
    *Osborne & als. v. Taylor’s Adm’r & als.
    January Term, 1855,
    Richmond.
    i. Wills — Construction by Court — Right of Administra» tor to. — Administrator with the will annexed having in his possession slaves of his testator, and being in doubt whether they are emancipated by the will, may come into equity, making the legatees and next of kin of the testator, parties, and ask the court to construe the will: And in this suit, the court, being of opinion that the slaves are emancipated by the will, may decree in their favor, and direct that they be freed,
    a. Same — Emancipation of Slaves — Case at Bar. — Testator bequeaths the whole of his slaves, not before disposed of, to trustees for the use of J for her life; and directs that at the death of J the slaves embraced in this clause of his will be emancipated. But should they or any of them prefer remaining in the state, they can do so by choosing masters, to serve during the life of the person chosen, and then they are to have the option of freedom or slavery, by making a second choice. Held:
    1. Same — Same—Same.—The slaves are emancipated; and the condition is repugnant and void.
    2. Same — Same—Same.—The slaves born during the life of J are emancipated.
    3. Same — Same—Same.—The administrator having filed his bill after the death of J, when there were no debts of the testator; and having submitted the slaves to the control of the court; and they having been hired out by him under the direction of the court, during the pendency of the suit; they are entitled to have these hires: And this especially, as though the bill was filed before the act of 1850, Code, ch. 106, § 8, p. 465, it was not decided until after that act went into operation.
    
