#### Pride, executor of Jones, *v*. Pulliam.

From Wake.

A testator by will directed his slaves to be liberated whenever the laws of the state would tolerate it, and that until that time, the slaves should be divided among hia wife and children according to the statutes of distribution: eight years after the probate of the will, and after the slaves had been delivered over to the wife and children in a course of distribution, the executor filed a petition .to emancipate one of tbe slaves, and set forth meritorious services. *Held,*that as the testator had not given it in trust to the executor to see to the emancipation of the slavey at any indefinite period of time; and as they had been delivered over to the wife and children by the executor, tbe trust ceased in the executor, and he had no authority under the will to file the petition; and the facts all appearing gn the face of the petition, it was dismissed.

At February Term, 1815, of Wake County Court, tbe last will and testament of *Nathaniel Jones*was admit*50ted to probate, and *Edward Pride,*who was nam ed therein as executor, qualified as such.

The will contained these words, viz:

First, my will is, that all my negroes, male and female, who has arrived to the age of twenty-four years, and their increase as fast as they shall arrive to the said age of twenty-four years, be emancipated or liberated, whenever the law or laws of said stale will admit, or tolerate it.

And I do most solemnly enjoin it as an injunction on my executors herein after named, and all my representatives,not to sell, give, swap,' or convey any of the negroes or their increase, in or out of the said state, as I may die seised or possessed of: and farther my will is, that until the said state shall pass a law or laws, for tolerating emancipation or liberation, t'bat all my negroes that I may die seised or possessed of, may be divided among my wife and children, agreeably to the laws for the distribution of intestate’s estates, and notice being had to what has already been given to my children, of which I have kept a just account, for which see a small memorandum book.

The conclusion of the paper was as follows, viz:

I Suppose it will be asked my reasons for emancipating my negro Slaves, when the laws of the state will admit or tolerate it; which reasons are as follows, to wit:

Reason the first. Agreeably to the rights of man, every human being, be his or her colour what it may, is entitled to freedom, when he, she or they arrive to mature years.

Reason the second. My conscience, the great criterion, condemns me for keeping them in slavery.

Reason the third. The golden rule directs us to do unto every human creature, as we would wish to be done unto; and sure I am, that there is not one of us would agree to be kept in slavery during a long life.

Reason the fourth and last. I wish to die with a clear conscience, that I may not be ashamed to appear before my master in a future world. These are the reasons for emancipating my slaves; and I wish every human creature seriously to deliberate on my reasons. And so farewell to this terrestrial world.

By a petition to the Superior Court of Wake, filed •January 11th, 1823, the executor, setting forth therein the will, stated, that among the slaves of the testator at the time he died, was a black man named Allen, now of the age of twenty-eight years, whose conduct from his childhood had always been sober, honest, industrious *51and exemplary, in every respect as a faithful and trusty slave, and that his services had been meritorious and useful, and that accordingly he stood high in the favor and confidence of his late master; that by the intermarriage of the defendant with *Amelia,*one of the coheirs and legatees of the testator, the defendant became, possessed of the said slave Allen, and detained him in slavery, claiming to be his owner and master; and that the defendant had sold or was about to sell said Allen to a dealer in slaves.

That the petitioner was ready to furnish satisfactory evidence of the good moral character and meritorious services of Allen; and that Allen was prepared to give sucli security as is required in cases of emancipation by our law: and the executor, therefore, prayed of the Court, that Allen might be emancipated and set free from bondage, pursuant to the will of his late master.

On hearing the petition, his honor Judge Donneil was of opinion, that a license could not be granted to emancipate upon the facts disclosed by the petition itself, and therefore ordered- it to be dismissed; whereupon the petitioner appealed.

