#### F. A. Ford, Deputy Escheator *vs.*W. D. Porter, Executor.

*Wills and Testaments*— Emancipation—Slaves.

A bequest of slaves to four legatees, “ and the survivors and survivor of them,” “with a request that they will extend to the said slaves all the indulgence, privilege and consideration which the law will allow them, in the character of owners, to extend to them, is not void under the third section of the Act of 1841.

A bequest of money to the same four legatees “and the survivors and survivor of them,” “ to enable them to support the said slaves, when they, from age or sickness, may become chargeable upon them,” is not void under the fourth section of the Act of 1S41.

BEFORK DUNKIN. CE, AT CHARLESTON, JUNE, 1859.

This was a bill by the Deputy Escheator, for St. Phillip’s and St. Michael’s, claiming that certain bequests in the will of Elizabeth Williman were void under the Act of 1841, and that as she died without next of kin, they had escheated to the State. The bill stated :

That on the day of , 1855, Elizabeth Williman, a widow, departed this life, seized and possessed of a considerable real and personal estate, consisting *inter alia,*of certain slaves, named George, Sam, Francis, Edwin, Sarah and Rose.

That on the nineteenth day of May, 1S54, the said Elizabeth Williman duly executed, in the presence of three witnesses, the following paper, purporting to be her last will and testament, *namely :*

“.The State op South Carolina.

In the name of God. — Amen. I, Elizabeth Williman, widow, of the City of Charleston, in the State aforesaid, being weak in body, but of sound and disposing mind, and being mindful of the uncertainty of human life, do make and declare the following to be my last will and testament:

*239I commit my spirit, in faith and hope, to God who gave it. As regards my worldly estate, I give and bequeath to my> good friends, Dr. John Bellinger, Clement H. Stevens, Thomas Lehre, and Charles Postell Dawson, and the survivors and survivor of them, my faithful negro slaves, George, Sam, Francis, Edwin, Sarah and Rose, with a *request*that they will extend to the said slaves all the indulgence, privilege and consideration, which the law will allow them, in the *character of owners,*to extend to them. In consideration of his personal kindness to me, and in lieu and satisfaction of his claims for medical services and attentions rendered to me, I give and devise to my kind friend, Dr. John Bellinger, his heirs and assigns, my lot of land, with the grocery store thereon, situate at the North-East corner of Calhoun and Smith streets, bounding to the North on a lot lately sold by me to Mr. Stevens, and to the East on a lot belonging to me, and now in possession of Mr. Chisolm.

I authorize and direct my executor, hereinafter named, to. sell, as soon after my death as he conveniently can, at public or private sale, in such manner and upon such terms as he may think for the best advantage, my other lots of land, and all my estate, real and personal, except the negroes, and the lot of land hereinbefore devised; and to apply the proceeds of sale to the payment of my debts, and the legacies hereinafter mentioned.

I give to my kind friends, Dr. John Bellinger, Clement H. Stevens, Thomas Lehre, and Charles Postell Dawson, and the survivors and survivor of them, the sum of two thousand dollars, to enable them to support the said slaves, George, Sam, Francis, Edwin, Sarah and Rose, when they, from age or sickness, may become chargeable upon them.

I give to my friend, Mrs. Martha Osborne Matthews, the sum of one thousand dollars.

I give to my friend, Elizabeth Dawson, the daughter of Charles P. Dawson, the sum of one thousand dollars.

*240I give to my friend, William D. Porter, the sum of one thousand dollars.

After the payment of the foregoing legacies, should there be any residue, I give to Clement Bee Stevens, the little son of my friend, Clement H. Stevens, the sum of one thousand dollars.

These legacies I direct my executor to pay out of the proceeds of the sale of my property, as hereinbefore directed, and all the rest and residue of such proceeds, (if any shall remain thereafter,) I give and bequeath to my friends, Dr. John Bellinger, Clement H. Stevens, Thomas Lehre, and Charles P. Dawson, and the survivors and survivor of them, in the same manner, and for the same purpose, as herein-before expressed, in relation to the legacy to them of two thousand dollars.

I appoint my friend, William D. Porter, executor of this, my last Will and Testament, authorizing him to retain the usual commission as executor.

