#### *Dunn v. Amey and Others.

November, 1829.

Wills — Direction That Executor Sell Real Estate-Effect.* — Testator, in first clause of bis will, appoints his ex’or and provides that no security shall be required of him, except such as shall be necessary for his i ust debts; and then adds, “the residue of my estate I confide in him to dispose of as I shall hereafter direct;” and then directs him to sell all his real estate, except a very small part: Held, the real estate is charged with debts.

Same — Direction That Executor Emancipate Slaves. —Testator directs that Ms ex’or shall emancipate his four slaves, A. J. P. and N. and by his will gives them legacies: Held, the slaves are manumitted by the will, not by the ex’or’s deeds of emancipation.

Same — What Execution and Proof Sufficient to Emancipate Slaves. — Testator emancipates slaves, by will written all with his own hand, proved to be so by two witnesses, and recorded, but the will is not sealed, nor attested by two subscribing witnesses : Held, this will is duly executed and proved to emancipate slaves:

Slaves — Emancipation—Liability for Testator’s Debts. —But slaves, so emancipated are still subject to testator’s debts, and shall be sold for such term as will yield enough to pay debts:

Court of Chancery — Jurisdiction to Adjust Right between Creditors of Testator and Emancipated Slaves.† —And the court of chancery has jurisdiction, to adjust the rights of the creditors and of the freedmen, and to protect the freedmen from absolute sale under the creditor’s execution, or from any sale, if the other estate of testator be sufficient to pay his debts.

John Campbell died in 1819, having first made his last will and testament, dated July' 5, 1818, whereby' he devised and bequeathed as follows:

“I appoint James Shipherd, sadler of this said city my sole executor; no security to be required of him without so much as will justify all my just debts. The residue I confide in him to dispose of as I shall hereafter direct. I wish him to dispose of all my real estate, except as much as he may think to reserve for a house and a proportionable small garden for my slave Amy. I wish Mr. Shipherd to emancipate the above named Amy, and her child James, as also her sister Polly, and her brother Néd, and all their offsprings, should they have any; and, if possible, to have leave granted them to remain in the state; if that cannot be granted, I wish them (I mean Amy, the principal) to have the sum of 1000 dollars as soon as it can be made after my just debts are paid. My' other slaves I wish as soon as they may earn the amount of their first purchase, and paying Mr. Shipherd ten per cent, commis-

sion for his trouble: I *wish Mr. Ship-herd to have the same commission upon all monies collected by him or paid out to my legatees. I wish my cousin John M’Shane the price of his passage, if he is disposed to go to Ireland. I wish it paid to the captain of the vessel who takes him. I wish him or any of my relations, to have any benefit from my estate, real or personal, after all is settled in the way before directed. The residue ot the money to be converted into United States’ bank stock, the dividend to the use of Amy and her child James, until James arrives at the age of twenty-one years; at which time I wish them equal in the stock until her death; *166at which period, I wish James to have all the stock, and Polly the house that is to be left to Amy her life. If Amy and James should die I wish Polly and Ned to have the stock and house.”

The will was signed but not sealed by the testator; and was proved by four witnesses to be wholly in his handwriting, and was thereupon recorded, in the hustings court of Richmond, at October term 1819; and Shipherd, the executor therein named, duly qualified as such, according to law.

By deed, dated January 4, 1820, Shiphard, the executor, in pursuance of “the especial desire and direction of his testator, in his will expressed, emancipated and set free the woman Amy, free from the claims of any' and all persons whatever claiming by through or under him as executor &c.” By another deed of the same date, he emancipated and set free James, the child of Amey. And by another deed, dated January 6, 1820, he emancipated and set free Ned the brother of Amey. Neither of these deeds of the executor was recorded, according to the provisions of the statute.*

*At May term 1821, of the hustings court of Richmond, one Mitchell recovered a judgment against Shiphard the executor of Campbell for S7S dollars, with interest and costs, to be levied of assets quando acciderint; and this judgment was assigned to the appellant Dunn. At November term 1822, upon a scire facias suggesting assets, judgment was recovered for the debt, interest and costs, to be levied de bonis testatoris. In December 1822, May 1823, and June 1824, writs of fieri facias were sued out in Mitchell’s name, without effect: the last of them was returned nulla bona. In May 1826, another writ of fieri facias was sued out, and levied on the appellees, Amey, James and Ned, as goods of the testator liable to be taken to satisfy his debts.

Hereupon, Amey, James and Ned, exhibited their bill in the superiour court of chancery of Richmond, setting forth the facts above stated; and alleging, that personal and real estate of the testator had come to the hands of the executor, amply sufficient to pay all his debts, without touching the slaves which he bequeathed to be emancipated; that the executor, sensible of this, had early assented to this legacy of freedom, by his deeds of emancipation, and they had enjo3red their freedom for more than six years, unmolested; that all the other estate of the testator, real and personal, should be exhausted, before they should be sold into slavery to pay the debts. The judgment creditors, Mitchell, and Dunn, the assignee of the judgment, and Shiphard, the executor, were made parties, defendants; and the bill prayed that Ship-hard should be ordered to render an account of *his administration; that the real estate remaining unsold, should be sold, and that the proceeds of the real, as well as of the personal estate, should be applied to the satisfaction of the debt, for their relief; that meantime, the creditors should be enjoined from proceeding to make sale of the plaintiffs as slaves; and general relief.

