
    
      Haywood v. Craven's Executors.
    
      John Craven, by his last will and testament, gave and bequeathed to James Turner, Nathaniel Macon, and John Hall, to the survivors of them and the executors of the survivor, immediately after his death, three of his slaves, viz. Prince, Hannah, and Grizzy, and their increase, in trust, to have them emancipated and set free by the laws of the State, in such manner and at such time, as they shall think fit. He also devised to his, said executors the half of Lot No. 223 in trust for the use of Hannah and Grizzy, and a quarter of an acre of land in trust for the use of Prince. To his sister Margeret Craven he left his town house, during her life-time, and the residue of the lot not before disposed of, together with a plantation and thirty slaves, and whatever else was not given away by the will. After sundry bequests, he gives and bequeaths, after the death of his sister, to his executors, the survivor of them and the executor of the survivor, twenty nine slaves and their increase, in trust, to have them set free by the laws of the State, in such time and in such manner as they may think proper—He gave also to his executors after the death of his sister, his plantation tools, and implements of agriculture, in trust for the use of such of the male slaves as were, at the date of the will, of the age of sixteen years or upwards, and for the females of all ages, to hold the same as naked trustees, for the use and benefit of the said negroes and their heirs for ever. The executors are empowered to bind out all the male negroes at sixteen years of age to different trades, until they attain the age of twenty-one, when they are to be emancipated: he directs his executors to sell his house and lot in town after the death of his sister, on a credit of five years, and the interest to be collected annually and applied to the use of Prince, Hannah, and Grizzy. He also gives to his executors eight acres of land in trust for Grizzy, and directs them to sell his furniture, or if necessary, his stock for the payment of his debts; and in the event of his sister dying before him, requires his will to be carried into immediate execution; his slaves to be lawfully liberated as soon as his executors can find it convenient to do so.
    The testator died and his sister Margaret was put into possession of the property, and by her last will and testament devised and bequeathed all her property to the complainants Stephen and Dallas Haywood; the former of whom, after the death of the testatrix, had the will proved, and was duly appointed administrator with the will annexed.—Prince and Hannah were emancipated by the County Court during the life time of Margaret Craven.—Grizzy died a slave.
    The Bill prays that the defendants may be decreed trustees for the benefit of the complainants, and compelled to deliver unto them the land and slaves, and account for the profits.
    To this Bill the executors demurred,
    
      
      A. Henderson in support of the demurrer.
    No trust can result for the benefit of the heir at law or next of kin of John Craven, for if the devise is to an improper use, the Court will direct it to be applied to a proper one.—1 Salk 162—1 Coke, Porte's case, 25.
    The testator has signified most expressly his will that no benefit should devolve upon his heirs, beyond the provision he has made for them. The Court will substantially carry the will into execution, if it cannot be done literally, or in the form and manner directed by the testator. Where the substance of the will may be effectuated, the rule of this Court is to perform it cy pres.—2 Vern. 266
    It is a well settled rule in the British Court of Chancery that when a devise is to a superstitious use and made void by statute; or to a charity and made void by the statute of mortmain, then it shall belong to the heir at law or next of kin; but where it is in itself a charity, but the mode in which it is to be disposed of is such, that by law it cannot take effect, the officer of the crown is directed to specify the charitable manner in which it may be disposed of Ambler 228. So where the charitable object is uncertain.— Ibid. 712. A sum of money was devised for such charity as testator had by writing appointed, and no such writing being to be found, the King appointed the charity.—1 Vern 224. When the testator has empowered other persons to dispose of his estate, the heir at law is disinherited, as much as if he had disposed of it himself, and there can then be no resulting trust.—2 Atkyns 562.
    The Court will not decree in favour of the complainants unless such a course is clearly directed by law, for the trust being of the most humane and benevolent kind, is entitled to a construction of correspondent liberality. As the testator has sought for nothing to be done except in pursuance of the law, it is possible that the slaves may yet be empancipated by the Legislature; or the executors may procure their liberation by sending them to some other State. They ought to be allowed full time to make every proper effort to obey the will of their testator, and the discretion of the Court cannot be more wisely exercised than in holding up the bill till this is done.
    
