#### *James McLeish*v. *Edward C. Burch et al. Ex’rs.*

Court op Errors.

Testatrix bequeathed to her Executors “ and the survivor of them, his tors and Administrators,” several slaves, with their future issue, “ with this special charge, that no other service or wages shall be required of them, than may be sufficient to pay their taxes.” She also bequeathed certain sums of money, to be employed by her executors, for the education of the slaves. The court *held,*that both the slaves and the legacies bequeathed to them, were the absolute property of the executors, as legatees under the will, and that the charge as to the service to be rendered by the slaves, was mere advice, which depended for its observance upon the will of the donees, and not a trust which could be enforced in any court' in favor of the slaves.

*Before*Caldwell, Ch. *at*Charleston, February, 1847.

The bill sets forth, thgt James McLeish is the assignee of Robert M. Rivers, the nephew and legatee of Ann McCants, a copy of whose will is filed with the bill, and marked exhibit A; that the said Robert M. Rivers is one of the legal distributees of the property of the said Ann McCants, undis-posed of by the said will; that Edward C. Burch, Josiah Taylor, and Robert R. Taylor, were appointed executors of the said will, and that Edward C. Burch and Robert R. Taylor have alone acted as such executors; that the testatrix left several negroes undisposed of, which have since been sold by the acting executors, for sums and to persons unknown to the complainant; that there are certain clauses in the will of *226Ann McCants, in evasion and violation of the Act of Assembly forbidding the emancipation of slaves; and that these ' clauses have been carried into effect by the acting executors. The bill prays that the said acting executors may full, true, and perfect answers make, to every tittle, matter, and thing charged in the bill, as fully as if particularly interrogated thereto; that such part or proportion of the property as may be undisposed of by the will, to which complainant may be entitled, in common with the other distributees, may be decreed to complainant, for the use of Robert M. Rivers; that all illegal clauses in said will be vacated; .and that the court do order distribution of the property contained in such illegal clauses to the heirs at law; and for other and further relief, &c.

The following are the clauses of the will referred- to in the complainant’s bill.

Second clause. “To Edward Mallory Burch, son of Edward Christopher Burch, I devise my house and lot in Savage street, with the following reservations, that is to say :• — reserving to Mrs. Burns,, during her life, the occupation of the garret room she is now in; and also reserving the south-easternmost extremity or portion of the said lot, which said portion extends to the west, as far as the garden fence, and to the north, as far as a line drawn from the corner of the said garden fence, to the corner of the small building adjoining the stable, together with a right of way to the same through the yard — which said portion, with the said right of way, I do hereby devise to my executors hereinafter named, or such of them as shall qualify on this my will, the survivors or survivor of them. In trust, nevertheless, for the use, occupation and benefit of my servant Nancy, and her children, Louisa, Mary and Leah, it being her desire and intention to build a house on the same for hers elf and her children, which she has hereby permission to do.”

Eighth clause. *“*To Louisa and Mary, children of my wench Nancy, one hundred dollars apiece, to be employed by my executors for their education. To Augustus, son of my wench Mary Horry, fifty dollars, to be applied in like manner.”

Ninth clause. “ To Edward C. Burch, I leave the'piece of land oil James Island, adjoining Mr. Matthews’ tract, containing ten or eleven acres, lately occupied by my nephew, Robert Mallory Rivers, together with old Sary, her son Harry, and Miley, in trust to permit the said Robert M. Rivers to use and enjoy the same during his life, and after his death, to and for the use, benefit and behoof of the children of the said Robert M. Rivers.”

Eleventh clause.. “ To my friends and executors, Edward C. Burch, Josiah Taylor and Robert R. Taylor, and the survivor of them, his executors and administrators, I leave my *227wench, Nancy, and her children, Louisa and Mary, and her future issue, by reason of her faithful services, and my wench, Mary Horry, a mulatto, and her child, Augustus, and any other children she may have, with this special charge, that no other service or wages shall be required of them than may be sufficient to pay their taxes.”

Fifteenth clause. *“*Lastly, I nominate, constitute and appoint, Edward C. Burch, Josiah Taylor and Robert R. Taylor, executors of this my last will, who, after paying my just debts, and the two legacies last provided, are earnestly requested to fulfil the same in every other respect.”

Codicil. “ In the first place, I revoke and make null the devise of the south-eastern extremity of my lot in Savage street, *to*my executors, with the trust therein mentioned; and in lieu thereof, I give, devise and bequeath, to my said executors, another portion of my said lot, measuring in depth, from Savage street, twenty-five feet, and in width, thirty feet, and bounded on the West by Savage street, and on the South, by land of the estate of Yffilliam Rivers.”

“I give Nancy twenty dollars for a mourning suit. I also give my negro girl, Leah, to my executors, with the same trusts as specified concerning Nancy, her mother, and her sisters, Louisa and Mary. I also give to the said Leah, the sum of one hundred dollars, payable, as the legacies to her mother and sisters, by Edward C. Burch. I give Lucy, Dido, Anny and Mary Horry, five dollars each.”

The answer denies all knowledge of the assignment of Robert M. Rivers to complainant, and prays that before any decree is made, there may be full and regular proof of such assignment. The defendants further answering, admit the death of Mrs. McCants; the execution of the will, and that the same was duly proved by these defendants, who, with Josiah Taylor, were appointed executors, and that these defendants have alone qualified, and have acted as executors; that testatrix, by said will, devised to the said Robert M. Rivers the sum of one hundred dollars, charged upon a tract of land on James Island, which was devised to the defendant, Edward C. Burch, and charges that the said sum has long since been paid to the said Robert M. Rivers.

