#### JOHN O. GOSSETT AND WIFE AND OTHERS *against*JOSEPH A. WEATHERLY, *Executor of*ISAAC WEATHERLY.

In a suit brought for the settlement of a copartnership, where it was established that the defendant had been a member of the firm, it was *Held*that the onus of proving an averment of the dissolution of the firm, devolved upon him.

Where one of a copartnership of three, was permitted to withdraw from the firm, it was *Held,*that no inference was to be drawn from this, that the co-partnership was not continued between the other two.

'The Court is inclined to the opinion, that no trust for emancipation can be supported, unless express provision is made for the removal of the persons attempted to be freed, beyond the limits of the State.

Where a will provided that a female child should be emancipated at the age of twenty, and gave her a tract of land, and but a small sum of money, although the testator had abundance of money, and enjoined it upon his executors to sec that she received the benefit of the land, it was *Held*that the will showed an intention that she should remain in the State, -after being liberated, and the provision was, therefore, ineffectual.

A revocation of a will in express words, will prevail, though the object for which it was made fails, as being against public policy*

Cause removed from the Court of Equity of Guilford county.

The bill is filed by the female children of Isaac Weatherly and the husbands of such as are married, against the defend* ant, who is the only son, and executor of his will, for a settlement of the estate, and the payment of legacies. It appeared from the pleadings and proofs, that under articles, entered into in 1847, the testator Isaac, and the defendant, Joseph, with one James S. Close, entered into a copartnership in the business of buying and selling slaves, which they carried ou until 1850, when the last named partner withdrew, and the transaction was evidenced by a written instrument, which, in substance, is as follows:

“Basis of a settlement between Isaac Weatherly, James S-. Close, and Joseph A. Weatherly, as agreed on by them, September 12th, 1850.

Whereas, Isaac Weatherly, James S. Close and Joseph Ai Weatherly) have been engaged in the traffic of negroes *fot**47the last four years preceding this date, under the name and firm of Weatherly, Close & Co., and as James S. Close wishes to withdraw from the firm, the following conditions of settlement are agreed upon:

“Article 1. Isaac Weatherly and Joseph A. Weatherly, take the debts due the firm, to wit: B. Hail’s note, (and others, amounting in all to about $6580.) Any loss sustained in the collection or failure to collect said notes, or any part of them, one third of such loss will be borne by James S. Close.

“ Article 2nd. Isaac Weatherly and Joseph A. Weatherly, pay the debts owed by said firm, to wit, Mrs. Gerringer’s note, $510, (and others, amounting to about $10,200.) Any other notes or accounts not specified, that may be brought, found or originated, one third of all such, to be borne by James S. Close, provided all such shall have been made before 1st day, of February, 1850; this proviso not to release Close from obligations already incurred.

“Article 3rd. Isaac Weatherly and Joseph A. Weatherly, are to pay James S. Close $4124.68, for which amount they have given their note to him.” (Signed by the several parties.) The business was thence carried on extensively by the said Joseph- A. Weatherly, till the death of Isaac Weatherly, which happened in March, 1858, and it was alleged by the plaintiffs that said Isaac was all that time a partner in the business; that large profits were made by them, a moiety of which they claim as a part of the estate of the said Isaac under the 17th clause of the will, where it provided that all the property not devised or bequeathed, shall be sold, and the proceeds equally divided between all the testator’s children ; and they call for a discovery of the amount of these profits, and a full account of the whole dealings of the copartnership from 1847 to 1858.

■The plaintiffs claim, also, as part of the estate of the testator, as falling into the residuary fund, a negro girl named Margaret, attempted to be emancipated against the policy of the law, and a tract of land given to her. The facts in' relation to the girl and the land, are as follows: In 1844, Isaac *48Weatherly made and delivered to the defendant the following instrument:

*“*January 15th, 1844.

“ State of Georgia, Muscogee County.

“Received of Jos. A. Weatherly five hundred dollars, in payment for the following negroes, to wit, Lizza, a woman aged twenty years, and Margaret, her daughter, a mulatto girl, aged four years, and Bill, her son, a mulatto boy, aged two years, both to be free at the respective ages of eighteen and twenty,” with warranty of title as to the mother. Signed by Isaac Weatherly, with his seal affixed.

By the 4th clause of his will, the girl, Margaret, is simply given to the defendant.

By a codicil, dated 26th of November, 1857, in which various alterations are made in the dispositions of his will, he bequeaths and devises as follows :

“ I will and devise my yellow girl, Margaret, at the discretion of my executors to be emancipated, and give her, said Margaret, two hundred dollars.”

