
    *Young et als. v. Vass’ Ex’r.
    January Term, 1855,
    Richmond.
    Wills — Legacies — Construction — Slavery — Statute Prevents Performance — Case at Bar. — A testator, after emancipating certain slaves, directs that a certain sum of money out of his estate shall be applied by a person whom he names trustee for that purpose, in the purchase of land in the State of North Carolina, and in the erection of building's of a particular quality thereon, and in stocking the same for a farm, and that the emancipated negroes shall be removed to the said land and permitted, they and their descendants, to possess and enjoy it in common, but without the power to sell it.
    A statute of North Carolina forbids the immigration of free persons of color into that State. Upon a bill in equity, by the trustee and the emancipated slaves against the executor, for the payment to. them of the money directed to be so applied. Held :
    
      1. Same — Same—Same—Same—Same — Same. — That a legacy was intended for the benefit of the slaves, and that it is not.void, because the statute of North Carolina prevents its application in the particular mode directed by the testator.
    2. Same — Same — Same — Same — Same — Same — Death of One Slave — Effect.—That the legacy was bequeathed to them as a class, and the interest of one who died, after surviving the testator, survived to the remainder of the class.
    3. Same — Same — Same — Same — Same — Same —Payment of Money to Trustee — Election.—That the money, directed by the testator to be invested in land, &c., should be paid to the trustee named in the will, or to whomsoever should be appointed in his stead, with interest on the amount, from twelve months after the death of the testator. That the emancipated negroes should be put to their election, whether they would go to one of the free States of the Union or to Liberia. If they elected to go to Liberia, the money should be equally divided between them ; if to a free State, the money to be applied in the purchase and stocking of a farm as directed by the testator. That those who should choose to remain in Virginia, in violation of law, should take no part of the legacy.
    4. Refunding Bond — Legatees.—That, under the circumstances, the admission of assets by the executor, the character of the legacy and of the legatees, it was submitted to the discretion of the court belowwhether any refunding bond should be required of the legatees.
    The will of Philip,®. Vass, made the 8th August, 1831, and admitted to probat by the County Court of Halifax on the 22d April, 1833, contained among various other other items, the following:
    ‘Item 12th. My wish and desire is, that my two servants Mary and Jacob, and all my interest in the undivided servants belonging to my father’s estate to be emancipated, and that the sum of two thousand dollars be appropriated out of any moneys belonging to my estate, to purchase in the State of North Carolina a tract of land not less than 250 acres nor more then 300; the said land is to be of good quality and such as will command four or five dollars per acre, and higher then five I do not wish to be paid. If there is no houses on the land sufficiently for my servants to occupy, my wish and desire is for them to be builded of good oak logs, three logs above joist, with cabbin rough well covered with good slabs, and if there should be more •than one house necessary, my desire is for it not to be put up nearer than two hundred yards to any other, nor further aparte then three hundred yards. My wish and desire is that my negroes be furnished with two good work horses and the necessary plantation tools to make a crop with, and two good milk cows, meat and corn for the first 3'ear, say four barrels corn each, and one hundred and fifty pounds pork, to be distributed to them in the manner which may be thought most proper, by the gentlemen I shall hereafter named to be my wish for to attend to this clause of my will, which relates-to-the emancipating my servants. It is my wish and desire that if either one of the servants which is emancipated by me dose become rogueish and entire neusance to this country, he, she or them shall escheat to this commonwealth and be sent from this country to the colony of Liberia; and it is moreover my wish and desire that none of the servants emancipated by me shall ever have it in their power to dispose of the said land which may be brought for them, or any other property given them bjr me, either by gift or any other way whatsoever, but go to them and to their familys in succession; and it is my wish, that when the servants which is liberated by me, and the increase of their bodies on the female side be extinct, that the said land and all the property “which may be in their possession previous to the death of the said servants, be sold on a credit of one, two and three years, with bonds and approved securitys, to carry interest from the date if not punctually paid. The money arising from the sale of the land and property I shall hereafter dispose of in general terms.
    “Item 13th. It is my wish and desire that James Young, of Halifax county, Virginia, do take my servants in possession so soon as it may be legal for him to do so, hire a white man workman and put my male servants with him to aid in building houses, and compleating the same for them to move into. My wish is for my servants not to move on the said plantation until the commencement of new year, but be hired out by Jas. Young on them conditions. The money arising from the hire of said servants, for the time they may be hired out by said James Young, will be hereafter disposed of by me. If James Young is not willing to take this business in hand, my wish is for the County Court of Halifax to appoint some good man to act as is requested of James Young.
    “Item 14th. It is my wish and desire that James Young or the person that may undertake to do the said business, or cause the same to be done as I have directed, shall, at the compleating of the said work and settling the said servants on the land and furnishing them what I have herein named for them, he, the said James Young, shall be paid out of the ballance of the money which is may be remaining of the sum of money herein appropriated, three hundred dollars for his services, and if there is not a sufficient balance to pay the said James Young for his services, it is my wish for him to be paid out of any moneys belonging to my estate. My wish and desire is that James Young or the person who dose the business herein requested by me, make out his account of money expended and return the same, with the money, if there is any remaining after compleating the work and settling the said servants on their land and furnishing' them as requested by me, to *my executor hereafter named, or to the clerk’s office, or which he may think proper.”
