom of his negroes, as also particular conditions annexed to each bequest, in substance similar to those, before stated, to be contained in the will of John.
As, however, it does not appear, as well as I recollect, that Jonathan Pleasants had any slaves, other than those derived from his father, as aforesaid, and entitled to the benefit of his will, the will of Jonathan may be thrown out of the present case. But, if it were otherwise, I do not think it would make any material alteration in
— page 335 —any estate, or in the decision, which I think ought now to be given.
After a demurrer by some of the defendants, for that the bill contained no matter of equity, but that the matter of it was proper for the cognizance of a court of law, and answers (which it is not now necessary to specify particularly,) the Chancellor, on a hearing, overruled the demurrer, and decreed in favour of the plaintiffs; directing an account, also, to be taken of their profits. It is here to be remarked, that the cause with respect to the answers, does not appear, to have been matured and regularly set for hearing; but as all parties were willing to try it, upon the general question, which most probably did not, at all, depend upon the particular answers, and more especially, one which, involving liberty did not admit of delay, and cannot be drawn into precedent, as applicable, on the point, to other cases, the decision given in that case, as upon the general question, was not premature; and the decision, under the restrictions now contemplated as to subordinate questions, can produce no injury to any of the parties.
In considering the general question, growing out of the will of Robert Pleasants as before stated, I will first consider slaves as a species of property recognized and guaranteed by the laws of this country, and to be considered, with respect to a limitation over (by the act of 1727,) on the same footing with other chattles.
I will also consider, in the first place, the claim of the appellees to their freedom, only, as that of ordinary remaindermen, claiming property in them, and endeavour to teste it by the rules of the common law, relative to ordinary cases of limitations of personal chattles. And if their claim will be sustained on this foundation, and by analogy to ordinary remainders of chattles, every argument will hold, with increased force, when
— page 336 —the case is considered in its true point of view, as one, which involves human liberty.
The doctrines of the common law, relative to perpetuities as to estates of inheritance, hold a fortiori as to terms for years and personal chattles. If it be contrary to the policy of that law, to render unalienable, for a long space of time, real estates of inheritance, on reasons of public inconvenience and injury to trade and commerce, these reasons apply, with much more force, as to interests of short duration in lands and personal chattles; not only, because the latter are better adapted to the purposes of trade than the former, but also, because of their transitory and perishable nature.
This observation goes to fortify what is so fully established by the books, as to render citation unnecessary; namely, that the policy and reason of the law leans, at least, as strong against perpetuities in personal as in real estates.
The utmost limits allowed by law for the vesting of an executory devise (or as Fearne has it, as applicable to personal chattles, an executory bequests,) is the term of a life or lives, in being, and twenty one years after. This limitation, then, has become a fixed canon of property, and ought not to be lightly departed from. And the true distinction is, where the event must happen, if at all, within those limits, the executory devise is good; and on the happening of the contingency, the estate will become absolute, in the remainderman.
Thus a limitation to one, in esse, in fee or in tail, after a dying without issue, is not good, because the contingency, the dying without issue, is too remote. But such a limitation to one, in esse, for life is good; because the contingency must happen, if at all, so as to vest the estate, within a life in being, viz. that of the remainderman; that is to say, the limitation in remainder for life restrains the previous disposition, in the
— page 337 —same manner, as if it had been expressly limited to the remainderman, on the event of dying without issue, in his life time.
This case seems directly parallel, with the case before us, the happening of the contingency here; i, e. the passing a law to authorize emancipation, standing simply, is too remote, as it may not happen, within 100O years: But when the testator goes on further, and means the benefit of it to, persons in esse (for they are the objects of his bounty, and unless it happened within their lives, it might as well, as to them not happen, at all,) this restrains the happening of the contingency, as in the case before put; and makes the executory devise good, at least as to all, who are within the legal limits.
