
    Wynn & als. v. Carrell & als.
    July Term, 1845,
    Lewisburg.
    (Absent Brooke, J.)
    1. Conditions between Freedom and Slavery. — The law does not recognize any condition of persons between freedom and slavery.
    2. Wills — Emancipation of Slaves. — A testator bequeaths a female slave to his daughter, not as a bound slave, but to be under her care and tuition: to receive wages for her labour. And if she should have children, for them to come under the same regulation, after they pay for their raising; but ' their labour to be equally amongst all my children, if they choose to employ them. Held. 1. The slaves are not emancipated by the will. 2. The bequest to the daughter is void, and the testator is intestate, as to these slaves.
    On the 11th of November 1812, Josiah Wynn died, having first made his will, which was duly admitted to *probat in the County Court of Tazewell. The will contained the following clauses:
    “I bequeath my negro girl Eliza to my daughter Jinney, after the decease of my wife, not as a bound slave, but to be under her care and tuition; to receive wages for her labour. And if she should have children, for them to come under the same regulation, after they pay for their raising; but their labour to be equally amongst all my children, if they choose to employ them.”
    ‘ ‘Item. I will and bequeath to my beloved wife Mary . my land not heretofore disposed of, and my negro girl Eliza, during her natural life.”
    The widow of Josiah Wynn died subsequent to the year 1830; and during her life, Eliza had three children. After the death of Mrs. Wynn, Eliza and her three children went into the possession of Joshua Carrell, who had married the testator’s daughter Jinney. And in 183S, the children of the testator filed a bill against Carrell and wife, claiming that these slaves should - be distributed equally among the next of kin of Josiah Wynn. Carrell answered the bill, insisting that by the will of Josiah Wynn, the slave Eliza and her children, born in the lifetime of the widow, were given to his wife.
    The cause came on to be heard in April 1838, when the bill was dismissed with costs; and -from this decree, the plaintiffs obtained an appeal to this Court.
    Sheffey, for the appellants,
    contended 1st. That the slaves were not emancipated by the will. That the testator had attempted to place them in a condition between freedom, and slavery, not recognized by law; and therefore the bequest was void. Rucker’s adm’r v. Gilbert, 3 Eeigh 8. He contended 2d. That the leading object of the testator having failed entirely, there was an intestacy as to these slaves. Manifestly, it was *not the intention of the testator that Jinney, or any of his children should have a beneficial interest in the slaves. The object was the same as that in the case of Rucker’s adm’r v. Gilbert, and must be ruled by it.
    Eulton, for the appellees,
    concurred with the counsel for the appellants, on the first point. On the second point, he insisted that the bequest to the testator’s daughter Jinney was good, and the proviso attached to it was void. The bequest to the daughter was, in the first place, absolute; and the addition of a void provision to it, could not affect the preceding absolute bequest. 1 Roper on Eeg. 677.
    
      
      Conditions between Freedom and Slavery. — A condition between freedom and slavery is unknown to our laws and against their policy. Adams v. Gilliam, 1 P. & H. 164, citing the principal case and Rucker v. Gilbert, 3 Leigh 8. To the same effect, see the principal case cited in Smith v. Betty, 11 Gratt. 705; wood v. Humphreys, 12 Gratt. 343.
      To the point that bequests conferring civil capacities on slaves are invalid, see the principal case cited in Bailey v. Poindexter, 14 Gratt. 193; Williamson v. Coalter, 14 Gratt. 397.
    
    
      
      Emancipation of Slaves — Conditions Subsequent.— See principal case cited in Forward v. Thamer, 9 Gratt. 537, 539, and foot-note. See also, foot-note to Osborne v. Taylor, 12 Gratt. 117.
    
   AELEN, J.,

delivered the opinion of the Court.

The Court is of opinion, that although by the terms of the will, the testator looked, principally, to the benefit of the slave Eliza and her increase, in the provision made respecting her, it was not his intention to confer upon her or her increase, the absolute right to freedom. That he contemplated a continued custody and control of the persons as slaves; but conferring privileges and benefits, inconsistent with that relation ; and thus attempted to place the said Eliza and her increase in an intermediate condition between free persons of colour and slaves; a condition unknown to the laws, and contrary to their policy. The Court is therefore of opinion, that this provision of the will is inoperative and void.

The Court is further of opinion, that the will cannot be construed as a bequest of said Eliza or her increase, to his daughter Jinney, or to his other children, as slaves. He expressly declares, that he bequeaths Eliza not as a bound slave; thereby clearly shewing he did not contemplate disposing of her as property; an intention made more manifest by the provision respecting the wages for her labour. And by the clause providing that the children *of Eliza should come under the same regulation after they pay for their raising, he intended to place the increase in the same condition with the mother.

The Court is therefore of opinion, that the will contains no disposition of the slave Eliza, or her increase, as slaves or property ; and the leading intent being to create a status or condition of persons which the law does not permit, the whole provision in regard to Eliza and her increase after the death of his wife, is inoperative and void; and the said Eliza and her increase remained undisposed of after the happening of that event; and should be distributed as in other cases of intestacy.

The Court is further of opinion, that an account should have been stated, charging the parties in possession with the hires and profits of the slaves, subject to a proper deduction for the expense of raising, if any, in order to a final settlement and distribution of the whole subject in controversy.

The Court is therefore of opinion, that the decree of the Circuit Court, dismissing the plaintiffs’ bill, was erroneous. It is therefore reversed with costs against Joshua Carrell; and remanded for further proceedings in order to a final decree, according to the principles above declared.  