The answer further admits, the devise of a small piece or parcel of land on James Island, containing ten or eleven acres, together with three slaves, old Sary, her son Harvey, and Miley, to Edward C. Burch, “ in trust, to permit the said Robert M. Rivers to use and enjoy the same during his life, and after his death, to and for the use, benefit, and behoof of the children of the said Robert M. Rivers.” And the said Edward C. Burch saith, that although he believes the said piece or parcel of land has remained unoccupied since the death'of testatrix, it has only been so. because no means have *228been found to make any profitable use of it, and the said *j*Robert M. Rivers has had the full permission of the said Edward C. Burch, to use and enjoy the same; and'that both Robert M. Rivers and Edward C. Burch have made frequent but fruitless efforts to rent the said land ; that the old woman, Sary, is valueless, and a mere incumbrance, and has been kept by the said Edward C. Burch, at his own expense, and at the request of the said Robert M. Rivers, because she was an incumbrance, and no other place could be found for her; and that the slaves, Harvey and Miley, have been hired out by the said Edward C. Burch, and their wages punctually and regularly paid to the said Robert M. Rivers.

The defendants further answering say, that the devises and bequests aforesaid, comprise all the benefits given to the said Robert M. Rivers, by the will aforesaid, but admit that the testatrix left a small portion of her estate undisposed of by her will, and that the same is distributable among the statutory distributees, of whom the said Robert M. Rivers is one; and that the testatrix having left surviving her a sister of the half blood, and five nephews and nieces, children of four deceased brothers of the whole blood, the said Robert M. Rivers, who is the only child of one of the said deceased brothers, is entitled to one-fifth part of said undisposed of or residuary estate, after payment, thereout, of debts, legacies not charged on specific funds, and the expenses of the administration. And these defendants say, that the said residuary estate consisted chiefly of five slaves, children of slaves specifically bequeathed, but who were born after the making of the will; and that by permisaion of the Ordinary, and . with the consent of all the distributees aforesaid, the said slaves were sold by public auction, and the proceeds of sale received by the defendant, Edward O, Burch, who has managed all the pecuniary transactions and accounts of the estate of testatrix. And Edward C. Burch sáith, that he has disposed of the said proceeds, and all other residuary estate of testatrix, in a due course of administration, in the payment of debts, legacies and expenses of the administration, except the sum of between three and four hundred dollars, which would have been distributed by this time but for this suit; and that he has regularly filed accounts of his transactions as executor, in the Ordinary’s office, and is ready to produce the same.

And these defendants further answering say, that at the sale aforesaid, Maria, one of the five slaves aforesaid, being the child of Miley, one of the slaves bequeathed to the defendant, Edward 0. Burch, in trust, for the said Robert M. Rivers for life, and after his death, for his children, was, by consent of said Robert M. Rivers, and the other distributees, bought in by this, defendant, at the price of three hundred *229and fifty dollars, upon the same trusts, to wit: — for said Robert M. Rivers for life, and after his death for his children; ( and it was agreed by and among the said distributees, that the price of the said slave, Maria, should not be paid in money, either by the said Edward C. Burch, or the said Robert M. Rivers, and his children — but that the same should stand for, and be in discharge of, the said Robert M. Rivers’ share of the undisposed residuary estate of the said testatrix. And these defendants say, that the said slave, Maria, is not only more than a full equivalent for his said share, but that the estate for his life in the said slave, is at least of equal value with any possible amount which he would have been likely to receive-from the said residuary estate; and that the aforesaid arrangement was intended to be, and in fact is, to a considerable extent, a gift by the other distributees to the said Robert M. Rivers and his children ; and they submit that the said Robert M. Rivers, and those who claim under him, are bound by his consent to the said arrangement, and that neither he nor the complainant have any right to invalidate the said contract. The defendant, Edward C. Burch, further answering saith, that after the sale aforesaid, he permitted the said Robert M. Rivers to have possession of the said slave, Maria, to wait upon him and his family, as a servant, and was subsequently astonished to learn, that the said Robert M. Rivers had made an attempt to dispose of the said slave, to the complainant, James McLeish, by an absolute sale; whereupon this defendant interfered, and recovered the possession of the slave Maria. And he respectfully submits, that after this, the Court will not compel him to surrender the possession of the said slave, or any other of the slaves bequeathed to this defendant, in trust for the said Robert M. Rivers for life as aforesaid, either to Robert M. Rivers or complainant; and, at all events, not without requiring the most ample security for the re-delivery of the said slaves, after the death of the said Robert M. Rivers, for the benefit of his children, who are entitled in remainder.

