#### *W. C. Johnson, by next friend,*vs. *Wm. Clarkson and T. B. Clarkson.*

Testator, who died in 1849, left of force his will, bearing date 2d October, 1840, in these words, to wit: — “ After all my debts are paid, I will and bequeath to my brothei-, W. C. all of my property, on certain conditions made with him. Should he decline taking it, I will and bequeath it to the Rev. *W.*B. on the same conditions. I appoint my said brother, W. C. my executor:” shortly after testator’s death, W. C. qualified as executor: with the will were found several unattested papers signed by the testator, and bearing dates subsequent to the date of the will, in which he, the testator, expressed his desire, and declared it to be one of the conditions mentioned in his will, that his slaves should be emancipated, if it could be done without evasion of the law, and in which he directed certain legacies to be paid, and, in a certain contingency, distribution of his whole estate: to a bill filed by the next of kin of testator claiming that a trust resulted to them, W. C. answered and stated, that he had never, before testator’s death, seen either his will, or any of the papers accompanying it, “ although testator had, at different times, conversed with; him upon the first and principal subject mentioned in the papers accompanying his will, (the emancipation of his slaves) and relied implicitly upon this defendant’s integrity for carrying but his intentions as far as he could without practising any evasion of the law:” — Held,—

1. That no beneficial interest was given by the will to W. C.

2. That the papers found with the will, having been executed after the will, and not being attested by three witnesses, could not be received in evidence as testamentary papers, or as showing the conditions referred to in the will.

3. That the conditions upon which W. C. held the estate, being, as stated in his answer, for the benefit of the slaves of testator, were void by the provisions of the Act of 1841.

4. That a trust resulted to the next of kin of testator: — and partition of the estate was ordered.

A paper referred to in a will, or described so that there can be no doubt as to its identity, becomes part of the will, whether executed or notbut a paper executed after the will, and not attested by three witnesses, can have no operation as a testamentary paper.

*Before*DunkiN, Ch. *at Charleston, June,*1850.

The bill stated that the uncle of plaintiff, John Clarkson, late of Charleston, departed this life in eighteen hundred and forty-nine, having first made and published an instrument in the nature of a last will and testament, of which the following is a copy, to wit: “I make the following will and testament: After all my debts *306are paid, I will and bequeath, to my brother, William Clarkson, all of my property on certain conditions made with him.— Should he decline taking it, I will and bequeath it to the Rev. Wm. H. Barnwell on the same conditions. I appoint my said brother, William Clarkson, my executor. Witness my hand and seal, this second day of October, eighteen hundred and forty. John Clarkson. [Seal.]

Signed and sealed in the presence of E. A. Clarkson, H. S. Wilson, C. C. Woodruff.”

That William Clarkson, the executor named in the said will, duly proved the same in common form, and assumed'the duty of executor, and took possession of the property of the testator. That the said property consisted of a plantation and a large number of negroes, together with stocks and other personal estate; and that but few, if any, debts remained unpaid; that the devise and bequest aforesaid was not made to the said Wm. Clarkson for his own use and benefit; and that said William cannot take the beneficial interest in the property, and there being no designation in the will of the persons who are to take, either the whole devise is void for uncertainty, or a trust results for the benefit of the next of kin of the, said John Clarkson; and they are entitled to partition both of the real and personal estate of which he died possessed.

That plaintiff is informed and believes, that the mind of his uncle was in a diseased state in relation to his right to hold his negroes in slavery; that he spoke from time to time of emancipating them, but never came to any fixed conclusions, and plaintiff apprehends and so charges that the devise and bequest to the said William Clarkson, his brother, was made by the said John Clarkson with a view that the said slaves should, after his death, be removed from this Slate and be emancipated; or that they should be held in nominal servitude; and plaintiff expressly charged that the said bequest is made void by the Act of Assembly to prevent the emancipation of slaves, passed the 17th day of December, eighteen hundred and forty-one; and that *307the said executor is bound to deliver up the said slaves to the next of kin.