Nay, the doctrine is carried so far, as to terms for years and personal estates (for it is otherwise, with regard to estates of inheritance, in favor of the heir,) that Courts are inclined to lay hold of any words, in the will, to restrain the general words, " leaving issue," to mean leaving issue at bis death; and thus to support the remainder. As, in the case of Keely vs Fowler Fearne rem. 370, where those words were so restrained, in a, case, where the estate was to return back to the executors in the event of dying without leaving issue and to be distributed by them, and £ 50 were given them for their personal trouble. Here the words were so restrained, in order to reconcile the limitation to the devisee, with the nature of the trust reposed in the executors, and to be executed by themselves, in their lives.
The construction, in this case, must be, as it would have been, at the instant of the testators death, Doe vs Fonnercau Cowp. 477. And (the event put out of the question, at present, and leaving, for an after consideration, the circumstances of the contingency having actually happened, and its effects upon the case,) as upon the will itself,
— page 338 —
the estate, limited on the contingency (if I may so express it,) that is to say, the right, to freedom, was good, if the contingency happened within the legal limits, in favour of such, as might be in esse to enjoy it, and void, if it happened beyond those limits.
This brings us to the consideration, whether the limitation can be sustained, as on the construction of the will itself, as to such as might be in esse during such limits; although it may be void, as to such as might be born, in a remote generation?
And I have no doubt but it may.
I have no doubt but that the limitation, as upon the will itself, may be construed distributively; so as to be efficacious, as to some of the plaintiffs, although it might be void as to future claimants; that is to say, such as claim beyond the legal limits, in the event of the contingency's happening sooner or later, as the case may be. In the case of Forth vs Chapman I. Wms. 663, there was 3 limitation of freehold and leasehold lands in the same manner, to wit, "If the first devisee die, without issue." These last words, die without issue, were construed, under the distinction before taken, to be tied up to mean issue living at the death as to the leasehold land, and consequently the limitation was held good; but, as to the freehold lands, they were not considered as being so restrained, and they received the same construction, by the Ld. Chancellor as if they had been twice repeated.
To come now to the case, before us, as it realIy is. The contingency has happened, within the limits. The effect is, that the limitation over has thenceforth become vested, in interest, in all the appelles, then in esse; and vested in possession, as to all, then, or as they might become, thirty years of age. As to all the slaves, then, in esse, but under thirty years of age, their right to freedom was complete, but they were postpon
— page 339 —ed as to the time of enjoyment. They were in the case of persons bound to service for a term of years; who have a general right to freedom, but there is an exception, out of it, by contract or otherwise.
What then, after the passing of the act, is the condition of the children born of mothers, so postponed in the enjoyment of their freedom? Are they, at their birth, entitled to freedom? Or are they too, to be postponed, until the age of thirty? The condition of the mothers of such children is, that of free persons, held to service, for a term of years, such children are not the children of slaves. They never were the property of the testator or legatees, and he, or they, can no more restrain their right to freedom, than they can that of other persons born free. The power of the testator, in this respect, has yielded to the great principle of natural law, which, is also a principle of our municipal law, that the children of a free mother are themselves also free. The conditions of the will then, as applicable to such children, if indeed it was intended, or can be construed to apply to them, is void, as being contrary to law; it being an attempt to detain in slavery, persons that are born free. Considering the mothers of such children, by analogy to other persons held to service, it will be found, that a particular law was here necessary; the power of the Legislature, alone, was competent to subject the children of mulatto mothers, held to service till the age of thirty one, to serve till the ages, respectively, of twenty one and eighteen. But this case goes further, and, is an attempt, by an individual to hold to service, till the age of thirty, persons, who, following the condition of their mothers, are born free.
The view of the subject I have now taken, (which will sustain the claim of the plaintiff, by referring to the ordinary doctrine of limitations of personal chattles) will supersede the necessity of a very delicate and important enquiry: Name
— page 340 —ly, whether the doctrine of perpetuities is applicable to cases in which human liberty is challenged?
