#### F. A. Ford, Escheator, ex. rel. J. Ferguson vs. Starling J. Dangerfield.

Testator, who died in 1836, bequeathed certain slaves to J. R., “in trust nevertheless, and for this purpose only, that the said J. R. do permit and suffer said slaves to apply their time and labor to their own proper use and behoof, without the inter-meddling or interference of any person or persons whomsoever, further than may be necessary for their protection under the laws of this State, which now exist or may be past hereafter.” The rest and residue of his estate he also bequeathed to J. R., “ upon trust nevertheless, and for this purpose only,” that said slaves be permitted to use and enjoy the same forever, withoutthe interference of J. R. or any other person, further than may be necessary to secure said slaves, in the full use and enjoyment thereof; and he appointed J. R. executor, who duly proved the will. Testator left no next of kin. On bill filed by the escheator against the administrator of J. R., *Held}*

That the will declared a trust in favor of the slaves, which was unlawful and void, and, there being no next of kin to claim, that the whole property bequeathed es-cheated to the State.

That the cases of the *State*vs. *Singletary*(Dud. 220,) and *JRharne*vs. *Ferguson*(Rice 106,) had not decided the questions involved in this case.

Where the words of a will are not merely those of advice or request, but declare a trust which is void or unlawful, the legatee holds the property for the next of kin¿ and if there be none, then for the State.

Notwithstanding the decision in *Gill*vs. *Douglass*(2 Bail. 387), this bill against the , administrator of the executor was sustained. * .

*96BEFORE DUN KIN, OH., AT CHARLESTON, JUNE, 1855.

The bill of Frederick A. Ford, escheator of the district of Charleston, at the relation of James Ferguson of St. Johns Berkley, Planter, stated, That George Broad, late of St.Johns Berkley, according to his own account a foreigner by birth, by his last will and testament bearing date the 5th April, 1836, duly executed to pass real estate, did devise and bequeath in manner following — that is to say :

“The State oe South Caeolxna.

“In the name of God, Amen, I George Broad of the Parish of St. Johns Berkley, in the said State, farmer, being of sound mind, memory and understanding, do make, publish, and direct my last will and testament in manner and form following— that is to say: I will and direct that my just debts and funeral expenses be paid as soon after my death as possible: Then I give and bequeath to my friend, John R. Dangerfield of Bam-eretta, in said Parish of St. Johns Berkley, to him and his executors and assigns for ever, my slaves Daphne and her children, Nicholas, Mary, Jacob, Betsy, Sammy, William, Sarah, Frederick, James, George and Simon, and her grandchildren, John and Betsey, together with the future issue and' increase of such as are females: In trust, nevertheless, and for this purpose only, that the said John R. Dangerfield, his executors and assigns, do permit and suffer the slaves above mentioned, and each and every of them, and their future issue and increase, to apply and appropriate their time and labor to their own proper use and behoof, without the intermeddling or interference of any person or persons whomsoever, further than may be necessary for their protection under the laws of this State, which now exist or may be past hereafter: Then I give and bequeath all the rest and residue and remainder of my estate, both .real and personal, to my said friend John R. Dangerfield above mentioned, his heirs and assigns for ever: upon trust, *97nevertheless, and for this purpose only, that the said slaves above mentioned, and each and every of them and their future issue and increase, be permitted and suffered to use and enjoy the said estate, whether real or personal, for ever, without the interference or meddling of the said John R. Dangerfield, or any person or persons whomsoever, further than may be necessary to secure the said slaves the full use and enjoyment of the estate above mentioned.

“ Lastly, revoking all former or other wills and testaments, I do hereby declare this to be my last will and testament: and do hereby constitute John R. Dangerfield sole executor of the same.”

That afterwards, about the first day of May, 1836, the said George Broad departed this life,- being at the time of his death possessed of the slaves mentioned in his will, viz: An old woman called Daphne and her children and grandchildren: That he was also seized and possessed of a small tract of land and personal estate of some value, leaving no wife or lawful child, nor any other kindred besides his natural children. That John R. Dangerfield, the executor therein named, proved the will, and made an inventory of the estate, and filed the same in the Ordinary’s office, and paid all the debts of the testator, and retained the overplus without any further account.