That at the decease of the said John Clarkson, his heirs at law and distributees were his two brothers, William and Thomas B. Clarkson, and plaintiff, the only child of his deceased sister, all of whom are now alive. “ To the end, therefore, that the said William Clarkson and Thomas B. Clarkson may answer the premises; that the said William Clarkson may account for his actings as executor, and may set forth and discover whether he hath accepted the devise and bequest made to him by the said will; whether the removal of the slaves of the said John Clarkson, or some of them, without the limits of this State after the death of the said John, with a view to their emancipation, was not intended or secured by the said bequest made to him, the said William ; whether there is any secret or expressed trust, that the slaves of the said John, or any of them, shall be held in nominal servitude; whether he claims the said negroes and other property as given to him absolutely, or whether there is any secret or expressed or implied trust or condition accompanying the devise or bequest, and what that is, and what is the evidence thereof: whether he, the said William Clarkson, does not intend to remove the said negroes from the State, with a view to their emancipation, or what disposition he conceives himself under obligation to his brother’s wishes to make of them ; that the said devise and bequest may either be declared void, or a trust for the benefit of the heirs at law or distributees of the said John Clarkson; that partitions may be made of all and singular the property, and your orator’s share delivered him in severalty, and that such other and further relief may be granted as to your Honors shall seem meet. May it please your Honors,” &c.

The defendant, William Clarkson, in his answer, after admitting the execution of the will, — the death of testator, — that defendant had qualified as executor, — that plaintiff and the two defendants were the heirs at law and distributees of testator, &c. says — “ that he was not present at the death-bed of his *308said brother, the testator, but has understood and believed, that, when the testator found his death rapidly approaching, he directed this defendant’s co-defendant and brother. Thomas B. Clarkson, where he should look for his will, and that the said will was there found, and along with it several other papers bearing several dates, in the words and figures set forth in copies thereof herewith filed as an Exhibit, and marked A.

*“*And this defendant further answering, saith, that he never, at any time, induced the said testator to devise his said estate to him, this defendant, by any promise or assurance or undertaking on his, this defendant’s, part, that he would carry the wishes expressed in the said written directions into execution, nor had he ever seen (as far as his memory serves) either his brother’s will or any of the papers accompanying it, in his brother’s lifetime, nor until after his brother’s death, although *his*said brother had, at different times, conversed with him upon the first, and principal subject mentioned in the papers accompanying his will, and relied implicitly upon this defendant’s integrity for carrying out his intentions as far as he, this defendant, could, without practising any evasion of the law; and with a view to. so doing, this defendant, after a full consideration of the subject, qualified upon his brother’s will. And this defendant further answering, saith, that he has accepted the devise and bequest of the whole of his, testator’s, estate real and personal, upon the-conditions intended by his testator, and that he, this defendant, is bound to undertake, and is ready and willing to perform, the said conditions, unless prevented by this Honorable Court, and these conditions he understands to be as follows: — That he, this, defendant, is to practise no evasion of the law, (as he is so directed by the memorandum dated January, 1843, a copy of which is herewith filed in Exhibit A,) but to make application to tfie Legislature of this State, which body alone can emancipate slaves, to emancipate all the slaves belonging to his brother at his death, or to give this defendant license and permission to send them out of this State; and if the said negroes be emancipated by the Legislature, or this defendant have the. *309legislative license to send them out of this State, then that he, this defendant, shall sell the plantation of his testator, and out of the proceeds thereof, to pay five thousand dollars each to two legatees named in the said papers, and the balance, with such moneys as his testator left at his death, to divide among the said negroes; but if the Legislature, upon such application made by this defendant, refuse both to emancipate the said slaves or to give this defendant license to remove them out of the State, then that this defendant shall sell the whole of the testator’s estate, and divide the proceeds into five equal parts, or otherwise divide said estate into five equal parts, to be paid to the said several legatees and objects designated in the said papers, that is, in the memorandum bearing date February, 1849. And he, this defendant, submits to this Honorable Court, that he holds the estate of his testator upon the said conditions, and that the said conditions are lawful conditions, and that he, this defendant, is bound and also ready and willing to perform them, and that even if the said conditions were unlawful and he could not perform them, his right to hold the said estate could not be effected thereby, but would be held by him discharged of the condition which he could not lawfully perform.”