It is clear, that the restraints, rightly imposed on the alienation of inheritances, to prevent perpetuities are founded principally, if not solely, on considerations of public policy and conveniences. That those restraints have gradually been extended to terms for years and chattel interests, and that the utmost tolerable limits in such cases, have not been settled till after much investigation, and a considerable lapse of time. It is also clear, that neither the particular species of property now in question, nor the case of a remainderman (if I may so express it) claiming his own liberty, were in the contemplation of the judges, who established the doctrine on this subject; which therefore may not apply. But this is an extensive question, and if it were necessary to be now decided (but it is not,) it would be proper to weigh the policy of authorizing or encouraging emancipation (a policy which has certainly received in many instances; and partly by the act of 1782, the countenance of the Legislature, at least from the æra of our independence, and must always he dear to every friend of liberty and the human race,) against those secondary considerations of public policy and convenience; which apppear to have supported and established the doctrine of the law, on the subject of perpetuities, as relative to ordinary kinds of property.
But it is said the act of 1782, authorizing emancipation, is prospective in its operation, and does not take in the present case. In answer to this, l am of opinion, that the acceptance of the negroes, in question on the condition stated in the will, created an inchocate contract to emancipate on the part of the devises; which, on the passing of the act, became essentially complete. That an emancipation ought, therefore, to have been made; that the devisees were, thereafter, trus
— page 341 —tees, for the purpose of making such emancipation; and that the plaintiffs are right, in coming into a Court of Equity, to enforce the fulfillment of that trust. And this is one answer to the objection on the score of jurisdiction.
It is said too, that as the will speaks of an unqualified emancipation, without respect to bond and security, to prevent aged and infirm slaves from being chargeable to the public,) and as the act of 1782 has required that such security should be given, an act authorising emancipation, in the sense contemplated by the will, has not yet passed; and therefore the conditition imposed upon the legatees, is not obligatory.
In answer to this, I am of opinion, that the testator cannot reasonably be supposed, to have contemplated an act of emancipation, making no provision to prevent the persons liberated from being chargeable to the public. That therefore the act as contemplated, has inbstantially taken place; and, that a Court of Equity may carry the contract into execution, if in no other manner, at least by throwing the burthen of the indemnity, required by the act of 1782, upon the slaves themselves, and making it a lien upon the liberty granted them; and such an arrangement, it is evident would place the holders, in the same, and no worse condition, than if an unqualified act in favor of emancipation hid actually passed. The necessity of making such an arrangement, in this case, shews the propriety of applying to a Court of Equity; because no other Court has adequate power. Which is another answer to the want of jurisdiction.
In what manner the arrangement should be made, in this case, so as to comply with the act, of 1782, requiring an indemnification against aged and infirm slaves, becoming chargeable to the public, is a subject, upon which, I have had considerable difficulty. But I am sully persuaded, that the powers, of a Court of Equity, which re
— page 342 —gards the substance of things more than forms, are competent thereto; and I now beg leave to refer to the projet of a decree, which I shall take the liberty of stating, presently, as containing the result of my deliberations, on the subject.
Another ground, upon which, the jurisdiction of the Court of Equity is sustainable, in the present case, is, that it involves the rights of a great number of claimants. So that the joint suit prevents a great deal of litigation and expense; besides involving, in the same common fate, those who stand on one common title. Whereas if separate fruits were brought, it might turn out, either upon general or special verdicts, that performs having the same rights, nay even children of the same mother, might one be adjudged to be free, and another a slave. An enormity, which the joint proceeding is wisely calculated to prevent.
With respect to the slaves claimed by Elizabeth Pleasants and by Teasdel, paramount to the will of J. Pleasants, my opinion, in the present case, does not extend to them, so far, as the title, thereto, is claimed paramount to that will; but such title ought to be considered, as still open; if desired for discussion and decision.
With respect to the debts of the original testator, if any, the original slaves and their discendants are clearly liable. But whether they are liable to the debts of the devisees accepting them, or their right to freedom is lost by a bona fide sale, if any such has taken place, are questions which I also consider, as open for the decision of the Chancellor, if required. It would seem to me, however, as at present advised, that if the limitation was good, by the rules of law, the right thereby created would not yield, either, to the claim of creditors or purchasers. But, on this point, I give no decided opinion.