    In May, 1843, the emancipated negroes and Young, the trustee named in the will, filed a bill on the chancery’ side of the Circuit Superior Court of the county of Halifax against Vass’ executor, praying that the executor might be decreed to pay to them the legacy of two thousand dollars.
    The executor, in his answer, admitted assets, but denied the right of the plaintiff to the legacy, on the ground that the laws of North Carolina prohibited the migration of free persons of color into that State. The law was proved, and at the June term, 1850, there was a decree dismissing the bill of complainants.
    From that decree the complainants appealed to this court.
    Bouldin, for the appellants:
    That the law of North Carolina only prohibits the migration of free persons of color into that State. It does not prohibit them from holding or transmitting property there.
    Even if the law does create an incapacity to hold lands there, it cannot operate to deprive the slaves of the bounty’ of the testator. Roper on Legacies, p. 646, § 5; Barlow v. Grant, 1 Vern. 255; Nevill v. Nevill, 2 Vern. 431; Barton v. Cook, 1 Ves. 462.
    W. Hughes, for the appellant,
    argued the case in writing, as follows:
    Ror the appellee it is insisted there is no error in the decision of the Circuit Court, because, byr the laws of North Carolina, free negroes are prohibited from migrating to that State, and it would be an act of folly to purchase the land and fix upon it the buildings, when the emancipated slaves would not be permitted to reside upon it. And furthermore, because the testator intended no right of property to vest in the negroes, and consequently they have no right to recover the *money, to be distributed among them, or for any other purpose.
    It is insisted by the appellants that it does not appear by this record that any law existed in North Carolina in 1832, prohibiting the migration of free negroes to that State, and that their rights cannot be affected by ex post facto legislation. In the view of the appellee’s counsel, it is wholly immaterial whether such law existed at the death of Vass, if such was the law when the decision was made. If, however, that point shall be considered as at all important, we think it sufficiently appears that the law existed in 1832. The law is copied„into this record from the “Revised Statutes” ■of North Carolina, published in 1837. A revisal does not import that all the laws contained in it were enacted for the first time when the revisal was published, but it rather imports a re-arrangement and re-modelling of existing laws. Be this as it may, the book itself shews that the law existed before 1832, and it is presumed the Courts may inspect the statute book of a sister State, if not for the purpose of seeing what the law is, for the purpose of ascertaining, as a matter of history, when a particular policy yvas adopted. In addition to this it may be insisted that it was incumbent upon the plaintiffs below to shew the commencement of the law, if they wished to take their case out of its influence.
    It is regarded as wholly unimportant when the law passed, as the only interest which the emancipated slaves took under the will was the mere permission to live upon the land, — if, indeed, that can be regarded as an interest of any appreciable value. This brings us to an examination of the main question in the cause.
    The appellants contend that the paramount intention of the testator was, that the emancipated slaves should have the sum of money, in some form, at any rate; and that the mode of enjoyment was but secondary to the «leading object of the testator. We think such a construction is directly in conflict with the plain and *strongly expressed intention of the testator. He knew the improvidence of that class of persons, and that to give them the sum of $2,000 to be distributed among them, and used by them as they pleased, would be to confer no benefit upon them. He wished them to have a place of abode, to prevent them from being vagabonds ; but he did not desire to furnish them the means of dissipation merely, to lead them into vicious habits. The particularity with which he prescribed the quantity and quality of the land, the manner of erecting the buildings, the kind of timber of which they should be built, the distance the houses should be from each other, besides many other things mentioned, goes strongly to show he did not intend them to acquire title of any kind to the property. He well knew if they were the owners of the property in any form, the incidents of ownership would follow, and they might divide it or sell it, or so dispose of it as entirely to defeat his object. It must be apparent that the testator’s only object was to have a place, belonging to his estate, fitted up, and to give his emancipated slaves permission to remain upon it, without giving them any right of property. When that end is served, he particularly prescribes the terms upon which the property shall be sold; the credits to be given ; «the security to be taken; and finally disposes of the proceeds of sale. It may be said that this would be no gift to the emancipated slaves at all, that could be enforced under any circumstances. We think such was the meaning and intention of the testator. We think he did not intend to regard them as legatees, and meant to give them nothing, in any form, that would carry with it the power of disposition. We think no interest passed to the negroes that could, under any circumstances, be enforced ; but it may not be necessary for the I court to decide that point, as it is clear that the laws of North Carolina will not permit the design of the testator to be carried into effect in the manner prescribed, and no other alternative is left but to decree the
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    money to be distributed among them; —a proposition *so variant from any intention of the testator that can be gathered from his will, that it cannot be seriously entertained. How would the money be got back to his estate, when the emancipated slaves shall become extinct? But suppose that difficulty should be obviated ; or the limitation over be considered too remote: How much must they have? No particular sum is directed to be invested. Two thousand dollars is appropriated as the utmost limit, but a balance, unexpended, is contemplated, which is to be returned to the executor. What sum would be necessary to procure the lands and fit up the place, can only be known by experiment. What balance ’ would be left to be returned to the executor, can, only be known in the same way. The provision for the sale of the lands and other property, and the disposition of the proceeds of sale, strongly show that the testator never designed the negroes to have - the fund with any power of disposition.
    
