#### *The Heirs of David Morton*vs. *Thompson and another, Executors.*

Three separate clauses by which testator bequeathed to throe different legatees — to each one-third of his estate, held to be residuary.

Testator directed that his two slaves, W. and M., have their freedom by paying their appraised value, and that they be allowed three *years to*pay it in; that his negro woman A. c be free by getting a guardian/ and that her child D. *1*go with her, in like *manner*— J8eldy that this was an open and undisguised attempt at emancipation, contrary to tho Act of 1820, and not coming within the Act of 1841; and that the slaves passed to the residuary legatees.

*Before*Dargan, Ch., *at Greenville,*July, 1853.

Dargan, Ch. This case comes before me on an appeal *from*the Ordinary. There is some irregularity in the form in which the case has been brought up; but, as the appellants have taken no exception as to the form of the proceeding, I do not deem it incumbent on me to notice it.

The whole litigation turns upon the construction of David Morton’s will. The testator, after giving some directions for the sepulture of his body, and making provision for the payment of his debts, declares as follows:

“ *Firstly.*At my death, I desire that my land, and stock, and crop, household and kitchen furniture, be sold as soon after my death as my executors may think best, and the proceeds applied as is directed hereinafter.

“ *Secondly.*I desire that my negro property be appraised by disinterested persons, and that there be as many appraisers as the law directs; and I want Matilda and her children to be appraised together ; and if any of the other girls should have any child or children before that time, that they be appraised in like manner.

*“ Thirdly.*My two boys Wilson and Madison to have their freedom by paying the appraisement, and that my executors give them three years to pay it in.

“ *Fourthly.*My negro woman Amy, I desire that she be free by getting a guardian. I do this for her kindness towards me *371during the affliction that it has pleased God to afflict me with ; and that her youngest child, David, go with her in like manner ; and that no inventory be taken on the above two.

*“Fifthly.*I bequeath to Fairview Church one-third of my estate, after all my expenses are paid, to be used by said Church — to be managed to the best advantage for said Church.

*“ Sixthly.*I bequeath to the Domestic Missionary Society one-third of my estate after my expenses are paid.

“ *Seventhly.*I bequeath to the Foreign Missionary Society one-third of my estate, after all my expenses are paid; and I direct my executors to pay over to the South-Carolina Presbytery the two last items above named, so soon as it can be done after it comes into their hands.”

The testator then nominated Alexander Thompson and Jesse H. Stone the executors of his will.

The executors having been advised that the provisions of the will for the emancipation of Wilson and Madison, and of Matilda and her child David, were illegal and void, have sold the said negroes, together with the rest of the real and personal estate. They ■ have accounted before the Ordinary for their administration. No question arises on their accounts. The Ordinary, on auditing the same, decreed a distribution to be made of the nett residue into three equal parts: one-third to Fairview Church, one-third to the Domestic Missionary Society, one-third to the Foreign Missionary Society — the two last portions to be paid to the South-Carolina Presbytery, according to the directions of the will.

The heirs-at-law and distributees of the testator, who have made themselves parties to the proceedings in a manner somewhat informal, have appealed from this decree, which was, in fact, *ex parte,*they not being parties in the proceedings. The second and third grounds of appeal are the only ones that were discussed on the hearing, and it will only be necessary for me to notice them. The two. grounds are substantially the same, and may be resolved into one. They are as follows :

*372“ Because the next of kin of the said David Morton are entitled to the negroes which the said David Morton attempted to emancipate in his will.

“ Because the said emancipation being void by the laws of this State, and the said negroes not being otherwise disposed of in and by the said will, the proceeds of the said negroes belong to the next of kin of the said David Morton, and should not be decreed away from them.”

Though there is no general residuary clause in this will, it is obvious that the three last clauses are residuary in their character. If the testator had given his estate to one person, such person would have been the general and residuary legatee. The *effect*is the same where the testator has given the whole, as in this case, to different legatees, in fractional portions, the sum of which constitutes the entire estate.

The appellants ground their claim principally upon the provisions of the Act of 1841. If the case comes within the operation of either of the first three clauses of that Act, their proposition would be undeniable. In order to a proper understanding of this subject, I must be allowed to submit a brief review of the action of our Legislature upon the subject of negro emancipation.