And I do hereby revoke all other wills heretofore made by me. In witness whereof, I, the said Elizabeth Wiliiman, have hereunto set my hand and seal, this nineteenth day of May, in the year of our Lord, one thousand eight hundred and fifty-four.”

That on the twentieth day of July, 1855, the testatrix, in due form, executed the following codicil to the said will:

“ I, Elizabeth Wiliiman, do make this codicil to my aforesaid Will, hereby ratifying and confirming the same, except so far as changed or revoked by this codicil. I do hereby revoke the bequest made in said Will, of my slaves Rose and Sarah, and also the provisions therein made, as far as relates to them ; and I direct that the said slaves, Rose and Sarah, or the proceeds of their sale, become part of my estate; and I do hereby further direct, that the legacy of two thousand dollars made in said Will, shall enure for the support of my other four faithful slaves, George, Sam, Francis, and Edwin, in the manner stated in said Will.”

*241That, upon this paper, William D. Porter, the executor therein named, qualified on the thirty-first day of August, 1855, and he has reduced the personalty into his possession, and has proceeded to distribute the estate, and execute the trusts of the will.

That the said Elizabeth Williman died without leaving any person or persons entitled to claim — according to the statute of distributions — and without having made an effectual disposition of her slaves, George, Sam, Francis, and Edwin, and of the sum of $2,000, and the residuum of her estate to Dr. John Bellinger, Clement H. Stevens, Thomas Lehre, and Charles Posted Dawson; that the bequest of the said slaves was intended for their virtual emancipation, and the sum of $2,000 and residuum were bequeathed to the legatees aforesaid, for the support of the slaves in a state of freedom, in direct violation of the Acts of Assembly of this State, prohibiting emancipation.

That the said bequests being therefore void, the slaves and money have become liable to escheat, and to be vested in the City Council of Charleston, for the benefit of the Orphan. House in the said city. That the said John Bellinger,. Clement H. Stevens, Thomas Lehre, and Charles Posted* Dawson, accepted the trust conferred upon them, and have' proceeded to carry into effect the wishes of the testator — the' said Charles P. Dawson having since departed this life, and the legal estate thereby vested in the survivors. That sufficient time has elapsed for the executor to pay the legacies which are not objectionable, and the testatrix left few debts of inconsiderable amount, which have been paid; and there has long been in the executor’s hands a sufficient amount of assets to meet the debts and legacies.

The joint and several answer of John Bellinger and-Clement H. Stevens, stated that they admit that Mrs. Eliza¡-beth Williman departed this life in the month of August,.in the year 1855, leaving in full force and effect her will, and *242codicil, a correct copy whereof is, as they believe, set forth in the bill. That William D. Porter qualified on said will, and undertook the execution thereof. And these defendants severally say, that the said .slaves named in the will, to wit: George, Edwin, Samuel and Francis, have not been delivered to them, but that they are still in the possession of the said executor, who returns them for taxation as part of the estate, and pays the taxes, and collects wages from them ; and that no part of the said legacy of $2,000 has been paid to either of them ; and they are informed and believe, that the estate has been kept together by the executor from a desire on the part of all interested in the will, that a favorable sale of the real estate, which is the bulk of the property, apart from the negroes specifically bequeathed, might be made, so that all the debts and legacies might be paid.

And this defendant, Clement H. Stevens, answering separately, for himself, says, that there was not, and is not any trust or confidence, secret or expressed, accompanying said bequest, to hold the said slaves, George, Samuel, Francis and Edwin, in a condition of virtual freedom or nominal slavery. That he was well acquainted with Mrs. Williman, was a neighbor of hers, and .w.as in the habit of attending to her matters of business when she was old and infirm.

That he knows that Mrs. Williman did, at one time, entertain the desire to leave the said negroes free, but that she informed him that she had been advised professionally by Mr. W. D. Porter, that she could not do so, and that the best she could do, under the laws of the State, for the said slaves, was to leave them to masters in whose kindness she had confidence,'bespeaking for them the indulgence and consideration of said masters. And this respondent believes, from his conversations with her, that she perfectly understood that she could not legally leave the said slaves here in a state either of actual or virtual freedom. .That she informed this respondent of her intentions to make said bequest to him, but he denies that she communicated to him, or required from him *243any trust or confidence, secret or expressed, that the said slaves, or any of them, should be held in nominal servitude only. Nor was there any trust or confidence attached to the bequest of the $2,000, or of the residue of the estate, save and except such as is declared on the face of the will. And this respondent claims the benefit of the bequest of said slaves, intending to hold them as master and owner in subordination to the laws of the State. And he also claims the benefit of the said pecuniary and residuary bequests, to be used in discharge of the duty devolved upon him as master by law, when old age or infirmity shall overtake the said slaves, or any of them.