    4. Same — Construction by Court — Parties.—All persons having an interest, or color of interest, in the residuum of an estate, must be parties in a suit which the court decides upon the construction of the will affecting that residuum.
    ^Previous to the 2nd day of February 1835, Thomas O. Ta37lor departed this life, having1 first made his will, which was duly admitted to probat in the County court of Powhatan. By the first clause of his will, which was wholly written by himself, he directs all his debts to be paid; though he expresses the belief that there are none. By the second, third and fourth clauses, he directs certain of his slaves to be liberated, or at their option to remain in the state and choose masters. The sixth, seventh and eighth clauses of the will are as follows:
    Sixthly. The residue of my property, both real and personal, lands, lots and improvements, money, goods and chattels, rights, credits, interests and effects of every description whatsoever and wheresoever being, as well such as I may hereafter acquire, as those which I now possess, with the positive exception of my slaves of every description, I devise and bequeath unto Holden Rhodes and Archer E. Wooldridge, of the county of Chesterfield, and the survivor of them, and the heirs and assigns of such survivor forever, upon the following trust and confidence, nevertheless, that the said trustees, and the survivor of them, and heirs and assigns of such survivor, shall hold all my said property during the coverture of Mrs. Caroline M. R. Johnson, by her husband, Dr. Edward Johnson, in trust for her sole, separate and exclusive use, benefit and advantage, free and exempt from the control, debts, contracts and in-cumbrances of her said husband; and I request my said trustees to permit all mj' property aforesaid'to be and remain in the possession of the said Mrs. Caroline M. R. Johnson, during her coverture aforesaid, subject, together with all the rents, hires, issues and profits thereof, solely and entirely to her management, control and disposition at all times, unless at any time it shall be necessary to take the same into their possession, in order to prevent *or exclttde the control or interference of her said husband; in which event they are hereby authorized to take the same into their possession and under their management, paying and applying the rents, hires, issues and profits to said Mrs. C. M. R. Johnson, or as she shall direct. It is further my will and desire that the said C. M. R. Johnson, during her coverture aforesaid, have power, and she is hereby empowered to sell, exchange, lease, mortgage, encumber and dispose of all and every portion of my property aforesaid; and for that purpose the said trustees and the survivor of them, and the heirs and assigns of such survivor, are hereby authorized and directed, whenever thejr shall be thereto requested by the said Caroline M. R. Johnson, by any writing under her hand attested by two or more credible witnesses, to make and execute all such deeds as shall be necessary and proper to give due effect to the power aforesaid. And the lands, money and other effects received or accruing from such sale, exchange or other disposition, shall be held, conveyed and assured to the same trusts, and with the same powers, charges, conditions and exemptions as is herein declared in relation to the property of which I shall die possessed. And for greater certainty, I declare it to be my will and desire' that the said Dr. Edward Johnson shall have no right, authority or control over any portion of the property herein conveyed to the said trustees, or over any portion of the proceeds which may arise from any sale or other disposition of the property herein conveyed to the said trustees, or over any portion of the rents, hires, issues and profits of such property and proceeds, but that the same, and every part thereof, shall belong to and be solely and exclusively to the use of Mrs. Caroline M. R. Johnson, during her coverture aforesaid. It is further my will and desire that the said Caroline M. R. Johnson be empowered during her said coverture, and she is hereby *empowered by any declaration in writing subscribed by her, and attested by two or more credible witnesses in the nature of her last will and testament, to devise, bequeath, limit, appoint and declare the trusts of all and every portion of the property aforesaid, the proceeds and rents, hires, issues and profits aforesaid, remaining at her death, in such manner, and to and amongst such persons as she shall think proper, provided no child or children of the said Caroline M. R. Johnson be selected, to whom and their descendants no portion of my property, or that which I bequeath to Mrs. Caroline M. R. Johnson, is ever directly or indirectly to go. And the said trustees, and the survivor of them, and the heirs and assigns of such survivor, are hereby requested to do all acts, and execute all such deeds as may be necessary and proper to give effect to such declaration and appointment. In the event of the said Caroline M. R. Johnson’s dying in the lifetime of her said husband, without having made such disposition and appointment as aforesaid, then it is my will and desire that all the property, proceeds, rents, hires, issues and profits aforesaid, remaining un-disposed of at her death, shall be divided into four equal parts, one of which I hereby give, devise and bequeath to Holden Rhodes and Archer E. Wooldridge of Chesterfield county; one-fourth to Miss Malissa and Virginia Harris, daughters of Dr. Erancis Harris of Powhatan county; one-fourth to Miss Maria Branch of Manchester; to them, their heirs and assigns forever; and one-fourth to be divided, as may seem best to my executors, amongst my negroes hereafter mentioned. The fourth given to Miss Branch, I hereby empower my executors to place beyond the control or management of her brother, Christopher Branch.
    Seventhly. I devise and bequeath to the aforesaid Holden Rhodes and Archer E. Wooldridge, and the survivor of them, and the heirs and assigns of such ^survivor, two slaves named Morris and Ellen, in trust, and with the same conditions and restrictions annexed as is required in the management and disposition of the property devised in item the sixth, with this difference, nevertheless, that Mrs. Caroline M. R. Johnson be allowed to make any disposition of them she pleases, either during her coverture or at her death.
    Eighthly. The whole, of my negroes not before disposed of or devised, I now devise and bequeath to Holden Rhodes and Archer L. Wooldridge, and the survivor of them, and the heirs and assigns of such survivor, in trust, for the benefit and use of Mrs. Caroline M. R. Johnson, during her life, with the same restrictions and conditions annexed, as are required in the management and disposition of the property devised in the sixth item in this instrument. At the death of Mrs. Caroline M. R. Johnson, it is my further will and direction that the slaves embraced in this item be emancipated, and one-fourth of the property which Mrs. Johnson may not dispose of at her death, as required in item the sixth, be distributed amongst them as may be deemed most equitable by my executors. But should a part or the whole of the negroes prefer remaining in the state, they can do so by choosing masters to serve during the life of the person or persons chosen, at the death of whom they shall have the option of freedom or slavery, by making a second choice.
    The above will and testament may be deficient in technical nicety : my intentions are nevertheless obvious; those I wish to be the sole rule in its interpretation and construction. I have been obliged to mention my negroes in families or collectively, because being unacquainted with the names of some of them, X am unable to particularize.
    I hereby constitute and appoint Holden Rhodes and Archer I/. Wooldridge, of the county of Chesterfield, *executors to this my last will and testament. In witness whereof, I hereunto set my hand and affix mjr seal this third day of April one thousand eight hundred and thirty.
    The nominated executors and trustees refusing to act, the estate was committed for administration to Benjamin Watkins, sheriff of Powhatan county ; and Higgison Hancock was substituted as trustee, and acted as such until 1836, when William M. Watkins was appointed in his place. In 1839 the administration was committed to Hancock.
    Mrs. Caroline M. R. Johnson died in 1849, having survived her husband who died in 1841. She made a will by which she disposed of the estate of Thomas O. Taylor to Philip T. Hancock, an infant son of Higgison Hancock, provided neither he nor his heirs or executors should sue her heirs or executors: And a subject of controversy in this suit was the validity of that appointment. Another question was as to the liability of Mrs. Johnson’s estate for certain lands and bonds disposed of by her in her lifetime; but neither of these questions was considered by the court, and need not be further noticed.
    After the death of Mrs. Johnson, Hancock the administrator de bonis non with the will annexed of Thomas O. Taylor, in November 1849 filed his bill in the Circuit court of Powhatan county, for the purpose of having a construction of the will of Taylor, and directions as to his duties. He set out the provisions of the will, the will of Mrs. Johnson in execution of the power ¡ vested in her by the sixth clause of the will of Thomas O. Taylor, a statement of the property of Taylor at his death, and the sale of some of it by Mrs. Johnson. He stated that the slaves directly emancipated by the will of Taylor had been set free before his qualification: That those emancipated at the death of Mrs. Johnson were under his care, hired *out for that year; and he submitted them and their rights, and his own duties in regard to them, to the decision of the court, seeking only to be protected against future complaint from any quarter: And he prayed to be advised what disposition to make of their hires for that year, and what to do with them thereafter. He did not know that there were any debts against the estate of Taylor, but could not admit that there were none. And he was advised that there were questions arising under the will of his testator, which should be settled by the judgment of the court: And he proceeds to state them, and among others, the question as to the effect of the will upon the slaves of the testator.
    He further stated that Taylor died unmarried ; that he was moreover the only child of his father, who had come to this country many years before, as was supposed, from Great Britain; but that the plaintiff was wholly ignorant as to who were the heirs and next of kin of his testator. And making Benjamin Watkins the former representative of Thomas O. Taylor, and William M. Watkins the trustee, the heirs of Mrs. Johnson, and her devisees under her will disposing of her own property, the legatees under Taylor’s will, and the slaves by name, parties defendants, he prayed that the matter of the bill might be fully settled, and such decrees made therein as should be agreeable to equity, and the nature of the case should require.
    By an amended bill the next of kin of Thomas O. Taylor on the part of his mother were made parties.
    On the motion of the plaintiff, Richard W. Flournoy was appointed guardian ad litem of the slaves, to defend them in this suit; and he filed an answer submitting their rights to the protection of the courts. And the ucourt made an order directing the plaintiff to collect the hires of the slave for that year; and to hire them out from year to year until the further order of the court.
    *In 1851 manjr of the next of kin (for they were very numerous) answered the bill. They contested the validity of the appointment made by Mrs. Johnson ; and they insisted that the slaves left to Mrs. Johnson for life were not emancipated by the will; there being, as they insisted, an illegal condition attached to the bequest of freedom which avoided it: And they insisted further, that even if the slaves who were alive at the death of Taylor were emancipated, the provision in the will did not include those slaves who were born after the death of Taylor and during the lifetime of Mrs. Johnson.
    