A tract of land, called the “ Albert Gorrell” tract, by a clause in the will, he had given to Joseph A. Weatherly and his two sisters, Betsy and Polly, with power in him to elect whether to take one-third of the land, or to pay each of his sisters $600, and take the whole of it. Immediately after the clause above quoted, occurs in the codicil the following: “ My will and desire is, to dispose of the Albert Gorrell tract different than is stated in my will; to wit, as follows : I will and desire one hundred acres to be run off of the north end, so as to include the house, meadow and mill; the balance, I will to my said negro girl, Margaret, herein emancipated, and desire my executor to see that she gets the benefit of the said land. The said hundred acres to be run off of the Albert Gorrell tract, I wish and direct to be divided between my children, Joseph a Weatherly, Nancy Gossett, Louisa Gamble, Catharine Kirkman, Rebecca Kirkman, Mary Robbins, Elizabeth Clark, but Joseph A. Weatherly to keep the land *49at valuation, if he desires, and pay his said sisters their part in money.” * * *

“ If it becomes necessary to sell the land, given to the yellow girl, Margaret, I desire my son, Joseph A. Weatherly, to take it at valuation.”

Under these circumstances, it was insisted by the plaintiffs, that both the slave, Margaret, and' the land intended for her, fall into the residuum, and they pray that the same may be sold, unless the defendant elects, as provided in the last mentioned clause of the codicil, to take the said land, in which case, that he may account for the same at valuation.

The answer of the defendant states the particulars of the terms of copartnership, entered into in September, 1847, between himself and his father, Isaac Weatherly, and Close; that the capital was all borrowed, and a portion of the ne-groes purchased on a credit; that the same parties had been trading as copartners for a year previous to 2nd September, 1847, baton this day they entered into written terms; that their business continued until 1850, “ when they dissolved, and made a full settlement of .all their partnership transactions up to that time,” and he refers to the instrument above set forth, (marked C) as sustaining this allegation. He says, that his father (Isaac) agreed to take $4000 for his share of the profits and that he gave his bond for the same, but has never seen or heard of the bond since that time; that he did not find it among his testator’s papers. He further states that he carried on the business of trading in slaves with the means realised from the preceding business, and that his father was not a partner, but with his permission, and to *improve and extend*his credit, he often signed papers where it was ne-cassary, with tlie name of “Weatherly & Son.” He says that the nett profits of his business, since 1850, is about $25,-000; and that if he is bound to account for any portion of this amount as a part of the testator’s estate, that he is ready and willing to produce, whenever required by this Court, a full and detailed account of all his trading since the settlement of 1850. .

*50The defendant further answering, sets forth the 5th item of the will of Isaac Weatherly, in which are these words: “I also give him all the debts of every ldnd which he owes me,” and he says “ he is advised, that should the Court be of opinion, that he was a partner with the testator, since 1850, still, all the profits made by him, since that time, pass to this defendant, under that clause.

It was referred to a commissioner, Mr. W. L. Scott, to state an account of the estate of the testator in the hands of the defendant, as executor, who, in his report, refused to charge him with any part of the profits of the business of the traffic in slaves after the year 1850, for w'hich, the plaintiffs filed an exception. The commissioner also refused to charge the defendant with the value of the slave, Margaret, for which the plaintiffs also excepted; and the cause was, in this state, brought to this Court, and stood for further directions on the report and exceptions.

Morehead, for the plaintiffs.

McLea/n, for the defendant.

PeaRson, C. J.