EXHIBIT A.

To William Clarkson. — By my will all my property will come into your hands on certain conditions, or on your declining to take it, into the possession of the Rev. William H. Barnwell, on the same conditions. Some of these conditions I now express in writing. All of my. negroes must be emancipated, either immediately or at any time the Rev. ffm, H. Barnwell shall think advisable. Should immediate emancipation be deemed inexpedient, the proceeds arising from the lands and negroes, must be placed at interest until they are liberated, and then this accumulated sum, together with the sale of my lands and other moneys not specifically appropriated, shall be given to them, that is, my land and all the proceeds shall be considered their property. If the law for*310bidding the emancipation of slaves in South Carolina is then in force, so that *all*my negroes must be removed, then the husbands or wives of any of mine belonging to other persons, must be purchased from monies of my estate not vested in lands, if there is a sufficient amount, but if there is not a sufficient sum, then so much as is necessary in addition, must be taken from the sale of the lands: The purchase is only to be made, provided no arrangement can be effected by which the husbands and wives will not be separated. If there is any amount left after the purchase of the negroes and without using the funds arising from the sale of the lands, then two hundred dollars is to be given to the Ladies’ Benevolent Society of Charleston, and the remainder to the Domestic and •Foreign Missionary Society of the United States of America, provided there is as much as six hundred dollars left. But if there is not so much, then the Domestic and Foreign Missionary Society is to receive twice as much as the Ladies’ Benevolent Society of whatever sum is left; but should there be more, the Ladies’ Benevolent Society is only to receive the two hundred dollars, and the domestic and Foreign Missionary Society the remainder, whatever it may be. I wish (if possible) that the negroes should not be sent out of America. I will expect you or the Rev. Mr. Barnwell, whoever receives the property, to make a will providing for the emancipation of my negroes, together with their husbands and wives belonging to other persons as stated above, if the negroes must be sent and remain out of the neighborhood. The Rev. W. H. Barnwell must be advised with in every case that I do not determine in writing or orally. Whatever oral directions I may give are to be considered my will in preference to this, although verbal.

John Clarkson.

October 7th 1840.

Husbands and wives must on no account be separated.

Nov. 25th 1842.

_ John Clarkson.

*311I became of age on the 5th of Jan., 1832. From the 5th Jan., 1832, to 5th, 1841 — 9 years. Betty came into my possession 5th Jan., 1832. George, Caesar, Jack, Henry, David, Robert, —owned a fourth part of these six negroes until 8th Nov., 1836, when George and Caesar were taken by me in the division that was made at that time. George owed me $112 in August, 1841, and has paid me very little I think since that date. But credit him with $25. Anthony was sold on the 7th Dec., 1832, by Mr. Kunhardt to B. D. Heriot. I wish a calculation to be made as to what the above-named negroes could have earned me after paying all their expenses, which sums I wish paid to them — I mean during the time I owned them. Deduct the amount which George owes me, ahd will owe me, unless he pays. Caesar’s wages should be counted up to 1837, besides that he will be on the same footing with the plantation negroes.' Betty and George, besides their wages, will be on the same footing with the plantation negroes.

Nov. 25th, 1842.

JOHN CLARKSON.

If there is any portion of my property given to the Domestic and Foreign Missionary Society, I wish it given to the domestic department, or a portion to Texas.

Nov. 25th, 1842.

JOHN CLARKSON.

I understand that my will cannot be lawfully carried into effect. I wish no evasion of the law practised, but application to be made to the Legislature to permit it to be executed.

January, 1843.

JOHN CLARKSON.

Should my negroes be emancipated, instead of giving to them all the proceeds from the sale of my plantation, I bequeath $5,000 of the said proceeds to Miss J-J-, (you will know who I mean,) and $5,000 to Miss A. E. M., (Rev. J. S. Hanckel can tell you -who I mean,) and should my negroes not be emancipated, and there be no intention of its being done, I wish my property divided into five equal parts: one given to missions and charity; one to my brother William Clarkson; one to my *312brother T. B. Clarkson ; one to Miss J-J-, named above, and one to Miss A. E. M., named above. Rev. Mr. Barnwell must be consulted as to the propriety of giving legacies to these ladies. I wish it done, if there be no impropriety in doing it.