I have now gone through, or touched upon such points in the case, as appeared to me necessary
— page 343 —to be noticed. There is yet one part of the Chancellor's decree, which I could have wished had not been made. I mean the reference to a commissioner to ascertain the profits of the slaves. We have no precedents, either of the Courts of England, or this country, to guide us. In the former country, indeed, no such case could occur; because slavery is not there tolerated; and, in this country, I believe, no instance can be produced of profits being adjudged to a person held in slavery, on recovering his liberty. Among a thousand cases of palpable violations of freedom, no jury has been found to award, and no court has yet sanctioned a recovery of the profits of labour, during the time of detention. Yet it must be admitted, that juries are often excellent Chancellors. But this is not a palpable violation of freedom. To say the least, it is a very nice question, whether these plaintiffs be entitled to freedom or not? And ought the court, in such a doubtful case, to award that, which the whole equity of the country, flowing through a thousand channels, has not yet awarded, in a single instance? It seems to be a solecism, to award ordinary profits to recompence the privation of liberty; which, if it is to be recompenced, the power of money cannot accomplish.
But what, with me, is decisive on this point, is this, that as, in my opinion, all the children born of the female negroes, in question, since the passage of the act of 1782, are, and were thenceforth entitled to freedom by birth, the burthen of rearing such persons, during their infancy (which must be borne by the legatees,) will form perhaps not an unreasonable offset against the profits of those, who were capable of gaining profit by their labor.
I have thus endeavoured to make known the grounds upon which my opinion is founded. I entirely concur in the result of the Chancellor's decree, except in the particulars, in which, I
— page 344 —have already stated my opinion to be different. As it is the policy of the country to authorize and permit emancipation, I rejoice to be an humble organ of the law in decreeing liberty to the numerous appellees now before the court. And this upon grounds, as I suppose, of strict legal right, and not upon such grounds, as, if sanctioned by the decision of this court, might agitate and convulse the Commonwealth to its centre.
The general outlines and substance of the decree, which I think should be made in this case, are as follows.
That whensoever, and as soon as the appellee Robert Pleasants or any other responsible person or persons, shall under the direction of the High Court of Chancery enter into bond with sufficient securities in such Court or Courts under such penalty or penalties, as the said High Court of Chancery shall direct, with condition to indemnify and save the public harmless, with respect to all such of the slaves in question as -were in cat, at the time of the passage of the act of 1782, authorising emancipation, and shall be deemed to fall within the provisions of that act, relative to old age and infirmity, with an exception however, with respect to such indemnity, as to such of the said slaves as may blunder the age of thirty and may be deemed infirm, for the period or periods of time it may respectively require them to accomplish the said age of thirty years, and during which they will remain, at the proper charge of the legatees or holders under the will or wills, in question. Or whensoever, and as soon as the Legislature of this Commonwealth shall, if it ever shall remit the indemnitv above supposed, necessary to be given. And when, in addition in either case, it shall appear to the satisfaction of the said High Court of Chancery, either that there are no legal and subsisting debts of the said John Pleasants the testator, or that being so, a sufficient fund has
— page 345 —been raised, by the common labour of the said slaves to discharge the laid debts, which in that event, saving the right of the legatees as aforesaid, the said Robert Pleasants or any other trustee to be appointed by the said court are authorised to do; and if it shall be found that the testator Jonathan Pleasants possessed, at his death, any slave or slaves other than those derived under the will of the said John and now in question, then a like provision to be extended to them in respect of his the said Jonathan's proper debts, if any; it shall be the duty of the said High Court of Chancery to emancipate and set free the said slaves respectively; subject nevertheless to the rights of the legatees and those claiming under them to their labour, until they shall severally have attained the age of thirty years, in like manner and to all intents and purposes, as if they had been respectively emancipated, conformably to the said act. But if such indemnity be given or remitted, as the case may be, within a reasonable time, to be adjudged of by the said Court, it shall in that event be lawful, for the said Robert Pleasants or any other trustee or trustees to be appointed by the said Court to possess the whole of the said slaves (subject as aforesaid) in trust, to raise a sufficient fund to answer or procure the said indemnity and satisfy the debts, if any, as is aforesaid; and as soon as those purposes are accomplished, in the opinion of the said Court, it shall have power and is hereby directed to manumit the said slaves, subject, as is aforesaid, in the manner above directed; adopting and pursuing, in either case, such measures as are provided by the said act of 1782, as far as may be, for preserving the evidences of their title to freedom. Provided, that nothing, herein contained, shall be construed to extend to any of the slaves, in question, born since the passage of the act of 1782, and who are entitled to freedom, by birth and not by emancipation. Nor to the paramount titles set up, by Elizabeth Peasants and Daniel Teasdel,
— page 346 —to a part of the said slaves. Nor to the question, whether the said slaves are liable to pay the debts of the original legatees, or those who claim under them? Nor, if sold to bona fide purchasers, whether, such sale be valid to bar the right of liberty now asserted? Nor to bar or affect the title or titles of any person or persons whatever, other than the said testator or testators, as the case may be, and those claiming under them respectively. All which questions ought to be considered, as open and undecided, as if the present decision had never been made.
