#### ALVANY, A FREE WOMAN OF COLOR, *against*JOSEPH J. W. POWELL, EXECUTOR OF BENJAMIN DICKEN AND OTHERS.

Where a person by his will, gave his slaves their freedom, with directions to his executor to remove them from the State, and gives also to those; slaves a sum of money, and one of them, a .female, accepts the gift, and is preparing to go, but is prevented by her death from doing so, her representative is entitled to recover her share of the money.

'Removing from the State is not a condition precedent to emancipation, but is a condition subsequent; by the non performance of which the newly acquired freedom may be forfeited. And so of the capacity to fake property.

"Where a bequest is made to a female slave of her freedom, and a sum of money, and she dies, her children, whether she was married according to law or not, are entitled to the money thus bequeathed.

*\*bequest of money “to all my negroes, that I have or may have at my death,” does not give an original share to a child with which one of the female slaves was pregnant at the time of the testator’s death.

This cause was transmitted from the Court of Equity of Edgecombe County, at Eall Term, 1853, on affidavit of defendant.

Benjamin Dieken, of the county of Edgecombe, died in that county in the year 1851, having made his last will and testament, in which he bequeathed and directed as follows :

It is my will that all the negroes that I have, or may have •at my death, shall be free, and for these reasons I give and bequeath to all my negroes that I have, or may have at my death, them freedom, freely and’ cheerfully. My will is that my executor carry or send my negroes to some free State, say, 1st. Indiana, Illinois, or Ohio, or some Western State, or Middle or Eastern State, or St. Domingo, or the British West Indies. I further give and bequeath to my negroes nino thousand dollars, to be raised out of my money matters, say notes, bonds, money, accounts, &c.; and further, I give unto my negroes the three thousand dollars my friend Joseph J. W. Powell is to give for my land, or one-half of the proceeds of the sale of my lands, as the case may be.” *36And the same testator further bequeaths, in another part of Ms mil, as follows : “ Fourth and lastly, all the balance oí my money matters, after the payment of my just debts, notes, bonds, money, judgments, accounts, &c. I give unte my poor negroes, to be equally divided among them.”

Also, by a codicil to said will, which was duly proved, made just before he died, he bequeathed all the balance and Residue of his estate, od every nature and kind, not before effectually disposed of, to his slaves.

The slaves mentioned in this will were sent out of the State, according to its requirements and of the laws of the State, except Mariah, the mother of the plaintiff, and one other who fled the country for an offence against the criminal law. Mariah, the plaintiff’s mother, in due time intended' to go also, and was making the necessary preparation to do so, but was prevented by her death, which occurred in Edgecombe county. She (Mariah) left three children, the plaintiff Alvany, Florence, who has since died in Canada, an infant under age, and John, who was born forty weeks and two days after the death of the testator, and died in the month of August, 1852, in Canada.

Mariah and the defendants Isham and Carey were the children of Lettice, and were born during the time she cohabited with a slave by the permission of the testator, which slave was recognised by her and her master as her husband, although not married by any form prescribed by law. In like maimer, the plaintiff and her sister Florence were horn of Mariah, hut at’ the death of the testator and since, Mariah had no husband, such as is tolerated by masters of female slaves, nor had had for several months previous to that event.

The plaintiff is a resident of Canada, and has a regular guardian of approved character, and in this Court sues by her next friend, Jesse H. Powell. She claims by her bill, ‘that the property bequeathed by the will of her late master, *37In the clauses of tlie mil set forth above, is distributable ■among all the slaves, including John; or at all events, her present share is to be ascertained by supposing them all entitled, and that she is entitled to one-twelfth of all that is bequeathed by the testator to his slaves-; that Mariah became entitled, notwithstanding her death, to a share of the estate, inasmuch as she had consented to go beyond the limits of the State, and to receive her freedom in the manner prescribed by the will, and was preparing to go, but was prevented from going by the act of God. She Contends that Florence became entitled to a share, for she had removed and became free, and was domiciled in Canada; and that John was also entitled to a share, or one twelfth. The plaintiff in her bill further contends, that, on the death of Mariah, .her estate became distributable among her children, •and that, on the death of Florence and John, their shares became distributable among their next of kin, and that she, as such, is entitled to the whole of thbir portions. Mariah having- died intestate in this State, before she had acquired •a residence elsewhere, plaintiff contends that her estate is ■distributable according to the law of this State; and that Florence and John having died intestate in Canada, they arc, by the law of that Province, regarded as persons born in lawful wedlock, and of next of kin to each other and to the plaintiff; and she farther alleges, that, by the law of that country, if they are not regarded as born in lawful wedlock, still, being children of the same mother, they are entitled in the same manner as next of kin proper — it being a law there, that bastard children take personal estate from their mother, and from each other, when there are no children born in lawful wedlock. So she claims to be entitled to one share in her own right, and to the shares of her mother Mariah, her sister Florence, and her brother John.