That the devise and bequest to John R. Dangerfield contained in the said will is upon trust, and that the said John R. Dangerfield, by the said will, takes no beneficial interest, and that on failure of the trusts declared, the trustee takes for the benefit of the next of kin: and on failure of the next of kin, for the State. That the trusts declared by the said will fail, because they are contrary to the policy of the law, and expressly invalidated by the Act of 1841. That by the 8th section of the Act of 1787, entitled an Act to appoint escheators and regulate escheats, it is enacted that when any money or personal estate shall be found in the hands of any executor or administrator, being the property of any person heretofore de*98ceased or hereafter dying, and leaving no person entitled to claim the same according to the Statute of distributions, without making any disposition of the same, the escheator of the District where such chattels shall be found, or the Attorney General on behalf of the State, shall or may sue for and recover, either at Law or Equity, and pay the same into the treasury of this State. That in the consideration of the law,there is no difference between dying without making any disposition, and dying without making any valid disposition. And the right of the State to demand an account from the said John R. Dangerfield,. is the same as if the said George Broad had made the said John R. Dangerfield his executor without disposing of his estate.'

That the said John R. Dangerfield sold Nicholas, Sammy and Simon, three of the testator’s children which had been devised .to him in trust aforesaid, and received the purchase money to the amount of between nine hundred and one thousand dollars, and applied the same to his own use, and sold and disposed of other personal property of the testator, as well as the real estate, and converted the money to his own use, and afterwards, about the day of last, died intestate, and administration of his estate was. committed to Starling Dangerfield; who has taken possession of the stock of cattle belonging to the said testator as the property of John R. Dangerfield’s estate; and would also have taken possession of the slaves of the said testator and their issue by the same title ; but the said slaves have been seized as slaves illegally, emancipated, and are held by Dr..Theodore Gaillard as his property under the Act of 1800.

And the bill insisted that the estate of the said George’ Broad has escheated to.the State, and that the personal prop-; erty which came to the hands of John R. Dangerfield, and was converted by him, should be accounted for by his representative, and that the said Starling. Dangerfield should account for all the property of the said George Broad’s estate that has-*99come to his hands, and that all the money due on the balance of John R. Dangerfield’s account as executor, and on the said Starling Dangerfield’s account with the estate of George Broad should be paid into the public treasury. And that the personal property of which the said George Broad was possessed, and which came to the hands of the said John R. Dangerfield, and has not been lawfully administered, should be sold, and in like manner paid into the public treasury.

The prayer was that the said Starling Dangerfield may account for the property real and personal of the said George Broad, which came to the hands of the said John R. Dangerfield or to his hands; and that so much thereof as has not been converted may be sold, and the money paid into the treasury : and for general relief.

DüNKIN, Oh. The Statute 1787, 8 sec. (5 Stat. 48,) declares that where any moneys or other personal estate shall be found in the hands of an executor or administrator, being the property of any deceased person, who has died leaving no person entitled to claim according to the Statute of distributions, and without making disposition of the same, the escheator of the district in which such chattels shall he found, or the Attorney-General, on behalf of the State, shall and may sue for and recover, either at law or in equity, and pay the same into the treasury of this State : and, after due advertisement, if no person shall, within the time prescribed in the Act, appear and make good title to such personal estate, other than as executor or administrator, or their legal representatives, then such personal estate shall become vested in, and be applied to the use of this State.

Plaintiff alleges that George Broad died in May, 1836, having made his will in the previous month, of which will the late John R. Dangerfield was appointed executor — that he left, among other things, fourteen slaves, of whom no valid disposition was made by his will — that there were no persons entitled *100to his estate under the Statute of Distributions — that the executor took possession of the slaves and held them until .his death, with the exception of three, whom he sold for about one thousand dollars. The bill prays an account from the defendant, Starling Dangerfield, of the property received by his intestate from the estate of his testator, Broad, and for general relief.