      
      See monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6, and monographic note on “Statutory Bonds” appended to Goolsby v. Strother, 21 Gratt. 107.
    
   CLOPTON, J.

The will of Philip E). Vass of Halifax county, dated on the 8th of August, 1831, was by the County Court of that county, made on the 22nd of October, 1832, ordered to be recorded, which order was, upon appeal to the Circuit Court, affirmed on the 15th of April, 1833. The testator, by the 12th clause of his will, emancipated his servants Mary and Jacob, and all his interest in the undivided servants belonging to his father’s estate; and by the same clause he provided that the sum of $2,000 should be appropriated, to purchase, in the State of North Carolina, a tract of land of prescribed description and quality; that houses of a particular description should be built, if there were none on the land sufficient for his servants to occupy, and that his negroes should be furnished with certain articles of personal property and provisions. He also declares, that none of his servants emancipated by him should ever have it in their power to dispose of the said land which may be bought for them, by gift or any other way whatsoever, but to go to them and their families *in succession, and that when they and their increase on the female side be extinct, that the land, &c. be sold and be subject to the disposition in general terms of his will. By the 13th clause he appoints James Young (one of the appellants,) to take possession of his servants and to carry out the purposes of his will, and for performing these services he directs by the 14th clause that he should be paid $300, if so much should remain out of the sum of $2,000 appropriated, and if not, to be paid out of his estate. A controversy arose whether the slaves were emancipated, which was settled by the final decree of the Circuit Superior Court of Halifax at the April term, 1841, which ascertained and decreed that the plaintiffs in that suit, to wit, Jacob, Mary, Sam, Meriwether, Patty and Matilda were emancipated.