      At the same term of the court the cause came on to be heard, when the court held that the slaves bequeathed to-Mrs. Johnson for life became entitled to their freedom at her death; and that the provision authorizing them to choose masters was void; and decreed accordingly. And the plaintiff was directed to hire them out until the further order of the court.
    In December 1851 the cause came on to be again heard, when the court declared that according to the true construction of the will of Thomas O. Taylor, Mrs. Johnson had power during her coverture to dispose of the lands of the testator by will; and that such disposition was not invalidated by her becoming discovert; and that the appointment in favor of Philip T. Hancock was valid. And the plaintiff was directed to hire out the slaves for four months from the 1st of January then next.
    In the progress of the cause a commissioner made reports as to the hires of the slaves since they had been under the control of the court. These reports showed that of these hires there was deposited in bank by the plaintiff on the 31st of December 1851, seven hundred dollars, produced from the hires of that year; and that there was deposited in March 1852 the' further sum of four hundred dollars; and there was in his hands on the 31st of May of that year a further *sum of two hundred and nineteen dollars and seventy-two cents. A second report showed a further sum of one hundred and seventy-three dollars and two cents in the plaintiff’s hands on the 31st of December 1852.
    The cause came on to be finally heard in January 1853, when it appearing that the plaintiff’s powers as administrator, &c., of Taylor had been revoked, and that the estate had been committed to Henry Gordon, sheriff of Powhatan, the court made a decree directing the plaintiff to deliver to Gordon the negroes in his hands belonging to the testator’s estate; and that Gordon do cause them to be registered as free in the court of Powhatan county, and to be furnished with certificates thereof. And the said Gordon was authorized to divide the money deposited in the bank equally among the said negroes; and that the, amount in the hands of the plaintiff, after defraying some charges mentioned in the decree, should be paid to those of the negroes who had earned it: such payments to be made when they respectively received their certificates of registry. Whereupon the next of kin of Thomas O. Taylor obtained an appeal to this court.
    Giles and C. Robinson, for the appellants.
    Day, for Johnson’s devisees.
    Davis, Rhodes and Patton, for the administrator and the slaves.
    