And the said John Bellinger, answering separately, for himself, says, that he was for about years the attending physician of Mrs. Williman. That he knows that she entertained the kindest feelings towards the slaves above named, who were well worthy of it. But this respondent denies that, she ever communicated to him any intention on her part to emancipate them, actually or virtually. And he further denies that there was or is any confidence or trust, secret or expressed, between the testatrix and himself, to hold said slaves in a condition of nominal slavery, or virtual freedom. That he claims to hold said slaves when they shall be delivered to him by the executor, as master and owner in his own right, and in full view of his obligations to the laws of the State. And this respondent also claims the benefit of the pecuniary and residuary bequests, to be used in aid of the obligation which the law imposes upon him as owner, to care for them, and support them in time of sickness, infirmity and old age. And he utterly denies that there is any trustor confidence, secret or expressed, accompanying said bequests, other than what may appear on the face of the will.

The answer of W. D. Porter, executor of Elizabeth Willi-man, stated,

That it is true that Mrs. Elizabeth Williman departed this *244life on or about the day of August, in the year eighteen hundred and fifty-five, leaving in full force and effect her last will and testament, a correct copy whereof, and of a codicil attached thereto, is set forth in the bill; and that this defendant duly qualified thereon as executor.

That the said testatrix left considerable real and personal estate, and that so far as respondent knows, she did not leave any person or persons entitled to claim under the statutes of distributions and descents.

That he has not yet distributed the estate, nor delivered the said slaves, nor paid the pecuniary legacies. That shortly after the death of Mrs. Williman,real property fell very much in value; and that as all parties interested in the will seemed desirous that all the debts and legacies should be paid, the estate was retained in the hands of the executor, and rents and wages collected, with the view to the accomplishment of this end. That the debts of the estate proved to be much more numerous than was anticipated, and have not yet been all paid off.

And this respondent, further answering, says, that he admits that Mrs. Williman did, at one time, express a desire that her slaves should be emancipated. But that she was professionally advised that this could not be done under the laws of the State; that she might select their owners, and express any request for such privileges or indulgence towards .them as she pleased, and as masters might properly extend. But that they must become the absolute property of such legatees or owners, without any trust for emancipation, express or implied, open or secret; and that they would necessarily be subject to the disposition, and liable for the debts of such parties. And this defendant believes that before, and at the time of, and after making her will, the testatrix acquiesced in these views, and made her testamentary dispositions in accordance therewith.

That the testatrix was further advised that it was legal and competent for her to make the bequests mentioned in her *245will to the intended owners of the slaves, to be applied to the maintenance of said slaves, when they, from age or sickness, might become chargeable upon them, for the purpose of relieving the said owners, to some extent, of the burden which the laws would cast upon them.

And this defendant submits to this Honorable Court, that the aforesaid bequests are good and valid in law; but that if the same, or either of them, be void, then that the debts and other legacies under the will must be paid and satisfied before there can be any claim on the part of the escheator, and that said claitn can only be for any residue after payment of such debts and legacies.

And this respondent, further answering, says, that Charles P. Dawson and Thomas Lehre are dead, and that the said bequests survive to Dr. John Bellinger and Clement H. Stevens; and he is now in treaty for the sale of the real estate; and until such sale is made, he cannot say whether or not the assets of the estate are sufficient to pay the debts and legacies, and leave any residue.

*Clement H. Stephens*— Examined by consent: “Witness thinks the testatrix, Mrs. Williman, was a native of the State. The men included in the original bequest are able bodied; one of the women was young, the other was elderly, and was said to be sickly; there were four men, all about prime.”