      Browne and Gaston for the complainants.
    A Court of Equity puts the same construction upon trusts that a Court of Law does upon legal estates.—2 Burr. 1108. 9; It must follow the law and cannot adopt different rules for the transmission of estates.—2 Vesey, jr. 426. Where a case is sent to a Court of law for their opinion, it must be stripped of all appearance of trust, otherwise that court will not answer.—4 Vesey, jr. 788.
    Were this case so sent, it must be stated as a devise to Margaret Craven for life, and after her death, these slaves to themselves, and all the rest of the testator’s property to them too. But in every gift there must be a donor, a donee, and a thing given.—Plow. 63. The donee must have capacity to take or hold.—C. Lit. 2, 6. Where he has neither, the conveyance, of whatever sort it may be, is absolutely void. An alien may purchase lands but he cannot hold; by the civil law he can do neither, and a conveyance to him is void.—1 Bl. 371. It makes no difference whether the incapacity is created by the common law or by statute. The property must remain in the donor or devolve upon his heir at law of next of kin, whether the attempt to tranfer it is made at law, or by way of trust or will.—3 Atkyns 806. 2 Vesey, jr. 482. If then there is no person, who by the will, can take, the heir at law does; and trustees who are to have no profit cannot even present to a living.—2 Vesey, jr. 282.
    A slave is considered in law as a chattel and not as a person. He cannot maintain an action; he passes under a bequest of personal estate, and is levied upon and sold under a fieri facias to take the goods and chattels. To kill him wilfully and maliciously was only a trespass.—Act 1741, c. 24. It was declared to be murder by 1791, c. 4, and ousted, of clergy 1801, c.21 Even if the master sets him free, he shall be treated as a slave—1741, c. 21. The holding of property for him, whether by trust or otherwise, is illegal.—Conf. Rep. 353.
    By the common law, a monk professed can neither take nor hold—C. Lift. 36. He is considered as having once existed, but not as now existing except for special purposes. The case of property given or limited to a monk professed is exactly in point, only not so strong. An immediate estate given to a monk is void—Plow. 35. So of a devise—1 Str. 337. 2 Roll. 415.
    If a devisee is incapable of taking when the estate ought to vest, the devise is void.—Plow. 345. Cro. Eliz. 422. 9 Mod. 167, 181. 1 Str. 369. 1 Salk. 227. In the case of a descent, a person not in esse may take when he comes, in esse; but in the case of A purchase it is forever gone—1. Str. 378. The legislatures has not said that a devisee may take without being in esse, at the time the estate ought, to vest; but it has been said, and the Courts have held, that a child in ventre sa mere, shall be considered as in esse, and therefore may take as a purchaser. This decides the question as to all the negroes who had not been set free and enabled to take at the death of Margaret Craven, when the property ought to have vested in possession. But it may be said in reply, that this depends upon the rule of law that the freehold shall not be in abeyance, but that the inheritance may; and that although an immediate devise to a person incapable of taking shall be void, yet a remainder shall be good, if the person was capable of taking when the particular estate is determined, as Prince, and the others who were emancipated, were in the present case. This i true to a certain extent; but the remainder man must be in esse of in potentia propinqua.—Noy 123. Plow. 27. 2 Co. 51.—Here the devise of the negroes and lands are plain perpetuities; to the trustees it is in fee without the power of alienation. The trust is of the negroes and their increase until they are set free, which may not happen in 57 years, is equally so. The executors themselves are the persons who may set these negroes free—the county court only grants a license to do so, But while the executors hold this property, no one can call them to account; so that as they are bare trustees and cannot sell, it will remain in their hands as long as they please, unalienable. If such a trust is valid, it must be equally so when created by deed, and no doubt, it would become a common way of forming perpetuities. It cannot be imagined that the County Court would grant a license to set those negroes free; for it can only, be done for meritorious services. But some of them are very young, and many in contemplation, not yet born. It is equally improbable that the Legislature would do so contrary to the rule they have laid down for the Courts. To carry this trust into effect then, what is it but setting all these slaves free contrary to law? It is evident that the executors were not intended to he benefited by the labour of the slaves or the cultivation of the land; but the slaves themselves were have the whole. Now the devise of the whole profits of a thing, is both in law and equity a devise of the thing itself.
    The cases on charitable uses bear no analogy to the case before the Court. The objects to which such devises may be applied are enumerated in the statute 43 Eliz. and are all consistent with the policy and welfare of the country. But the object of this devise, so far from being compatible with the national policy, is absolutely forbidden by a variety of statutes.—Acts 1741, 1777, 1779, 1788.
    
