#### *Milly Gordon vs. Elisha*Blackman, *Executor.*

Testator, who died in ’39, directed his executors to hire out his slaves, until a sufficient sum should be raised from their hire to pay his debts, then to make application to the Legislature for an Act emancipating said slaves, and if they should fail to procure such an Act, then to convey them to the nearest non-slaveholding State, or to Liberia. Before a sufficient amount had been realized from the hire of the slaves to pay the testator’s debts, the Act of 1841, 11 Stat. 154, was passed. Held, that after the debts are paid, and in case the Legislature shall fail to pass the Act directed to be applied for, the next of kin of the testator will be entitled to the slaves and their hire.

If a testator makes no disposition of his property, or if the bequests of his will are void, his next of kin will not be excluded by a clause providing that they shall not enjoy any part of his property. Per Johnston, Chancellor.

*Before*Johnston, Ch. *at*Lancaster, *July,*1844.

The decree of the Chancellor was as follows :

This is another of those cases, multiplying of late with a fearful rapidity, in which the superstitious weakness of dying men, proceeding from an astonishing ignorance of the solid moral and'scriptural foundations upon which the institution of slavery rests, and from a total inattention to the shock which their conduct is calculated to give to the whole frame of our social polity, induces them, in their last moments, to emancipate their slaves, in fraud of the indubitable and declared policy of the State.

The late Samuel McCorkle, of Lancaster District, at his death, in February, 1839, left a number of slaves, and a will, duly executed, bearing date the 8th of April, 1837, whereby, after providing respecting his burial expenses, he provided as follows:

“ I direct my executors, herein after named, to hire, by the year, all of the negroes, (that is- to say, named John, Bob, Lund and Isaac) I am possessed of, for so long a time, and until the hire, or wages, may or shall amount to a sum of money sufficient to pay off all the just debts and demands against me. And it is my desire for my black woman, named Lydia, to work for the support of herself with her two children, named Simpson and Harriet, until they shall be able to work ; God be pleased !

“ After the foregoing directions to my executors, I do further direct, that my executors apply to the Legislature of the State of *62South Carolina, and use their best endeavors with the same to procure the emancipation of them ail, (that is, my negroes,) that is, named Lydia, and her children, named John, Bob, Lund, Isaac, Simpson and Harriet; and should they fail to procure the emancipation of them in this State, then, and in such case, I direct my executors to transport all of them to the nearest non-slaveholding State in the United States, or to the free colony in Africa, if they choose to go there to live. I will that my executors shall hire them out for such length of time as will raise a sum of money sufficient to pay off all reasonable expenses for to accomplish the same, my design, and for to compensate them for their trouble and expense in the execution of this my will and testament.

“ Be it remembeaed, that it is my desire for Lydia, that her children, named John, Bob, Lund, Isaac, Simpson and Harriet, each and all of them, shall help to support their mo'ther, when she is unable to help herself by infirmities, and in her old age, if she lives to be.

“ I do further desire, that my black woman Lydia, to have, (and her children after her death,) my bible, my feather beds, my bedsteads, my four quilts, (being of homespun cloth,) my blankets, sheets, pillows, *&c.*My big spinning wheel, reel, my chests, tables, chairs, tubs and pails, tin canister, oven and hooks, spider, axe, if the law of the State permits it to be given.

“ All the other articles, that is to say, my books, (the bible excepted,) my carpenter’s tools, that I may have, and sundries, may be sold, to pay off in part of my debts I am due.

“ Be it known, that it is my desire that Lydia shall have her child or daughter Harriet, to stay with her, and work, as long as her mother lives.

“ I have relations and kindred ; but it is not my will that they, or any of them, should enjoy any part of the property I may be possessed of.

“ And lastly, I do hereby constitute and do appoint Thomas Small, Senr. Elisha Blackman, Absalom Outain, executors of this my last will and testament.”

The wench, Lydia, died before the testator. The plaintiff is the next of kin of the testator, and files her bill against the defendant, the only qualified and acting executor under his will; alleging that-he has taken possession of the slaves, together with other property of the testator, and under the guise of a nominal servitude, has allowed, and continues to allow, the slaves all the *63benefit and privileges of persons of color, while, by their labor, he accumulates large sums of money, which he holds in trust for them.

The bill prays an account of the property received by the defendant, as executor; that the bequests in favor of the slaves, and the benefits intended to be conferred on them by the will, be declared void, and that the executor be declared a trustee of the whole property in favor of the plaintiff, and decreed to deliver the same to her.

I am of the opinion, that the clause of the will which excludes the testator’s next of kin from the enjoyment of any part of his estate, is not sufficient to bar the plaintiff of the resulting trust claimed by her in this case, if the provision for the emancipation of the slaves should be deemed invalid. It is not in the power of a testator to oust his next of kin of their rights under the law of the land, but by giving another direction to his property by legal and valid provisions ; as, for instance, by giving the property to some other person, or directing that it shall be employed for some lawful purpose inconsistent with the rights of his kinsmen. So strong' is their right, that it shall prevail over the claim of an executor, in whom the property vests in his character of an executor, though it yield, as in *Dawson vs.*Clark, 15 Ves. 416, when the bequest is to the executor, not as executor, but in his individual name. Here there is no bequest to the executor, either officially or personally. The law vests the title in him, to enable him to execute the duties and fulfil the powers imposed by the will. In all such cases he takes merely in trust, and can claim- no beneficial interest, and no doctrine stands more firmly both upon reason and authority, than that when an intention to create a trust appears upon the face of the will, or the law vests the title for the purpose of enabling the executor to fulfil a trust, and the trust is either ineffectually declared, or fails from any cause, the executor, to whom no benefit was intended, shall not be permitted to hold for his own profit, but shall be declared a trustee for the next of kin. (Monee *vs. Bishop of*Durham, 9 Ves. 399, 10 Ves. 522.) Striking out of this will all the clauses which have no bearing on this question, the will stands as if the testator had enacted but two clauses, the one excluding the next of kin, and the other appointing executors; and I feel no doubt that the next of kin are not excluded.

