Opinion
(December Term, 1851.)
1. A person may send his slaves out of this State to be emancipated, provided the act is done with the bona fide intention that they shall remain out of the State; but if they be sent with a view that they shall be emancipated, and then return and reside in this State, this is in fraud of our laws, and the emancipation is void and of no effect.
2. A provision in a will, that slaves shall be sent out of the State to be emancipated and to remain permanently abroad, which is lawful, is revoked by a codicil, which devises to his executors a house and lot in this State, in trust for their residence here. The latter trust, thus revoking the former is, in itself, unlawful, and results to the next of kin.
CAUSE removed from the Court of Equity of CRAVEN, at Spring Term, 1851.
(74) J. H. Bryan and Green for the plaintiffs.
J. W. Bryan for the defendants.
William S. Morris, of New Bern, made his will on 15 March, 1831, and therein appointed the defendant Lane the executor, and gave to his executor all his estates, except a negro woman named Patsy and her three children, Faucitt, Albert, and Freeman, in trust for the following purposes: First, to sell the same and collect the proceeds and other moneys due to the testator. "And, secondly, that as soon after my decease as practicable, and at all events within a year thereafter, my executor remove beyond the limits of this State, and with the intent of a permanent residence, to some State or country where emancipation is unrestricted by law, the said Patsy, Harriett, Albert, and Freeman, and there cause them to be entirely emancipated. Thirdly, that my executor shall apply one-half of my money, debts due me, and the proceeds of the sales before directed, as a fund wherewith to effect the removal and emancipation as aforesaid of the said Patsy, Harriett, Albert, and Freeman, and to provide for them after emancipation in such form and manner as my executor shall judge best, as the means of their education, improvement and comfortable subsistence." And, fourthly, (75) that the other half be applied in certain other legacies.
By a codicil dated 30 May, 1838, the testator expressly republished his will, which, he says therein, was written by Judge Gaston, and appointed Hardy Whitford and John L. Durand executors; and he "devised to them or the survivor of them my piece of ground, with the improvements on the west side of Craven Street, between, etc., and also my household and kitchen furniture, my cow and calf and ten shares of the capital stock of the Merchants Bank of New Bern, to hold said real estate in fee simple, and said personal property absolutely, in trust, nevertheless, to permit my woman Patsy to use, occupy and enjoy the said piece of ground and the improvements and said furniture and cow and calf, and to have the dividends of said bank stock during the natural life of said Patsy, and after her decease in trust, to surrender up said real or personal estate to Harriett, Albert, and Freeman, the children of said Patsy, to be held by them in absolute property. Item: I desire my executors or the survivors of them to sell the lots Nos. 83 and 67 in the town of New Bern at public auction, and of the proceeds of the sale I give unto William Henry Morris, son of said Harriett and grandson of my woman Patsy, one thousand dollars," giving the residue of such proceeds to certain other persons.
The testator died in 1848, and Lane and Durand, the only surviving executors, proved the will. The bill was filed against them in 1850 by the legatees named in the will other than the negroes and by the heirs and next of kin of the testator for an account and payment of the legacies and the distribution of the surplus undisposed of, and praying that the dispositions for the emancipation of the slaves and for provisions for them may be declared unlawful and void, and that a trust in regard to the real estate may be held to result to the heirs and (76) of the personal estate to the next of kin.
The answer of the executors and trustees states that the boy Albert died before the testator, and "that in 1828 the testator carried the slaves Harriett and Freeman to the State of Pennsylvania, and there caused proceedings to be had for their emancipation, and did, according to the laws of Pennsylvania in such cases provided, emancipate and set free, as he was there advised, the said slaves and then returned with them to his former residence in this State; and that from thence until his death the said Freeman and Harriett were in his possession and use; and that being advised after his return that the said proceedings were irregular and contrary to the policy of the laws of this State, and that said emancipation was void here and would probably be so declared at his death, the testator, under the advice of Judge Gaston, executed his will in 1831; and subsequently thereto the boy William Henry was born, who is mentioned in the codicil as the child of said Harriett." The answer submits whether under those facts Freeman and Harriett were not duly emancipated, and whether, therefore, William Henry was not free by birth.
The answer further states "that within the year after the testator's death and before the filing of the bill the defendants removed the negroes Patsy, Harriett, and Freeman to the State of Pennsylvania with the intent of a permanent residence in that State, the same being a State in which emancipation is unrestricted, and there caused them, the said Patsy, Harriett, and Freeman, to be entirely emancipated. And in that they say they did as they were advised and, as they believed, in the faithful discharge of the trust reposed in them by their testator it was their duty to do, and that if any other thing remains or is necessary to perfect the execution of said trust they are willing and ready, (77) under the order and direction of the Court, to perform the same." The answer then states the application of part of the funds of the estate to the removal and subsistence of the three negroes, Patsy, Harriett, and Freeman, and the payment of two years rent of the house and lot to Patsy.