As to the allegation by complainant, that there are certain illegal clauses in the said will, these defendants further answering say, that they suppose that the said allegation refers to certain clauses in said will, by which the testatrix bequeathed a faithful old servant, Nancy, and her children, Louisa, Mary and Leah, and another slave called Mary Horry, and her child, Augustus; to her executors, upon the charge that no other service or wages should be required of them, than would be sufficient to pay their taxes; and also directed, that the said slave should be suffered to reside on a part of a lot of land which testatrix devised to Edward Mallory Burch, the son of this defendant, Edward C. Burch, and that they should be permitted to erect a house on the *230said lot of land; and, finally, left to the said slaves certain *t*small pecuniary legacies, charged upon a tract of land which *J*was devised to this defendant, Edward C. Burch. And in reference to these provisions of the will, these defendants say, that so far as they relate to the woman, Mary Horry, and her son, Augustus, they have been rendered nugatory, by the testatrix having sold and disposed of the said slaves in her lifetime-; as to the pecuniary legacies to the said slaves, that they have not been paid, with the exception of twenty dollars to Nancy, to purchase mourning; and that whether legal or illegal, neither the complainant nor Robert M. Rivers can have any interest in them, for, being charged upon a specific tract of land, if the-legacies are void, the benefit enures to the devisee of that land; and with regard to the permission to reside on a part of a lot of land, and to erect a house thereon, that the house was erected by the testatrix in her lifetime, after making her will; and that although Nancy and her children have been permitted to reside in the said house since the death of the testatrix, in the same manner that they did before, yet these defendants are advised and submit, that this is a matter which concerns only the devisee of the land, and not the complainant or the said Robert M. Rivers. And as to the bequest of the said slaves to these defendants, with the charge not to exact of them other service or wages than are sufficient to defray their taxes- — these defendants admit that they have accepted the said bequest, and that they have, so far, complied with the injunction of testatrix in relation to the said slaves; but they deny, that in doing so, they have done any thing illegal, or in any way violated or evaded the law against the emancipation of slaves. They' have regularly paid the taxes of the said slaves, as slaves, and have, in every particulár, exercised over them the supervision and control of owners; they have not turned the said slaves loose upon society- — but continued to be responsible to the community as owners of the said slaves; and, unless there be some law with which these defendants are not acquainted, requiring owners of slaves to exact from their slaves the maximum of labor and services of. which they are capable, there is no circumstance in the condition of the slaves aforesaid, which brings their case either within the letter of the law against emancipation, or within the mischief which those laws were intended to suppress. The said slaves were treated in precisely the same manner by the testatrix during the latter years of her life; and hundreds of faithful old servants are so treated by their grateful masters. Nor can these defendants persuade themselves, that the laws of South Carolina, and the laws of humanity, are so opposed to each other, as that kindness to faithful servants, or even to their children, is stigmatized as illegal in this State. And *231these defendants submit, that what a testator may lawfully do, he may lawfully enjoin tobe done by his executors; and^ that if the testatrix was at liberty to treat her slaves with kindness in her lifetime, it was equally competent to her to require her executors to do the same after her death. But were it otherwise, these defendants submit, that the *charge*to the executors is not a trust technically, but a mere injunction, binding on them in conscience only, and not affecting the bequest of the property to them — and is, therefore, a matter with which neither the complainant nor the said Robert M. Rivers, have any concern, or any right, title or interest therein, which authorizes them to call these defendants into question in relation thereto.

DECREE.

Caldwell, Ch. The defendants’ exceptions to Master Laurens’ report, present the questions arising in this case. The first exception is, “ that the Master has erred in recommending that the defendant, Burch, be ordered to deliver the girl, Maria, to the complainant, as vendee of Robert M. Rivers; there not being a tittle of proof of any title in Robert M. Rivers, except of an estate for life, as set forth in the answer, which has been rejected by him; and if the estate for life is accepted, then security for the return of Maria, and 'her issue, on the death of Robert M. Rivers, should be given, before a delivery could be lawfully required. And if the life estate is not accepted, then, it is respectfully submitted, that Maria is still the property of the estate, and Robert M. Rivers or his vendee can only be entitled to his distributive portion, to wit — one-fifth of the residuary estate, including Maria.” Ann McCants, by her will, *inter alia,*devised and bequeathed as follows : — •“ to Edward C. Burch, I leave the piece of land on James Island, adjoining Mr. Mathews’ tract, containing ten or eleven acres, lately occupied by my nephew, Robert Mallory Rivers, together with old Sary, her son, Harvey, and Miley, in trust, to permit the said Robert M. Rivers to use and enjoy the same during his life, and after his death, to and for the use, benefit, and'behoof of the children of the said Robert M. Rivers.” The evidence, although not explicit, sufficiently establishes an agreement among the heirs of the testatrix, that Maria should be bought for the benefit of the children of Robert M. Rivers, and applied to the same uses as the land and slaves in this clause; and the testimony of Edward M. Burch, (in addition to the statement of the answer) proves, that when she was delivered to Robert M. Rivers, by one of the executors, he informed him of the terms, and that Hood was present, and near enough to hear the conversation. Such a gift can, no doubt, be created by parol, as well as by deed, either by way of trust, or as a direct gift, and as the terms are definitely established by *232reference to this clause of the will, the agreement must be into effect. *Brummet*v. Barber, *Welch*v. *Kinard.*esta£e was £n £he executors, and, therefore, the delivery to Robert M. Rivers was a mere bailment; and his vendee can only claim his life estate in Maria, which is all £nterest Nivers is entitled to, according to the agreement. There was a sufficient consideration between Robert M. Rivers and the executors, to sustain this contract. Before the sale, he was entitled to a distributive share in Maria, and a life estate in her would be a very fair equivalent in exchange for it. The circumstances and habits of Rivers rendered it prudent that the executors should not deliver her to him upon any other terms. This exception is, therefore, sustained.

2 Hill 543 Speer’s e¿ 256.

The second exception involves the question of the value ' of Maria’s hire, with which the defendant, Burch, should be charged. If it could be ascertained what she Would have brought at a public hiring, that would be a fair estimate of her value; but as that only occurred one year, we must rely upon the opinions of the witnesses, as to what she was worth. Mr. Whitter estimated her value, in 1843, at $10; in 1844, at $15; and in 1845, when she was hired out, she brought $36, deducting her clothing, $7 or $8; and in 1846, she brought $25. This witness, who appeared intelligent, and experienced on the subject of hiring negroes, stated that the best hand on James Isiahd would only bring $50 per an-num, and the master would have to find the clothes; a woman would bring but $40, and he has known such negroes as Maria, hired for food and clothes. Servants in the city will bring more. Prom this evidence, and the testimony of E. M. Burch, who appeared to think that for the greater part of the time she was only worth her victuals and clothes, I think the estimate of the hire at $72 per annum too high, and that the defendant should only be charged with the amount specified in Mr. Whitter’s testimony.

The third exception must conform to, and follow, the result of the first exception.