*Seawell,*against the petition. —

This is a petition on the part of Pride, as executor of *Nathaniel Jones,*to liberate a certain slave who belonged to the testator. The will is proven in 1815, February Term of Wake County Court, at which time the executor qualifies. These facts appear in the case: in 1823, January the 11th, itappears that the executor files his petition, after a lapse of eight years. The law respecting executors and administrators requires them after two years to deliver over the estate. The executor in his petition states, that this 9lave is claimed by *Pulliam “*in virtue of his intermarriage with *Amelia,*one of the coheirs and legatees of said testator.” The will is set out at length in the petition; by which it appears that *until the state shall*pass a law or laws tole*52rating emancipation, the slaves are to be divided amongst wife and children agreeably to the laws of distribution. And it appears also from the record, that *Pulliam*has been summoned to answer the petition. What is the legal inference from all the facts? The law in the first place presumes that the executor did his duty, because he takes an oath; if it does so, then it is to be understood *prima facie*that at the expiration of two years the executor delivered over the slaves to the legatees; but if the law will not do it in two years, will it not in eight? or if the law unaided by circumstances will not in eight, are there not such circumstances here as put it out of dispute? The petition itself charges as a *gravamen,*though it may rely upon the will, and the peculiar merit of.the slave as the *gist,*that the slave is claimed by *Pulliam*in virtue of his intermarriage, and charges that he is about to sell, him to a southern speculator. If the slave had never been delivered over, the legatee could not sell. And a citation is issued at the instance of the executor against *Pulliam*to answer the petition. The bequest of the slaves is general to the wife and children, to be divided amongst them. *Pulliam,*therefore, in virtue of his intermarriage, could not acquire title to Allen without a division. It therefore does seem to me, that this Court is obliged to perceive from the petitioner’s own case, that he has no interest or title in the slave. With regard to the devise to be liberated, I will barely mention *Haywood and Craven’s*executors, and several other cases in this Court. *Callier Hill’s*executors is one of them, where the authority of the former case has been established. No ground, therefore, can be formed from or upon the *will.*The will, indeed, does not contemplate any thing done under the existing law's, but only when *laws shall be*passed, and provides for the interim. The ground, then, must be formed upon the act of *1777.*That act contemplates the owner liberating his own slaves, when the liberator is to bear the loss; the office of the Court is not to *liberate,*but only to allow or *53grant *license*to the owner. The Courtis interposed to . prevent liberation, except in cases of meritorious service. These services the Court is to judge of; but the *emanci-Ration*is the act of the owner. Can it be supposed that it er was contemplated to vest a naked trustee, an executor who gives no security, with power to liberate the whole estate of his testator, though he might admit merit in Court, or prove it to the satisfaction of the justices or judges? No; there is wanting one ingredient, in the estimation of the legislature, that the humane and benevolent man should exercise these kind feelings at his own expense; that he should be the loser; and then there would be little danger of any mischief from emancipation. Let me suppose a case, for the purpose of proving how, under such a construction, the basest purposes could be effected. Suppose the testator in this instance had been entirely free from debt, and had on hand a large ca-pitel in money and bonds; that the executor never interfered with the slaves, but had them divided immediately; that atter the two years expired, the legatees pressed him to account with and pay over to them the monies he had been using to his own purpose ever since his qualification; that he put them off with promises and partial payments for seven years; when being about to remove himself to a distant country, without acquitting himself of his solemn undertaking, they are compelled, in justice to their' own rights, to commence an action; and then the executor, urged by the appeals of humanity in the testator’s will, and his own sympathies for the sufferings of his fellow man, though he had turned a deaf ear to them, or had not been conscious of their force, for eight years, should under that pretence come forward and liberate the whole estate? Such a case would certainly be considered outrageous in the extreme; and yet, admit the fact of the suit by the legatees, and of the removal of the executor, and the fair inferences of this case, as appears by the record, will warrant us in pronouncing it such a one,

*54
      *Badger,*contra. —

The prayer of the petition is opposed here, and it was denied in the Court below, upon the. ground that, though the slave *had performed the meritorious services*contemplated by the act of *1777. ch.*6. the law forbade the emancipation prayed for.

Suppose the application to have been made by the testator in his life, is there any doubt that the emancipation ought to have been allowed? If so, why cannot that emancipation be obtained by the executor? If the purpose be unlawful, the testator is as much restrained as the executor; if lawful, it requires some reasoning and authority to show that the same tiling cannot be done by the executor upon the express direction of the testator. As a general proposition, *“cujus est*dare *ejus est*disponere” is certainly true; and what a man may lawfully do himself with his own, he may lawfully direct his executor to do. If there be any exception to this rule, which embraces the emancipation of a slave directed to be obtained by an executor in a case where confessedly the same thing might lawfully have been done by the testator, it is at least incumbent on the other side to show it. It has not been shown. I infer, then, that if the will had directed that this particular slave should be liberated, or that so many as had performed meritorious services should be emancipated, no legal objection could be raised.

But the direction of the will is general, that all his slaves be emancipated when a law shall allow it. Let us-see, then, if the case is varied by the use of this phraseology. The emancipation of slaves is forbidden by the policy of the law, if it be morally wrong or expressly forbidden by statute. That it is not *malum in se;*that it would be, if not laudable, at least allowable in itself, is too clear to admit of doubt. The preamble of the act of *1777*shows this to have been the understanding of the legislature, and that previous to that law emancipation might be made by the owner. It is an act not to *confer*a privilege, bat to *restrict*one already passed. How, then, is *55it restricted? for only so far as it is restricted is it unlawful. The provision is, that no slave shall be emancipated *but for meritorious services;*undeniably then, for meritorious services he may be emancipated. If before the act the power of emancipation bad not existed at all, this expression *but for services,*would have amounted, upon every principle of construction, to a legislative grant of the power to emancipate in the case referred to by that expression; *a fortiori,*in a *restraining*law, the power remains in a case excepted out of the restraining provisions of that law.