In May, 1843, James Young and five of the emancipated negroes (one of them, Sam, having died in the meantime,) exhibited their bill in the Circuit Court of Halifax, against the executor, claiming the benefit of the $2,000 appropriated to their use by the will, and the interest thereon accrued after a reasonable time from the death of the testator. In September, 1843, the executor filed his answer, in which he submits the question, whether, as the laws of North Carolina did not permit the settlement of the colored plaintiffs in that State, in that event they were entitled to the money aforesaid at all under the will; and the laws of North Carolina prohibiting such settlement, are in the record. In June, 1850, the Circuit Court “being of opinion that, as by the laws of North Carolina, emancipated negroes are not permitted to migrate into that State, the plaintiffs had no right to the said sum of $2,000,” dismissed the bill.

To this decree an appeal was allowed, and the first question to be decided is, have the plaintiffs lost all right to the $2,000, because the laws of North Carolina forbid its appropriation in the particular manner prescribed in the will? It seems clear that the emancipation *of the colored plaintiffs, and their subsequent comfort and support were the primary and peculiar objects of the testator’s bounty, and although it appears from the will that he was an ignorant man, yet he seems to have known that they could not remain in Virginia without forfeiting their freedom, and ignorant of the laws of North Carolina, he provided for their removal and settlement in that State. This, I think, must be regarded as only secondary and ancillary to the other, as indicating only the place where and the manner in which the boon of freedom and comfort was to be enjoyed; and if this purpose has been defeated by an exercise of sovereign power by the State of North Carolina, over which they could have no control, they should not be deprived of all benefit from the provision; for it cannot be regarded as a condition precedent upon the performance of which by them their right was to accrue. The acts were tobe done by others, and their performance has become illegal, and therefore prevented, not by any act or omission on the part of the beneficiaries. I think it settled, that conditions are to be construed strictly and never extended beyond what is made necessary by the context of the will, but that they should be regarded only 'as a limitation upon the manner of using the legacy, in favor of the primary and general intention of the testator, and the legacy will not be defeated, although every particular circumstance directed by the testator to attend its use should not take place. When a legacy is given to answer a particular purpose, which becomes impossible, but from no fault of the legatee, he will nevertheless be entitled; and for these principles I refer to Roper on Legacies, pages 479, 646, 751, and the cases there cited, and Rowlett v. Rowlett, 5 Leigh, 20. I am, therefore, of opinion, that although the legacy cannot be appropriated precisely in the manner directed by the will, the legatees are entitled to have it applied in the manner most beneficial to them, and that it should bear interest after a reasonable time from the testator’s death.

*The second question relates to the interest of Sam, who has died since the testator. I am of opinion that the legacy should be regarded as made to a class. The testator directs his “two servants Mary and Jacob, and” his “interest in the undivided servants belonging to” his “father’s estate to be emancipated.” He gives no separate legacy to them as individuals, nor are any means furnished by which the aliquot shares can be ascertained so as to vest in each a specific sum separate and distinct from the others. He does not direct the legacy to be appropriated to the use of the legatees in equal shares, but is to be appropriated for their joint use, and but for the impediment interposed by the law of North Carolina, this would have been literally carried out. If a legacy be given to several as a class and not in their individual character, as for instance to executors in their representative character, and one die in the life-time of the testator, the legacy will not lapse, but go to the survivors; and so in anv case of a legacy to several as a class, if one, from death or any other cause, should be incapable of taking, before the legacy is payable, or has been paid, the survivors take the whole, upon the principle that each is a taker of the whole, but not solely; for the whole is devised to all, and not a part to each. See Roper on Legacies, pages 483, 1734, and the cases there cited.