As the case will have to go back to the Master for a modification of his report, he can take evidence on the subjects of the fourth and fifth exceptions. The two items, amounting to $13,57, although allowed by the Ordinary, may not have been particularly noticed, and may have been passed by him inadvertently; his decision is not conclusive upon the Master; but when there has been a long interval of time from the return, and the amounts are under 40 shillings, the presumption is, that the accounts are correct. It does not appear that the executor has been guilty of any default, or has done more than a prudent man would have done, under the circumstances, to save the property; and there is no good *233reason why he ought not to be allowed his counsel fee, although not out of the estate generally, but out of the lega-v cies of those whose interests he has represented and defended. These matters are referred to the Master for further report.

11 Stat. at Large, 155.

The sixth exception is, that the Master has also erred, in deciding that certain provisions made in the will of the testatrix, for the benefit of some of her slaves, are illegal; and that the benefit of these provisions sinks into the residue, and are to be distributed as in case of intestacy; whereas, it is submitted, that these provisions of the will are not illegal; and that if they were, they would not enure to the benefit of the statutory distributees of the testatrix. The clauses of the will to which this exception refers, are as follows: — •“ to my friends and executors, Edward C. Burch, Josiah Taylor, and Robert R. Taylor, and the survivor of them, his executors and administrators, I leave my wench, Nancy, and her children, Louisa and Mary, and her future issue, by reason of her faithful services; and my wench, Mary Horry, a mulatto, and her child, Augustus, and any other children she may have, with *this special*charge, that no other service or wages shall be required of them than may be sufficient to pay their taxes. I also give my negro girl, Leah, to my executors, with the same trusts as specified concerning Nancy, her mother, and her sisters, Louisa and Mary. 1 also give to the said Leah, the sirm of one hundred dollars, payaable as the legacies to her mother and sisters, by Edward C. Burch.”

The 3d section of the Act of 1841 provides,' *“*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 every donee or trustee holding under such bequest, gift or conveyance, shall be liable to deliver up such slave, or held to account for the value, for the benefit of the distributees or next of kin of the person making such bequest, gift or conveyance.” If the testatrix had died since the passage of the Act of 1S41, there could be no doubt that the clauses of the will relating to these slaves would be void and of no effect, and the question is, does her dying before 1841 change the conclusion ? The testatrix, by these bequests, evidently intended that the negroes therein mentioned should be held in *nominal servitude*only, as “ no other service or wages shall be required of them, than may be sufficient to pay-their taxes.” It is equally clear, that the bequest is a trust; the first clause uses the phraseology, “ *with this special charge*/” and the second clause is, “ I also give my negro girl, Leah, to my executors, with the *same trusts*as are specified concerning Nancy,” *234&c. The bequests of legacies of one hundred dollars to them, in addition to these expressions, leaves no doubt of *'*testatrix intending that it should be a trust in the executors, without any profit to them, and solely for the benefit of the slaves.

3 Story, 266.

3 Dali. 387. 8 Mass. 445. Ib. 423.

6 Craneh, 138.

2 Gall. C. C. R. 138.

2 Story, 259.

The third section of the Act of 1841 is not- framed with a prospective view, like the preceding section, but the words are comprehensive enough to embrace the past as well as the future; but the rules of construction are repugnant to retrospective operations of a law. *“*Retrospective laws,” says Justice Story, “are, indeed, generally unjust; and. as has been forcibly said, neither accord with sound legislation, nor with the fundamental principles of the social compact.” *Colder*v. *Bull, Brown*v. *Penobscot Bank, Call*v. *Hagar.*The Act cannot be considered as an *ex post facto*law, unless the bequest be considered as a contract. *Fletcher*v. *Peck.*An *ex post facto-*law is, strictly speaking, only applicable to criminal cases, and is, either when an innocent act is converted into a crime, or the punishment of a crime increased, or different, or less evidence required to convict after the act was committed. *Society*v. *Wheeler.*This clause of the constitution does not extend to civil rights or remedies. Would giving this section a retrospective operation impair the obligation of a contract, or divest the executors of their rights ? If the State passed an Act to annul conveyances between persons, and declare the grantors should be invested with their former estates, it would be a violation of the constitution, as palpably as if the State should undertake to release the payment of a bond or promissory note.

The contracts of which the constitution speaks, are such as respect property, or some object of value, and confer rights which may be asserted in a Court of Justice. It is, however, not necessary that a beneficial interest should accrue to the obligee, to bring his rights within the protection of the constitution.

A grant to a private trustee, for the benefit of a particular *cestui que trust,*is not less a contract, than if the trustee should take for'his own benefit. No right to the slaves, which vested in the executors at the death of the testatrix, can be divested by the Act, although the executor’s trust, to be performed, may be annulled ; and if the executors have, by the terms of the bequest, become the absolute owners of the slaves, they would be exonerated from its obligation. The trust was, perhaps, originally lawful, although it appears to militate against the spirit of our laws, relating to the emancipation of slaves; and it is very doubtful whether they could have been compelled, even before the Act, to execute the trusts. It is clear the negroes could not have applied to the Court for that purpose; and, perhaps, no one but the *235trustee would have had a right of application for their benefit. The slaves were chattels, and, under the law, could acquire no right to enforce the trust against the executors. In *Walker*v. *Bostick,*a bequest to a trustee, with directions to liberate, was held an attempt to evade the law, and void. A legacy to a slave is void, and falls into the residuum.

4 Dess E. R. 266.

1 Ves. & B. 273.

Hill 65.

V. & B. 296.

Rich E. R. 61.