CARRINGTON Judge. I concur with the decree of the Chancellor, so far as it goes to overrule the demurrers of two of the appellants. For it was unquestionably a proper subject for the interposition of a Court of Equity, and strictly within its jurisdiction. I am also of opinion with the Chancellor, that the plaintiff, neither as heir at law, executor or trustee, could proceed, at law, as for a condition broken: He having parted with his powers, by his own assent and distribution of the slaves amongst the legatees.
But I differ widely from the Chancellor with respect to the exercise of his jurisdiction. Perhaps, I do not understand the principles and reasoning, upon which, he founds his decree; but the result is, clearly, contrary to both law and Equity.
It is contrary to law; because he has not preserved the principles of the only law giving owners power to emancipate. It is contrary to Equity, because it either fixes, on the public, a certain experience, or leaves a number of these people to starve, for want of subsistence.
Until the year 1748, every owner of a slave had a right to emancipate him, upon the principle of having a right to dispose of his own property as he pleased; but the Legislature, conceiving that inconveniences arose therefore, passed a law to prevent the manumission of slaves, except for
— page 347 —meritorious services, to be judged of by the executive. Which law remained unaltered, until the year 1782; when the act passed allowing emancipation upon condition that the public is indemnified against loss and expence. This is still the law, and ought to have been attended to by the Chancellor in forming his decree.
I perceive no difficulty in ascertaining the meaning and intention of both the testators; who discover a strong desire to emancipate their slaves immediately on their deaths. But as the then existing laws would not permit, they did all they could towards effecting it, by directing, that it should be done, as soon as the laws would authorize it; and, in the mean time, making temporary devises of them amongst their children and friends, with a positive condition annexed, that the different devisees should liberate them, as soon as by law it should be allowable, on their respectively attaining to the age of thirty years. Which period was probably fixed upon, with a view to the labour of the slaves affording some compensation, for the trouble and expence of taking care of the aged or infirm, and rearing the children.
The question, then, is, whether these devises are sustainable? I hold that they are; and not liable to the rule respecting chattel interests, limited on more remote contingencies, than the law allows. For the subjects of the devises are different; inasmuch as in the devise of chattels, property only, is concerned; but liberty is devised in this case. Both, sacred rights indeed; but the rules of limitation not necessarily the same with regard to them.
In point of fact, the contingency actually happened, within a very small space of time. For, within fix years, from the date of Jonathan Pleasants' will, a law was passed enabling owners to emancipate their slaves.
— page 348 —But, by this law, the owner, who would manumit his slaves, must give security to indemnify the public, against the expence of supporting such as are aged, infirm or infants. A provision which the decree has not attended to, although it certainly, ought not to be overlooked. But I do not think, that the holders, in the present case, should be compelled to give it themselves. On the contrary, I think the emancipation should be upon the condition, that the present friend of the appellees, or some other person or persons, will procure the security required by law. Which will be consistent with the conduct of the Legislature in two recent instances; namely, in the case of Mayo's slaves, in which the executors were by an order of the Court of Chancery, founded on the law of 1787 for emancipating those slaves, directed to reserve funds enough for the purpose. The other case was that of Moreman's slaves. In which case, the act of Assembly, for emancipating of them, directs, in so many words, that the executor, of some other person, should be bound to indemnify the public.
