Abercrombie's v. Abercrombie's Heirs
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GQLDTHWAITE, J.
-If, by the directions given by the testator as to the government and treatment of the children until they arrived at age, it was intended that until the period fixed for their emancipation, they should occupy a condition of qualified freedom, then, unquestionably, the trust would be invalid. Our law recognizes no other status, than that of absolute freedom, or absolute slavery; and if it was the object of the testator that the slaves should remain iu the State, invested with privileges which by law do not belong to that class of population, the intention would be illegal, and the trust in which it was embodied invalid. — Washington v. Blunt, 8 Ired. Eq. 253 ; Atwood v. Beck, 21 Ala. 588, 615 .
The directions, however, in our opinion, amount to nothing whatever, as they impose no obligations upon the executor, which would not exist if the clause referred to had been omitted. The injunction is, in effect, simply to take care of the slaves, and to treat them with humanity; and whatever may have been the intention of the testator, there is certainly nothing in the language used, from which it could legitimately be inferred that the children were to occupy any other position than that of slaves, or to be treated in a manner which was in any respect incompatible with that condition. It is the moral, if not the legal duty, of every master or owner, to observe towards his slaves the same general course of conduct, which the testator in these directions prescribed; and this being the case, we cannot say that there is anything illegal in them. If, however, it was conceded that they were contrary to law, we do not see that either party would gain anything by the concession ; as the fact that one of the legacies may be invalid, does not affect other bequests which are independent of it. — Florey v. Florey, 24 Ala. 241 .
As to the directions given by the testator for the emancipation of the children of Nancy, there can be no doubt that, under our decisions, it was. a perfectly valid trust, and one which the executor, under the existing laws, would have full *495 authority to execute, by taking them to a free country and manumitting them. — Beck v. Atwood, supra. Should tho laws in force in this State, at the period fixed for their emancipation, prevent the intention of the testator in respect to their remaining in this State as free, from being carried out, it may be that- the slaves themselves might not be able, by a suit, to enforce the trust; but if it be so, in relation to which we express no opinion, it cannot affect its validity so far as the executor is concerned; and if he was so regardless of duties, which he had voluntarily assumed, and of the oath which he had taken to discharge them, as to fail in the faithful execution of the trust, the powers of the court of chancery, to which by his bill he has submitted the administration,' are amply sufficient to enforce it; and the rule which might operate to prevent the beneficiaries themselves from enforcing it by suit, would have no application.
«''it is clear, also, that by the terms of the will, the slave Nancy is not to be emancipated. If we were at liberty to resort to parol evidence, the case might be different. But the words of the instrument are not such as to allow this. There is no provision made, or direction given, as to her emancipation. The executor is to take Nancy and her six children into possession : and the testator then gives instructions as to the treatment of the children, and then proceeds, after a full stop, “ And when the said six" children have arrived of age, the said Ware is to have their freedom secured to them,” &c. There is no rule or principle which would authorize us to refer the word “ their”, in the clause we have quoted, to any other antecedent than the “ six children”; and this being the case, we must inflexibly adhere to the will- itself, although the result may be that the intention of the testator may be partially defeated. There is no legal principle more -.firmly established — -none that has received a moré constant and uniform support from the judicial tribunals, than the rule which declares, that an omission in a written will cannot be supplied by parol evidence. — Cheney’s case, 5,Rep. 68; Vernon’s case, 4 ib. 4; Strode v. Faulkland, 8 Ch. R. 98 ; Brown v. Selwin, Cas. temp. Talb. 240; Lawrence v. Dadeville, 1 Ld. Raym. 438 ; Bennett v. Davis, 2.P. Wms. 316; 1 Ves. (sen.) 189; Walpole v. Cholmondely, 7 T. R. 138; 1 Greenl. Ev., §§ 290, 291.
*496 As to the legacies directed by the will to the children, of Nancy, it is certain that, if it was the intention of the testator they should vest at his death, they must be held void, for the reason, that slaves are incapable of taking ; but the decision of tliifc question depends upon the rational1 interpretation of the whole instrument. There .are no words which force us to this conclusion. The legacies are not to be paid until the period fixed for the emancipation of theTegatees, and there is no express gift of the legacies before the time of payment. In addition to this, the gift is'to a class of persons who are incapable of taking before that time ; and these circumstances, we think, are conclusive as to the intention of the testator, that the payment was not to be made until the leading object, which it is apparent he had in view, was accomplished — the emancipation of the slaves referred to. Upon this construction, the legacies to the children were valid. — Atwood v. Beck, supra.
The bequest to the slave Nancy was void, as she had no capacity to take; and she herself must be regarded as property not bequeathed by tfye will, for the reason, that the provisions in relation to emancipation do not apply to her, and she is not embraced in the trust which authorizes Ware to sell and dispose of the property. A1 though the last is general in its terms, it is manifest that it was not the intention of the testator to include her, as he gives her a portion of the proceeds of the property to which this trust extends; and-although the gift is void, it is not the less expressive as indicating the intentions of the testator in this respect. It follows, necessarily, therefore, that this slave, and the portion bequeathed to her out o'f the proceeds of the other property, must be regarded as not disposed of by the testator, and subject to distribution.
In opposition to the views we have expressed upon the last point, it has been urged, that if the slave Nancy is not included in the emancipation clause, and the legacy to her is void, still under the will she becomes the absolute property of Ware. This position is not tenable. The property was conveyed to Ware for the execution of certain specified trusts,» and for no other purpose. Those trusts were, the manumission of certain slaves, a,nd the payment of the legacies bequeathed *497 to them. Where the testator fails to make a complete 'and effectual disposition of all his property, the law makes the disposition which ho has failed to do ; and the principle equally applies to those cases where the estate is devised or bequeathed to a trustee. A resulting trust to the property not disposed of is then created in favor of the heir or dis-tributees. — -1 Jarm. on Wills, 502, and cases there cited.
It results from the views we have expressed, that the decree of the chancellor was in all respects correct.
Judgment affirmed, at the cost of the appellant.
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