The peculiar phraseology of these clauses m the will, clearly indicate that the testatrix intended a trust. Whenever the expressions manifest an intention that the donee is not to have the beneficial enjoyment of it, they will bind the conscience of the trustee, and will, in Equity, effectually exclude his claim to any beneficial interest. *King*v. Nor is it necessary that the donee should be expressly directed to hold the property to certain “ uses,” or “ as trustee,” or “interest.” Any words that show clearly the intention of the parties to create a trust, will have the same effect. If a trust is imposed, the trustee cannot take beneficially, although the trust may be too indefinite for execution. *Gibbs v. Rumsey.*

“ When a gift is conclusively and absolutely impressed upon the character of a trust, the trustee will not, in any event, be entitled to the beneficial enjoyment, although the particular object of the donor’s bounty becomes unable to take it.

“ Wherever,” says Lord Eldon, *“*there is a plain declara-ralion, that a person, to whom property is given, is to take it in trust, then, though the trust is not declared, or is ineffectually declared, or *becomes incapable of taking effect,*the party will be a trustee, if *not*for those who were to take by the instrument, then for those who take under the disposition of the law.”

Before the Act of 1841, the trust might have been carried out by the executors, if they saw fit; but since then, it cannot be executed or enforced without violating the law; the slaves having been bequeathed to them, in the character of executors, and hot as individuals, and the object of the bequest being, not for their *personal benefit,*but exclusively for the protection and benefit of the slaves, the executors are holding the slaves on an illegal trust, which is null and void. *Gordon*v. *Blackman.*If the Act of 1841 had noti been passed, what would have become of the issue of these slaves, for the privileges to them are not extended to their issue? Would' they not have been property of the testatrix, undisposed of by the will, and liable to distribution as other intestate property ? The effect of the Act is only to abolish the privileges conferred upon the slaves by the will, and to render the execution of the trust unlawful; and the executors must, therefore, be considered as holding the slaves, and their issue, for the distributees and next of kin of the testatrix.

*236This exception is, therefore, overruled.

It is ordered and decreed, that the report be re-committed *J*to the Master, and that he do modify the same, agreeably to these principles. •

Prom this decree the defendants appealed, and moved that the same be reversed or modified, for the reasons following:

1. That so much of the decree is erroneous as declares, that the bequests of certain slaves to the defendants are rendered illegal and void, by reason of certain benefits directed by the will of the testatrix to be allowed to the said slaves, and that certain small pecuniary gifts to the said slaves, are also illegal and void, and, therefore, that the defendants must be considered as holding the slaves and their issue, for the distributees and next of kin of the testatrix, and, as it rvould seem, are not justifiable in delivering to the said slaves the pecuniary gifts directed by the will; whereas, it is respectfully submitted: — 1. That the pecuniary gifts to the said slaves, and other provisions directed for their comfort, violate no law whatever, not even the Act of 1841, but are as consistent with the laws of South Carolina, as they are with the dictates of humanity. 2. That the directions contained in the will, relative to the time and services of the said slaves, are *conditions*of the bequest to the defendants, and not *trusts ;*and, being *conditions subsequent,*do not invalidate the gift. 3. That, even if these directions be regarded as *trusts,*they were not illegal at the death of the testatrix, and cannot be rendered so by the subsequent enactment of the Act of 1841.

2. That the only relief prayed by complainant’s bill, to which he has shewn, by evidence, that he has any title, was the delivery of the slave, Maria, or, at the most, an account for Robert M. Rivers’ share of that part of the estate of the testatrix, for which Maria was assigned to him for life; and as the contract, by which Maria was substituted for Robert M. Rivers’ said interest in the estate,, has been recognized and established by the decree, and the decree has likewise declared that the complainant is not entitled to a delivery of Maria, his bill ought to have been dismissed with costs.

3. That the complainant has shewn no right to litigate the legality of the provisions made for .the benefit of the slaves, referred to in the first ground of appeal, nor the validity of the bequest of the said slaves to the defendants; and there is, therefore, no ground for any decree in relation to them.

4. That the decree is, in other respects, against Equity and good conscience.

*Bailey*& *Brewster,*for the motion.

*Wilson*& *Phillips,*contra.

*237The Chancellors being divided in opinion on the question made by the first ground of appeal, sent the case up to the Court of Errors for its. adjudication — and, after hearing argu-v ment, that Court decreed as follows.

*Curia, per*

Caldwell, Ch.

Mrs. Ann McCants made her will on the 17th of March, 1837, and a codicil thereto on the 25th of December following, and died in the year 1839; by the former, she devised and bequeathed, among other things, as follows : *“*To Edward Mallory Burch, son of Edward Christopher Burch, I devise my house and lot in Savage-street, with the following reservation, that is to say : — reserving to Mrs. Burns, during her life, the occupation of the garret room she is now in ; and also reserving the southeast-ernmost extremity or portion of the said lot, which s.aid portion extends to the west, as far as the garden fence, and to the north, as far as a line drawn from the corner of the said garden fence, to the corner of the small building adjoining the stable, together with a right of way to the same through the garden — which said portion, with the said right of way, I do hereby devise unto my executors hereinafter named, or such of them as shall qualify on this my will, the survivors or survivor of them, *in trust,*nevertheless, for the use, occupation and benefit of my servant, Nancy, and her children, Louisa, Mary and Leah, it being her desire and intention to build a house on the same, for herself and her children, which she has hereby permission to do.

“ To my friends and executors, Edward C. Burch, Josiah Taylor and Robert R. Taylor, and the survivor of them, his executors and administrators, I leave my wench, Nancy, and her children, Louisa and Mary, and her future issue, by reason of her faithful services, and my wench Mary, a mulatto, and her child Augustus, and any other children she may have, with this special charge, that no other service or wages shall be required of them than may be sufficient to pay their taxes.