In reply to an inquiry, whether he regarded the slaves as his property, witness said: “he did not see how he could, legally, leave out this property in a schedule to be made; would regard it as much his as the .rest of his property, except that there is a right of survivorship; would appropriate the wages to his own use; would not generally regard such a bequest as a burthen; would have taken the bequest without the $2,000; but would be very glad to have the $2,000 in addition; a part of the original bequest he would not have taken without some such-provision.”

*246Dunkin, Ch. The facts of this case will appear from the pleadings and the evidence of Clement H. Stevens, one of the defendants, examined by consent.

The first and second clauses of the A. A. 1841, (ll Stat., 154,) are directed against bequests or gifts of slaves, with a view to emancipation. The questions presented in this cause arise under the *third*and *fourth*clauses of the Act. By the *third*it is declared that, “any bequest,gift or conveyance of any slave or slaves, accompanied with a trust or confidence, either secret or expressed, that such slave or slaves shall be held in nominal servitude only, shall be void and of no effect.” It is further declared that the donee, or trustee, shall be liable to deliver up such slave or slaves, or account for the value thereof, for the benefit of the distribu-tees, or next of kin, of the person making such bequest, gift, or conveyance.

The *fourth*clause declares that “any devise or bequest to a slave or slaves, or to any person upon a trust or confidence, secret or expressed, for the benefit of any. slave or slaves, shall be null and void.”

The inquiry is, first, whether- the bequest of the slaves, George, Sam, Francis and Edwin, falls within the inhibition of the statute ? The original wish and purpose of the testatrix, in relation to these slaves, are apparent from the voluntary admissions in the answer of the executor. He admits that she had expressed a desire that “her slaves should be emancipated,” and that she relinquished her purpose of having them emancipated, upon the assurance of her legal adviser “that this could not be done under the laws of the State.” Foiled in this object, the testatrix made the provision now to be considered. The language is as follows: “ I give and bequdath' to my good friends, Dr. John Bellinger, Clement H. Stevens, Thomas Lehré, and Charles Postell Dawson, and the survivors and survivor of them, my faithful negro slaves, George, Sam, Francis, Edwin, Sarah and Rose, with a request that they will extend to the said slaves *247all the indulgence, privilege and consideration which the law will allow them, in the character of owners, to extend to them.” After devising a lot of land, with store thereon, to her kind friend, Dr. Bellinger, in consideration of his personal kindness to her, and in satisfaction of his claim for professional services, the testatrix directs a sale of all the residue of her estate, except her slaves and the lot aforesaid, and from the proceeds she, in the first place, bequeaths to the friends aforesaid, “and the survivors and survivor of them, the sum of two thousand dollars, to enable them to support the said slaves, George, &c., when they, from age or sickness, may become chargeable upon them.” Certain other pecuniary legacies are then given, and the rest and residue of the proceeds (if any) are bequeathed to her said friends, and the survivor of them, &c., “in the same manner, and for the same purpose, as hereinbefore expressed, in relation to the legacy to them of two thousand dollars.” By a codicil to the will, the bequest of Rose and Sarah is revoked, and they are directed to be sold, and it is further declared that “ the legacy of #two thousand dollars, made in said will, shall enure for the support of my other four faithful slaves, George, Sam, Francis and Edwin, in the manner stated in the said will.” Mr. Stevens testified that the four slaves thus bequeathed were “ all able bodied men, and about in the prime of life.”

In giving construction to statutes like that of 1841, it is the duty of the Court to consider the existing mischief as well as the remedy, and to give such reasonable interpretation as will advance the remedy and suppress the mischief. So, in giving construction to wills, the primary object of judicial inquiry is the purpose intended by the testator to be accomplished. In search of this intention, the Court may look, not only to the entire instrument, but to the condition of the testator and of the property.

Taking together the testamentary provisions in relation to George, Sam, Francis and Edwin, was it the intention of the *248testatrix to confer a personal benefit upon the parties in whom she vested the legal title, or was the bequest made for the benefit of the slaves, and (as has been elsewhere said) was “the title intended as a mere power to feed that trust.”

