IN error to the Circuit Court of the United States for the county of Washington, District of Columbia.
NOTE.–The report of this case was accidentally omitted by the late reporter, and this report has been furnished by him.
In the Circuit Court of the county of Washington, James Ash, a negro, presented a petition, stating that he was entitled to his freedom, and that he is held in custody and confined in the private jail of William H. Williams. He prayed a subpoena to James H. Williams, and that he may have a fair trial on his petition.
Mr. Williams appeared to the subpoena, and denied the title of the petitioner to his freedom.
Issue was joined on the pleadings, and the jury found a verdict for the petitioner, and that he was free and discharged from the service of Williams.
To the opinion of the court on the trial, a bill of exceptions was tendered by the counsel for Mr. Williams. The bill of exceptions stated, that on the trial the defendant produced, and gave in evidence to the jury, the last will and testament of Maria Ann T. Greenfield; and it was admitted that the said testatrix died at the county of Prince George's, in the state of Maryland, soon after the date of said will, in the year 1824; that upon her death, Gerard T. Greenfield, the executor named in the will, duly proved the same in the Orphans' court of said county, where the slaves and property left by the testatrix were, and took letters testamentary as such executor.
The petitioner is one of the slaves named and demised in that clause of the will, which is in the words following, to wit:
'I also give and bequeath to my nephew, Gerard T. Greenfield, all my negro slaves, namely: Ben, Mason, James Ash, Henry, George, Lewis, Rebecca, Kitty, Sophia, Mary Elizabeth, Nathaniel and Maria; also, Tony, Billy, Betty, and Anne, provided he shall not carry them out of the state of Maryland, or sell them to any one; in either of which events, I will and desire the said negroes to be free for life.'
The petitioner was a slave born, and the property of the testatrix at the time of her death; that the said G. T. Greenfield, upon the death of said testatrix, took possession of the petitioner and the other slaves devised to him, and held the same as his slaves so devised to him, from that time till the 18th day of December last, when, before the institution of this suit he sold the petitioner to the defendant: that G. T. Greenfield at the time of the date of said will, and ever since, resided in the state of Tennessee, with an interval of between two and three years, that he sojourned after the death of the testatrix, in Prince George's county, for the purpose of settling his business. Thereupon the court was of opinion, and instructed the jury, that by the fact of such sale of the petitioner the estate or property in the petitioner so devised to said G. T. Greenfield ceased and determined; and the petitioner thereupon became entitled to freedom as claimed in his said petition: to which opinion and instruction of the court, the defendant by his counsel excepted.
Judgment was rendered for the plaintiff, and the defendant prosecuted this writ of error.
Marbury, for the plaintiff in error.
Bradley, for the defendant.
Marbury contended, that as to the first question presented on the bill of exceptions, whether Mr. Greenfield took an absolute estate, by the terms of the will, in the property bequeathed to him. A devise of personal estate in general terms, without words of limitation, vests in the legatee the absolute property in the thing bequeathed. If a testator says, 'I give all my personal estate to A. B.,' without other words, A. B. will take the absolute estate in all the personal property of which the testator may die possessed.
The language of the will, in the case before the court, is as general, comprehensive, and effective, for the purpose of passing the whole estate, as language can be; and gives to the legatee the whole estate, subject only to the restriction of the right of alienation.
There is here no limitation of the estate–no intention expressed to confine the legatee to an estate for life in the slaves, or to give him a mere personal benefit by the bequest.
Admitting the validity of the restriction, if he should neither remove the negroes or sell them, at his death they will go to his representatives, to be distributed among his next of kin, if he should die intestate; and to his legatee, if he should make a testamentary bequest.
It has been suggested that this very restriction will operate to limit the legatee to an estate for life; that it shows that it was not intended he should have the absolute power and control over the negroes. But a restriction on the right to sell never has been construed into a limitation of the estate of the devisee, when the language of the will passed the fee.
The proviso is a restriction on the right of alienation. The property is given to the legatee absolutely, with a condition annexed, that he shall not sell; a condition which is repugnant to the nature of the estate, and therefore void. Co. Lit. 206 b, 223a.
If there be a limitation over, on the breach of such condition, it does not alter the case. The condition itself being void, the estate limited upon it must be void also.
What is a conditional limitation, but an estate which is to vest on a certain condition, or the happening of a certain event, by which a preceding estate is to be divested? If, then, the condition on which the preceding estate is to be divested, be unlawful and repugnant, and therefore void, the preceding estate cannot be divested; can a man be deprived of his estate by refusing to do an unlawful thing, or by doing that which the law authorizes him to do with his own? Bradley v. Pelxoto, 3 Vesey, 324; 2 Caines's Reports, 348.
It will be contended, on the part of the defendant in error, that there is something in the nature of the property which is the subject of this devise, that requires the application of a rule of law different from that which would be applied to a case arising on the title or ownership to any other kind of property.
Negroes, by the laws of Maryland, are property precisely as money in the funds, or household effects. The jus disponendi in the master is as absolute in the one case as in the other. How shall the court decide in favour of the freedom of the slave, without at the same time, and in the same judgment, deciding the right of property, as claimed? Mima Queen v. Hepburn, 7 Cranch, 295.
If, on the breach of the condition not to sell, the testatrix had given the property in the negroes to a third person, the limitation over would have been declared void; because such a restriction would be on a condition repugnant and void.
But here is a bequest of freedom, on the same repugnant conclusion. How is it to take effect, without denying to the master that control over the negroes which he is by law entitled to exercise over them, and which he might exercise over any other property ...