
    *Dawson v. Dawson’s Ex’or & Others.
    March, 1840,
    Richmond.
    (Absent Parker and Stastaiiu, J.)
    Will — Construction—Emancipation of Slaves — Revocation of Devise — Case at Bar. — Testator directs all his slaves to be emancipated and sent to a country where slavery is not tolerated, if within twelve months they shall elect to be emancipated on those terms, otherwise to be sold ; and then, after sundry bequests, gives all the residuum of his estate, including a parcel of land called Belle Air, to charitable uses ; afterwards, by a codicil, he gives the Belle Air estate to B. D. for the support and maintenance of of the slaves thereon : Held, the devise of the Belle Air estate to 13. D. only created a trust for the support and maintenance of the slaves thereon, till they should be emancipated or sold ; the devisee’s interest was commensurate with and limited by the purpose of the trust, and was determined by the emancipation or sale of the slaves ; and the codicil was a revocation of the devise of Belle Air contained in the will only pro tanto ; yet the trustee was not accountable for any surplus of profits beyond the expense of supporting and maintaining the slaves.
    This was an appeal taken by Benjamin Dawson from a part of the same decree from which the appeal was taken by the president and directors of the literary fund, in the case of The Literary Fund v. Daw-sons, reported ante, p. 147.
    The parts of the will of the testator Martin Dawson late of Albemarle, on the construction and effect of which the question in this branch of the cause depended, were the 2d, part of the 16th, the 17th and 21st clauses, and the codicil. They were in the following words:
    “2d. It is my will and desire, that what slaves I may depart this life the owner of, be emancipated by my executors, and removed to some part of the world where slavery is not tolerated, and from my present view, the settlement in Africa of the African Colonization Society, is most desirable; and for the object of so ^'removing them, and finding them with the necessaries of life, my executors are to use out of my estate, for each slave so emancipated, 200 dollars. Should it be contrary to the laws of the country to emancipate slaves at my death, and such leave cannot be obtained, or should any of the slaves I may depart this life owner of, choose to remain slaves at or before the expiration of twelve months from my death, such as choose to remain slaves to be sold in families, and to be allowed to choose their masters so far as practicable; for this object, my estate to remain together twelve months after my death, except the perishable parts thereof.— 16. It is my will and desire, that the balance of my estate, real and personal, be used by my executors for the purpose of erecting three seminaries of learning; one on my tract of land called Belle Air; one on my tract of land around the town of Milton, my lots in said town to be taken as part; one in the county of Nelson, as near the graveyard in this will mentioned as a proper site can be procured : said tracts of land, as also the one to be procured, to remain forever for the use and benefit of the seminaries of learning.— 17. Should my executors fail to carry into effect said 16th devise for seminaries of learning (which I hope and trust they will not) then the real and personal estate devised for said objects, to be used by my executors in constituting a part of The Literary Fund of the state of Virginia; and two thirds of the interest on it to be used by the school commissioners for the county of Albemarle, in the same way the school fund allotted for the said county is used; the other third of the interest on it to be appropriated and used by the school commissioners for the county of Nelson in the same way: and from time to time, as the legislature may think advisable, the principal may be used for like objects, for the benefit of the said counties, in the same proportions as the interest is directed to be used. An act of assembly *for said object, supposed can be obtained.— 21. I do hereby constitute and appoint my friends Henry T. Harris, William C. Rives, Alexander Rives, and William W. Dawson executors of this my last will and testament; who (my said executors) are authorized to dispose of all my estate, both real and personal, not in this will otherwise disposed of: such sale not to take place in less than twelve months after my death, except the perishable parts. I would advise, that my executor W. T. Harris attend to the seminary of learning "in the county of Nelson, and the emancipation of the slaves; my executors W. C. and A. Rives attend to the seminaries in this county; and my executor W. W. Dawson attend to the payment of legacies.” The will was dated the 31st July 1833. The testator added the following codicil, dated the 22d of May 1835— “A codicil to this my last will and testament, which is deposited in the hands of Martin Thatcher for safekeeping. And my Belle Air estate I give to my nephew Benjamin Dawson for the equitable support and maintenance of the slave population thereon. I give Martin Thatcher 1000 dollars &c.”
    The will and codicil were proved in the county court of Albemarle at its June term 1835; and three of the executors named in the will, A. Rives, Harris and Dawson, qualified; but the powers of the two former were revoked before this suit was set for hearing in the' circuit superior court, so that Dawson remained the only acting executor.
    The bill was exhibited by the heirs and next of kin of the testator, against his executors, ' his nephew Benjamin Dawson mentioned in the codicil, and all the dev-isees and legatees named in the will, particularly the president and directors of the literary fund: and one of the objects of the bill was, to ascertain which of the testator’s slaves would choose to remain slaves and be sold in Virginia rather than be sent to another country *where slavery is not tolerated; and another and main object was, to have the devises and bequests contained in the 16th and 17th clauses, for the three seminaries of learning, or for the benefit of The Litera^' Fund, declared void, and, consequently, to have the real and personal subjects of those devises and bequests divided among the testator’s heirs and next of kin, as if he were pro tanto intestate.
    The defendant Benjamin Dawson, in his answer, insisted, that the codicil giving him “the Belle Air estate for the equitable support and maintenance of the slave population thereon,” was a revocation of the devise of the Belle Air estate contained in the 16th clause of the will, and of so much of the 2nd clause as emancipated the slaves who were on that estate; and a devise and bequest to him, in fee and absolute property, of that land and of those slaves; a provision which; he said, the testator had, in several former wills, always made for him.
    The circuit superior court, in an interlocutory decree for settling the rights of the parties, declared and decreed, among other things, that the codicil gave the defendant Benjamin Dawson no absolute interest in the Belle Air estate, either in the lands, or in the slaves thereon, or in the stock thereto belonging, but only the use thereof, in trust for the benefit of the slaves, for their support and maintenance, during the interval of twelve months or longer, which might elapse between the death of the testator and the election of the slaves; but that, nevertheless, as the slaves were not yet freemen, and would not be until they so elected, they, therefore, had no capacity to enforce against Dawson the trustee any accountability over and above their maintenance, and he was entitled to all the profits beyond, discharged of the trust, namely, the use of the Belle Air estate until the slaves thereon should make their election. From this part of the decree, the defendant Benjamin Dawson *applied by petition to this court for an appeal; which was allowed. .
    The cause was argued here, by R. C. Stanard and Lyons for the appellant', and by the attorney general and Johnson for the appellees. The counsel for the appellant contended, that the effect of the codicil was, not to create a trust for the support and maintenance of the slaves thereon, but to give the Belle Air estate to Benjamin Dawson, charged with the support and maintenance of the slaves thereon; and as the charge of supporting and maintaining them might far exceed the profits, and as the word estate was alone sufficient to de-scrihe the whole interest, and the statute 1 Rev. Code ch. 99, $ 27, p. 369, dispensed with words of inheritance, therefor the dev-isee took the fee simple, for (meaning in consideration of) his. support and maintenance of the slaves. And thus understood, the codicil revoked the devise of the Belle Air land contained in the sixteenth clause of the will.
    
