
    Isaac R. Wade, James P. Parker, Elias Ogden, and John B. Coleman, Executors of Isaac Ross, deceased vs. American Colonization Society.
    If trusts which arise under a will be of a character that require equitable interposition, the fact that they were created by a will cannot exclude the jurisdiction of equity.
    If the probate court cannot grant full and adequate relief, in cases of trust arising under a will, the chancery court may take jurisdiction.
    R., by his will, directed that after his decease his slaves should be called together, and such of them as elected to go to Africa, the provisions of the will being first fully explained to them, should be sent there under the directions and superintendence of the American Colonization Society ; that such of his slaves as did not elect to go to Africa, together with all the residue of his estate, except a few slaves, particularly mentioned, should be sold and the proceeds after the payment of certain legacies, and all necessary expenses, be paid over to the American Colonization Society, to be appropriated first to paying the expenses of transporting his slaves to Africa, and secondly to their support and maintenance when there; the executors refused to sell any portion of the estate, or deliver the slaves to the American Colonization Society, as directed by the will, because, as they contended, the trusts created by the will were in violation [of the policy of this state, and in fraud of the statute on the subject of manumission, and therefore illegal and void, and the American Colonization Society filed a bill in the superior court of chancery against the executors, to compel the execution of the trusts and to carry out the provisions of the will; the executors resisted the bill on 'the further ground that it related to a matter purely of administration, and cognizable only in the probate court. Held, that the trusts created by the will were legal and valid; that the full measure of relief could only be attained in a court of equity, and therefore the court of chancery had jurisdiction.
    Bequests made to slaves who are directed by the will to be transported to-Africa and remain there, are not void for want of capacity in the legatees to take; the slaves have an inchoate right to freedom under the will, which, is complete as soon as they are removed out of this state.
    Where a will directs that the slaves of the testator shall be transported to Africa, under the direction and superintendence of the American Colonization Society, and that the executors should sell certain portions of the estate and pay over the proceeds to the Colonization Society, to be used by them in paying the expenses of transporting the slaves to Africa, and for their support and maintenance when there; the trusts are not void for want of capacity in the American Colonization Society to take for such purposes.
    The American Colonization Society filed a bill against the executors of R., alleging that R., by his last will, directed his slaves to be sent to Africa under the superintendence and direction of complainants, and that the executors should sell certain portions of his estate and pay over the proceeds to complainants, provided they would agree to appropriate the same to paying the expenses of transporting the slaves to Africa and supporting and maintaining them when there; that the complainants were duly and legally incorporated; that they were willing to accept and appropriate the funds, as provided for in the will, the object of the Society, by their charter, being in accordance with the provisions of the will and in furtherance thereof; that by the decisions of the courts the will and provisions were fully established, and the rights of complainants to the slaves and estate, in trust as bequeathed in the will, and for the purposes therein contained, 'were fully confirmed, &c. The executors demurred to the bill, because there was no averment that the complainants were an incorporated society at the time of the testator’s death, and because the complainants had no power or authority, under their charter, to take for the purposes and objects mentioned in the will; the chancellor disallowed the demurrer: Held, that the demurrer was properly disallowed.
    It is only where the bequest or devise is too vague or indefinite for those intended to be benefited to claim any interest under them, that the doctrine as to charities arises : definite charities are trusts, which equity will execute by virtue of its ordinary jurisdiction.
    Whether the Satute 43 Elizabeth is in force in this state; and whether the court of chancery has any jurisdiction over charities, to compel their performance, apart from and independent of that statute, — Qucere ?
    
    Where a testator directs in his will that his slaves shall be transported to Africa, under the superintendence of the American Colonization Society, and that the executors shall sell certain portions of the estate and pay over the proceeds to the society, to be applied by them to the payment of expenses incurred in transporting the slaves to Africa, and supporting them when there, both the executors and the society are constituted trustees; it is the duty of the executors to deliver the slaves to the society for the purposes of the will; and it is the duty of the society to carry out those purposes ; and if the executors will not discharge their duty, and interpose obstacles to the execution of the trust by the society, clearly a court of equity may enforce the performance. Whether, if a testator in his will directs that his slaves shall be sent to Africa, and the will constitutes no trustee to take them, any remedy exists to the slaves, — Quare?
    