The Court thinks the testator was well advised by Judge Gaston, then at the bar, that his proceedings in Pennsylvania, in 1828, would be deemed void here as having been in fraud of the law of this State. The proceedings, whatsoever they were, are not set forth in the answer, nor is any proof of them before the Court showing that at that time they were effectual even under the law of Pennsylvania. But admitting them to have been so, the Court is, nevertheless, of opinion that the courts of this State cannot give effect to them. It was an act by a citizen of North Carolina domiciled here, whereby he took slaves from this State and carried them into another State where slavery did not exist, in order that by the mere fact of being there, though only in transitu, they should become free, and then bringing them immediately to his domicil here and holding them here as slaves up to his death, twenty years, and disposing of them in his will as slaves. Of such an act the Court can only say that it is apparent that the pretended emancipation in Pennsylvania was really to have its effect in North Carolina, where the emancipation could not lawfully be made, and therefore that it was manifestly a fraud on our law, and the Court cannot, upon any principle of comity, give effect to it. It presents a stronger case for the application of the principle that the courts of one country will not give effect to the acts of persons, and especially of its own citizens done in another country with the intent to violate or defeat the law of the former, than that of an unlawful marriage. Yet in Williams v. Oaks, 27 N.C. 535, the Court was obliged to hold that when our law denied to a person (78) for crime the capacity to marry, that law could not be evaded by such persons going into another State for the mere purpose of getting married there and immediately returning to this State. But upon the very question of emancipation of a slave by an act like that under consideration there is a direct adjudication by a highly respectable tribunal, that of the high Court of Errors and Appeals in Mississippi, in Hinds v. Brazealle, 2 Howard, 837. In that case a person took slaves to Ohio with the intention to emancipate them there and carry them back immediately to Mississippi; and in his will he ratified his deed of emancipation and gave real and personal estate to the negroes. Upon a bill by the heirs and next of kin against the executors it was held that the alleged emancipation in Ohio was in fraud of the law of Mississippi, and, therefore, it was held to be void there, and the negroes were declared to be slaves and the executors decreed to account for them and for the legacies to them. The opinion of the Court was delivered by Chief Justice SHARKEY, and the decree is sustained upon reasoning entirely satisfactory to our minds, indeed, on such grounds as are indispensable to protect the State from being overwhelmed with an African population in a state of quasi servitude and freedom, not giving any of the guaranties for the security of the public peace which the government prescribes for such persons when belonging to either the one caste or the other. Therefore, Harriett's son William Henry is a slave still, and the gift to him fails.
The other slaves are in the same condition, unless they be entitled to their manumission under the will and codicil, and the Court is of opinion that they are not. If the case stood on the will of 1831 it would be otherwise, as has been held in Thompson v. Newlin, ante, 32. But it does not, for it is the office of a codicil, not only to (79) republish the will to which it is a codicil, but also to revoke it as far as it is inconsistent with it. In that respect there is a distinction between the effect of inconsistent provisions in the body of the will itself, in which case both have operation from one and the same act of publication, and such provisions in the original will and in a codicil, in which case those in the first are necessarily modified or revoked by the latter. That being so, it is apparent in this case that the testator must have changed his mind as to the residence of the negroes, and that when he made the codicil he intended that they should be free and remain here. It must be so inferred, because in the codicil he devises the lot and improvements in New Bern to trustees in trust to permit Patsy, during her life, to use, occupy, and enjoy them, and that after her death for her children. That provision renders it plain that the testator either intended or, at least, was providing for the residence of those persons in this State, and it has been over and over again decided that the Court cannot, upon a provision with a view to their remaining here, decree the emancipation elsewhere on the doctrine of cy pres, but that the whole provision is void and the slaves remain slaves. Haywood v. Craven, 4 N.C. 360; Pendleton v. Blount, 21 N.C. 491; Lemmond v. Peoples, 41 N.C. 137. It must be declared, therefore, that the negroes Patsy, Harriett, and Freeman were the slaves of the testator at his death and that they are to be accounted for by the defendants as still being slaves, and also that the trusts created for their benefit in the will and codicil are not valid in law, but resulted.
PER CURIAM. Decree accordingly.
Approved: Joiner v. Joiner, 55 N.C. 71.
(80)