The will of George Broad is sufficiently recited in the pleadings, and is set forth at length in *llhame*vs. *Ferguson,*Rice, 196. The slaves are bequeathed to John R. Dangerfield, (whom he appoints sole executor :) *“in trust, nevertheless, and for this purpose only,”*and the trust is then declared. In *Morioe*vs. *The Bishop of Durham,*10 Yes. 521, it is said, “ if a testator expressly says he gives upon trust, and says no more, it has been long established that the next of kin will take,” *“*Then, if he proceeds to express the trust, but does not sufficiently express it, or expresses a trust that cannot be executed, it is exactly the same as if he had said, he gave upon trust, and stopped there. There is no difficulty upon that.” Such is the language of Lord Eldon, affirming the decree of Sir William Grant, reported 9 Yes. 369. The principle thus declared, as well as the authority of the case, has been repeatedly recognized in our own Courts, and recently in *Finley*vs. *Hunter, 2*Strob. Eq. 215, and *Johnson*vs. *Clarkson,*3 Rich. Eq. 316. If the gift be made expressly in trust, whether the trust be valid or invalid, effectual or ineffectual, the donee cannot take beneficially. The declaration negatives the inference of such intention, on the part of the testator. It is then very clear, that, in this Court, John R. Dangerfield must be held to have taken no beneficial interest in this bequest. The right of the plaintiff must depend upon a further inquiry.

Laws regulating emancipation are a part of the police system of this State. By the Act of 1800, it was declared unlawful for any person to emancipate or set free his slaves except by deed, and after examination and certificate that they were not of bad character, or incapable from age or infirmity of *101gaining a livelihood. The Act of 1820 declared that no slave should thereafter be emancipated but by Act of the Legislature. The trust declared by the will of George Broad is a manifest attempt to evade, or defeat, the policy of the law. It could not be enforced, not merely because there is no person to ask the aid of the Court, but because it is against principle to lend the assistance of the Court to such purpose. The consequence is succinctly repeated in the authority already referred to; “if, upon the face of the will, there is declaration plain, that the person, to whom the property is given, is to take it in trust: and the trust is incapable of. taking effect, tlie party taking shall be a trustee, if not for those who were to take by the will, for those who take under the disposition of the law.” For this disposition of the law the Court must first look to the Statute of distributions. If the deceased left no person to claim under this Statute, then the plaintiff' is entitled to recover the property for the use of the State.

Difficulties have sometimes arisen which do not present themselves in the construction of this will. They are adverted to by Lord Eldon. He observed that, in the course of the discussion, a doubt had been raised how far it was competent to 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, as 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 in*102clining, the other compelling, him to execute the purpose. But if he cannot, 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.” The distinction is then shown between an express trust, and precatory words, or words of request and recommendation, accompanying a gift. In the latter case, he says, “ *Prima facie*an absolute interest is given; and the question is whether precatory, not mandatory, words impose a trust upon that person.” The cases are then examined, and the difficulty stated which the Court has experienced in imposing upon such expressions the character of a trust. “But,” he concludes, “the principle of those eases has never been held in this Court applicable to a case where the testator himself has expressly said he gives his property upon trust.”

Mr. Jarman, commenting upon the doctrine of recommenda-tory trusts, remarks that, “recent cases suggest a doubt whether such words would now receive a similar construction, for the Courts seem to be sensible that they have gone far enough in investing with the efficacy of a trust loose expressions of this nature, which, it is probable, are rarely intended to have such an operation.” 1 Jarm, 838.

*McLeish*vs. *Burch,*3 Strob. Eq. 225, arose upon the construction of a will which-was in operation prior to the Act of December, 1841. The gift of the slaves was absolute. No trust was expressly declared. In the clause preceding, the testatrix had bequeathed slaves to one of the same persons *in trust*for others, indicating an apprehension of the meaning of the terms. Accompanying the absolute gift were certain expressions which the Court held to be merely advisory or precatory, and not as creating a trust. There is nothing in the letter, or the policy, of the law, which prohibits a testator, in bequeathing a slave of slaves to his son, to bespeak for them, or either of them, his kind treatment, or the mode of treatment. The relation of *103master and slave remains tbe same. The rights and obligations ' of proprietorship are unimpaired. What the father might do, in relation to the treatment of his slave, in his lifetime, without violating the law, or rendering the slave liable to seizure, or impairing his title, the son may also do. Circumstances might induce the son to change his treatment in consequence of the conduct of the slaves: or they might be sold to pay his debts. These are the incidents of ownership. Such bequest would be no violation of the Act of 1820 prohibiting emancipation. Such was the ground assumed by the defendant in *McLeish*vs. *Birch,*see page 230. It may not be always easy to draw the line between an ordinary recommendation of kindness or humanity annexed to a gift and an interference with the salutary policy of the law. But, as has been already remarked, in this case the Court is involved in no such perplexity. The trust is de¿ dared on the face of the will, and, therefore, the donee cannot take beneficially. The trust declared is illegal, and therefore fails.