Joseph J. W. Powell, the executor of Benjamin Dickon, David Pender, the administrator of the deceased persons of *38color, Mariah, Florence and John, and the other persons-mentioned in the will as his slaves, that is, Jordan, Willis.. Isaac, Ben, Nathan, Carey and Isham, are made defendants. The prayer of the hill is for an account of the assets, and for general relief.

The answer of Powell, the executor, insists, that Mariah, having died before she complied with the terms of emancipation, as contained in the will, never had any capacity to take or hold property, and that her representative, therefore, cannot recover; and that John was not of the class of persons described in the will as one of his slaves at his death: that John being a bastard, the plaintiff could not demand his share as the next of kin.

Pender, the administrator of Mariah and Florence and John, answered and concurred in the views of the plaintiff-as set forth in her hill and in her behalf. The bill was taken *<p’o eonfesso*as to the other defendants.

Replication was taken, and-the cause set for hearing, on the bill and answers and exhibits, and on affidavit removed: to this Court.

Moore, for plaintiff".

No counsel appeared for the defendants.

PuARSoi?, J.

This case presents several new and very interesting questions; but, with the aid of the very full arguments with which we were favored, we have been enabled to arrive at conclusions that scorn to he warranted by-principle and general reasoning, and evidently meet the justice of the case.

It is the settled policy of our State not to allow negroes to remain here after they are set free; hut the reasons upon -which this policy is based, by- no means make it necessary to hold that they have not a capacity to take property until after they have left the State. Their removing is net & *39condition precedent to emancipation, but is a condition subsequent : by the non-performance of which, they may forfeit their newly acquired freedom. Indeed, a capacity to take, so far from being opposed to the policy above alluded to, is, in most cases, necessary, as the means of giving effect to it, and of enabling the negroes with ease and comfort to provide a home for themselves, and get to it. The object is to make them go away, so as not to add to the number of free negroes, and the law imposes no restriction and continues no incapacity, except -so far as is necessary to accomplish that object. With this saving, the humanity of our laws strikes off his fetters at once, and says, go “enjoy life, liberty and the pursuit of happiness.”

1. We are satisfied that Maria'll, at the time of her death, with the restrictions necessary to compel her to leave the State, was, to all intents and purposes, a free woman, and had capacity to take property and transmit it, by succession, to her personal representative.

2. We are also satisfied that the children of Mariahwere entitled to call upon her administrrtor to make distribution among them, as her next of kin, according to the Statute.of Distributions; and we think it clear that all of her children are to be considered distributees, without reference to any peculiar state of things existing at the time they were begotten. Our law requires no solemnity or form in regard •to the marriage of slaves, and whether they “take up” with each other, by the express permission of their owners, ■or from a mere impulse of nature, in obedience to the command “multiply and replenish the earth,” cannot, in contemplation of law, make any sort of difference. In regard to slaves and free negroes, there is no necessity, growing out of grave considerations of public policy, for the adoption of the stern rule of the common law, “a bastard shall be deemed *nullius films'"*— to have no parent, and not icvon to be considered the-child of the mother who gave it *40birth. Therefore, we think that John, although the state' of things existing about the time of his conception was somewhat equivocal, was entitled to the sanie share of his mother’s estate as the re'st of her children.

3. Although the rights of John are not at all affected by the state of things existing át the time he was begotten, yet *the time of his birth*has a very important bearing; for here the matter does not depend on the forms and ceremonies prescribed by Statute, but it grows out of the very iiature of things, and there is nothing to relieve him from the application of the general rule, (Co. *hit.*B. 2d ch, 2d sec. 188, 123 b,) to make á valid gift, there must be a donor, a donee, and a *thing given.*Fow, in regard to John, at the death of the testator, at which time the gift must take effect, if 'it takes effect at all, he was not *in esse:*he was not capable of taking, and so, although there was a donor and a thing given, yet, in regard to him, the gift fails, because there was no donee: he did not then exist. We are therefore satisfied that, although John was entitled to a derivative share, yet he was not entitled to an original share.

PER OuRIam. Decree accordingly?