The injunction was awarded May 23, 1826, upon condition that the plaintiffs should remain in custody of the officer, till otherwise ordered’ by the chancellor.

Dunn, in his answer, insisted, that the plaintiffs, if they had right, had a complete remedy at law, and therefore the case was not properly relievable in equity: and, further, that the will of Campbell did not emancipate the slaves in question ; that the deeds of the executor were ineffectual to emancipate them, because they were not recorded according to the statute; and that if they were emancipated, they were yet subject to the testator Campbell’s debts by the express provisions of the statute: that, as to ■ the six years’" freedom they had enjoyed, they claimed that state under unrecorded deeds which could not confer freedom; and, by failing to record the deeds, had contrived to remain in Virginia, unquestioned, contrary to the laws which forbid any slaves emancipated to remain here more than a year; their residence was a fraud upon the law; and if they were emancipated, they were for this cause liable to be sold by the officers of the commonwealth, for the benefit of the literary fund: Nevertheless, if there was any other property of the testator Campbell, applicable to this debt, and sufficient for the payment of it, the defendant would gladly take his satisfaction out of that; but he knew of none.

Mitchell answered, that the judgment had been assigned to Dunn for valuable consideration ; and insisted on the legal rights of the creditors of Campbell, to demand satisfaction out of his property, whatever disposition he might make of it by his will.

At June term 1826, before the executor, Shiphard, had answered, the other defendants moved the court to dissolve *the injunction. Chancellor Taylor was of opinion, that the plaintiffs were emancipated by Campbell’s will, which was duly recorded: that the executor’s deed of emancipation were only evidence of his solemn assent to this legacy of freedom: that the first judgment of Mitchell against the executor, was recovered in May 1821, after the actual emancipation, and was a judgment of assets quando acciderint; so that the creditors, as well as executor, then considered the plaintiffs free; that the creditors had allowed them to enjoy their freedom undisturbed for five years; and the time which had thus elapsed, if it was not in itself a complete bar to the proceeding of the defendants, yet taken in *167connexion with the statutes on the subject, and in aid of the other circumstances of the case, was a protection to the plaintiffs: and that the plaintiffs would have had a right to be discharged upon habeas corpus. Therefore, he overruled the motion to dissolve the injunction, declared the plaintiffs free, and ordered, that they should be discharged ; and, being under an impression that they had not been properly advised as to their duty to remove from the state, he gave them six months from the date of the decree, to remove &c.

Dunn prayed an appeal from the decree, which the chancellor refused to allow; but on his petition, an appeal was allowed him by a judge of this court.

Daniel, for the appellant,,

contended, 1. That if the appellees claimed freedom under Campbell’s will taken alone, the will was not so made or so proved as to confer freedom, since, the statute required, that such a will, in like manner as any other instrument of emancipation, should be sealed and proved by two witnesses, meaning attesting witnesses. 2. That if the will was duly made and recorded, yet it did not of itself emancipate the slaves; it only directed the executor to emancipate them; and rightly left the act to be done by him, for it depended on the situation of the estate with respect to creditors to be ascertained by the executor, *whether any act of emancipation could avail. 3. That the appellees must claim under the deeds of the executor; and these deeds not being recorded, were wholly nugatory; Givens v. Manns, 6 Munf. 191; Lewis v. Fullerton, 1 Rand. 15. But, 4. Whether they were emancipated or not, and if emancipated, whether by the testator’s will, or by the executor’s deeds, they were, by the express provision of the 54th section of the statute, liable for the testator’s debts, and liable too, to be taken in execution to satisfy them; which differed this case from the common case of a specific legacy assented to by an executor and in the legatee’s hands, which creditors could only reach with the aid of a court of chancery. 5. That, as to the lapse of time, that could not affect the case; there was no such lapse of time as barred the creditor’s remedy against Campbell’s estate, and these appellees were, so far as creditors are concerned, part of his estate, and liable for any claim for which any other part of it was liable. 6. He questioned the jurisdiction of the chancellor to interpose in such a case as this, where there was a plain remedy at law ; since, if the appellees were emancipated, at all, whether by the will or by the executor’s deeds, their right to freedom was a legal right, which required no assistance from equity.