Feb., 1849.

JOHN CLARKSON.

I do not wish my -negroes forced to go to Africa, if they do not wish it.

Aug. 13, 1849.

JOHN CLARKSON.

I wish whatever amount I shall receive from my mother’s estate, having come to me through my aunt, Mrs. Broughton, to be returned to Mrs. Broughton’s family. That is all that I can control.

Aug., 1849.

JOHN CLARKSON.

Thomas Boston Clarkson, in his answer, submitted the whole matter to the judgment of the Court.

Dunkin, C-h. The will of John Clarkson bears date 2nd October, 1840, and is as follows, viz: — “I make the following will and testament. After all my deb.ts are paid, I will and bequeath to my brother, William Clarkson, all of my property on certain conditions made with him. Should he decline taking it, I will and bequeath it to the Rev. Wm. H. Barnwell on the same conditions. I appoint my said brother my executor.” The testator died on the 21st October, 1849, and soon afterward the executor named, proved the will and qualified thereon. The estimated value of the testator’s real estate is $23,500, and of his personal estate about $93,000. His next of kin and heirs at law are his two brothers, William and T. B. Clarkson, and the complainant, who is the only child of a deceased sister. The bill submits that no valid testamentary disposition has been made of the testator’s estate, and that a trust results to his heirs at law.

It may be as well first to inquire, whether any beneficial interest is given to William Clarkson ? If none, then his title is wholly fiduciary. He is a trustee, and the consequences result*313ing from that will be afterwards considered. Did the testator intend a bounty to William Clarkson, and were “ the conditions made with him ” merely subordinate or incidental ? or, on the other hand, was the legal title vested in him for the express purpose of enabling him to accomplish certain objects, and not with any view to his own advantage and emolument ? The terms used imply no intention to confer a personal benefit. No dona-tive words are used but as coupled with the condition. The context repels any such inference. It is true the will shows William Clarkson to have been the brother of the testator, and thence an object of his affection, and a natural object of his bounty. But the will declares, should he decline taking it, the property is given to the Rev. Mr. Barnwell on the same conditions. Was any bounty intended to Mr. Barnwell *1*Manifestly none. The only purpose was to fix the legal title in some person who would execute the trust. In *Stubbs*vs. Sargon, (3 M. & C. 507,) the language was much stronger to support the position, that Sarah Sargon held the £2,000 as a gift subject to a charge, but the Lord Chancellor held it a gift upon trust. She was no more than the donee of a power to be exercised in favor of others.