It is manifest from the style and language of the will, that the testatrix was not without the advantage of legal advisers. When she intended a personal benefit she said so — without circumlocution — and in apt words to give effect to her purpose. Gratefully recognizing the personal kindness, as well as the professional devotion of Dr. Bellinger, she devises the lot and store at the North-East corner of Smith and Calhoun streets to him, “ his heirs and assigns.” To the daughter of her friend, Mr. Dawson, she bequeaths one thousand dollars; and the like amount “to the little son of her friend, Clement H. Stevens.” But, in the bequest of the four slaves to her four friends, they are left to these gentlemen (by name), “and the survivors and survivor of them.” These friends were strangers to the testatrix in blood, and by connexion. They were equally strangers to each other. They enjoyed in common the advantage of high character, and,they possessed in common the confidence of the testatrix. “ There is no magic in particular words, (says an approved elementary writer, Hill on Trustees, 65,) and any expressions, that show unequivocally the intention of the parties to create a trust, will have the same effect.” And Lord Eldon, in *King vs. Denison,*1 Ves. & B., 273," says, “ that the word ‘ trust,’ is not made use of, is a circumstance to be attended to, but nothing more: if the whole frame of the instrument creates a trust, for the particular purpose of satisfying which, the estate is devised, the law is the same, though the word ‘trust’ is not used.” Viewed in connection with the circumstances, the words of limitation in the bequest are only less significant than if it had been “ to them, and their successors in office.” The obvious intent was to establish a fiduciary relation, founded upon personal confidence.

But the bequest is accompanied “ with a request that they *249will extend to the said slaves all the indulgence, privilege and consideration which the law will allow them in the character of owners, to extend to them.” “I will lay dowu the rule as broad as this,” said Lord Alvanley, in *Malim vs. Keighley, 2 Ves.,*Jun., 333, “wherever any person gives property, and points out the object, the property, and the way in which it shall go, that does create a trust, unless he shows clearly, that his desire expressed is to be controlled by the party, and that he shall have an option to defeat it.” “ If a testator shows his desire that a thing shall be done, unless there are plain express words, or necessary implication, that he does not mean to take away the discretion, but intends to leave it to be defeated, the party shall be considered as acting under a trust.” The owners of slaves may hold them in merely “nominal servitude.” The Legislature has not thought proper to interfere, or to restrict the degree of indulgence, which the master may extend to his slave. But they h’ave declared void any gift or bequest of a slave by one man to another, “ upon any confidence, express or implied, that such slave shall be held in nominal servitude only.” So, the owner of any slave may lawfully remove him to a free State, and there have him emancipated. The first clause of the Act of 1841 declares, that any bequest, &c., of a slave, with such view, shall be utterly void and of no effect, and that such slave shall be assets for the payment of debts, for distribution or to escheat, as the case may be.

But the actual owners of slaves are subject to certain responsibilities. Being entitled to their services in their days of usefulness, they are bound to maintain them in age and infirmity. The subjects of this legacy are four able bodied male slaves, in the prime of life. Looking to the manner in which she had enjoined upon her friends they were to be treated, the testatrix deemed it but just that they should be relieved from this contingent burthen. She, therefore, not only bequeathed to them, or the survivor of them, the sum of two thousand dollars, primarily charged upon the proceeds *250of her estate, “to enable them to support the said slaves, when they, from age or sickness, might become chargeable upon them,” but she bequeaths also to them, for the same purpose, the rest and residue of her estate after payment of her debts and legacies. The Court is of opinion, that these pecuniary legacies are void under the fourth clause of the Act of 1841, but they serve to indicate the desire of the testatrix that the legal title, with which she had clothed her friends, should not become onerous to them.