As to the proper disposition of the legacy, I am of opinion, that the whole, with the interest accrued, should be paid to the appellant James Young, (if he consents to act,) with instructions to him to retain as compensation for his trouble, according to the will, the sum of $300, with its interest ; that out of the residue, he pay the expenses of transporting the emancipated negroes to such free State as they may be permitted to go to, or to the port of embarkation for the colony of Liberia, as they may elect to go to the one or the other, and divide the remainder among them.

THOMPSON, J.

I regret that the able _ judge, whose decision is brought under our review by this appeal, has *not favored us with an opinion, setting forth the reasons or grounds of his decree; because, had he done so, it cannot be doubted, from his acknowledged judicial eminence, they would have been entitled to high respect, and calculated to enlighten us in our deliberations, and to persuade, if they had failed to convince, our judgments. Without the benefit, then, or the lights which he doubtless could and would have shed on the subject, in proceeding to express my views, I feel warranted in laying it down as a clear proposition, upon the principles of reason, equity and justice, if there were no authorities to guide, that where a legacy is given to a person for a particular purpose, which it becomes impossible to appropriate to that purpose, without any fault or demerit on the part of the legatee, he ought, nevertheless, to be entitled to the legacy, and that the purposes for which it was given, expressed in the will, ought not to operate as. condition to the bequest. And upon this very plain and obvious principle, that the fund being designed for and appropriated to the benefit and advantage of the legatee, the mode in which it shall be applied or enjoyed is but a secondary object and consideration, and ought not to be held as entering into the substance of, or constituting a qualification or condition of the gift. And so we find, in this case, (as we shall very generally, if not universally find,) the rules of law or legal construction and reason concurring. That point has been so ruled and settled by authority in the cases of Barlow v. Grant, 1 Vern. 255; Neville v. Neville, 2 Ves. 431; Burton v. Cooke, 5 Ves. 462, cited in 1 Roper on Legacies, 430, 2 Lomax Ex. 73, 74, and cited and approved by our own Court of Appeals in Rowlett v. Rowlett, 5 Leigh, 20; and as it is not to be presumed that the judge in the court below was unapprised of these authorities, or, being cognizant of them, disapproved and intended to disregard or ■ over-rule them, I must conclude, that he proceeded either upon the ground that they were distinguishable from the case under consideration for the same or reasons similar to *those assigned in the argument of the appellee’s counsel, or upon the principle established by another, class of cases; that is to say, that this will, instead of giving a legacy of money or other thing directly to the legatee, for a specified purpose, created or interposed an executory trust merely in their favor, of such a nature, as that, at the date of the will or the death of testator, it was, or by matter ex post facto, (the disabling or prohibitory and penal legislation of North Carolina, in reference to free persons of color,) because incapable of execution in the manner prescribed by the will, and that therefore, as in case of bequests, void by statute, or because of the incapacity of the legatee to take, for vagueness and uncertainty, or for any other cause, the trust wholly failed, and the property, or money given to invest in property, remained un-disposed of and belonged to the next of kin or distributees, in virtue of a resulting-trust. See Morice v. Bishop of Durham, 9 Ves. 399, 10 Ves. 522; James v. Allen, 3 Meriv. 17; Ommaney v. Butler, 2 Turn. 260; Vezy v. Jameson, 1 Sim. & Stu. 69, and Fowler v. Garlike, 1 Rus. & M. 232. cited in 2 Lomax Ex. 4. , But in this case, throwing' out of view, as entitled to not the least' consideration upon the question in hand, because clearly illegal and void, the abortive attempt to impose limitations upon the estate or provision made for the settlement-in North Carolina, in the form of restraints upon the power of alienation, or in ,sc.r.e.g.tion of a perpetuity, and taking into consideration the fact, that both the beneficiaries and the provision or property intended for them were certain and definite, and the failure of execution- proceeded solely from impediment interposed by the laws, of North Carolina, without any, the least fault, delinquency or demerit on the part of the intended beneficiaries, I cannot see how the interposition of a trust, if one was created or interposed bjr the will, can take the case out of the reason or principles of the class of cases first cited.