Having mentioned my opinion upon the general question concerning emancipation, I shall now state what I conceive to be the periods, at which, the appellees will be respectively entitled to their freedom, upon the conditions just explained. I think they are to be emancipated in the following order. That is to say, all those now above the age of thirty years immediately; and the increase of mothers above the age of thirty, at the term of the birth of the child, are also to be emancipated immediately. But those born of mothers, not thirty years of age at the birth of the child, are not to be liberated, until they arrive at the age of thirty; and the same rules are to be observed, with respect to their progeny, born, during the servitude of the mothers. Which seems to me to satisfy the meaning of the testators.
The decree for profits is I think new and unprecedented. Besides the account, when the
— page 349 —reductions for the trouble and expence of taking care of the aged and infirm, and for rearing of the children is made, would probably yield very little. Under every point of view, therefore, I am against the account; and think the decree should be corrected in that respect likewise.
Some other alterations are wanting still. For all the defendants have not been fully heard. Two demurred, and as to them the cause was properly heard. But the cause was not in a proper situation to be heard as to Elizabeth Pleasants; and, in the case of Ned, there was no answer, nor the bill taken for con fessed, after the proper previous steps. Therefore, I think, that, as to those parties, the cause should go back to the Court of Chancery, in order, that the proper proceedings may be had therein with respect to them; so that they may have an opportunity of supporting their titles, if they can do so.
Besides no attention has been paid to creditors.
Although it may not be the case, yet it is possible, that John and Jonathan Pleasants owed debts, which are still unpaid. If there be any such creditors their rights should be secured.
The holders of the slaves, may owe debts; and it is expressly said to have been the case of Logan. Perhaps too some of them may have been mortgaged, or sold to innocent purchasers, upon the faith of possession, and apparent ownership in the legatees. Now, although I will not say, at present, whether the debts and contracts of the legatees ought or ought not to affect the slaves, because the case is not before me, yet the door should not be shut to enquiry, and such creditors and purchasers excluded from shewing, if they can, that they have an equitable lien.
Upon the whole, I think the decree should be reversed; and a new one entered, conformable to the opinion, which I have delivered.
— page 350 —PENDLETON President. On mature consideration, I am of opinion, that the suit in Chancery cannot be sustained upon the ground of the appellees claim as heir at law to take the slaves for the condition broken, it being the practice of that court to relieve against forfeitures and not to aid or inforce them. Neither will his claim, as executor, have that effect; because, having long since assented to the several legacies and bequests of these people, he had fully executed his power over the subject. At the same time, these characters furnish a commendable reason for his stating the case of these paupers to the court; and it ought, to be heard and decided upon, without a rigid attention to strict legal forms, since it can be done, without material injury to the other parties.
And upon a view of the case, I am of opinion, that the paupers are not legally emancipated under the wills of the testators and the several acts of Assembly; but if they are entitled to relief, at all, it is on the ground of a trust created by the will's, that their manumission should take place, upon a contingent event, which it is alledged has essentially happened, but requires an act to be done by the possessors, who refuse to perform it, and a Court of Equity can, alone, inforce the execution of the trust, or make the necessary arrangements therein; and therefore, that there is no error in so much of the decree, as overrules the demurrers of the appellants Mary Logan, Isaac Pleasants and Samuel Pheasants jr. for want of jurisdiction.
But, as the cause was only set for hearing on the demurrers, and not on the answers and exhibits, it would seem, that, regularly, that court could not, in that state of the proceedings, have proceeded to a hearing and decree upon the merits: Nevertheless, upon the principle, before stated, of not adhering to strict form, in this pauper case where essential justice can be done; (since
— page 351 —the answers of these three defendants put their defence upon the wills and acts of Assembly, without alledging any facts to influence their construction, and the counsel, on both sides, have argued the merits, at large,) the court have, in this case, for convenience, without meaning to fix a precedent, considered and determined the general question; leaving, however, the claims of Elizabeth Pleasants and Daniel Teasdale to part of the paupers, under titles paramount to the will of John Pleasants, and the question, how far those in the possession of Mary Logan shall be liable to the debts of her husband, open for discussion in the Court of Chancery, upon proper statements of the facts, and exhibits relative thereto; which they are to be at liberty to introduce in that Court.