      
      Wills — Constructions by Court — Right of Adminis= trator to —See monographic note on ‘'.Executors and Administrators. *’
    
    
      
       Einancipation of Slaves — Conditions Subsequent.— In Williamson v. Coalter, 14 Gratt. 403, the court said that the rule established by the principal case and Forward v. Thamer, 9 Gratt. 537, is that where the will actually emancipates, so that the status of the negro is changed from that of a slave to a freedman of color, all provisions imposing conditions and granting privileges, to take effect after that change of condition, are void. In this case, the principal case was distinguished by the majority of the court because, in their opinion, the case at bar made the freedom of the slaves dependent on their own election. But Monguee, J., in a dissenting opinion, contended that the case at bar was similar to the principal case save that the case at bar was possibly a stronger case in favor of absolute emancipation: and the judge said that, in his opinion, the case at bar should be governed entirely by the rules laid down in the principal case. The principal ease was cited by him at pages 408, 410, 414, 415, 416, 417, 419.
      Seethe principal case cited in Jones v. Jones, 92 Va. 595, 24 S. E. Rep. 255, but distinguished in Bailey v. Poindexter, 14 Gratt. 189. Andsee foot-note to this last case as to the effect of a provision in a will making the emancipation of a slave dependent on his own election.
      Same — Increase.—In Wood v. Humphreys. 12 Gratt. 334, Judge MONCube. delivering the opinion of the court, said: “It was decided in Maria v. Surbaugh, 2 Rand. 228, that where a female slave is entitled to freedom in futuro, her increase born while she continues in servitude are slaves. That decision has not been universally approved. But it has been recognized and confirmed in many subsequent cases. Isaac v. West’s Ex'or, 6 Rand. 652; Erskine v. Henry, 9 Leigh 188; Crawford v. Moses, 10 Id. 277; Anderson’s Ex’ors v. Anderson, 11 Id. 616; Henry v. Bradford, 1 Rob. R. 53; Ellis v. Jenny, 2 Id. 597; Osborne v. Taylor's Adm'r, supra 117. The principle of that case may now therefore be regarded as the settled law of the land, except so far as it has been changed or modified by the Code, which does not apply to this case. The principle is founded on the rules and policy of the law, and not on the presumed intention of the testator, or otherperson from whom the right to future freedom is derived. * * * * The court, however, has given effect to this presumed intention wherever any words have been found in the deed or will which could fairly be construed to express it. In Isaac v. West’s Ex’or, 6 Rand. 652, the deed was construed as conferring on the slaves a present right to freedom, reserving to the grantor a right to their services during his life, as a condition of the emancipation; and it was, therefore, held that a child born of one of the emancipated females in the interval between the execution of the deed and the death of the grantor, was free from its birth. In Elder v. Elder’s Ex’or, 4 Leigh 252; Erskine v. Henry, 9 Id. 188; Anderson’s Ex’ors v. Anderson, 11 Id. 616; Huey v. Cheminant’s Adm’rs, 2 Gratt. 36; and Osborne v. Taylor's Adm'r, supra 117, the word‘all,’ and other words of like comprehensive import, used in a will in reference to slaves to whom freedom in futuro was given, were construed to embrace the increase of the females born between the death of the testator and the period when the slaves were to be free.”
    