The only substantial difference I can perceive in the "two classes of cases is, that in the first, where there is a direct bequest of money or property for a specified purpose, and it becomes impossible to carry out that purpose, the necessary consequence is to give the legatee the money or property to be applied or enjoyed in such' other manner as he can and may choose; whilst in this case, which X presume was assimilated to the second class of cases, the question may arise, whether the legatees should take the equivalent of the provision given them by the will, in money, or the will should be executed upon the cy pres principle, so as to approximate as nearly as practicable the manner of appropriation and mode of enjoyment which it prescribes. - If the doctrine of cy pres be not a principle of our system of jurisprudence, applicable to the same extent here as in England, and if even, as a distinct and independent principle, not technically applicable at all, I see no reason why we should not borrow analogies from it in carrying out or approximating as near as practicable the will of a testator in such a case as this; or that, at Last, upon principles of public policy, as well as out of a humane regard to the legatees themselves, why we should not, before giving them the legacy, put them to their election, whether they will leave the Commonwealth and go to some one of the United States whose laws permit their immigration, or to the colony or commonwealth of Liberia; for it ought not to be considered by this court a sup-posable case that they would elect to remain in Virginia, in defiance of its penal laws, and expose themselves to the consequence of a forfeiture of freedom, and, with it, any legacy they might have received, and thereby defeat the plain and manifést intent of the testator, in both emEincj'pating and providing for them; but if they, or any of them, should elect to remain and-take the hazard, they should be detlied, participation in the fund set apart as ¿"provision for them, and those only, who elect to remove, should take the whole. If they elect to remove to some of the States, the fund should be employed or applied, *as near as may be, according to the provisions of the will, for their use and benefit; and if they elect Liberia, it should be paid over after defraying all necessary' expenses, including extra costs of suit in County and Circuit Court, or Court of Appeals, and those of removal to the place of embarkation, to the proper officer of the Colonization Society, for their use and benefit, upon their removal thither, or embarkation for that country.

I am of opinion, that the legacy carries interest from and after the expiration of one year from, the death of the testator, and that the sum to be decreed against Vass’ executor, the appellee, is $2,000, with interest from that date, and that no account is necessary, the executor having confessed assets in his answer; and that of this sum, $1,700, with its interest, when paid to the plaintiff Young, the trustee or. agent appointed by the will to apply, disburse and invest for the benefit of the emancipated slaves, must be so applied, and the residue of $300, with so much of its interest as may be deemed proper, belongs to and is to be retained by said Young for his compensation in consideration of his services in the premises, as provided in the will.

I am further of opinion, that on consideration of the peculiar provisions of this will, it being most apparent, that it was the manifest intention of the testator to provide for them, as a class, by the appropriation of a sum to be invested for their joint benefit and enjoyment, and in a manner which made the use and enjoyment necessarily joint and inseparable; which, had it been practicable, (and so it would have been, but for the prohibitory laws of North Carolina,) would have 'rendered the death of Sam, whether before or after the testator, no cause for diminishing the amount or joint investment or application of the whole for the benefit of the survivors, and although he survived the testator, and thereby, as a general rule, acquired a vested and transmissible interest, his death ought not to diminish the fund or provision given by our decision to the legatees in lieu of *that rendered incapable of execution by the statute of North Carolina ; but that the survivors, who elect to leave the state, should take the whole in the same way as if he had died in the lifetime of testator, or in the same way as if the provision had been capable of execution in North Carolina, because, by so holding, we are carrying out the manifest, intention of the testator. Under this decision, his children, if any he have, and capable of taking a legacy, will in all probability be found among those to whom the decision gives it, and will participate in common with the rest; and if they be either bond or free, and not of those emancipated or their descendants, and therefore not entitled to participate in the benefits of the bequest, they certainly cannot claim to come within the contemplation of the will, and therefore cannot complain of their exclusion as a violation of the intention of the testator. I am, therefore, for reversing the decree of the court below with costs of appeal, and remanding the cause for further proceedings to be had therein, with instructions to that court to proceed to final decree in conformity with the principles settled in the foregoing opinion.