What has been said in reference to the bequest of the slaves concludes the question as to the residue of the testator’s estate. That bequest depends upon the validity of the former, and fails with it.

■ It is declared that the slaves described in the pleadings are part of the estate of George Broad, deceased; and it is ordered and decreed that the same, together with their issue, be delivered up to the Complainant.

It is further ordered and decreed that the defendant, Starling Dangerfield, account for the transactions of his intestate as executor of George Broad, deceased, and for the sales of any of the slaves held'under the will;' that it be referred to one of the Masters to state an account making all equitable allowances, and that no hire be charged against the defendant prior to the time of exhibiting this bill. Parties to be at liberty to apply for such further orders as may be necessary.

*104The defendant appealed on the grounds:

1. Because, the 8th section of the Act of 1787, cited and relied on both in complainant’s bill and by the Chancellor’s decree, is inapplicable to the case presented by the pleadings'— the property in question not having been “found in the hands of an executor or administrator” of the deceased, George Broad.

2. Because, the decree orders the surrender and delivery by defendant, of negroes not asked for by complainant in his bill, and which according to the statement of complainant in said bill, had never been in defendant’s possession, but on the contrary, had, against his will, been seized by Dr. Gaillard, “ as slaves illegally emancipated, and were held by him as his property.”

3. Because, the will-of George Broad having gone into effect *prior*to the Act of 1841, and being therefore unaffected by said Act, the trusts are such as might be legally executed, and the testator had made a valid disposition of his property, and effectually destroyed any right of escheat.

4. Because, prior to 1841, the residuary clause of Broad’s will, "as to the estate left for the use of his negroes, and which is the real subject of complainant’s bill, expressed a trust, the execution of which was not forbidden by our laws, and could not be construed as any evasion thereof, and left no subject for escheat.

5. Because, according to the decisions of similar cases in this State, John R. Dangerfield held an absolute right in the negroes bequeathed by George Broad.

6. Because,, under the laws of the State, John R. Dangerfield’s was not a mere naked trust, but one coupled with an *105interest, inasmuch as it was “ necessary for the protection of the negroes” bequeathed “under the laws of the State” “to apply and appropriate” a portion of their time and labor to his (Dangerfield’s) own use — to prevent their seizure under the Act of 1800.

Simonton, *Payne,*for appellants.

*Petigru $ Pettigrew,*contra;

The opinion of the Court was delivered by

JohnstoN, Ch.

In the argument it was said, on behalf of the defendant, that on two former occasions, when this will was before the Court, the right of the defendant to hold the slaves bequeathed, was sustained. But this is hardly supported by the cases (a) referred to. In both cases it was held that the *legal*title vested in the legatee, but subject to the right of any person to seize the slaves under the law then existing, if any act of emancipation were committed. The first of the cases *(State*vs. Singletary,) was an indictment for a riot, committed in a violent attempt to seize the negroes still in the custody of the legatee, and the defendants were convicted for their tumultuous conduct, there being no sufficient evidence of the legatee’s having abandoned his proprietary right and dominion. The other case *(Rhame*vs. Ferguson,) was an action of trover for the slaves ; and the plaintiff’s title was founded on an alleged seizure of them, under the Act of 1800, as having been emancipated contrary to law. The Judge charged the jury that Dangerfield had a *“legal*title under the will, and that a Court of' law could not take notice of the *trusts*annexed by the testator, (though a Court of Equity might (as the Judge suggested) regard Dangerfield as a trustee, and the property as *106liable to escheat.) That if Dangerfield had assented to the emancipation, and, *in fact,*carried it into effect, they were liable to seizure; and the question was left to the jury, under the circumstances, whether, in fact, a seizure had been made, so as to give the plaintiff a title to the property. A verdict was rendered for the defendant.

There is nothing in these cases to conclude the one now before this Court. In the fonner case the defendants might have been properly convicted for their riotous conduct, whether the slaves were emancipated or not; and in the latter, though the legal title was asserted, and the character or validity of the trusts discarded, as matters not cognizable in a Court of Law; yet the question was left out of the judgment, whether it might not be considered by this Court. In both cases, but particularly in the last, the fact of seizure (the only remedy brought under consideration against unlawful acts of emancipation,) was negatived.