The only obstacle, therefore, in the way of the plaintiff, is the *64provision for emancipating the slaves. Whatever objections I may feel to this, and my repugnance is stronger than I can express, I am so bound by one or two decisions, that I cannot, on the circuit, venture to declare it void.

It is true that the case of *Carmille vs. Wightman, 2*McM. 454, one of the cases to which I refer, was upon a deed. I think a clear distinction may be drawn between the trust resulting to the next of kin under a deed and under a will, but the opinion delivered in that case is so sweeping as to leave me hardly at liberty, in this court, to draw it; and I think it more expedient to reserve what I may have to say on that point, for the appellate tribunal, to which, I am informed, this case will be carried.

Then, the case of *Frazier vs.*Frazier, (2 Hill Ch. 304,) covers the whole ground. I am hedged in on all sides, and must submit here.

It strikes me, however, that as the right of the plaintiff is good, subject only to the duty of the executor to pursue the course pointed out by the will, which there is no one to compel him to observe, that the proper decree, upon the principles of that case, is to declare the plaintiff entitled to the slaves, and an account of their hire, subject to the powers and duties of the executor under the will, to be exercised by him within a reasonable time, and that the bill be retained to give him an opportunity to do so.

It is, therefore, decreed, that the bill be retained until the further order of the court, to give the defendant an opportunity to procure from the Legislature of this State an Act emancipating the slaves in question in this case, or an Act authorizing the emancipation of said slaves ; and that the said defendant do, from time to time, come to an account for the reasonable hire of the said slaves. Whenever it shall appear to the court, upon a suggestion of the same by the plaintiff, by supplementary proceeding, that the Legistature has refused to pass such Act, and that sufficient funds have arisen from the hire of said slaves to transport them to the nearest non-slaveholding State in this Union, or to one of the free colonies of Africa, the plaintiff shall be at liberty to apply for a decree that the defendant do enter into bond, with undoubted sureties, to transport said slaves to such State or Colony, and emancipate them, within a given time, to be fixed by the court, or that he deliver them up to the plaintiff, freed from all other trust, and pay over to her the value of their *65hire; or for such other decree as the court may, in its discretion, deem proper.

The question of costs to wait said supplementary proceeding.

The complainant appealed from so much of the decree as recognized the validity of the provisions in favor of the slaves, on the following grounds:

1. Because the provisions of the will in favor of the slaves are contrary to the express laws and the settled policy of the State, and therefore void.

2. Because, by the provisions of the will, the executors are only empowered to transport the slaves to a free State, upon the event of a failure to procure the emancipation of said slaves by the Legislature ; that there was no proof of any such failure, and therefore there was no proof that the contingency upon which the authority of the executor to act depended, had happened.

3. Because there is no direction or authority in the will authorizing the emancipation of the slaves

4. Because by the express terms of the will it is left to the choice of the negroes whether they will be taken to a free State or not, and it was expressly proved that they were unwilling to go.

Boyce, for the complainant.

*Clinton*& Wright, contra.

Curia, *per*Harper, Ch.

We are of opinion, without entering into several very difficult and important questions raised in argument, that this case must be decided by that of *Lenoir vs.*Sylvester, 1 Bail. 632. In that case, the testator, by his will, gave his slaves to his wife for life, and after her death directed his executors to emancipate them. The testator died in 1808, and by the Act of the Assembly of 1800, (7 Stat. 442,) then governing the subject, the executors might have emancipated them by proceedings before magistrates and freeholders. But before the death of the wife, tenant for life, the Act of 1820 (7 Stat. 459,) was passed, by which it was forbidden to emancipate slaves but by the Act of the Legislature. It was held, that there was no vested right to freedom in the slaves, and as the act of emancipation had become unlawful when the executors were required to execute it, the devise was in this respect void, and a trust resulted for the next of kin. So in the case before us, it had become unlawful, by the provisions of the Act of 1841, (11 Stat. *66154) for executors *to*carry slaves out of the State, with a view to their emancipation. By the will, the negroes were to remain slaves until, by hiring them out, a sufficient sum was raised to pay off the testator’s debts, and to defray the expenses of their transportation to a northern State, or to Liberia. But it appears from the evidence, and is admitted by the answer, that the testator’s debts are not yet paid off. In the mean time, between the death of the testator and the event in which they were to be emancipated, the Act of 1841 has intervened, rendering unlawful the act of the executors to be done for that purpose. The Act provides that every bequest directing slaves to be carried out of the State, with a view to their emancipation, shall be void. A trust must therefore result for the next of kin.

It would be harsh to send these slaves to a new and uncongenial residence, when, as it is understood, they very much prefer to remain in their present situation. With respect to the ground taken in argument, that though the bequest in favor of the slaves be void, yet, whether there be a valid disposition or not, the next of kin are expressly excluded by the terms of the will, it is enough to say, that the question has not been raised by any ground of appeal, and we do not perceive that the justice of the case requires the court to raise it of its own motion.

The decree is so far modified, as that after the testator’s debts shall have been paid, and the Legislature shall have refused to pass the Act of emancipation directed to be prayed for, the defendant deliver the slaves to the complainant, and account as directed by the circuit decree.

The whole court concurred.