#### *Josiah Lanham*& *Wife*v. *James Meacham et al.*

Columbia,

May, 1850.

Testator, in his will, first expressed a wish to exempt from sale, or division, certain negroes, then further says, “ It is my will and desire that my brother, J. M., take the above named negroes under his charge, and act as their guardian, and do all tilings in relation to them as he may think best.” He then devised and bequeathed his whole estate, both real and personal, to be divided equally between this brother and his two sisters. *Held,*that the said X M. took no title to the negroes under the first clause of the will; that, to carry out the intention of the testator, would be an infraction of the Statute Law of South Carolina, prohibiting the emancipation of slaves; that the provisions of the will were sufficiently comprehensive to embrace the whole of testator’s estate; and, therefore, that the negroes in question should be distributed accordingly.

*204*Before*Dargan, Ch., *at*Edgefield, *June*Sittings, 1849.

The following circuit decree states the facts of the case:

Dargan, Ch. — This is a bill filed by the- complainants for an account against James Meacham, the executor of Joshua Meacham, and for a partition of the estate of the testator. The only question presented for the Court, at the present term, arises under the following circumstances. The testator, in his life, was possessed of a family of slaves, Biddy and her children, Jesse, Henry and Lizzy. The children of Biddy, and perhaps herself, are mulattoes. In regard to this family of negroes, the testator, in his will, makes the following disposition: *“*In the first place, I wish to exempt from sfilp, or division, the following family of negroes, namely, about forty years of age; Henry, about twenty-five i^i’eai'iS.pf age; Jesse, about twenty-seven years of age; and ^zzy,'about twenty-two years of age. And, further, it is my willy and.desire, that my brother, James Meacham, take the gpoyei, gained negroes under his charge, and act as their guardian,'and to do all things in relation to them as he may 'tniplL.be.gljr,[He then gives one-third part of his estate, both -_Jr 1"to his brother, James Meacham; one iv *t- cau*tqih&gister, Margaret Jones, for her separate use i^,^epppin|^r over to the heirs of James Meacham and irtha Lanham; and one third part to his sister, Martha Lanham,]jvife,-,p£, Jojpah Lanham (Josiah Lanham and wife áre tire complainants)! *t*He nominated, as his executor, Jas. Meacham, who was qualified and has taken possession. James Meacham^éísHif) a claim to Biddy and her children as his own property, under the provisions of the will. And the only question submitted to me, at the present hearing, is, whether James Meacham is entitled to Biddy and her children in his own right, and-whether the provisions of the. will, in regard to this family, be not a violation of the Statute Law of South Carolina, in regard to the emancipation of slaves. not any nor do I direction of the sale or division, is ‘írñfifgStbfy;j'>üfIl'dá:s’/_h'S tSad'@1,some valid disposi-'‘lbfi'!t:htot’:’íT'hé!!’Snólst-'ldéeÍ:dbdú!é,tprfeWStbn of a will by a tiíKiit/-lf: fVr\C(V'jMVri fnlron py gjg at law . __ , „ distribution, ,{ffi@Ee’ tíSíalsó'W^e'e!ffec4uáÍí.dbvfsecdir'"iIíeqüest to other fl.U;oU fa so «•-(wyniittii-B o.vnyjov? -roJ-iitesjAiTt < . , . , persons.. .Their title is under tne statute.'. He.has a right to &;JJ la siiOUiijo'iit ssl.t 3)i.U.: arralo ia.fu.'Jj'.qirni'.r.op oar £:i«¡üO'Kl , . ° name *205land, as in cases of intestacy, will prevail. In such a case, who but the heir at law and distributee would be entitled take'/ If they would not be entitled, the estate would be without a proprietor. Joshua Meacham, as I have said, has not given these negroes to his brother, James Meacham. He is directed to take charge of them, but how, and in what character? Not as owner, but as a guardian. The whole clause repels the conclusion that he intended to give a legacy, or any right or title as owner of Biddy and her children. The testator gives a third of his estate, real and personal, to Martha Lanham, one-third he gives to Mrs. Jones, and the remaining third to James Meacham. It is my opinion that he did not mean to die intestate as to any part of his estate, and that the provisions of the will are sufficiently comprehensive to embrace the whole of his estate, Biddy and her children included. But, if Biddy and her family are not included in the bequests of the will, they constitute intestate property, and, in this point of view, the complainants are entitled to one-third under the statute of distributions.

I will now turn my attention to another aspect of the case, which has been presented in behalf of the defendant, James Meacham. It is supposed that the terms of the will give to him a legacy of Biddy and her children. I have already said that the will does not properly admit of any such construction. But, if it did, how stands the question ? If they were given to him, and a title passed under the will, they were not given to him for his own use. It is perfectly clear to my mind that, if the first clause gave to James Meacham a title to these negroes, it was intended as an evasion of the Statute Law of South Carolina against the emancipation of slaves. No personal benefit was intended to be bestowed upon him. He was to take charge of them, not as property, but as a guardian. Who ever heard (when a personal benefit was intended,) of a legacy being given in this form of words ? Slaves do not have guardians, but masters. But free persons of color, who are males, are required by law to have guardians. It is evidently in conformity to this requirement of law, that the provisions of this clause were framed. If, then, James Meacham, as a legatee, took a title to these negroes, under the first clause of the will, he was intended by the testator to take, coupled with a trust that he should hold them in nominal servitude, and that, while they purported to be his slaves, they should be actually free. It is, in this point of view, a clear infraction of the Act of 1841. If he took a title to them with this trust, the trust is void, and he holds them for the legatees or distributees; for such persons, in fact, as would be entitled if the first clause of the will were stricken out, or had never been inserted. The doctrine asserted in *Morris*v. *the Bishop of*Durham, which *206has been frequently recognized by our Courts, applies — that, _ when an estate .is given by will to one in trust, for objects ' and purposes that are illegal, or which must fail from the j-ndefinite nature of the trust, the trustee holds for the heirs at law, or for such persons as would be entitled to take, but for the illegal and ineffectual trust.

It is ordered and decreed, that the slaves, Biddy and her children, Jesse, Henry and Lizzy, named in' the bill, are subject to distribution under the will of Joshua Meacham, and that the complainants are entitled to one third part thereof, Mrs. Jones to one third part thereof, and James Mea-cham to the remaining third. It is also ordered that the complainants, or either of the defendants, have leave to apply, at the foot of this decree, for a writ of partition, and a reference as to the hire and profits.

The defendant, James Meacham, appealed, and moved the Court of Appeals to reverse or modify the Chancellor’s decree, on the grounds—

1. That the Chancellor erred in supposing there was any evidence, even by hearsay, that the slaves, Biddy and her children, are mulattoes, and that said children! are the progeny of the testator, Joshua Meacham.

2. That the said slaves were given by the will of said testator to the defendant, James Meacham, in absolute property, in addition to his equal share with the other legatees, and without any trust, secret or express, or manifested by proof.

3. That no intention of the testator, in the bequest to defendant, contrary to the purposes of the Act of 1841, or the policy of the law, was deducible by just construction from said will, or established by evidence.

4. That the validity of said bequest was improperly brought into question in this suit, which was against an executor for account and partition.

*Wardlaw,*for the motion.

*Carroll,*contra.

*Per Curiam*.

We concur in the decree of the Chancellor; and it is ordered that the same be affirmed and the appeal dismissed.

Johnston, Dunkin, Dargan, CC.

*Decree affirmed.*