In relation to the general doctrines, applicable to questions of emancipation, several cases have been cited, from our own reporters. (b) It may be sufficient that three of these five cases, *Cline*vs. *Caldwell, Carmille*vs. *Carmille*and *Broughton*vs. *Telfair,*all arose under deeds; and these deeds were all executed prior to the Act of 1841. It is not necessary to express any opinion here, as to the propriety of the ruling of the *cases at law.*So far as *points of law*were decided by the Law Courts, this Court is bound to follow them; and this is true also as to decisions in the Court of errors. But it would be difficult, if the matter were *res integra,*to say that, under a deed, executed before the statute of 1841, the legal title was not in the grantee: or that, so long as he abstained from actu*107ally emancipating the slaves conveyed to him, any adverse title could be acquired by seizure.

The distinction between *executed*contracts, such as deeds, and contracts *executory,*is very material, when they are considered with reference to the party entitled to avoid them. If property be passed by executed contract upon an unlawful, base or immoral consideration, or with an unlawful or immoral purpose, he who gave away the property with such an intent can never take advantage of his own wrong to rescind his contract; whereas, if the contract be executory and require the action of Courts of Justice to enforce it, the same party may successfully defend himself, and no Court will decree performance in favor of the other party, who is equally criminal. The deeds in the cases quoted, if void for fraud, were still good against the fraudulent grantors and their *privies in the post.*The personal representative of such a party after his death, standing in his place and representing him, would be equally bound with himself; and so of his next of kin. As to next of kin, in his life time, — there could be no such persons. It was only by the statute of 1841 that the nearest of kin had such an interest given them, during the life of the grantor, as entitled them to interfere. And I suppose; if it had been possible for the grantor himself to have avoided his deed, and reclaimed ttie property before that statute, the statute took his right away and conferred it on his kindred. This seems to be the scope of the policy of the Legislature. Their object was to cut up by the roots all attempts at emancipation; and to secure this end the self interest of the kindred was called into requisition as an instrument to carry out their measures. But if it had been left in the power of the grantor, the principal party to the fraud intended, to anticipate those thus appointed by the Legislature as its agents, he might only interfere for the purpose of making another and more successful effort. Or he might suffer his right to be barred; or the statute of limitations to *108hare such operation in bis life time, as speedily to bar his representative.

But the present case arises under a will. As to next of kin, who take by law, it requires a valid will to divest. An unlawful will, or clause of a will, or any unlawful or void provision in a will, never excludes them. As to them, it is no will, and a void or unlawful trust is, as to these persons, no trust. Then, as long as the doctrine of *Morrice*vs. *The Bishop of*Durham, quoted in the decree, exists, a legatee to whom property is given, coupled with an ineffectual or unlawful trust, cannot hold the property against the next of kin. No beneficial interest was intended to be conferred on him. The title was conferred on him only to enable him to execute the trust, and when he cannot execute it, equity will not permit him to set up his naked title.

The two other cases quoted of *McLeish*vs. Burch, and *Skrine*vs. *Walker,*are not, in principle, opposed to this doctrine. The doctrine upon which those cases were determined was this : that when a party intends to confer the benefits of property, with conditions which are void, or with the suggestions by way of advice, or request, that *(considered as his property)*the donee will use it in a particular manner, or treat it so and so, — not amounting to a trust — the property vests as a beneficial gift. No trust was contemplated. No legal duty was intended to be created. The grantor intended to suggest an imperfect obligation, but he also intended to give the property, as property, with all its incidents. Suppose a parent or a husband bequeaths his portrait, or other work of art to his wife or child, with a request that it be not sold, or given away out of the family. Suppose a favorite horse be given with a desire that he be not subjected to the plough, or to drudgery. Suppose that an aged, faithful, or enfeebled nurse be given to a child, with an injunction that she be fed for the residue of her days and no services exacted: or that a choice stock of negroes be bequeathed with the strongest direction (even *109using words of trust) that they be moderately worked, and only in certain employments, and be fed and clothed in a specified manner. None of these cases present cases of trusts ; and why ? Simply because the property was intended to pass, as property for enjoyment, with all its legal incidents.

Now, whether in the cases mentioned,(a) the construction adopted was correct or incorrect, while by another and a better construction, the words of the testators might have been held to create trusts, is not the question here. The principle of those cases (having arrived at the conclusion that the legacies were intended to be beneficial and not fiduciary) was, that as no trusts were intended, none should be raised to deprive the legatee of his property. This is the whole extent of these cases; and so it is expressed in the judgments given in them.