*“*To Edward C. Burch, I give my land on James Island, adjoining Mr. Gerardeau’s and New Town Cut, containing about one hundred and forty acres, subject to the payment, within one year after my death, of the following legacies, malting in all seventeen hundred dollars.” The testatrix then proceeds to bequeath various pecuniary legacies, and among them, *“*to Louisa and Mary, children of my wench Nancy, one hundred dollars a piece, to be employed by my executors for their education.”

By her codicil she devised and bequeathed, among other things, as follows:

> “ In the first place, I revoke and make null the devise of the southeastern extremity of my lot in Savage-street to my *238executors, with the trusts therein mentioned, and in lieu thereof, I give, devise and bequeath to my said executors another portion of my said lot, measuring in depth from Savage-street, twenty-five feet, and in width thirty feet, bounded on the west by Savage-street, and on the south by lands of the estate of William Rivers. I give Nancy twenty dollars for a mourning suit.”

7 Stat. of S.C, 442, 443.

> “I also give my negro girl Leah to my executors, with the same trusts as specified concerning Nancy, her mother, and her sisters Louisa and Mary. I also give to the said Leah the sum of one hundred dollars, payable (as the legacies to her mother and sisters) by Edward C. Burch.”

The matters of account were referred to one of the Masters, and on the coming in of his report, the defendants filed various exceptions thereto, but only one question, arising out of the sixth exception, has been submitted to the Court of Errors; that exception was, *“*that he erred in deciding that certain provisions made in the will of the testatrix, for the benefit of some of her slave's, are illegal, and that the benefit of these provisions sinks into the residuum, and are to be distributed as in case of intestacy: whereas it is submitted that the provisions of the will are not illegal, or if they were they would not enure to the benefit of the statutory distri-butees of the testatrix.” This exception was overruled by the Chancellor who heard the cause on the circuit, and the defendants on the apppeal insist “ that so much of the decree is erroneous as declares that the bequests of certain slaves to the defendants, are rendered illegal and void by reason of certain benefits directed by the will of the testatrix to be allowed to the said slaves, and that certain small pecuniary gifts to the said slaves, are also illegal and void, and therefore that the defendants must be considered as holding the slaves and their issue for the distributees and next of kin of the testatrix, and, as it would seem, are not justifiable in delivering to the said slaves the pecuniary gifts directed by the will: whereas it is respectfully submitted, 1. That the pecuniary gifts to the said slaves, and other provisions directed for their comfort, violate no law whatever, not even the Act of 1841, but are as consistent with the laws of South Carolina as they are with the dictates of humanity. 2. That the directions contained in the will, relative to the time and services of the said slaves, are conditions of the bequest to the defendants, and not *trusts,*and being conditions subsequent do not invalidate the gift. *3.*That even if these directions be regarded as trusts, they were not illegal at the death of the testatrix, and cannot be rendered so by the subsequent enactment of the Act of 1841.”

Before the Act of 1800, an owner had a right in South Carolina, to emancipate his slave in any way he might see *239fit, without restriction. That Act prescribed a mode, and provided in case any slave was set free, otherwise than according to it, “ it shall and may be lawful for any person whosoever, to seize and convert to his or her own use, and to keep as his or her property, the said slave so illegally emancipated or set free.”

The Act of 1820 created an additional restriction upon emancipation, by enacting “ that no slave shall hereafter be emancipated, but by Act of the Legislature.” These were the only laws limiting the powers of the owners of slaves as to emancipation, when the testatrix made her will and died. Since then, in 1841, an important change has been made by an Act which, among other things, provides 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 every donee or trustee, holding under such bequest, gift or conveyance, shall be liable to deliver up such slave or slaves, or held to account for the value, for the benefit of the distributees or next of kin of the person making such bequest, gift or conveyance.”

The first enquiry is, was the bequest of Mrs. McCants, of the slaves in controversy, to the executors, lawful in 1839 *1*And secondly, what interest or estate did they take *1*These questions naturally precede those that may arise under the doctrine of trusts, which has been discussed in the circuit decree.

At the time testatrix made her will, there was no law that restricted the owner of a slave from bequeathing, giving or conveying a slave, with a trust or confidence, either secret or expressed, that such slave should be held in nominal servitude only: if it had been otherwise, why pass this clause of the Act of 1841 ? Nor can it be said that it was declaratory of what the law was before that time, as neither principle or case can be adduced to establish such a proposition. The object of the Act was to suppress and prevent a great and growing evil, which had counteracted, to a considerable extent, the effects intended to be produced by the Acts of 1800 and 1820.

But these Acts were not framed to cover the case of one person transmitting to another the title of a slave with a trust of nominal servitude ; for although the slave might be as free from service as his master, yet he was, nevertheless, a slave and subject to all the disabilities and servitude of his condition — he was liable for his master’s debts — subject to sale, passed as chattels in case of intestacy, and might be bequeathed to another owner. Such a trust could not be enforced in any Court, in favor of a slave, and depended for its execution upon the mere will of the donee. In the pase of *240*Cline*v. *Caldwell,*the Court held that the deed of a slave, a]DS0]ute on its face, but with a *secret*trust, to let the negro go at large as a freeman, or with a view to future emancipation, was no violation of the Act of 1820, and was obligatory between the parties; until emancipation takes place the right of property remains in the grantee. There the conveyance was mat^e by the owner of the slave John, to the plaintiff, who was a free negro, the wife of John, and her rights were protected. But,if the owner, without a formal act of emancipation, permits his slave to go at large, and to exercise the rights and enjoy all the privileges of a free person of the slave would become liable to be seized under the Act of 1800, and the owner could not maintain trover for him without previously seizing him under the Act. Nor is a slave liable to capture, unless the owner parts with the possession, and permits him to go at large and act for himself.

1 Hill Rep. 423.

Linam v. Johnson Bail R. 137 ’

Lenoir v. vester, i Bail. R. 032.