But it is said, lie directs *all*to be emancipated, and as *all*cannot be, therefore none shall. That this conclusion is not warranted by any principle of reasoning, is evident. That, as *all*cannot, *none*shall, is an argument almost as absurd as if the proposition were inverted, as *none*can, therefore, *all*shall. Suppose by law all slaves over twenty-one years could be emancipated, and those under could not; suppose a will emancipates all; surely it could not be successfully contended, that as the will could operate nothing in favor of those under the age of twenty-one, therefore it should fail as to those over that age.

But it is said farther, that the emancipation is directed to be made when a law shall be passed to allow it, and therefore it cannot operate though a law already in existence does allow it. And why not? The testator desired the emancipation of his slaves, of all and each of them; he supposed it could notbe done by the laws in force, but as to one of the slaves it seems it can now be done; surely it is a strange construction to say, that it shall not be done as to that one under the existing law, because the testator refers to a law to be passed for that purpose. The intent is clear; the law allows the intent to be executed in part, and why shall it not be executed? The testator wills it; the law allows it; but the defendant is unwilling, and therefore it cannot be done.

*56Suppose (ás I have already done,) that by law slaves under twenty-one could not be emancipated; those above that age might; then a will is made directing all slaves to be emancipated when a law should pass authorizing it; would it not shock common sense to contend, that the slaves over twenty-one could not be emancipated under the *coasting*law? For suppose a new law passed reenacting the old in *hsec verba,*the new law would operate nothing. A statute declaring what the old law is, introduces no new lav/; and a statute reenacting a subsisting statute cannot be said to have any operation. It is the old law* which continues in both instances, after as well as before.

Suppose in England a'will directs trustreesto convey all the testator’s estate, *real*and *personal,*to A in *tail male,*with “remainder in tail to B, remainder to the right heirs of the testator *whenever a law should be passed authorising such a*limitationBy the existing law the limitation is lawful as to the real estate, shall not the trustee convey the real estate accordingly? or shall it be said, the testator did not wish this limitation under an old law, but would have it under a new one alone; and consequently the direction shall, fail altogether, and the heir at law shall take.

But what, in such case, would be said of the personal estate. The law does not authorize such limitation. Nothing can be limited upon an event so uncertain as the enactment of a law hereafter, which may never pass or may not in centuries; and the whole shall vest in A, because by law the limitation to A, in tail of personalty, gives him the whole.

And this I take to be the amount of the adjudged cases of *Craven’s executors*and of *Hill’s executors,*and the other cases decided in this state.

The Courts have held, that where the next of kin claim the slaves from the executor, he cannot resist that claim by showing a direction to emancipate, which by law can*57not *now*be carried into effect. And that as the executor takes no beneficial interest, be shall not retain the property to bis own use, but shall hold for the next of kin; V-si'l the contingency of a law being passed is too remote and indefinite. In all those cases it was not *pretended*even that such services had been performed as rendered the bequest lawful as to any one of the slaves; but it was conceded that the trust was *unlawful,*and could not be executed, and the Court was called upon in the case of *Cravenls crcrcuiors¡*to permit the property to remain in the possession of *naked*trustees, or to apply it to some *charitable,*purpose: both which they refused. And in the case of *Craven's*will, *some*of the slaves had been emancipated for meritorious services, and it was not-pretended that the proceeding was not valid. But the only question was, whether, as to those slaves whose emancipation was clearly prohibited by law, the executors should retain the possession against the next of kin, where the *try si*for which they had the possession could not be carried into execution because forbidden by the subsisting law of the land.

How this case can have any relation to the one before the Court. I profess myself unable to perceive. For if the emancipation of a slave for meritorious services be forbidden by *the policij*of the law, it involves this absurdity, that a tiling is contrary to the policy of the law which is allowed by the express provisions of the same law. It ¿nay be the opinion of a Judge, as an individual, that the emancipation of a slave even for *meritorious services*is had policy; but *judicially*his opinion must be, that what is expressly allowed by a statute cannot be against the *policy*of the law.

But it is farther objected, that the law authorizes emancipation for services by the *owner*only, and the executor is not the owner. The act of *1777*does not men-lion owner as to emancipation; but suppose it did, and ü is strictly to be confined to owner, and executor is not *58owner within the statute. The provision is *prohibitory.*It does not grant, it restrains. And upon the construction contended for, it restrains the *owner*only, and not uie executor; which leads to a conclusion directly opposite to that drawn from it by the counsel on the other side; a conclusion absurd I admit, but irresistible if the reasoning on the other side be allowed. But the act is silent as to the *persons*who are forbidden or allowed to emancipate. And therefore, if the testator may himself do it, he may authorize his executor; and if the testator cannot himself, neither can his executor by his direction The executor has the *legal*estate; and if the trust be no unlawful, he is owner to execute that trust.