Although the testators, at the time of making their respective wills, had not power to manumit, and if they had devised them upon condition that the devisees should emancipate them immediately, the condition, being unlawful, would have been void, and the property vested; yet a condition, that they should become free when the law would permit it, was not of that sort.
To consider this freedom in the light of a limitation of the remainder of a chattel, upon a contingent event, it would seem to assimilate, to the case of such remainder, limited over upon a general dying without issue, and therefore, void; since the Legislative permission, might never he given; might be afforded one hundred years after; or at any earlier period. And the will in the other case, is allowed to the rule of judgment, unaltered by the event, although the dying without issue shall happen in a reasonable time; all being involved in one fate. But I am of opinion, that, if would be too rigid to apply that rule, with all its consequences, to the present case; and that a reasonable principle ought to be adopted, to suit its peculiar circumstances; which is, that, if the event happens whilst the slaves remain in the pos
— page 352 —session of the family, without change by the intervention of creditors or purchasers, since the contending parties would be those whose interests had been contemplated by the testators, the bequest ought to take place: But that the case of such intervening claims, not being in the view of the testators, it ought to be considered, how far they should, in equity, prevent the devise of the manumission from taking effect. So far therefore, as concerns the family, I should have had no difficulty, in decreeing in favour of the paupers, if the wills had directed a general emancipation, when permitted, and the Legislature had permitted it, without any condition annexed to it.
The difficulty arises from the testators not having directed a general manumission, when perpetuated by law; but a limited one, directing all future generations of these people, born whilst their mothers were under thirty, to serve to that age; founded no doubt, upon a consideration of the interest of his family, and that of the slaves.
On this middle state the Legislature have not declared their will; except in a case, which assimilates to this, namely, that of mulattoes, the descendants of a free white woman by a negroe; all of whom, born whilst the mother was under thirty one years of age, were to serve to that age, in all generations, by an act passed at an early period, and continued in force until 1764, when it was repealed; which is not conclusive, as to their will, upon the present subject. On the other hand the Legislature have permitted a voluntary unlimited emancipation, but annexed a condition, that the person liberating shall support and maintain all such, as in the judgment of the Courts are not of sound mind or body or above 45, or males, under the age of 21, and females, under 18; to be levied upon him, or his estate, by order of the court in case of neglect or refusal. On these terms the testators have not declared their minds, whe
— page 353 —ther they would, or would not, have compelled the devisees to emancipate, subject to them.
Under this difficulty; the Court endeavored to model a decree, to affect the purpose of the paupers, without essentially violating the wills or the laws; and was of opinion, that the limited manumission, according to the modifications or the wills of the testators, could, alone, take place and be decreed; and would have found no difficulty in making such a decree, from the silence of the Legislature, on such a state of servitude (since it might in future act upon the subject, and either continue or discontinue it,) but had insuperable difficulty upon the terms imposed by the law; which may be important. The person empowered to emancipate, had an opportunity of judging, whether he would do the act upon that condition. In the present case, the devisees, the legal proprietors, oppose the manumission, and the question is, whether they shall be compelled, under the wills, to do the act, be subject to new hardships, not imposed on them by the wills, and on which no person can say, what would have been the decision, had the testators contemplated the subject?
On Moremans will an act passed in 1787, reciting his will in 1778, by which he devised certain, slaves by name to each of the different legatees to enjoy their labor; the males to 21, the females to 18, and then all to be free; except some, devised to his wife, which she was to have for life, and then, they were to be free; and except another parcel, who were to be immediately free. The act divides them, into four classes.
1. Those who were between 21 and 45,
2. Those devised to the mother then dead; which two classes, were to be immediately free, as if born so; and their increase were also to be free.
3. All under 21 and 18 were to be free, when they attained those ages, and the increase of those
— page 354 —to be free at a future period, were to be free with the parents.
4. Those above 45, to be free, when Johnson the executor, or any other should enter into bonds, with approved security to the County Court, with condition that they should not become chargable to the public. This was in spirit pursued by a majority of the Court; and a decree has been formed, to the following effect.