A free African population is a curse to any country, slave-holding or non-slaveholding; and the evil is exactly proportiqnate to the number of such population. This race, however conducive they may be in a state of slavery, to the advance of civilization, (by the results of their valuable labors,) in a state of freedom, and in the midst of a civilized community, are a dead weight to the progress of improvement. With few exceptions they become drones and *lazaroni*— consumers, without being producers. Uninfluenced by the higher incentives of human action, and governed mainly by the instincts of animal nature, they make no provision for the morrow, and look only to the wants of the passing hour. As an inevitable result, they become pilferers and marauders, and corrupters of the slaves. Our early colonial legislation bears the impress of these great truths in the repeated enactments discouraging and restricting *373the emancipation of slaves. It will not subserve any present purpose I have in view to refer more particularly to that period of our legislative history.

The first legislation on this subject that I will notice, is the Act of 1800. That Act, after reciting the evils and abuses resulting from too great a facility in the emancipation of slaves, inhibited emancipation, except by the deed of the owner, executed under the supervision of public authority, after certain forms prescribed by the Act. It was necessary that there should be a judicial examination by a magistrate and five freeholders, who were required, after hearing the evidence, to decide whether the slave proposed to be emancipated was of good character and capable of earning his or her livelihood, <fcc. If the result of the investigation was favorable, they gave a certificate to that effect. The owner then executed a deed of emancipation, and the slave became free. It was further declared, that any slave emancipated contrary to the provisions of this Act, became liable to seizure by any person who thought proper to exercise the right, and a good legal title vested in the captor. This part of the Act of 1800 is still of force.

Thus stood the law till 1820, when an Act was passed, “ That no slave shall hereafter be emancipated but by the Act of the Legislature.” This Act rendered every private emancipation a nullity. If, after the attempted emancipation, the slave remained in the possession and under the control of the owner, his right of property was not divested or in any way affected. If he sent the slave adrift, or abandoned the possession, such slave was subject to manucaption, under the provisions of the Act of 1800.

In this state of the law, there were not wanting attempts at evasions. Some of these attempts were successful. I am constrained to say, (and I say it with all proper deference,) that, in my opinion, the Judiciary did not seem to realize the stern, but wise and necessary policy of the State, embodied in the Act of 1820. That Act rendered private emancipation impossible. If not done by Legislative authority, it was simply a nullity. Should not all attempts at evasions of the law have been held *374ineffectual and void? Was not a provision, by deed, or by will, that a slave should be held in nominal, servitude, against the plainmeaning and intent of the Act ?

In *Carmille*vs. Carmille, (2 McM. 454,) John Carmille, for a nominal consideration, conveyed to Pringle and Chartrand certain negroes, of which he was the owner, in the trust and confidence that they should be held only in nominal servitude. By the terms of the deed, the slaves and their issue were to be permitted “ to seek out and procure employment, and to work for their own support and maintenance.” And, further, they were “ to receive and take, for their own use and benefit, all such moneys as they may obtain for their labors or otherwise, after paying to the trustees the sum of one dollar per annum, and *tio*more.” By a second deed of the same date, John Carmille conveyed to the same trustees two other negroes, in trust, to apply their labor to the use of Henrietta and her children, (the slaves mentioned in the deed above referred to,) until her youngest child shall come to the age of 21 years, and then the said two slaves were to be sold, and the proceeds were to be equally divided between Henrietta and her children, share and share alike.

This case came before Chancellor Dunkin, in Charleston, June Term, 1839. The Chancellor considered the case as “an undisguised attempt to evade the law of the State forbidding emancipation,” and it was ordered and decreed, that the slaves in question be delivered up by Pringle and Chartrand, to be administered as a part of the estate of John Carmille. An appeal was taken; on hearing of which, there was a difference of opinion among the Chancellors, and the case was referred to the Court of Errors. The case was finally heard at February Term, 1842. It was held that the deeds were valid, and vested a legal title in the trustees ; that the condition was void, and the negroes remained slaves ; and that if the trustees should give them the proceeds of their labor, it would not be unlawful. It was further held, that the second deed, which conveyed two slaves for the use of Henrietta and her chil*375dren, was valid. It is impossible to deny that this decision afforded a precedent, and a form by which the Act of 1820 might be practically annulled and the policy of the State baffled. Upon the authority of this case was decided *McLeish*vs. *Burch,*(February, 1849,) 3 Strob. Eq., 225, being a case arising under a will which took effect before 1841. The cases are very similar in every respect.

