Summary
In Wooten v. Becton, 8 Ire. Eq. Rep. 66, the child born after the making of the will, and before the death of the testator, was held to be entitled to his freedom by force of the words "together with all future issue and increase," which had the effect of taking that case out of the well-settled general rule.
Summary of this case from Leary v. NashOpinion
(December Term, 1851.)
1. Where a testator directs, by his will, that "a negro woman and her future increase and issue" be sent out of this State to some free State, for the purpose of emancipation; Held, that the words "future increase and issue" should here include children, born between the making of the will and the death of the testator.
2. A trust in a will to carry slaves out of the State, for the purpose of being settled in a free State, as free persons, is a lawful and valid trust, which the executors are bound to perform. And this the executors may do, without any application to the Courts of this State — under our Statute.
CAUSE removed from the Court of Equity of LENOIR, at Fall Term, 1851.
W. H. Haywood for the plaintiff.
J. W. Bryan and Donnell for the defendant.
Susan Jones made her will on 26 July, 1846, and therein bequeathed as follows: "I am anxious to reward the meritorious services of the following named slaves with the boon of freedom, namely: Phillis, Esther, Nancy, Patsy, Scott, John, Amsy, Pleasant, Fortuna, Mary, West, and Sarah, and all their future increase and issue; and I direct my executors to apply a sum, not exceeding three hundred dollars, to pay their passage and settle said slaves in some one of the free States." There are in the will a number of specific bequests to different persons, and a clause dividing the residue equally between four classes of persons. The testatrix died in the spring of 1848, and before her death one of the above mentioned women had a child born, named Pleasant, and since her death several others have been born.
(67) The bill is filed by the executors against the residuary legatees and the Attorney-General and prays that the rights of the slaves and of the other parties and the duties of the executors may be declared. It states that the executors are willing and desirous to carry into execution the provision for the emancipation of the slaves by carrying them out of this State and settling them in one of the free States into which it is lawful for them to go, but that they have been advised that it is doubtful whether they have a right to do so without having first had them emancipated in this State, and that they are willing to procure their emancipation here and give the bonds required by our law, provided they may be allowed to retain the estate of the testatrix in their hands as an indemnity against loss by reason of such bonds, but that otherwise they are not willing, unless compelled by law to do so. The bill states that in consequence of the delay in procuring the emancipation, by reason of doubts upon those points, the residuary legatees claim that the disposition for emancipation hath become void or that it was so from the beginning, and insist on the immediate distribution of the residue according to the will, and that the slaves and the said sum of $300 fall into and form parts of the residue, and more especially the slaves born since the date of the will. The answers do not present any other facts, but merely raise the points of law presented on the will.
There is no difficulty in saying that the executors cannot apply to the purpose of effecting the emancipation of the slaves more than the sum specified in the will, and by consequence that they cannot retain more of the estate on that account. The children born since the death of the testatrix are within the words of the will as expressly as those named. With respect to one born between the making of the will and the death of the testatrix the rule is not so clear. Were it a disposition by way of legacy to some other person the Court would feel bound (68) by previous adjudications to hold that the child did not pass to the donee of the mother. But the conclusion is to the contrary, on the direction to emancipate "the issue and increase of a female," who is emancipated by name in the will. "Increase" is admitted in the cases to be per se an equivocal term, and therefore it is allowed that other things in the will may be looked to in order to give it a meaning effectuating the actual intention. The supposition is almost inconceivable that one should intend that a child born at any time after the will should remain in servitude, when, by the will, not only the mother, but her issue and increase, are to be emancipated; or that the intention should not have been directly the reverse — that such child should follow the mother and be free also. The purpose of the testatrix plainly denotes, as it seems to the Court, that "issue and increase" was meant to include all born after the making of the will.
The point respecting the mode of emancipation has been considered in Thompson v. Newlin, ante, 32, and the views of the Court so fully explained as to leave but little to be said on it now. If application be made to a court of North Carolina to direct emancipation, it must, as a matter of course, be done in conformity with the particular provisions of our statute on that subject. But this is not the court for emancipation, but only the court of construction, in which the will is expounded and the performance of its trusts enforced. In that character the Court must declare that the trust to carry the slaves out of the State for the purpose of being settled in a free State as free persons is a lawful and valid trust, and that the plaintiffs having undertaken the office of executors are bound to execute this as well as any other trust of the will. If, therefore, the emancipation could be effected only by pursuing the mode designated in our statute it would follow that the (69) executors would be obliged to resort to that mode, and the Court would also be obliged to enforce them to do so. But as emancipation may, in the opinion of the Court, be effected without violating our law or policy by transporting the slaves and their settling bona fide in a state of freedom in another country or State, the Court is bound to declare that the executors have an option as to which of the two modes they will adopt to execute the trust. In the one mode or the other it must be executed, and therefore the next of kin or residuary legatees of the testatrix have no interest in the slaves or the fund set apart for them, or rather so much of it as may be needed for the purpose mentioned, which, from the amount, must, we suppose, be the whole.
PER CURIAM. Declared accordingly.
Approved: Washington v. Blunt, post, 255; Caffey v. Davis, 54 N.C. 7; Leary v. Nash, 56 N.C. 358; Redding v. Allen, id., 368.
(70)