Scott, for the appellees,

said, that though a will emancipating slaves ought to be duly made and duly proved and recorded, yet it was to be made and proved like other wills; and, in Virginia, even a will of lands need not be attested by subscribing witnesses, if proved to be wholly in the testator’s hand-writing, as was the case here: the sealing of the act of emancipation, and the proof by two witnesses is only required where the emancipation is by deed. He insisted, that the appellees were emancipated by the will; for the will contained devises and bequests to them as free persons. The executor was only to give them the formal instrument, which should signify his assent to the legacy; and, as he ought to have had this instrument recorded, that *vety defect was properly relievable in equity, and was enough of itself to give the court of chancery jurisdiction. But there could be no question as to the jurisdiction: the chancellor may interfere to prevent a sale of slaves under execution, at the instance of the owner complaining that they are not liable for the debt; much more may he interfere to prevent the sale of persons claiming to be free. But these people, though completely and regularly emancipated, were yet liable to the claim of the appellant against their testator, unless by his own conduct he had lost his right to hold them subject to the claim. He first took a judgment against the executor when assets, in May 1821. Upon a sci. fa. suggesting assets, he recovered judgment de bonis testatoris, in November 1822; and, instead of diligently pursuing the executor, and charging him and his sureties with a devastavit, he waited till June 1826, and then levied his execution on these persons, who had been actually free ever since January 1820. Meantime, the executor, who ought to pay the debt, may have become insolvent; and the appellant who ought to have anticipated such insolvency by the diligence of his proceedings, ought to bear the loss of his debt, rather than that the appellees, who could take no steps against the executor, should sustain the loss of their freedom.

*

Wiils-~ReaI Estate Charged with Debts. — The principal case is cited in *note*to Black v. Scott, 3 Fed. Gas. 516.

†

Chancery Jurisdiction — Emancipation of Slaves— Right of Creditors. — See on this question, tile princicase cited in *foot-note*to Woodley v. Abby, 5 Call 336; *foot-note*to Ruddle v. Ben, 10 Leigh 467; Manns v. Givens, *7*Leigh 714; Jincey v, Winfield, 9 Gratt. 713: Reid v. Blackstone, 14 Gratt. 366; Wilcocks v. Phillips, 29 Fed. Cas. 1201; Nicholas v. Burruss, 4 Leigh 297, 298; *foot-note*to Ellis v. Jenny, 2 Rob. 597; *foot-note*to Peter v. Hargrave, 5 Gratt. 12. See monographic *note*on "Wills.”

*

The statutory nrovisions affecting this case, are the 53d and 54th sections of the statute concerning slaves, free negroes and mulattoes (1 Rev. Code, ch. 111, pp. 433, 4), which are as follows:

“ § 53. It shall he lawful for any person, hy his or his last will and testament, or hy any other instrumentin writing, under his or herhandand seal, attested and proved, in the county or corporation court, hy two witnesses, or acknowledged hy the party in the court of the county where he or she resides, to emancipate and set free his or her slaves, or any of them, who shall thereupon he entirely and fully discharged from the performance of any contract entered into during servitude, and enjoyas full freedom as if they had heen particularly named and freed hy this act.”

“ § 54. Provided, nevertheless, That all slaves so emancipated shall he liable to he taken hy execution, to satisfy any debt contracted hy the person emancipating them, before such emancipation is made.” — Note in Original Edition.

CABELL, J.,

delivered the opinion of the court. It was, unquestionably, the intention of the testator Campbell to emancipate the appellees; and his will is sufficient for that purpose, although it is not sealed. It is not important to inquire, whether the will, ipso facto, emancipated the appellees, or whether that object remained to be accomplished by formal deeds to be executed by the executor. For the mere intention of the testator that the executor should emancipate them, conferred a right to freedom, which, though it could not be asserted in a court of law, ought to be enforced in a court of equity. Dempsey v. Lawrence, Gilm. 333.

*But the right to emancipate slaves is subordinate to the obligation to pay debts previously contracted, by the express provisions of the statute. Admitting, therefore, that the will, in this case, conferred as perfect an emancipation as any known to our laws, still the appellees remained liable to the payment of Campbell’s debts; and although the assent of the executor to their emancipation, might possibly protect them from an execution at law (a point which need not be decided) in like manner as his assent to the bequest of a personal chattel, would exempt that chattel from a similar execution, yet the assent of an executor to any legacy, can never defeat the right of a creditor to pursue, in a court of equity, the assets of a testator, in the hands of the legatee, if necessary for the payment of his debts.

*168In this case, therefore, an account ought to be taken of the assets, both real and personal, of Campbell, (for we are of opinion, that the will subjected the real estate to the payment of his debts,) and of the administration thereof by the executor; and if it shall appear that the debts of the testator can be satisfied without resort to the value of the appellees, then the appellees should be considered and declared free; but if that cannot be wholly accomplished, then the appellees should be sold for such term of years as may be sufficient to raise the adequate fund; as was directed in the case of Patty v. Colin, 1 Hen. & Munf. 519.

The decree of the chancellor is therefore reversed, and the cause remanded to be proceeded in according to the principles here declared.