
    JANUARY TERM, 1844.
    David O. Shattuck, Executor of Mrs. Francis Beazley, vs. James Young & wife.
    B. by will directed that her executor should represent to the legislature the meritorious services of her negro slave, and should procure from the legislature an act for his emancipation, and should take charge of the slave, and give him the benefit of his own labor, until he could procure the passage of the act. Held,, that the testatrix did not thereby profess to emancipate the slave, and that that clause of the will was not void.
    Should the legislature in such case refuse to pass the act of emancipation, the slave would fall into the residue of the estate. i
    That clause of the will, authorizing the executor to retain the slave until the emancipation was obtained did not create an unlimited trust; but, if any, merely to the period of the determination of the legislature with reference to the slave’s emancipation.
    Where a petition for the sale of a particular piece of property and the distribution of the proceeds, filed by the legatees of a deceased person, did not state the condition of the estate to be distributed, or whether sufficient time had elapsed to entitle them to distribution, or show the character of the rest of the estate; Held, that it was doubtful whether a decree for a sale could properly be made upon so vague a petition.
    Where a petition is filed for distribution of a deceased person’s estate, all the claimants to distribution, must be made parties to the petition.
    On appeal from the probate court of Carroll county.
    The appellees, James Young and Sarah A. his wife, formerly Sarah A. Green, filed their petition in the probate court of Carroll county, setting forth that Sarah A. was one of the heirs and legatees of Frances Beazley, deceased, who by her last will and testament, among other things directed that a certain slave, named Jim, should be set free, and that the appellant, who was appointed executor of her will, should make application to the legislature for the emancipation of said slave. The petitioners state their belief that the clause in the will which refers to said slave, is void by reason of its being contrary to the policy of this state. They also state that said negro never has been emancipated by an act of the legislature. Thejr further set forth that Sarah A. together with Frances Taylor now Frances Sanders, and Eliza Williams, were by a clause in said will made residuary legatees of the estate of Frances Beazley, one half of the residuum to go to Sarah A. and one fourth to each of the others. The petitioners claim an interest in one half of the value of Jim, by virtue of the residuary clause in the will, and pray for an order or decree of the court for the sale of said slave, and the distribution of the proceeds among the residuary legatees. The appellant, as executor of the will, opposed the petition, but the court granted the order, and directed the executor to advertise, &c. and sell the said slave on a credit of twelve months. From which order the executor appealed to this court. By the will which is made an exhibit the executor is directed to petition the legislature for the'emancipation of said slave on account of his meritorious services, and in the meantime to take charge of him, giving him the benefits of his labor until the favorable action of the legislature could be procured.
    The clause of the will was in these words : “ The very faithful and meritorious services of my negro boy Jim, I cannot consent to pass unrewarded; my will, therefore, is that for said meritorious services, the said Jim shall be forever set free, and I hereby charge my executor to set forth the said meritorious services of the said Jim, with this part of my will, in a petition to the. legislature of this State, and procure an act for the emancipation of said Jim, with the least possible delay, and further that my executor take charge of the said boy Jim, give him the exclusive benefit of his own labor, until he can procure the passage of the said act.”
    The errors assigned are
    1. That the probate court ordered a sale of property it had no power over, the same being held in trust by the executor.
    
      2. That the negro Jim, was never in the possession of the appellant as executor but as trustee.
    3. That even if Jim was the subject of sale and distribution, it was erroneous in the probate court to make that order in this case, because the other claimants were not parties before the court.
    