Then what is the trust upon which William Clarkson took the property ? The will bears date, as has been stated, 2nd Oct., 1840. No particular trust is specified on the face of the instrument. No reference is made to any existing document. He is to take the property “ on certain conditions made with him,” or not to take it at all. But the will is silent as to those conditions. It is proposed to give in evidence certain loose pieces of paper, containing memoranda made by the testator at various times from the 7th October, 1840, to August, 1849. The first is directed to William Clarkson, and all are signed by the testator. In William Clarkson’s answer he says, that he understands these papers were found where the will was found, and along with it; but he says that (so far as-he remembers) he had never, before his brother’s death, seen either his brother’s will, or any of the papers accompanying it, “ although,” he adds, “ his said *314brother had, at different times, conversed with him upon the first and principal subject mentioned in the papers accompanying his will, and relied implicitly upon this defendant’s integrity, for carrying out his intentions, as far as he could, Without practising any evasion of the law.” This first and principal subject to which the defendant refers, as the only matter about which they had conversed, was the emancipation of the testator’s slaves. Assuming that to be a trust, acknowledged by the defendant, it may stand on a different footing, and will be presently considered. The admissibility of the papers, about which the defendant knows nothing, which he never saw until after his brother’s death, is first to be determined. Upon this point, as well as other branches of this cause, the argument in *Habergham*vs. *Vincent,*(2 Yes. Jr. 205,) is very instructive. In the decision of the case, the Lord Chancellor had the assistance of Justices Wilson and Buller, and all concurred in the judgment. It was insisted that the deed was valid as part of the testator’s will. After premising that the statute was made not for the benefit of the testator only, but for general public purposes, and that the law did not allow a testator to say that he would make a will without the requisites prescribed, either not thinking he would be imposed upon, or not caring about it, Judge Wilson. adverts to a distinction as well established. “If a testator in his will refers expressly to any paper already written, and has so described it that there can be no doubt of the identity, and the will is executed in the presence of three witnesses, that paper makes part of the will, whether executed or not: such reference- is the same as if he had incorporated it. But the difference between that ■case and' a relation to a future intention, is striking. In the former, there is a precise intention mentioned at the time of making the will: but when a man declares he will, in some •future paper, do something, he says he will make a will as far as his intention is then known to himself, but he will take time to consider what he shall do in future.” In the argument, *Ad-íington*vs. *Can*& *Andrews,*(3 Atk. 141,) was cited as. a leading authority, in which Lord Hardwicke held, that it would be *315a repeal of the statute, if a paper, subsequent in date to the will, and to which the testator had made no reference, should be allowed any effect. It was conceded at the bar, that “ where such reference is wanting, none of the cases have gone so far as to connect the paper with the will: for it must be collected, that the testator meant to refer to the paper not executed according to the statute, otherwise the statute is not satisfied.” The will of John Clarkson refers to no paper whatever. It refers to “certain conditions ” made with William Clarkson. If under this description could be classed the various changes made by the testator, oral or written, within the ensuing eight or nine years, it would introduce a mode of testamentary disposition entirely novel, and rendering nugatory all the safeguards of the statute. The defendant, William Clarkson, is no party to these papers. He admits himself not to have known of their existence until after his brother’s death. One of these papers provides for a distribution of the estate, on a certain contingency, into five parts, which are disposed of to several legatees. Why could not any other legatees insist on parol declarations of the testator that the conditions made with William Clarkson were, that he should divide the estate among them ? “ If a paper can have this effect against the statute, immediately after the execution of the will, it might at any distance of time, so that having gone through the form of a will, which parts with nothing effectually, he might, when under influence, or incapable of disposition, or even just expiring, in short, in that situation which the statute meant to protect against fraud, by an unattested paper, dispose of his whole estate.” These papers can have no effect but as a testamentary disposition, and, not being executed with the formalities prescribed by the statute, they have no legal operation.

Then it is said that, without any reference to these unattested papers, the defendant is a trustee to carry into effect the intentions of the testator, in regard to the emancipation of his slaves, *“*as far as he could without practising any evasion of the law.” And if there were any conditions made with the defendant, *316which have been proved, this was the trust to be discharged by him. The Court is willing to place the case on the footing, that this admission of the defendant’s answer was incorporated in the will; or (which is perhaps nearer the fact) that the case is directly analagous to *Smith*vs. *Attersoll,*(1 Russ. 265,) and that the defendant, cotemporaneously with the execution of the will, had signed a declaration of trust, to the effect of the implied understanding admitted by the answer. If the will should be regarded as talcing effect from its date, or if the testator had died prior to Dec., 1841, then it would fall precisely within the principle of the second class in *Finley*vs. *Hunter,*(2 Strob. Eq. 208, 216.) Slaves were bequeathed on the condition that they should be emancipated or sent out of the State. Chancellor Johnston, delivering the judgment of the Court of Appeals, says: “ I am of opinion, that what has been called a *condition,*is to be regarded in this Court as a trust. The second class was given entirely upon trust, without any intent to confer a benefit upon the trustee. Ever since *Morrice*vs. *the Bishop of Durham,*the rule has been, that where no beneficial interest is intended, but a trust is attempted to be imposed, if the trust fails from any cause, the trustee shall not hold for his own benefit ; but a trust results to the grantor or his next of kin.” *Black-mann*vs. *Gordon,*(2 Rich. Eq. 42,) proceeds upon the same principle.