    
      
       The act says: “When slaves are emancipated by will, the net proceeds of the aggregate of their hires and profits, with which the personal representative of the testator is chargeable, or so much thereof as may not be required for the payment of debts, shall, unless inconsistent with the manifest intention of the testator, belong to the persons so emancipated, and be apportioned among them as a court of equity having cognizance of the case may deem just.”
    
   SAMUEJDS, J.

The appellants’ counsel in the argument here insisted, that the slaves were improperly made parties in this case (referring to the case of McCandlish v. Edloe, 3 Gratt. 330), and that a decree of emancipation can be rendered only in a suit brought in forma pauperis for the recovery of freedom ; and that, for these reasons, the Circuit court erred in deciding the question as to the condition of the slaves. In answer it may be said that Hancock having the alleged *slaves in his possession, and being unwilling to decide the conflicting claims between them and Taylor’s next of kin, might be allowed to file a bill in equity referring the subject to the adjudication of the court, and thereby relieve himself from the responsibility of making a decision. A bill of this nature, in its functions, is a bill of interpleader; the adverse claimants become actors; each, asserting a claim, is, in effect, a plaintiff. A claim to freedom, if merely equitable, has long since been held a proper subject for the cognizance of a court of equity. A mere question of property between adverse claimants could be passed on by a court in a- case like this. A right to freedom claimed on one side, and a conflicting right of property claimed on the other, must stand on the same ground; and this especially where if either claim had been asserted in a separate suit, it would have been proper for the cognizance of the court. I am of opinion the slaves should be regarded as plaintiffs asserting their claim to freedom. The .defect of the bill is merely in form; the substance is sufficient, as it brings before the court the adverse claims of the parties.

It may be further said that this suit was pending on and before the 1st July 1850, when the Code of 1849 took effect, and the answer of the appellants was filed after that day. It is therein provided, ch. 216, \ 2, p. 800, that subsequent proceedings in pending suits shall conform as far as practicable to the provisions of that act; and in ch. 171, § 19, p. 648, 649, it is enacted that when a bill shows on its face proper matter for the jurisdiction of the court, no exception for want of such jurisdiction shall be allowed, unless it be taken by plea in abatement; and the plea shall not be received after the defendant has demurred, pleaded in bar or answered the bill’. The bill in this case shows matter proper for the jurisdiction of the court, in this, that Hancock held slaves who claimed their freedom *under an equitable title, and who are claimed as property by Taylor’s next of kin, under an equitable title. Hancock had the right to invoke the aid of a court of equity to relieve him from the responsibility of making a decision upon these conflicting claims. The appellants have been content to assert their rights in the suit brought by Hancock, making no objection to the jurisdiction of the court or to the competency of any party or parties; and they should not be permitted to make such objection for the first time in this court.