The great and leading object of these several bequests was for the supposed benefit of the slaves, and, in order to ascertain the purpose, the several provisions must be taken together, and regarded as one scheme. Nor does it improve the character of the bequest that some incidental advantage might arise to those who held the legal title, and a much greater advantage, if they thought proper to treat the slaves in the manner which their own judgment indicated, independent of the feeble, and, it may be, ill considered request of a weak and aged mistress. The Court of Appeals had occasion recently to examine this view in a case from Laurens, *Belcher vs. McKelvey,*Mss. May, 1859. It. is the *intention*of the *testatrix,*and not the conduct, actual or probable, of the fiduciary legatee, which determines the validity or invalidity of the bequest in reference to the Act of 1841. As Lord Alvan-ley says, “ when a man gives property and undertakes to point out the way in which it shall go, *that*creates a trust;” so, when a testator bequeaths slaves and undertakes, by injunction, request, or otherwise, to prescribe that they shall enjoy “all the indulgence, privilege and consideration” which the law allows owners to extend to them, the donee takes them on a trust, or confidence, which he is not at liberty, in good faith, to disregard, and which the policy of the law, nevertheless, deprecates. Free negroes, or free persons of color, are sometimes very useful in the community — and the better, because they are few. But the greatest nuisances are *quasi*slaves — stalwart men, who have the same moral control over *251their nominal owners as, in this case, George, Sam, Francis and Edwin might attempt to exercise, with a copy of their mistress’s injunction in -their pockets that they should have extended to them “all the indulgence,privilege and consideration,” not which the good sense of these gentlemen might deem proper to extend, but *all which the law permitted owners to allow to their slaves.*It creates an anomaly inconsistent with the simplicity of our institutions and with the policy of the country, and which it was one of the prominent purposes of the Act of 1841 effectually to suppress.

It is declared that the bequest of the slaves, George, Sam, Francis and Edwin, is null and void; and, in conformity with the principle adjudicated in *Escheator vs. Dangerjield, 8*Rich. Eq., 95, it is ordered and decreed that the said slaves be delivered up to the plaintiff.

It is further ordered and decreed, that it be referred to one of the Masters of this Court to take an account of the transactions of the defendant as executor of Elizabeth Williman, deceased, and that he report thereon, with leave to report any special matter. Parties to be at liberty to apply for such further orders as may become necessary. Costs to be paid out of the estate of the testatrix.

The defendants appealed:

Because the bequest of the slaves, and the legacy in question, were absolute and lawful, and in nowise in violation of the Act of 1841.

*Brown, Porter,*for appellants,

insisted that the words of the bequest were precatory, and not imperative, and that under the Act of 1841, there can be no trust or confidence in violation of the law, where the legatee or donee denies the trust or confidence and claims the property as his own absolutely. *McLeish vs. Birch,*3 Strob. Eq., 225 ; *Escheator vs. Dangerjield,*8 Rich. Eq., 102; *S/erine vs. Walker, 3*Rich. Eq., 266 ; *Belcher vs. McKelvey,*Col., May, 1859; 1 Am. Law *252Reg., 361; Hill on Trust., 97; 6 Eng. Con. Ch. R., 300. That under the third and fourth sections of the Act of 1841, the legal estate remains in the legatees, and no person but the distributee, or next of kin of the testatrix is entitled to claim against them. *Vose vs. Hanahan,*10 Rich., 469.

*Martin,*contra.

The opinion of the Court was delivered by

Johnston, J.

There may be circumstances of suspicion in this case. But it is a very solemn act to set aside the will of a testator and the legal rights of parties; and it should not be done unless strong grounds appear to support such a proceeding.

By the third clause of the Statute of 1841, 11 Stat., 154, it is declared, “that any bequest, gift, or conveyance, of any slave or slaves, accompanied with a trust or confidence, either secret or expressed, that such slave, or slaves, shall be held in nominal servitude only, shall be void and of no effect; and the donee, or trustee, shall be liable to deliver up such slave, or slaves, or account for the value thereof, for the benefit of the next of kin of the person making such bequest, gift, or conveyance.”

This law has been supposed to be violated by the following provision in the will of the late Mrs. Williman:

“I give and bequeath to my good friends, Dr. John Bel-linger, Clement H. Stevens, Thomas Lehre, and Charles Postell Dawson, and the survivors and survivor of them, my faithful negro slaves, George, Sam, Francis, Edwin, Sarah and Rose; with a request that they will extend to the said slaves all the indulgence, privilege and consideration which the law will allow them, in the character of owners, to extend to them.”

The legatees, in their answer, explicitly deny that there was or is any trust or confidence, secret or expressed, accompanying said bequest, to hold said slaves in a condition of *253virtual freedom or nominal servitude; and one of them, who was examined at the instance of the plaintiff, deposed that he would regard these slaves as much his as the rest of his property, except as affected by survivorship, and would appropriate the wages to his own use.