But the testator died in 1849. The validity of his will, and the trusts therein declared, must be determined by the law of 1841. The defendant does not state very particularly, or exactly, what were the conditions or trusts on which the slaves and other property of the testator was confided to him. Bnt the Act of 1841, after declaring void certain provisions for the emancipation of slaves, concludes by a declaration, 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.” The conditions, whatever they were, on which this estate was devised and bequeathed to the defendant, were confessedly for the benefit of the slaves of the *317testator, so far as the law would permit. But the law permits no such benefits as the testator contemplated. • The design which he had in view cannot be accomplished. The consequence is, as declared in *Finley*vs. *Hunter : “*The trustee shall not hold for his own benefit, but a trust results to the next of kin of the testator.”

It i s declared that the defendant, William Clarkson, holds the estate, real and personal, of John Clarkson, deceased, in trust for his heirs at law and next of kin. It is ordered and decreed, that a writ of partition issue, according to the prayer of the bill, for the purpose of dividing the said estate among the parties to the pleadings. It is further ordered, that one of the Masters take an account of the management of the defendant as executor of the said John Clarkson. Parties to be at liberty to apply for any further order, or for any modifications of these orders, consistent with *the*principles of the decree. Costs to be paid out of the estate.

The defendant, William Clarkson, appealed on the following grounds:

1. Because the devise of the estate to William Clarkson, was a devise upon a condition subsequent, which vested the estate in the devisee ; and if the condition be unlawful the estate remains, and if lawful the condition may be performed.

*2.*Because even if the devise be a devise of a trust, the trustee having declared his readiness to execute the trust which is lawful, the *cestui que trusts*may now enforce him to it, and he is therefore trustee for these for whose benefit he has declared the trust to be.

3. That the devise to William Clarkson, was a devise of the beneficial interest, subject to uses to be declared by the testator, and that he changed his mind and declared new uses from time to time ; that the last uses declared by him are contained in the written memoranda found with his will. That those uses are lawful; and there is nothing in the statute of frauds, or in the Act against emancipation, to prevent the devise from taking *318effect as a devise to the uses contained in the written memoranda left by the testator.

*McCrady',*for W. Clarkson.

*Martin,*for T. B. Clarkson,

cited 2 Story Eq. § 1304, 1306 ; *Ait’y. Gen.*vs. *Christ's Hospital,*3 Bro. C. C. 165 ; *Crommelin*vs. Crommelin, 3 Yes. 227; *Holmes*vs. *Lysaght,*2 Bro. P. C. 261; *Stratton*vs. Grymes, 2 Tern. 357 ; *Dawson*vs. *Dawson,*Rice Eq. 260; *Izard*vs. *Montgomery,*1 N. & McC. 381; *Mil-ledge*vs. *Lamar,*4 Des. 617; *Rose*vs. *Cunynghame,*12 Yes. 36 ; *Bonner*vs. *Bonner,*13 Yes. 379 ; *Buckeredge*vs. *Ingram,*2 Yes. 652 ; *Smart*vs. *Prujean,*6 Yes. 559 ; *Sheddon vs. Goodrich,-*8 Yes. 500; *Smith*vs. *Attersold,*1 Russ. 226; Rob. on Frauds, 332, 337; *Habergham*vs. *Vincent,*4 Bro. C. C. 371; *Lawson*vs. *Lawson,*1 P. W. 440 *; Coxe*vs. *Basset,*3 Yes. 160; *Chaworth*vs. *Beech,*4 Yes. 565 ; *Finley*vs. *Hunter,*1 Strob. Eq. 208; *Blackman*vs. *Gordon,*2 Rich. Eq. 43.

*Memminger,*for plaintiff.

*Petigru,*for legatees.

*Per. Curiam.*

This Court concurs in the decree; and it is ordered that the same be affirmed, and the appeal dismissed.

JohNstoN, Dunkin, Dargan and Wardlaw, CC., concurring.

*Appeal dismissed.*