If however it be conceded that the slaves were not necessary or proper parties, then the case must be considered as if they had been omitted as such. If they had been thus omitted, the omission would not have precluded the court from decreeing their emancipation in a proper case in which the persons claiming them were parties. This was done in Pleasants v. Pleasants, 2 Call 270 (Tate’s edition). The bill in that case was filed against the claimants, but omitted to make the slaves parties; their emancipation was nevertheless decreed. In Elder v. Elder’s ex’or, 4 Leigh 252, the bill was filed by a legatee against the executor, omitting the slaves as parties, yet the court decreed the freedom of the slaves.

The objection by the appellants, next in order is, that the slaves, or some of them, are not emancipated by Taylor’s will; that even if such of them as were in being at his death were emancipated from and after Mrs. Johnson’s death, yet that such of them as were born after Taylor’s death and before Mrs. Johnson’s death, being the issue of mothers in the condition of slavery, are themselves slaves.

The first branch of this objection is insisted on, because, as is alleged, the slaves were left by the will in the condition of slavery at the death of Mrs. Johnson, with the capacity to become free upon their election to become so; and until the election shall be made, “"they remain in the condition of slavery: And we are referred to the case of Elder v. Elder’s ex’or, above cited. This part of the objection is founded on a misapprehension of the will. The counsel construe the will as directing that the slaves shall remain such until they elect to become free; whereas the will, in a substantive clause, distinctly manumits them ; and afterwards, in another clause, gives them the election to remain in the state of Virginia, in a condition intermediate between slavery and freedom. The latter alternative is against the settled policy of the law, and has no effect. Forward’s adm’r v. Thamer, 9 Gratt. 537. The bequest of freedom is in no wise impaired by the impracticable and repugnant alternative offered to the choice of the slaves. In regard to the issue of the female slaves born after the death of Taylor and before the death of Mrs. Johnson, it is insisted that they are slaves; that they remain in the condition of their mothers at the time of their several births: and the case of Maria v. Surbaugh, 2 Rand. 228, is referred to in support of this branch of the objection. If we concede to the case just cited all the effect which can be claimed for it in cases in which it applies, yet the rule thereby established does not govern a case like this. In our case the testator bequeaths his slaves by the general description, “the whole of my negroes not before disposed of or devised,” in trust for Mrs. Johnson’s benefit during her life; and declares, that “at the death of Mrs. Johnson, it is my further will and direction that the slaves embraced in this item be emancipated.” Such a general description has been fre-quentlj' held to embrace not only the parent stock of slaves in being at the time of the testator’s death, but all increase thereafter born, but born before the emancipation was fully perfected. In Pleasants v. Pleasants, 2 Call 270, (Tate’s edition,) the testator said in his will, “my further desire is. respecting my poor “"slaves, all of them as I shall die possessed with shall be free,” &c. These terms were held to embrace all the slaves whenever born, and to emancipate them, as they arrived at the age fixed by the testator for the purpose. In Elder v. Elder’s ex’or, 4 Leigh 252, the terms ‘ ‘the remaining part of my negroes,” were held to include the increase of the slaves born after the death of the testator but before the time for perfecting the emancipation directed by the will. In Erskine v. Henry, 9 Leigh 188, the testator gave his slaves to a legatee for life, (as in our case,) and at her death directed “all his negroes to be free and at full libert3D ” These terms were held to include the increase of the slaves whilst they were in the hands of the life tenant. In Anderson’s ex’ors v. Anderson, 11 Leigh 616, the testator directed his slaves to be retained in the condition of slavery for a time, but at certain periods, or on certain events, provided for their emancipation, describing them as “all” his negroes. It was held that the issue born of a mother before the time for her emancipation were emancipated by the will. In Binford’s adm’r v. Robin, 1 Gratt. 327, the terms used by the testatrix, “that all my negroes be liberated,” were held to include not only slaves in possession, but also a reversionary interest in slaves depending upon a life estate; and this, although the life estate did not expire until after the death of the testatrix, and the portion falling to her estate was then for the first time set apart upon partition with other parties interested. In Lucy v. Cheminant’s adm’r, 2 Gratt. 36, the testatrix bequeathed “all the rest of her slaves” to two for their lives, and .to the survivor for life; and on the death of the survivor directed that 1 ‘said slaves be set free.” It was held that all the slaves, including those born during the life estate, were emancipated. These cases establish the rule which must govern this case; and we must hold that all the slaves in being at Mrs. ‘‘"Johnson’s death, belonging to Taylor’s estate, are emancipated by his will.