But in the present ease the language of the testator admits of no such interpretation. He gives “in trust, *and for this purpose only,”*that the slaves enumerated have the sole control of their time and employment, without the *interference*or intermeddling of any person in the world further than such friendly assistance as may secure their legal protection. Is not this freedom ? All the rest of his estate is also given “ in *trust for this purpose only,”*that the enumerated slaves enjoy it, exclusively, without the control of Dangerfield, the nominal donee, or any other person. What benefit or interest was intended to Dangerfield in-the slaves or property, of which all control or dominion is expressly taken away from him ?

We are compelled, therefore, by the explicit language of the testator, to conclude that nothing was given to Dangerfield but a naked title, intentionally coupled with a trust to emancipate. The title was intended as a mere power to feed that trust. The trust was unlawful when the will came into operation ; and, if there had been next of kin, they might have *110interposed, even before the statute of 1841. As there were no next of kin, the State succeeded to their rights.

The same naked title has been constantly attended with thé same unlawful trust from the death of the testator to the present moment; and the trust being still executory and now incapable of execution, the. case of *Blackman*vs. *Gordon*decides, that the trustee may be stripped of his legal title.-

An objection founded on *Gill*vs. *Douglass,**(a)***is taken in the first ground of appeal, to the effect that as the present defendant is- only administrator of Dangerfield, executor of Broad, he does not represent Broad’s estate which has es-cheated, and, therefore, is not liable to the eseheator who sues him. The power of the eseheator was examined, in that case, only in the light of the statute of 1787. But this officer has rights at common law as well as by statute. He is to make title to escheatable property, and must necessarily proceed according to the circumstances of the case. In this case, if it is necessary to reach the property sought to be subjected through an administrator *de honis non aum testamento annexo*of Broad,, and such administrator is brought in, in order that the property be placed in his hands, it is manifest that he will be a merely formal party. As administrator he will have no right to rescind the will or reclaim the slaves to his testator’s estate. The substantial right of recision must, at last, be in the escheator.(b) At this stage of the suit we are unwilling to *111arrest its progress upon a merely technical and unsubstantial ground.

Upon the whole we see nothing to dissent from in the principles of the decree brought up by this appeal. There is a little matter of detail which needs some explanation. It is said in the grounds that the decree requires the defendant to deliver up slaves not in his possession, but which had been seized by Gaillard. An assertion is made in the bill that Gaillard had seized them, but neither party substantiated the fact at the hearing. It seems to have been taken for granted that Gail-lard would obey the decree. But he is not a party. Let the decree be modified by directing that the defendant deliver up such of the slaves as he had in possession at the filing of the bill, or at the hearing, or as he may hereafter get possession of; and that an unconditional delivery by Gaillard to the plaintiff shall be equivalent to a delivery by the defendant.

“With this modification the decree is affirmed, and the appeal dismissed.

DunkiN, DargaN and Wardlaw, CC., concurred.

*Appeal dismissed.*

(a)

*State*vs. *Singletary,*Dud. *220; Rhame vs. Ferguson,*Rice, 196.

(b)

*a) Cline*vs. *Caldwell,*1 Hill, 423; *Carmille*vs. *Carmille, 2*McM. 454; *Broughton*vs. *Telfair,*3 Rich. Eq. 432; *McLish*vs. *Burch,*3 Strob. Eq. 226; *Shrine*vs. *Walker,*3 Rich. Eq. 266.

(a)

*McLeish*vs. *Burch,*and *Skrine*vs. *Walker*

(a)

а) 2 Bail. 387.

(b)

 Johnston, Ch. Certainly there are too many difficulties in declaring that the right of setting aside the legal title of one to-whom property has been conveyed upon an unlawful trust, exists in the representative of the grantor, or that rights arising consequentially from such a conveyance, should be made to depend on such right in- the representative, for a Court to venture lightly on such declaration. Suppose for example acaso like this: A. sells and- conveys, by deed, slaves to B. in trust to emancipate them, and this is done since the statute of 1841. Then A. dies, leaving next of kin. This is not a gift but a sale. Now, add the further fact that the purchase money has proceeded from G., a third person. Has the administrator of A. any right to recover the slaves for which he received the full value ? Are his next of kin entitled to the slaves, or to his estate, consisting of the price ? Can B.’s administrator claim the slaves ? or can his next of kin ?