2 Hill Cli. Rep. 314.

In the case of *Frazier*v. *Frazier's*executors, which was decided in 1835, the Court laid down the principle that the owner of slaves may, by his last will, direct his executors to dispose of them in any way he could; and as he could, in his lifetime, have removed his slaves to another State, and there have emancipated them, he might, by will, direct his executors to do so; and they were accordingly ordered to remove and emancipate them.

The second enquiry is, what estate did the executors take in the slaves under the will ?

From the terms of the bequest, it appears the whole estate that the testatrix had in the slaves, was left to and vested in the executors, who are entitled to their absolute ownership.

If the slaves had not been given to the executors without limitation or reservation, and the title had been left where the law vests it independently of the bequest, then the sole right of the executors would have arisen from their representative character, which would clothe them with nothing but a trust; but here they are vested with the legal estate *ex vi*termini, as legatees, and the alleged trusts merely amount to advice, which they may or may not follow as they see fit. If the testatrix had not bequeathed the slaves to any one, but required her executors to perform the trusts, by paying them their legacies, and permitting them to live free of service or wages, except what might be sufficient to pay their taxes, it would have constituted a very different case from the present, where she has transmitted the whole legal and equitable estate to the executors as legatees. The executors took possession of the slaves, and became their owners to all intents and purposes before the Act of 1841, disincum-bered of the supposed trusts, which clearly fell within that class of duties that are denominated by writers on ethics, *imperfect*obligations, such as cannot be enforced either in *241law or equity : neither the slaves or any one for them could set up their claims under the will, and whatever legacies or benefits were bequeathed to them, either belong to or can be controlled by their masters, and as far as the slaves are concerned, have no more weight than if such provisions had never been made in the will.

1 Domat. 45, Sec. 1 advicé the use of rules.

1 Domat. 5, sec. 15.

Taylor’s Civil aw’168'

As soon as the executors took possession of the property the testatrix, paid her debts and assented to the legacies, all the valid subsisting trusts, connected with these slaves and the bequests left to them, were executed and terminated, and there was nothing upon which the doctrine of indefinite and void trusts, when no personal benefit is bestowed upon the executor, can operate so as to create a resulting trust in favor oí the next of kin. We are not disposed to controvert the views of the circuit decree on this subject, but we think they are inapplicable to this case. The title, both legal and equitable, in the slaves, having vested in the executors and legatees, before the passage of the Act of 1841, there was no such trust in existence as it contemplated, upon which it could attach. The civil law made a material distinction between natural and arbitrary laws : “ the former being taught by nature and reason, have of themselves justice and au> thority, which oblige the people to obey them,” but the latter are *“*as facts naturally unknown to man, and which are not binding until they are promulged; from whence it follows "that natural laws regulate both the time to come and the time past, *but arbitrary laws have their effect*only tor the time to come, and it is to give them this effect that they are put down in writing — that they are promulged, arid that they are recorded, to the end that no body may pretend ranee of them.”

*“ As*new laws regulate what is to come, so they may, as occasion requires, change the consequences that the former laws would have had; *but this is always without prejudice*to the rights that any persons had already acquired.” A learned writer, Dr. Taylor, commenting upon the principle, “ *leges et constitutionsfuturis cerium est dare for mam nego-iies, non ad facta praeterita*revocari,” says, “ the operation of law is naturally forward. Law is a direction of manners, prescribing what is to be avoided; but they are things *in futuro*only that can possibly come under that description, *i. e.*that can be avoided or not; for as no previous instituted law of man can prejudice or invalidate any future constitution, so no future constitution can operate to the prejudice of any past action. It is an equal absurdity, that law in the one 'case should *valere ad*ventura, or in the other *ad*praeterita.”

Speaking of the changes of law, he adds, “ the law giver cannot alter his mind *to another man’s disadvantage, ox amend a*law, *which to another has created a right;*and even *242this restriction wants to be restrained itself, for as to that man, he is bound ; as to others, not. The whole of this is best seen by instance ; as it is a matter of indifference whether the State permits a man to dispose of his effects by will, or directs them in the channel of nature to the heir at law, I can suppose one of the directions altered on a sudden, and wills, for instance, to be declared of no force hereafter; here many things will meet my reader’s observation, which I have been discoursing upon above. 1. As either way of succession *vel ex testimento, vel ab intestato,*is indifferent, the law may direct either course indifferently, and change its mind uncontrollably.

*“2.*Those^who were in *possession of property*before, *under the operation of a*will, *were in possession of a right which no power can defeat by the alteration of judgment.*

“ 3. For if an alteration of judgment, in the. Legislature, can defeat a right created before then, a law can *valere in*praeteritum, which we have seen to be absurd.”

When the testatrix made her will and died, it was not un-lawfijJ. for a master to hold his slave in nominal servitude, or to give or bequeáth him to be held in that way ; but even then the execution of such a trust could not be enforced against the donee or legatee, the property became his absolutely, and it depended entirely upon his discretion whether he permitted the slave to enjoy the benefit of the provision or not, and neither he or any other person on his part could enforce it.