- It is said by the appellants’ counsel, that although all the slaves in being at the time of Mrs. Johnson’s death be emancipated from that time, yet they were held in slavery and hired out for some time after their right to freedom accrued; and that the appellants, the next of kin, are entitled to the hires as part of Taylor’s estate not disposed of; there being no creditor to claim them or any part of them. To sustain this position we are referred to Pleasants v. Pleasants, 2 Call 270; Paup’s adm’r v. Mingo, 4 Leigh 163; Peter v. Hargrave, 5 Gratt. 12. These cases settle the law as it formerly stood, against the right of freedmen to recover hires of a person holding them in slavery. The judges of this court, from time to time, whilst acquiescing in the decisions referred to, and admitting' the expediency and policy on which they were founded, have nevertheless admitted that it would be but natural justice to allow hires to freemen wrongfully held in slavery7. Recognizing the cases cited as furnishing the rule in any case in- which they apply, it must still be observed that the case before' us presents features not found in any other case. In each one of the cases cited the hires claimed had accrued whilst the freemen were detained in slavery by the claimant, either in his own right or in autre droit. In our case the hires did not accrue whilst the slaves were held by the administrator, representing the estate. On the contrary, those hires accrued whilst the slaves themselves were under the control of the court, where they had been placed by the administrator. That court took upon itself the duty of executing the trust theretofore confided to the administrator; and although the administrator was directed by the court to perform the duty of hiring out the slaves, still, in obeying the order of the court, he was acting merely as the officer of the court; his ^official authority or responsibilitj7 as administrator was in no wise involved in the hiring of the slaves; the court had assumed his place and authority. In the progress' of the suit it was ascertained that no cause had existed which should have prevented the administrator from setting the slaves at liberty upon the death of Mrs. Johnson. He should therefore have done so, and the freedmen would have enjoyed the fruits of their owe labor. On general principles of equity it was the duty of the court, as far as practicable, to place every one in the condition in which he was intended to stand according to the true meaning of the will. Although the time for an exact execution of Taylor’s will had passed, yet'no reason can be shown why it should not be executed as nearly as practicable. To give the freedmen their hires accrued after they should have enjoyed their freedom will be clearly within the testator’s meaning. By giving them freedom he gave the right to enjoy the fruits of their own labor. The court, by giving them -the hires under its control will, to that extent, give effect to the will. No considerations of inexpediency or impolicy intervene to prevent this disposition of the fund. The next of kin have never had possession- of the slaves, and have had no reason to rely upon the hires ás a source of revenue. They have incurred no expense in rearing and supporting them. The difficulty of settling an account of expenses on the part of the owners or claimants and of hires on the part of the slaves does not exist. In fine, none of the reasons which led to the decisions in the cases cited, exist in this case.

If necessary for the decision of this case, it might be a question how far the assent to the legacy for life of the slaves to Mrs. Johnson enured to the benefit of the slaves who were to be manumitted at her death ; whether the assent to the legacy for life should be regarded as an assent to the ulterior disposition of the *property. See Bishop’s ex’or v. Bishop, 2 Leigh 484; Lynch v. Thomas, 3 Leigh 682; Nicholas v. Burruss, 4 Leigh 289. In the opinion of a majority of the court, it is not necessary for the decision of this case to pass on the question. I content myself, therefore, with a reference to these cases on the subject.

