
    Thomas Cunningham’s Heirs vs. the Executors of Thomas Cunningham.
    This was a case sent up from Wilmington Superior Court.
    Thomas Cunningham, in September, 1792, duly made his last will and testament, by which, amongst other things, he devised as follows: “ It is my will and desire, that five feet of an alley be left from Front Street to low water mark, as convenient as may be to the after bequeathed lot, then I will and desire that forty feet back, including the house where Mr. Potts is now resident, be at the expiration of the lease rented out for the maintenance of a negro woman of mine, named Rachel, and the maintenance and education of her three mulatto children named Mary, Ritty and Chrissy, and the child of which she is now pregnant.” After devising part of a lot to Edmund Robeson, the will proceeds thus, " and the rest and residue of the said lot to be rented, yearly for the maintenance of Rachel and her three children, already named, with the child of which she is now pregnant; with all the rest of the land lying between Lee’s creek and Deep Inlet Creek, between Rachel and her three children, share and share alike, to them and their heirs.
    “ Item. I will and desire that my negro men Virgil and Quash, together with my negro woman Tamer, should live on the plantation where I now reside, on Lee’s creek, to work for the maintenance of Rachel's children, during the natural life of the said negroes. Item, I will and desire that Rachel and her children should be set free immediately after my decease.”
    The defendant, as executor of Thomas Cunningham, the testator, took possession of that part of the real estate, the rents of which are directed by the will to be applied towards the maintenance and education of the negro woman Rachel and her children. For this part of the estate the acton was brought.
    
      Rachel and all her children, before and at the time of making the will, and ever since, have been slaves.
    For the defendant, it was insisted, that by the words of the will, he is entitled to the possession of the real estate, in order to receive the rents and profits, and to pay the same to the negro woman Rachel.
    
    The plaintiff’s claim was rested on the following grounds: I. That supposing the words of the will are sufficient to pass the estate to the negro woman Rachel and her children, yet, by law, negro slaves are incapable of taking or holding real estate : II. And admitting they are capable, yet there is no express devise of the lands in question to the executors; consequently, the lands descend to the plaintiff’s, as heirs at law the of testator.
   Hall, Judge.—

I think that the devise in question is void, and cannot take effect. The maintenance and education of some of the devisees, is what the testator appears to have been anxious for. How can it be effected? They are slaves, and their owners have a right to them and their services; if they are educated, it must be by his permission, and if it is attempted without, it is a violation of his right. If this property had been conveyed in trust for the same purpose, a performance of the trust could not be compelled in a Court of Equity, for the same reason. Admit that they could bring a suit to recover this property, after a recovery, could they have a right to enjoy it ? Suppose the owner took it from them, would they have a remedy against him? They certainly would not.

Taylor, Judge.—

The intention of the testator seems plainly to have been, to transfer the beneficial interest in the lands to Rachel and her children ; and were there no legal impediments to the effecting of such an object, I should think the words made use of equivalent to an express devise of the land. But it is indispensible to the validity of every devise, that there be a devisee appointed who is competent to take : Slaves have not that competence; for a civil incapacity results from the nature and condition of slavery. And it would be a solecism, that the law should sanction or permit the acquisition of property by those, from whom it afterwards withholds that protection without which property is useless. From this principle, an important difference arises between slavery, as it is established in this State, and the condition of villeinage, as it existed in England prior to the stat. Car. 2. A villein might bring an action against any person who did him an injury, except his lord ; and even against him in some particular cases. If, therefore, he purchased land, although the lord might enter upon it, and seize it to his own use ; yet while he permitted the villein to hold, the land would descend to the children of the latter, in a regular course of descent; and the law, while it furnished them with a remedy against any who should disturb their possession, also gave them, in time, a title by prescription against their lords. A villein might also, lawfully dispose of what he had acquired, if he completed, the transfer before his lord made a seizure.

Judgment for the plaintiff.

Jocelyn for the plaintiff.

Samson for the defendant.

In all these instances, the characteristics of slavery are different; for a slave can bring no action ; he can neither acquire nor transfer property, by descent or purchase ; nor will prescription avail him, to assert a title against his master. The devise cannot, therefore, in the present case, operate any thing.

Judges Johnston and Macay concurred.  