"The court is of opinion, that there is no error in so much of the decree of the said High Court of Chancery as overruleth the demurrers of the appellants Mary Pleasants, Isaac Pleasants and Samuel Pleasants junior for want of jurisdiction in the said court, but that there is error in some of the principles on which the decree upon the merits is founded and part of the reasoning, thereupon, is not approved by this court: Therefore it is decreed and ordered that so much of the said decree as overruleth the said demurrers, be affirmed, and that the residue of the said decree be reversed. And this court, proceeding to make such decree as the said High Court of Chancery should have pronounced, is of opinion, that altho' the testators, at the time of making their respective wills, had not power to manumit, and if they had devised them upon condition that the devisees should emancipate them immediately, the condition, being unlawful, would have been void, and the property vested; yet the condition that they should become free when the law would permit it, was not of that sort. That to apply the rule respecting the limitation of the remainder of a chattel upon too remote a contingency, with all its consequences, to the present case, would be too rigid, but that a reasonable principle ought to be adopted to suit its peculiar circumstances; which is this, that if the event happens whilst the slaves remain in the possession of the family, without change by the intervention of creditors
— page 355 —or purchasers, since the contending parties would be those whose interest had been contemplated by the testators, the bequest ought to take place; but that the case of such intervening claims, not being in the view of the testators, it ought to be considered how far they should in equity prevent the devise of the manumission from taking effect. So far therefore as concerns the family, the court would have had no difficulty in decreeing in favour of the paupers, if the wills had directed a general emancipation, when permitted, by law, and the Legislature had permitted it, without any condition annexed; but a difficulty arises from the testators not having directed a general manumission, when allowed by law, but a limited one, directing that all future generations of these people, born whilst their mothers were under thirty, should serve to that age; founded, no doubt, upon considerations of the interest of his family, and that of the slaves; on which middle state the Legislature have not declared their will; and on the other hand the Legislature have permitted an unlimited emancipation but annexed a condition imposing upon the person liberating, certain terms for the sake of the community, of which the persons making voluntary manumissions might judge, whether they would do the act upon these terms, and use their pleasure, and on these terms the testators have not declared their minds, whether they would or would not have compelled the devisees against their inclination, to emancipate subject to them. Under this difficulty the court endeavoured to model a decree, to effect the purpose of the paupers, without essentially violating the wills; and is of opinion that the limited manumission according to the modifications in the wills of the testators, can alone take place and be decreed, and that the terms for securing the public against the maintenance of the aged or infirm, cannot be equitably imposed upon the devisees. It
— page 356 —therefore further decreed and ordered that all the slaves of which the testators were possessed as their property at the time of their respective deaths not subjected to the claims of the creditors or purchasers before stated, and who are now above the age of forty five years and their increase born after their respective mothers had attained the age of thirty years (so soon as Robert Pleasants the executor, the several trustees, or any other person shall in the courts of the several counties in which the said slaves respectively reside enter into bonds with approved sureties payable to the Justices then sitting in each court, and their successors, with condition that the said slaves shall not become chargeable to the public, or enter into one such bond for the whole in the General Court,) and all such as are now above thirty and under the age of forty five years immediately shall be emancipated and set free to all intents and purposes, in like manner as if they had been born free, and that all who are now under the age of thirty, and whose mothers had not attained that age at their birth; and all their future descendants, born whilst their mothers are in such service, do serve their several owners until they shall respectively attain the age of thirty years, and then be in like manner free; and when their freedom shall severally take effect according to this decree, there shall be delivered to each of them, by their respective masters or mistresses, a certificate written or printed, attesting their freedom, in such form as shall be directed by the said High Court of Chancery. That no account ought to be taken of profits, it being unusual in such cases, and less reasonable in this very difficult one. And the cause is remanded to the said High Court of Chancery for a state to be taken of the present condition of the several persons, and their rights ascertained, according to the principles of this decree; also for further proceedings to be had, respecting the claims of Elizabeth Pleasants and
— page 357 —Daniel Teasdale to part of the slaves, under titles paramount to the will of John Pleasants, and the claim of the creditors of Charles Logan, upon proper statements of the facts and exhibits relative thereto; which they are to be at liberty to introduce in the said court."