The first exception to the commissioner’s report is allowed. The answer sets out an *a/rgumentatwe*denial of the allegation of a copartnership between Isaac Wea-therly and the defendant, after September, 1850. It refers to the exhibit, marked C, as the basis of a full settlement and dissolution, and avers certain explanatory matters from which the defendant draws the inference that there was no copart-nership after the date above stated; but supposing it possible that the Court might make a different inference from the aforesaid exhibit, 0, and the other matters averred, he says, “he is advised, should the Court be of opinion that he was a partner with the testator, since 1850, still, all the profits would pass to him under the 5th clause of the will.” We think the defendant and the commissioner, fell into error in regard to the legal effect of the exhibit, C. It does not purport to be, and, is not, in fact, an *entwe dissolution*of the firm *51which, according to the articles of 1847, was composed ■of Isaac Weatherly, James S, Close, and Joseph Weath-erly, but is, iir its legal effect, only a *partial*dissolution by the withdrawal of Close from the firm — leaving Isaac and Joseph Weatherly, still in copartnership, under the original articles, which, as between them, continue in full force. The •instrument recites, “as James S, Close wishes to withdraw from, flue firm,” it is agreed that he may do so on the terms that Isaac and Joseph Weatherly, are to take all of the debts •due to the firm — are to pay all the debts due 'by it, and are to pay to Close $4124. Clearly, the only effect is, that Close withdraws, and Isaac and Joseph, are still connected as co-partners. If there was afterwards, a dissolution of the firm, which had thus become reduced to the two, it was matter of ■affirmative averment on the part of the defendant, and then as was very justly urged by Mr. *Morehecid,*tor the plaintiffs, the *onus*of proof would have been on the defendant. But, there is no distinct averment, and no proof is offered in regard to it. With respect to the question, whether, supposing the firm not to have been dissolved as between the father and son until the death of the former, the son does not become entitled to all of the profits by the fifth clause of the will, an ■opinion will not be declared until the Court is put in possession of additional facts, by another report showing the condition of the firm at the death of the testator — what slaves, if ■any, were then on hand,“-what debts, if any, were dne by third persons to the firm, standing either in the names of Isaac or Joseph Weatherly, or of Joseph alone; if they constituted a part of the effects of the firm — what, if any, debts Were by due Joseph to the firm, or by the testator to the firm— what money, if any, belonging to the firm was on hand. And as the defendant, in his answer, states, that if he is bound to •account for any portion of this amount, he is ready and willing to produce, whenever required by this Court, a full and ■detailed account of all his trading since the settlement in 1850, the commissioner "will call on him. for such accoufit, to be filed With his report, and to aid him in ascertaining the condition *52of the firm. He will, also, set out any special matter at the instance of either party, and particularly any evidence the defendant may produce in relation to the $4000, mentioned in his answer, as having been executed by him to his father, and the consideration for which it was given.

The second exception is also allowed. ¥e are not certain that we apprehend the idea intended to be conveyed, when the defendant says, *“*he is advised, and believes that the clause •in the will, directing the said girl to be emancipated, is only in affirmance of the deed of gift.” But it is clear, that the defendant cannot set up any claim under the deed of gift in •opposition to the will; for one is not allowed to claim *under,*and at the same time *against,*a will; and from the large interest, which is given to the defendant, by the will, it is presumed he elects to take under it. There is, however, no clashing between the deed and the will, and the latter merely sets out with greater distinctness the intention of the testator with respect to the slave, Mai’garet. So, the question depends upon the construction of the will.

This Court is inclined to the opinion that, in order to carry •out the policy of the law, and prevent freed negroes from remaining among us, the true principle is, not to support any -trust for emancipation, unless express provision is made that the slaves shall be sent to Liberia or somewhere else. But without resorting to that principle, we think, in this instance, the will furnishes evidence that the wish and intention of the testator was that the girl should remain in this State, and the decision may be put on the matter of fact, as in *Green*v. Lane, Busb. Eq. 322.

If the testator had stopped after directing the girl, Margaret, to be emancipated, and giving her two hundred dollars, we should have been slow to come to the conclusion, that his intention was to tear asunder all of the past associations of her life, and to have her sent alone, at the age of twenty, and turned loose among strangers in a foreign land, with an allowance of $200. But all doubt is removed by the fact, that he revokes the devise of the Gorrell tract of land, for the pur*53pose of giving it, except 100 acres, to the girl, Margaret, and desires his executors to see that she gets the benefit of it. If she was to be sent out of the State, why give her a tract of land ? He had an abundance of cash means, and money was what she would need, provided it was intended or expected that she was to leave the State.

These two eases show that the principle, referred to above, is the true one. Its adoption is the only way in which the subject can be placed on a certain footing, and the courts be relieved from the irksome task of trailing up from circumstances and inferences, more or less strong, so as to expose to view a secret trust, which is opposed to the general good, but much in accordance with the private feelings of many, who are inflamed by a mistaken notion of charity. In stating the account, the defendant must be charged with the value of this slave, which will fall into the residuary fund.

We are of opinion that the devise of the G-orrell tract of land, is revoked by the codicil, executed November, 1857. As to one hundred acres of it, a different disposition is made, and if the defendant elects to take it at valuation, the value will be fixed at the time of his election, which he will be required to make within a reasonable time after the decree. As to the balance of it, the fact, that the devise to the slave, Margaret, is ineffectual, does not prevent it from having the effect of á revocation ; besides, he says, he intends to make a different disposition of it, which amounts to an express revocation, and in the concluding part of the codicil, as if anticipating that the devise to the slave would not be deemed valid, he gi ves the defendant an election to take it at valuation. This election, in this respect, is subject to the same rule as above. If he elects' not to take it at valuation, it will be sold, and the proceeds will form a part of the residuary fund.

This opinion will be declared and a reference made as above directed.

Pee Cdbiam, Decree accordingly.