If all her interest and estate in the slaves, and the bequests to them, passed to her executors, the only question that can arise is, was there, notwithstanding this, such a valid and subsisting trust at the passage of the Act of 1841, upon which it could operate ? If the character of the alleged trust was merely advisory, and could not have been enforced before the Act, it would *seem to have no existence*either in law or equity, and being a nullity was, therefore, not the subject of legislation. It cannot be controverted that the owner has a right to hold as loose a rein over his slave as he pleases, so that he does not part with his possession, and permit him to go at large as and to exercise the privileges of a freeman, and thereby to become derelict, and liable to be captured under the law. There is no limitation over after the estate bequeathed to the executors, and there is no ulterior reservation expressed or implied; the legacy is not left upon'condition, nor is it liable to forfeiture, but its terms are amply sufficient to convey all the estate the testatrix had in the slaves. Her object seems to have been to invest her executors with all her rights in relation to the slaves, and to induce them to pursue the same course that she, if living, would probably have adopted for the government, protection, *243and principally for the comfort of the slaves, and the executors have not forfeited their rights as absolute owners, from their faithfully fulfilling the wishes of the testatrix, neither would they have done so if they had subjected them to the severest servitude, and appropriated the legacies left them to their own use •; their course has depended upon their will and pleasure, and not upon any obligation arising out of the will that can be enforced either in law or equity. This view enables us to steer clear of the question as to the validity of retrospective laws.

Lit. 4th, p. 228.

Kent’s Com.

As early as the time of Bracton, the maxim *nova constitu-tio futur is forman imp oner e debit et non*praeterites, (which was borrowed from the civil law,) was incorporated into the common law, and seems to have received the united sanction of every elementary writer, down to the time of our own commentator, Chancellor Kent, who says, “ the very,essence of a new law is a rule for future cases.”

Some of our sister States have, by their constitutions, specially provided against the passage of such laws, and the general tenor of our institutions is to restrict the law making power to the future. A strict construction of the powers of the different departments of government, and of the laws that are adopted, and an inviolable regard for vested rights, are among the strongest securities that can protect property and perpetuate our institutions.

The retroactive effect of an Act upon the ' past, would involve the exercise of not only legislative but judicial power ■; for instance, a new character would be given to such a bequest, by declaring it illegal, and then another rule applied, making the property distributable.

But we are not left to feel our way through abstractions to the correct conclusions on this subject; from the current of our own cases, we can derive probably the most satisfactory arguments, and the most weighty authority.

This case is clearly distinguishable from *Lenoir*v. *Sylvester,*for there the executors might lawfully have carried out the testator’s intention in emancipating the slaves before the Act of 1820; but as they had failed to do so, and that had intervened and prevented them from accomplishing it after-wards, the estate of remainder, after the interest of the tenant for life had been exhausted, became intestate property and enured to the benefit of his next- of kin.

So in the case of *Gordon*v. *Blackman*the bequest was not as in this ease to the executors, but that the slaves should be hired out by the executors until a sufficient sum should be raised from their hire to pay testator’s debts ; that they should, then, apply to the Legislature to procure the emancipation of the slaves, and if they should fail to procure such Act then to carry them to the nearest non-slaveholding State *244or to Liberia. Before a sufficient amount had been realized from the hire of the slaves, to pay testator’s debts, the Act of 1841 was passed, which intercepted the execution of that part of the will that directed the slaves to be carried to the nearest non-slaveholding State or to Liberia, and rendered it unlawful, and it was held that a trust resulted for the testator’s next of kin: this case was decided in strict analogy to the preceding. But if- the testators had, in both these cases, bequeathed the slaves to their executors absolutely, these trusts would have been null and void.

11 Stat. of S. Carolina, 154.

Rice’s Law Reports, 196.

Finley v. Hunter, 2 Strob. E, R. 218.

In *Rhame*v. *Ferguson et al.*the testator bequeathed slaves to his executor, and his executors and assigns forever, in trust, to permit them to apply and appropriate their time and labor to their own proper use, &c. and gave the residue of his estate, both real and personal, to his executor, upon the trust that the slaves and their issue should be permitted to use and enjoy the same forever ; and it was held that the effect of the will was to vest the legal title in testator’s estate in his executor, who had the right to take possession of the property and use it for the purpose of paying the debts of the estate, and then to do with it as he pleased.

*Carmille*v. *Administrator of Carmille et al.*is almost a perfect parallel to this case; the only difference is, there the conveyance was by deed, here it is by will; there the donor had parted with dominion over the property, and put it beyond his reach, and whatever estate he had had was transmitted to his donees, against whom his legal representatives could have no redress. The slaves were conveyed to Prin-gle and Chartrand upon the trust that they would suffer them to receive what they might obtain for their labor “ after paying the trustees the sum of one dollar per annum and no more.” Here the terms of the will convoyan absolute estate to the executors, and their title would probably have never been questioned if the Act of 1841 had not been adopted, and as that can have no effect upon such a bequest, the case must be decided independently of its provisions. In Car-mille’s case the second deed conveyed to the trustees two slaves for the use of other slaves previously conveyed to them, and. the Court held that as the trustees had the possession they had the right to say it was a naked conveyance to them, and that the trust was mere matter of advice and recommendation, which they may or may not regard. The same principles would seem to prevail when the gift had been made by will; for its construction must depend upon the existing laws, and it is always supposed to have been ipade in reference to them, unless there be some palpable re-pugnancy. When an ulterior interest was reserved orlimit- ' ed over, and an absolute bequest was made of slaves before ' the Act of 1841, no such inoperative trusts in favor of them can enure to the next of kin.

*245It is, therefore, ordered and decreed that the circuit decree be reversed on this point, and that the slaves and the cies bequeathed to them, be the absolute property of the executors, to whom they belong under the will of the testatrix.

Richardson, O’Neall, Evans and Frost, JJ. and kin, Ch. concurred.

Withers, J. holding Court in Charleston.

Dargan, Ch. and Wardlaw, J. dissented.

*Decree reversed.*

The point submitted having been decided by the Court of Errors, and the case sent down to the Court of Appeals, that Court decreed as follows:

*Per*

Caldwell, Ch.

The Court of Errors having determined the question submitted to it, and having reversed the circuit decree upon that point, and the other grounds of appeal having been heard by this Court, it is ordered and decreed that the circuit decree be affirmed in all other respects, and the appeal dismissed.

The whole Court concurred.