The decree of the court was as follows:

It is therefore decreed and ordered, that the said decree of the late Circuit Superior Court of haw and Chancery for the county of Halifax, be reversed and annulled, and that the appellee do pay unto the appellants their costs by them expended in the prosecution of their appeal aforesaid here, and the cause is remanded to the Circuit Court for the county of Halifax, for further proceedings to be had therein, with instructions to that court to cause the election of the surviving emancipated slaves to be taken by commissioners for that purpose appointed by said court, as to whether they will be removed to and settled in some of the States of the Union, or emigrate from the United States and settle in the colony or commonwealth of lyiberia; and that upon the return of the report of such election, *Vass’ executor, who has confessed assets, be decreed to pay to the appellee, Young, or such other person as may be appointed or substituted in his room and stead, in the event of his death, or inability or refusal to act, the sum of $2,000 with interest, from and after the expiration of twelve months from date of testator’s death, and the costs of the suit in the Circuit Court, upon his entering into bond with sufficient security in the penalty of $5,000, and conditioned for the due appropriation thereof, and accountability therefor under that or any subsequent order or decree of the court; seventeen hundred dollars of which amount with its interest, and so much of the interest accrued on the remaining three hundred, as the court may direct, to be employed by such agent, trustee, or commissioner, as the case may be, for the use and benefit of the legatees, or such of them as may elect to leave the State, in defraying the expenses of their removal to the place of their election, and the residue paid to them, according to their respective rights and interests therein, or invested, settled upon, or secured to them according, as near as maybe, to the provisions of the will, and the remaining $300, with so much of its interest as the court may deem reasonable, to be retained by the said Young or other agent, trustee or commissioner, as the case may be, for his compensation, according to the provisions of the will; and in fine, in all things to conform to the opinion of this court, settling the principles of the cause, and in matters of detail not embraced in the foregoing specific instructions, to proceed according to a sound discretion, and to the usages, practice, and principles of a court of equity, applicable to such a case. A refunding bond has not been required by the decree of this court, because of the character of the legacy and the legatees, and the admission of assets by the executor in his answer in 1843; nevertheless, a discretion is left to the judge of the court below, if, upon en-quiry, it shall seem to him necessarj' and proper for the security of the executor against debts of the testator which have appeared '*since the filing of his answer, or which may hereafter appear, and it shall not be waived by the executor, to require of the appellants a refunding bond, or some bond of indemnity, with sufficient security, to be executed-by them, or some one for them, unless and until they shall entitle themselves to a dispensation from such requirement, by proceeding to acquire the right to such dispensation, according to the act of Assembly in such case made and provided. All which is ordered to be certified, &c., &c.

GIEMER, J.

I am of opinion the Circuit Court erred in dismissing the bill of the plaintiff, and that the said court should have decreed that the executor of Philip E. Vass (he having in his answer admitted assets,) pay to James Young, the trustee named in the will, or if he refused to act, to such other trustee as might be appointed in his stead, the sum of two thousand dollars, with interest from twelve months after the death of the testator, requiring of said trustee bond with good security, for the faithful discharge of his duty, -to be applied by said trustee, according to the provisions of the will of the testator, in purchasing land in any one of the States of the Union, for the benefit of the plaintiffs, which may be most advantageous and desirable for them, it being my opinion, founded on the authorities cited by Judge Thompson in his opinion, that the intention of the testator should not be entirely defeated by the prohibition of the State of North Carolina, against immigration into its territory by free negroes.

I am also of opinion, that the interest of Sam, one of the manumitted slaves.who has died since the testator, survived to Ihe others, it being the intention of the testator to provide for them as a class in the mode pointed out in his will, and not to distribute the fund among them in shares; and for this reason, and because I am of opinion that a division of the said sum of money among the plaintiffs, would defeat instead of carry *out the intention of the testator, I do not concur in that part of the opinion of the court, which directs the money (in one contingency,) to be divided among the plaintiffs.' 1 am for reversing the decree with costs, and for sending the cause back, to be further proceeded in in the Circuit Court.  