      
      WiH — Emancipation—Dependent on Slave’s Election —Effect.—On this subject, sue foot-note to Bailey v. Poindexter, 14 Gratt. 132. See principal case cited in Bailey v. Poindexter, 14 Gratt. 204, 210, 211 (dissenting opinion of Mosouur, J.) ; Williamson v. Coalter, 14 Gratt. 404, 405.
    
   TUCKER, P.

The only question upon this appeal, is as to the construction of the codicil to the will of Martin Dawson; and that question seems to me to be without difficulty. It cannot be denied, that so far as the codicil contains a disposition of the testator’s property, different from the will, or modifying its provisions, the will must yield, although the codicil contains no clause of revocation. But, I take it, the codicil is to be considered a revocation to that extent only; for a codicil (so expressed to be upon its face) is designed to be a part of the will already made, and not a new and independent instrument. It may add to, take from, or modify and restrain, the dispositions of the will, but so far as the will can stand consistently with the codicil, so far is it unrevoked by it, unless there be an express revocation. Willet v. Sandford, 1 Ves. sen. *178, 186; Ld. Carrington v. Payne, 5 Ves. jun. 404; Beckett v. Harden, 4 Mau. & Selw. 1. With this simple proposition premised, let us proceed to consider the case.

By the second clause of the will, the testator’s slaves are directed to be emancipated, and twelve months are given for them to elect to be sold or to be free; and for that object the estate is directed to remain together for twelve months. By the. sixteenth and seventeenth clauses, the balance of the testator’s estate, after certain bequests, is directed to be used by the executors in the erection of three seminaries of learning, and if that object cannot be effected, then the whole is to be used for the benefit of The Literary Fund; and by the last clause of the will, the executors are invested with a complete authority to sell. The Belle Air estate is a part of the property thus disposed of. Two years after the will was made, the testator added the codicil. It is declared to be a codicil, and begins as if continuing the dispositions of the will, thus: “And my Belle Air estate I give to my nephew Benjamin Dawson for the equitable support and maintenance of the slave population thereon.” It is to my mind very clear, that the testator, by this devise, designed no benefit to, or charge upon, Benjamin Dawson. The words are too plain to admit of doubt. He devises the estate to Dawson — for his own benefit? By no means; but “for the equitable support of the slaves thereon,” which were the very slaves he had directed to be emancipated. It was a trust for their support, until the time when their emancipation, or sale, was to take place, which was to be within twelve months. There is nothing from which any provision in favour of Dawson can be implied. The purpose and object of the gift have no reference to him ; they refer to the slaves alone: and if he failed to fulfil the trust, it might have been enforced, if not by the slaves, by the executor, since unless supported *by Dawson, according to the will, the burden would fall upon him. It is said, that the testator, in former wills, had made provision for Dawson; but the inference from that fact is more than balanced by the pretermission of him in the will of 1833, which remained two years without alteration. It is said, too, that the word for often signifies in consideration of, and so the codicil gives the Belle Air estate to Dawson, in consideration of his support and maintenance of the slaves : but, in this connexion, the word for clearly expresses nothing more than the purpose of the gift, and that purpose was to provide for the slaves. It does not imply a gift of the absolute property in a fine estate, for the paltry consideration of supporting the slaves upon it for one year.

Dawson then took no beneficial interest in the property. Being only a trustee, what estate did he take? Was it a fee, or a less estate? I am clearly of opinion that the title he acquired was only commensurate with the purpose of the trust, Doe v. Simpson, 5 East 162; Doe v. Nicholls, 1 Barn. & Cress. 336, 8 Eng. C. L. E. 92, the purpose, namely, of maintaining the slaves for the year within which they were to be emancipated or sold. This purpose limits the quantity of estate which he took, and controls the construction which would otherwise have given him a fee, either from the effect of the word estate, or from the operation of our statute dispensing with words of inheritance, 1 Rev. Code, ch. 99, § 27, p. 369.

Upon the whole, I am of opinion, that the construction of the circuit superior court as to the meaning and effect of the codicil, is substantially right, and that the decree should be affirmed.

BROOKE and CABELE, J., concurred. Decree affirmed.  