      
      W. Thompson, for appellant.
    It is contended, the court ought not to have granted the order for sale of the slave upon the petition of appellees (if it presented in other respects a case proper for the order) without having before it all the parties interested in the subject matter of that order. The residuary legatees were all interested — if the slave does not pass under the residuary clause, in an order for his sale at the instance of one distributee or legatee, the other dis-tributees should all be made parties. It is not sufficient that the legatees should be named in the petition. They should have been made formal parties. See Edwards’s Parties in Chancery, pages 1 and 2, and authorities. H. & Hut. Digest, 402, ch. 36, sec. 61.
    The provision in the will concerning the slave in controversy is expressly sanctioned by the seventy-fifth section of the act respecting the emancipation of slaves, passed in 1822. Rev. Code, page 385. It is therefore a legal trust which the will imposes upon the executor. And the probate court has no right or power to take that trust out of his hands, or to interfere with his control over the subject of the trust. It is not stated in the petition that the executor had failed to procure the favorable action of the legislature, nor that he had suffered a reasonable time to elapse without making an application for that purpose. See 2 Call. 317 and 357. 1 Leigh, 172. 4 Wheaton, 35. 1 Coke. 22, b. Porter’s case.
    It does not appear in the petition, nor in the copy of the will, nor in any part of the record, when the will was proven, or when the executor qualified; by the law a legatee or distributee cannot demand the legacy or distributive share for twelve months after the executor qualifies ; for aught that appears to the court, the executor might not have qualified more than a day before this petition was filed. See H. & H. Dig. p. 406, sec. 70 and 71.
    Personal property is to be sold by order of the probate court, on the application and petition of the'executor, here he never applied to the probate court for order of sale.
    We submit to the court to decide whether the slave would (if the will cannot be carried into effect in relation to his emancipation) go to the petitioners tinder the residuary clause in the will. We refer to the case of Luclcey, et al. v. Dykes, et al., decided at the present term of the court.
    We respectfully ask the attention of the court to the opinion delivered in the case of Jane B. Ross, et al. v. Yertner, et al., 5 Howard’s Rep. p. 356 — particularly the two last pages of the opinion. We would also ask that the court will read the argument of the counsel for the appellees in that case, at page 353, which we conceive to be applicable to the present case, and to be well sustained, by both reason and authority.
    We contend that whatever disposition the testator, while living, could have made of the slave, she could empower her executor to make after her death. If living she could control the slave, and give him the benefit of his labor till she could get a law passed for his emancipation. She has by her will given all her other slaves to her relatives, but directed her executor, in consequence of the “ very faithful and meritorious services ” of her negro boy Jim, to take charge of him, and give him the exclusive benefit of his own labor, until he could procure the passage of an act of the legislature for his emancipation.
    The negro is not. in the meantime, free, but entirely subjected, as far as the community are interested, to all the disabilities of slavery. Nothing is done contravening the law, or its policy, but on the contrary, the act of 1822, before cited, sanctions the course pursued. We contend that the trust created by the will is not limited to any time, but continues during life, if not in the meantime carried out in the manner prescribed by law.
    
      T. iS. Ayres, for appellees.
    The emancipation of slaves is contrary to the policy and laws of the state of Mississippi, as indicated by the constitution and the acts of the legislature, and no slave can be emancipated, except by act of the legislature. See the act of 1830. See the case of Hinds, et al. v. Brazeale, et al., 2 Howard, 837, et seq.
    
      This court recognizes this doctrine as correct, in the case of Ross, et al. v. Vertner, et al., 5 Howard, 305.
    The testator in this case clearly seems to have an eye to this settled policy of the state, and the executor is directed to apply to the legislature for an act of' emancipation, for without this act the testator does not intend the slave to be free.
    It is contended, though, that the words of the will which provide that the executor shall take charge of the boy Jim, and give him the exclusive benefit of his own labor until he can procure the passage of an act of emancipation, takes this case out of the operation of the law and policy of this state. That the boy Jim is not free, but that the executor is vested by the will with ownership in trust for benefit of the slave, &c.
    The intention of the testator is the pole-star which governs cotirts in the construction of wills, and I think it is manifest this clause was intended to give the boy the benefit of his own labor, while an application was made to the legislature for an act of emancipation.
    Suppose an act of emancipation is never procured : is the boy Jim entitled to the benefit of his own labor for life'? Surely not, for if such be the construction given by the court then this settled policy of our state can at any time be evaded by a provision of this kind, and all the evils intended to be avoided will ensue.
    Suppose, for a moment, the executor should fail to give the boy the exclusive benefit of his own labor, who could compel a performance of the trust ? The slave could not, and the heirs and legatees perhaps could not.
    If the object of this testator was only to give the boy Jim the benefit of his own labor, while an application was made to the legislature for an act of emancipation, then the question arises, what length of time shall be allowed for such purpose, no specific time being given, then a reasonable time only can be required. Seven years have elapsed since the death of the testatrix, and the probate of the will, which the court will regard as ample time.
    An application for such purpose has been made, and failed. See Journal of the House of Representatives, Session of 1839, p. 151. This being the case the matter is at an end, and the court was correct in making the order of sale.
   Mr. Chief Justice ShaRicey

delivered the opinion of the court.

