Martinsburg gazette and public advertiser. [volume] (Martinsburg, Va. [W. Va.]) 1826-1833, 1833-07-11
From the Richmond Compiler.
Mr.. RANDOLPH'S WILL.
THE LAW OF THE CASE

|
We are indebted to thu politeness of a
member of the bar, for the following com
munica,ion. The interesting question Of
law. likely to arise as 10 the disposition of
MIR. Rando'ph's property. will make it ac-
ceptable to all, acquainted with the cir
cnmstAnces under which Mr. Randolph's
| different wills were executed.
It is believed that The written will by
which Mr. Randolph emancipated bis
elaves was made in 1922; and that after
wards in 1882 he made two successive
wills, one in January and the other III
March OF that year, neither Of which con-
! 'ained any such provision. II the question
| cf emancipation rested here, the will of
1882 would of course be confronted by
those OF later date. But it has been re
peatedly stated that during the last sick.
ness of Mr.. Randolph, while he was in
Philadelphia, be called on persons present
to take notice that it was bis will that the
provisions of that instrument which con
templated fhe emancipation of his slaves
shou,1 hc earthly carried into effect.
This verbal recognition Of the provisions
Of the old writings can only be regarded
as nuncupative will; and that writing
must of course be found, to ascertain what
the testator has directed by his nuneupa
tive will. And then the question will a
rise, !. whether an emancipation can be
made by nuncupative will in any case;
and 2dly whether in this case the nuncupa-
tive will could revoke the two written
wills made in 1892.
The statute prescribing the mode Of e.
Emancipation declares that it shall be law
ful for any person by his last will and tes-
lament, or by any other instrument in
writing, under his hand and seal, attested
and proved i'll the county or corporation
court by two witnesses, or acknowledged
by the party in the court OF the county
where he or she resides,to emancipate and
set free his or her slaves, X. T.. 1919,
p, 493, $50
Under this statute, IT has been decided
that an emancipation by the will of tes-
tator will be good, although the will be
neither sealed nor attested by anu soitness.
II may be admitted TO probate, upon proof
that it is wholly in the testator's hand wri
ting; and that being legal proof upon which
to record will, the emancipation bv a
will as proved will be effectual Dunn v.
.4mey and others, Leigh 465. When
however there is no writing--a nuncupa
tive will merely-the question seems TO be
one OF considerable nicely. The follow
ing remarks taken from / Robinson's Prac
lice 42S contains as much on the subject
as can be found in the law books:
Gin late case in the Court of Appeals,
(Vinn Bob and others, 8 Leigh i4OD it
was minated by Brooke, j. and Tucker.
president, that slaves could not be eman.
cipated by nuncUpatire will But it was
not necessary to decide the point; and it
WAS left open for future consideration.
The Compiler of this volume is not &C.
quanted with the reasons inducing this
opinion, but suppose they arise out OF the
ground taken by Judge Brooke in Thrift
y. Hannah sc . Leigh $40, that emanci-
patton is one of the highest acts of SOW
ereignty, and can be conferred only in
the mode which the statute has pre-
scrlbed. If this be the ground, the
question then was to the meaning of the
statute, which makes it lawful for any
person "by his or her last will and ties
lament" to emancipate and set free his |
or her slaves. The statute does not pre-.
scribe the mode in which the will is to be
executed or proved. but leaves these mat |
tiers to be controlled by the act concerning
wills. Under that act party may dis
pose of bis chattles by nuncupative will.
And if person may emancipate bis slaves
by will, and nuncupative will is a ,ciA
It seems to follow that emancipation NAV
be made by nuncupative will
II the words Of the statute regulating e
mancIpa'lon do not necessarily exclude e.
nancipation by nuncupative will. it is
iIitlcult TO conceive any good reason 70 {