But it is said, the act of assembly authorizes the County Court to grant *a license*only, and the emancipation must be the act of the petitioner, and so an executor may obtain a license, and then retain the slave to his own use. If it were so, the consequence would not follow; for if the executor after getting license do not emancipate, the Court will compel him to surrender the slave, to the next of kin, and will never allow him to retain *beneficially*himself. But in this case, if the negro (as is said) be in possession of the defendant, he can never be divested of that possession but by a complete emancipation.

But the counsel on the other side has mistaken the state of the law. The act of 1796, *(ch.*453.) to amend the act of 1777, authorizes the Court to complete the emancipation And such has been the constant practice since. The Court determines on the services, and when they are allowed, the petitioner’s prayer is granted, and upon his wish to liberate, a judgment is entered declaring the slave liberated and entitled to all the privileges of a free-born, negro. And an examination of the act will show, that its object was two-fold. 1st, to declare, in positive terms, that no *pretence*should avail for emancipation, nothing but meritorious services; and 2d, to extend the power of the Court to enable them to complete the act of liberation, and leave nothing in the after discretion of the owner.

*59The supposition of the defendant’s counsel that thepe-tioner may be influenced by bad motives, is certainly entitled to no weight if true, 'and is only now noticed from I’espect for the supposer, and not any respect for the supposition. If the testator wished the emancipation, the law allows it; the executor applies for it; if his motive be ill, let him be reprobated; but surely we are not to frustrate the declared and lawful wish of the testator in order to punish the executor. It is well if ill motives sometimes stimulate bad men to the performance of a sacred duty, and it is one of the highest attributes of Deity to bring good out of evil. But if character and motive are worthy of attention, what shall be said of a man who, taking a largo property as a mere god-send, against the wishes of the owner declared in his will, shall be disposed to frustrate those wishes in one particular, in which the law allows them to he gratified? who sacrifices to a mean avarice every consideration of humanity and mercy; who regards neither the welfare of the living, nor the declared intention of the dead; who holds the former in slavery without right, and robs the latter of property which lie did not intend he should enjoy; whose bosom is inaccessible to the emotions of kindness; who remembers without regard the dying wishes of him on the fruits of whose industry he fattens; and makes a base advantage to himself by trampling on what the barbarous and the refined, the ancients and the moderns, have united in esteeming sacred; whose callousness to moral considerations exceeds that of the robber on the highway, and can be likened only to that of him w ho robs a tenant of the grave.

But all this is beside the subject, and cannot have weight with the Court. It has been drawn from me by the attempt to exhibit the defendant as a meritorious and suffering man; himself all honor, his adversary all crime.

If the prohibition against emancipation be confined to the provisions of the statutes, the petitioner is certainly *60(Í think) entitled to the prayer he has made. If wc-wan^er £rom those provisions, wé have no suido, or limit. The *1*principles contended for on the other side would seem to eBake *freedom*in itself an evil, and slavery a bounty of heaven; and if followed out by action with *the enthusiasm*with which they are supported by argument, must lead «s to undertake a crusade with the laudable purpose of extirpating liberty among mankind, and establishing the happiness-of servitude and the calmness of despotism in its stead.

Hare, Judge. —

The testates', in the first eiar.se of the will,’ directs Ids slaves to be liberated whenever the Jaws pf the state will admit or- tolerate it; he then enjoins it upon his executors, and all his representatives, not to sell, give, swap or convey any of the negroes or their increase in or out of the state; that until the state shall pass a law for tolerating emancipation, his negroes shall be divided amongst, his wife and children, agreeably to the laws for the distribution of intestate’s estates. The will was proved at February Terra, 1815, This petition was filed at May Term, 1823, eight years afterwards, and after the slave for whose benefit it professes to be filed, has been delivered over to the defendant in a course of distribution, as the testator in bis will has directed.

The testator has not continued the trust in his cxci.u ■ tors to see to the liberation of his slaves, at any indefinite period of time: when (hey were delivered over to his representatives by the assent of his executors, the- trust would seem to cease in the latter, and attach to the for - mer. If that is the case, the executors filed this petition without any authority from the will. For fins reason I can see no objection to the decree of the Court below when they dismissed it, and I think that decree should be N-ñrmed.

The rest of the Court concurred,

31"jin'll;3v-y> A.:¡rFIRMED'