      The rule applicable to this case is that wherever a conveyance is made on particular trusts, which by accident or otherwise cannot fake effect, a trust will result.—3 P. Wms. 20, 252—1 Bro. Ch. Rep. 508.
    
      A. Henderson and Murphey in reply.
    The cases relied upon to show that there must be a donee capable of taking, relate to an immediate gift by deed. But the principle is different where trustees are appointed by will, who take for the benefit of the donee, and hold till his capacity arises. Thus in Porter's case 1 Co. The trustees held the land for the benefit of a corporation not then created. And if the contingency of emancipation is too remote, why was not the devise in the same case held void? for there two acts were to be done,—an act of incorporation to be procured, and a license to hold land obtained. Yet it was considered not to be too remote. There are cases where a charity was never created, yet the Court would not take the estate from the trustees against the intention of the testator.
    In 1 Bro. Ch. C. there was a devise for a Bishoprick in America, which it was contended there was no probability of being established, yet the Chancellor held the money in Court, and would not allow the executors to have it, and the money was held in Court for 60 years. In 2 Bro. Ch. C. 498, a demise was held up until a license to hold in mortmain could be obtained. The case in Ambler 571 is a devise in trust for a charity not in esses and before the trust could be executed it was necessary to obtain a license to purchase ground in mortmain, and also a charter of incorporation; yet the devise was supported. The contingency in this case must happen within the period established for executing devises, viz. a life or lives in being and 21 years afterwards, for the slaves to be benefited by it are all named in the will. When the question is as to the remoteness of an event, it is proper to consider the nature of the property bequeathed— 
      2 Fearnc 369. All the doctrine relative to this part of the case is fully discussed in 2 Call 319.
    The cases cited to prove that a trust results to the heir where the devise cannot take effect from accident, confine the rule to those instances in which the accident is such as renders it impossible to execute the will of the testator, as the death of the devisee or legatee, &c.; or to those where lands are devised for a particular purpose, that which remains after the purpose is satisfied results.
    It is not denied that trusts have the same construction with legal estates in Courts of Equity, but this position is too broadly laid down on the other side, and to be rightly understood, it must be received with some qualification. The intervention of trustees will not convert an estate for life into an estate of inheritance, it will not enable the testator to create a perpetuity, nor will it change the properties and incidents of an estate. The rule in its general bearing is confined, however, to trusts executed and not executory. In the latter sort a difference of construction is allowed in order to effectuate the intent of the testator. Cases Temp. Tal. 19.
   Per Curiam.

As those members of the Court, who alone can decide in this case, have no doubt on the subject, and both parties seem anxious to avoid further delay, we see no reason to postpone the judgment; although it would have been more consonant to the respect with which we have listened to the able arguments on the part of the defendant, to have stated particularly wherein they have seemed to us inconclusive, and failed to produce conviction in our minds. But this could only done by the delay of a term, as we have ascertained the general principles on which we do agree a few minutes only before coming into Court, and as this is the last day of the term, we must give the opinion in general terms or not at all.

We are of opinion, that the trust attempted to be created by the will of Mr. Craven is void in law, not only as contrary to its general policy, but as repugnant to positive provisions by statute; for the law has pointed out one method only in which slaves can be liberated, act of 1741, c. 24, and the principle on which it is permitted, can by no construction be applied to the case before us. The same act directs the slaves to be sold if the owner sets them free in any other manner. With respect to the cases decided upon the 43. Eliz. it is believed that not one can be found in which a Court of Equity has executed a charitable purpose, unless the will so described it, that the law will acknowledge it to be such. The disposition must be to such purposes as are enumerated in the statute, or to others bearing an analogy to them, and such as a court of chancery in the ordinary exercise of its power, has been in the habit of enforcing. But wherever the intention is to create a trust which cannot be disposed of to charitable purposes, and is too indefinite to be disposed of to any other purposes, the property remains undisposed of, and reverts to the heir at law or next of kin, according to its nature. This is the construction of courts of equity, even upon charitable dispositions.—10 Vesey jr. 552. But for the reasons already stated, we do not perceive any resemblance between them and this case. It must therefore be governed by the general rule, and as the trustees have no interest, they must be considered as holding the property for the benefit of those on whom the law casts the legal estate.

Demurrer overruled. 
      
       Seawell, Cameron, and Hall, J. gave no opinion in this case, the two former having been consulted while at the bar; the latter being one of the executors of Mr. Craven. The cause was decided by Taylor, C. J. Lowrie and Daniel, J.
     