It seems to the Court that this is a sufficient refutation of the existence of a secret trust or understanding. The case must then be left to depend upon what is expressed on the face of the will. I do not, for myself, see that an intention entertained by the testatrix, but not made known to the legatees, nor participated in by them, would be sufficient to affect their right of property in the slaves bequeathed to them; nor do I see that such a point arises under this clause of the statute, the terms of which do not refer to the intention of the person making the gift. If I remember the cases of *Belcher, McKelvey*and Tucker, referred to in the decree, they arose under another clause, relating to provisions for removing slaves from the State, with *intention*to emancipate them.

The case depends not upon the intention entertained, but upon that expressed by this testatrix; and upon this the law was well laid down by Chancellor Dunkin, in *Ford vs. Dangerfield,*8 Rich. Eq., 102: “There is nothing in the letter or the policy of the law, which prohibits a testator, in bequeathing a slave, or slaves, to his son, to bespeak for them, or either of them, his kind treatment, or the mode of treatment. The relation of master and slave remains the same. The rights and obligations of proprietorship are unimpaired.”

“ Circumstances might induce the son to change his treatment, in consequence of the conduct of the slaves.”

And the great authority of Lord Eldon is thus brought out: “ He observed that, in the course of the discussion, a doubt had been raised, how far it was competent for a testator to give to his friend a personal estate, to apply it to such purposes of. bounty, *not arising to trust,*as the testator, himself, would have been likely to apply it to. That question, *254as far as this Court has to do with it, depends altogether upon this: if the testator meant to create a trust, and not to make an absolute gift, but the trust is ineffectually created, is not expressed at all, or fails, the next of kin take. On the other hand, if the party is to take, himself, it must be upon this ground, according to the authorities: that the testator did not mean to create a trust, but intended a gift to that person for his own use and benefit; for if he was intended to have it entirely in his own power and discretion, whether to make the application or not, it is absolutely given, and it is the effect of his own will, and not the obligation imposed by the testament, the one inclining, the other *compelling*him to execute the purpose. But if he cannot be, or was not intended to be, compelled, the question is not then upon a trust that has failed, or the intent to create a trust; but the will, must be read as if no such intention was expressed, or to be discovered in it.” (Vide also, 8 Rich. Eq., 108-9.)

*“Prima*facie, an absolute *interest*is given, and the question is, whether precatory, not mandatory, words impose a trust upon that person ?”

To this well established doctrine, this Court agrees; and it is as little satisfied that to bequeath slaves with a request that the legatee shall extend to them “ all the indulgence, privilege and consideration which the law will allow them, in the character of owners, to extend to them,” takes away their right of property in the slaves, as it is that such treatment is opposed to the policy of the law.

Before leaving this part of the case, it may be proper to say, that it is unnecessary to decide the question whether the escheator is competent to raise this question, or whether gifts of this description are voidable only by the next of kin. That point was not necessarily involved in *Vose vs. Hanahan,*10 Rich., 469, where it is supposed to have been decided; and I have too much doubt upon it to commit myself until it comes directly before the Court.

The next question arises under the 4th sec. of the Act of *2551841, 11 Stat., 154,which declares that “any devise” or bequest to a slave or slaves, “ or to any person upon a trust or confidence, secret-or expressed, for the benefit of any slave or slaves, shall be null and void:”

It has been supposed that this provision is violated by the following legacy of this testatrix:

“ I give to my friends, Dr. John Bellinger, &c.,” the sum of $2,000, (increased by a codicil,) to enable them to support the said slaves, George, &c., “ when they, from age or sickness, may become chargeable upon them.”

Here again the legatees deny all secret trust, and claim the legacy, leaving the question to be decided, whether any trust arises upon the face of the will.

After the authorities, upon the distinction between cases, where a legal benefit passes to the legatee, to be used as he pleases, and cases where the legatee is not intended to have the beneficial interest, it is only necessary to refer to the case of *Benson vs. Whitham,*6 Cond. Eng. Chan. Rep., 304 — 5, where the very point is decided that a gift to enable the legatee to confer a bounty is not a trust, but a beneficial legacy. How can a gift to the master be a legacy or benefit to the slave, except at the master’s discretion ?

It is ordered, that the decree be reversed, and the bill dismissed.

O’Neall, C. J., and Wardlaw, J., concurred.

*Decree reversed.*