The appellees, Young and wife, filed their petition in the probate court of Carroll county, praying for an order to sell a negro man, named Jim, claiming to be entitled to a portion of the proceeds of sale as residuary legatees under the will of Prances Beazley, the mother of Mrs. Young. The court granted the petition and made an order of sale, from which the executor appealed.

That the complainants are residuary legatees admits of no doubt. The residuary clause in the will is as follows, to wit: “And finally all the balance of my property of every description I give and bequeath to my said daughter Sarah Green, (now Sarah Young), my grand-daughter Frances Taylor, and niece Eliza Williams, as follows : Sarah Green one half, and the others each one fourth.” If the bequest in relation to Jim is void, then the petition would seem to be well founded.

The portion of the will, out of which this question arises, is as follows, to wit: “The very faithful and meritorious services of my negro boy Jim, I cannot consent to pass unrewarded; my will therefore is for said meritorious services the said Jim shall be forever set free and I hereby charge my executor to set forth the said meritorious services of the said Jim, with this part of my will, in a petition to the legislature of the state, and procure an act for the emancipation of said Jim with the least possible delay, and further that my executor take charge of tha said boy Jim and give him the exclusive benefit of his own labor until he can procure the passage of the said act.” This clause does not propose to emancipate, but only to lay the foundation for a legal emancipation by act of the legislature. It is competent for the legislature so to emancipate, and there is therefore nothing in the bequest which would authorize us to declare it void; but it would be defeated by the refusal of the legislature to pass the act. As it was discretionary with the legislature to emancipate or not on a sufficient showing, the executor was entitled to a reasonable time to make the application, and the right of the residuary legatee would necessarily be postponed until the will of the legislature could be known. That portion of the bequest which authorized the executor to take charge of the negro and give him the benefit of his labor cannot be construed as a perpetual trust, even if it would have been competent for the testatrix to have created such a trust with a view to the continuation of the negro in the state. It was at most a trust for a limited time, its duration being limited by the determination of the legislature, as it was for the purpose of procuring the act, and until it should be done, that the executor was invested with the power. We are not informed by the petition what time has elapsed since the death of the testatrix and the qualification of the executor, or whether any steps have been taken to carry out the .will. But counsel have insisted that application has been made to the legislature for an act of emancipation, and the application refused; and we are referred to the journal for proof of this fact. If such is the case the bequest, by the refusal to pass the act, was defeated, and the negro Jim must fall into the residue of the estate. The journal however was not offered as evidence in the court below as it should have been. The petition is also silent as to the necessity of a sale in order to accomplish an equal distribution. It may be that the residue of the estate consists of other property, and is susceptible of distribution without sale. Nor are we informed by the petition or proof whether the estate has been finally settled, or whether sufficient time has elapsed since the grant of the letters testamentary to entitle the complainant to distribution according to the provisions of the 70th and 71st sections of the law in relation to the estates of decedents. This vagueness in the petition is calculated to create great doubt as to the propriety of the judgment below on the merits of the case. There is one point, however, on which the judgment of the court must be reversed, and that is that the other residuary legatees had ho notice, of the proceeding. The 61st section of the act referred to provides that when one or more slaves shall descend from a person dying intestate, and an equal division cannot be made, then a sale may be decreed and the proceeds divided; but it expressly requires that each claimant shall be notified to show cause, if any he can, against such sale. In terms this section applies only to the estates of intes-tates, but in spirit and meaning it also applies in cases of legacies which do not admit of equal division. But apart from this law, it is a general rule that all parties interested should be notified of any judicial proceeding which may affect that interest. For this irregularity the judgment must be reversed, and cause remanded for further proceedings.  