The case of *Carmille*vs. *Carmille,*and other cases occurring about the same time, gave rise to the Act of 1841.- This Act was intended to remedy the deficiency of the Act of 1820, in carrying out the policy of the State, and to provide for cases, which, according to judicial construction, were not embraced in any previous legislation. From the very necessity for this legislation, from the phraseology of the Act of 1841, and the two decisions which I have cited, it may be assumed, that cases may arise under the Act of 1820, which do not come under the provisions of the Act of 1841, and *vice versa.*The cases arising under the two Acts may be classified as follows: While the Act of 1820 defeats and renders null any open and undisguised attempt at emancipation by the act of the owner, the Act of 1841 renders null and void any indirect attempt to accomplish that purpose, by secret trusts, and other means of evasion, which according to the decision of the Court, was not reached by the Act of 1820.

Thus, the three first provisions of the Act of 1841 apply only to cases where emancipation is attempted to be effected by indirection. It contains four sections. The first renders void “ any bequest, deed of trust, or conveyance, intended to take effect after the death of the owner, whereby the removal of any slave or slaves without the limits of the State, is secured, or intended with a view to the emancipation of such slave or slaves.”

The second section renders void “any gift of any slave or slaves hereafter made, by deed or otherwise, accompanied by a trust, secret or expressed, that the donee shall remove such slave from the limits of the State, with the purpose of emanci-cipation.”

The third section renders void “ any bequest, gift or convey-*376anee of any slave or slaves, accompanied with a trust, or confidence, either secret or expressed, that such slave or slaves shall beheld in nominal servitude only.”

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

Under the provisions of this Act, the slaves which the owner attempts illegally 'to manumit, or directs to be held in nominal servitude, shall go to the distributees or next of kin of the owner. And it is contended that this Act must qualify the construction of David Morton’s will, and conceding, what cannot be denied, that lapsed and void legacies fall into the residuum, and pass under the residuary clause, the Act of 1841 provides a different disposition in cases coming within its provisions, supersedes the residuary legatee, and declares in favor of the distributees or next of kin. The proposition, as thus stated, commands my unqualified assent, and it is not difficult to assign reasons why the Legislature should have so provided. But, in my judgment, the case arising under David Morton’s -will does not fall under any of the provisions of the Act of 1841, but under the Act of 1820. The will does not direct or contain any trust to the effect, that the slaves in question shall be removed from the limits of the State, with a view to their emancipation. Nor is there any trust or confidence, secret or expressed, that the said slaves shall be held to nominal servitude only. And it is only in such cases that the law declares that the distributees or next of kin shall take. In all other instances they are left to take, or not to take, according to the general law of the land, for the distribution of intestates’ estates, and the general principles for the construction of wills.

The case before me is an open, barefaced infraction of the Act of 1820, not falling within either of the specific provisions of the Act of 1841, and, in my judgment, must be decided as if it had occurred before the last mentioned Act was passed. And if it had so occurred, beyond all doubt, as a void legacy, oí-as no legacy at all, the slaves in question would have passed *377under the provisions of this will which are residuary in their character.

The 4th section of the Act of 1841 declares any devise or bequest to, or in trust for, a slave, void, without saying how such void devise or bequest should be disposed of. The absence, in this clause, of the provisions in favor of the distributees and next of kin, which occur in the three preceding clauses, evinces, on the part of the Legislature, an intention that a different rule should prevail. In a case arising under the 4th section, the void bequest would go to the distributees or pass under the residuary clause of the will, (if such a clause existed,) under the general principles of law applicable to the subject, outside of the provisions of the Act of 1841. Otherwise, there would be no meaning in the marked and studied difference of the phraseology. This, I.think, lends some confirmation to the view, that the Legislature did not intend to alter the Act of 1820 in this particular — X mean, as to the parties who would be entitled to take the slaves emancipated by will contrary to the provisions of that Act.

The opinion of the Court is, that this appeal must be dismissed. And it is so ordered and decreed.

The plaintiffs appealed on the' grounds :

1. Because the said decree is contrary to the true intent and meaning of the provisions of an Act of the General Assembly of this State, passed the seventeenth day of December, one thousand eight hundred and forty-one, and entitled, *“*An Act to prevent the emancipation of slaves, and for other purposes.”

*2*Because the said decree is otherwise contrary to Law and equity.

*Young,*for appellants.

*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 and Wardlaw, CC., concurring.

*Appeal dismissed.*