Regarding the case as standing upon the law existing at the date of Taylor’s will, I should have no hesitation in deciding that the freedmen, under the circumstances of this case, are entitled to their own hires. The law since that time, however, has been so changed as to leave less room for doubt. The Code of 1849, ch. 106, § 8, p. 465, by giving a new capacity t.o freedmen improperly held as slaves under the circumstances of this case, has removed perhaps the only reason not yet considered, for the decisions heretofore made. In Pleasants v. Pleas-ants, before cited, at the date of the will and at the death of the testator, manumission was not permitted by law: yet the testator, anticipating a change in the law, gave directions for the emancipation of his slaves when the law should permit it to be done. When, therefore, the law subsequently permitted freedom to be given by the master and accepted by the slave, it was held that the slaves were free. In our case, the will gives freedom, which contains in itself the right to enjoy the fruits of their own labor. The capacity of the freedman is a subject within the scope of legislative authority; and when that capacity is enlarged by subsequent laws, so as to give them a right to their own hires accrued whilst improperly held in servitude, we should do no more than was done in Pleasants v. Pleasants, if we carry the law into effect-. In that case the incapacity prevented the slaves from receiving freedom at all; yet when it was removed, the grant became effectual. In our case, as is said, the incapacity was confined to the claim of profits only; this incapacity *being removed, no reason exists to withhold the hires from the freedmen against the intention of the testator Taylor. I think the Circuit court did right in decreeing the freedom of the slaves, and in giving them their own hires. ■

I am of opinion, moreover, that the court should not have decided the question of succession to the residue of Taylor’s estate, (other than slaves,) without .having before it all parties who are interested in the question. That residue is claimed on behalf of Mrs. Johnson’s estate, and it has, in part, been decreed to the estate; it is claimed by the appellants, the next of kin; and it appears in the record, that Philip T. Hancock has such interest, or color of interest, as to make him a necessary party; a part of the real estate having been decreed to him, although he is no party to the siiit. The residuary legatees named at the foot of the sixth clause of Taylor’s will, including the emancipated slaves, have also such interest or color oí interest in the residue above mentioned, as to make it proper they should be parties to any proceeding- lor the final adjudication of the conflicting claims thereto.

Thus I am of opinion to affirm so much of the decree as gives freedom to the slaves, and gives them their hires; and to reverse so much of the decree as disposes of any part of Taylor’s estate, real or personal, (other than slaves,) with costs to the appellants against Mrs. Johnson’s estate; and to remand the cause, with directions to allow the defendants or any of them to file a cross bill, if they shall be advised to do so, to bring more distinct^ before the court the subject and questions in controversy, and to cause Philip T. Hancock to be made a party.

TEJÍ), J-j concurred in the opinion of Samuels, J., except as to the hires of the negroes. He thought that this case was not to be distinguished from the cases which had been decided in this court. He did *not think that the act of 1849 applied to the case: Doubted if that act applied to wills made before its passage; but if it could do so in any case, it could not in this, in which the bill was filed before the act was passed.

DANIEJIv, J., concurred in the decree to be rendered, except as to the hires of the negroes before the act of 1849.

ATTEJN and MONCURE), Js., concurred in the opinion of Samuels, J.

The decree was as follows:

The court is of opinion there is no error in so much of the decree as gives effect to the emancipation of the slaves, as provided for in the will of Thomas O. Taylor, nor in so much of the decree as gives to the emancipated slaves the hires accrued after the death of Mrs. Johnson. It is therefore adjudged and ordered that to that extent the decree be affirmed. But the court is further of opinion that the Circuit court erred in deciding upon the rights of parties to the residue of Taylor’s estate, real and personal, (other than slaves,) without having Philip T. Hancock as a party before the court, he having such interest, real or apparent, therein as to make him a necessary party. It is therefore adjudged, &c. that so much of the decree as is declared to be erroneous be reversed and annulled, (with costs to the appellants against Mrs. Johnson’s estate,) and cause remanded, with directions to cause Philip T. Hancock to be made a party, and to give leave to the defendants, or any of them, to file a cross bill, if they shall be advised to do so, for the purpose of bringing more distinctly before the court the nature and extent of the subjects in controversy, and for further proceedings.  