    The American Colonization Society is not prohibited by its charter from transporting slaves directed by a will to be sent to Africa under the superintendence of the society.
    If an incorporation be appointed a trustee to execute trusts arising under a will, which are in themselves valid in point of law, neither the heirs of the testator nor any other private person, can inquire into or contest the right of the corporation ; that could only be done by the state which granted the charter.
    By the will of R. his slaves were directed to be transported to Africa, under the direction and superintendence of the American Colonization Society; the provisions of the will were declared valid by the judgment of the high court of errors and appeals, and the slaves declared entitled to an inchoate right of freedom, which would be perfect by their removal from the state ; the legislature subsequently, in 1842, passed an act giving twelve months for the removal of slaves heretofore liberated, and declaring the bequest of freedom void if they be not so removed ; one of the executors of R. detained the slaves in this state against their will, and against the will of the society and of his co-executors, until the twelve months, allowed by the act of 1842, expired; before the twelvemonths however had expired, the society, after using every means in its power to comply with the requisitions of the act, without suit, filed a hill to compel the executors to execute the trusts created by the will: Held, that the acts of the executor constituted such a fraud, that neither he nor any one claiming by virtue of his acts acquired any right; that the fraud of the executor placed him beyond the pale of the act of 1842, and that act did not therefore apply to the case. Whether the act of 1842, giving twelve months from and after its passage for the removal of slaves theretofore liberated, or directed by any last will and testament to be sent beyond the limits of this state, and declaring all such bequests of freedom void, if the slaves he not so removed, is valid and constitutional, as to cases arising under will, duly proved and admitted to record before its passage, — Qucere ?
    
    Appeal from the superior court of chancery ; Hon. Robert H. Buckner, chancellor.
    On the 19th day of November, 1842, the American Colonization Society, filed a bill in the superior court of chancery, against Isaac R. Wade, James P. Parker, Elias Ogden, and John B. Coleman, executors of Isaac Ross, deceased, alleging that complainants were duly and legally incorporated, and located in Washington city, and in the state of Maryland; that the late Captain Isaac Ross, who resided in Jefferson county, in the state of Mississippi, at the time of his death, on or about the 26th day of August, 1834, made his last will and testament in writing, and at subsequent periods made and executed several codicils thereto on the days they respectively bear date; which will and codicils are in the following words and figures, to wit:
    
      “ In the name of God; Amen: I, Isaac Ross, of the county of Jefferson, and state of Mississippi, being of sound mind and disposing memory, do make this my last will and testament, hereby revoking all and every other will or wills by me heretofore made. In the first place I give and commend my soul to that merciful Being who formed it, and my body to the earth, to be decently interred at the discretion of, and in such manner and form, as my executors hereinafter to be named, may deem fit and advisable.
    “ In the second place, I give and bequeath to my grand-daughter, Adelaide Wade, the sum of ten thousand dollars, to be paid her within twelve months after my decease; I also give and bequeath to my said grand-daughter, Adelaide Wade, my negro woman cook, named Grace, and all her children living at the time of my decease, unless the said negro woman Grace should elect, of her own free will and accord, to go to Africa, as hereinafter provided, in which event she and her children to be transported thither upon the same footing with my other slaves. I also will and desire that my grand-daughter Adelaide Wade, shall take charge of and maintain comfortably during .the remainder of their lives, my negro man Hannibal and his three sisters, viz.: Daphne, Dinah and Rebecca; and I give and bequeath to Hannibal the sum of one hundred dollars anually, during the remainder of his life, and to his above-mentioned sisters, Daphne, Dinah and Rebecca the sum of fifty dollars each, to be paid them annually by my executors, on the first day of January in each year; and it is further my will and desire that if the said Hannibal and his three sisters Daphne, Dinah and Rebecca, should elect to go to Africa, in preference to remaining under the care of my grand-daughter, Adelaide Wade, they shall be permitted to do so, and shall be sent upon the same footing with my other slaves, with this express understanding, however, (which is to be fully explained to them by my executors) that if they do elect to go to Africa, the legacies above bequeathed to them are to be null and void. In the third place I will and desire that my slave Enoch and his wife Merilla and her children be, within twelve months after my decease, conveyed to such free state as Enoch may elect, free of expense to them, and that the said Enoch and his wife Merilla and her children be then and there legally manumitted, and the sum of five hundred silver dollars paid to him, the said Enoch, at the time of manumitting him. It is further my will and desire, that if the said Enoch should elect to go to Africa, he with his wife Merilla and her children, shall be sent there upon the same footing with my other slaves; and that the above-mentioned sum of five hundred silver dollars be paid him by my executors at the time of his departure.
    “In the fourth place, it is my will and desire, that should a crop be planted (or about to be planted) at the time of my de cease, such crop shall be worked out, gathered and sold, and within ten days after the complete finishing of the crop, or if at the time of my decease the crop shall have just been gathered and completed, then within ten days thereafter, all my slaves of the ages of twenty-one years and upwards, except Grace and her children, Hannibal, Daphne, Dinah, Rebecca, Enoch and Merilla and her children, be called together by my executors, and the provisions of this will then and there explained to them, and the question put to them, whether they will go to Africa upon the terms hereinafter specified. If a majority of the whole number thus called together, of the ages of twenty-one years and upwards, shall elect to go to Africa, then it is my will and desire,, that all of those thus called together, and all my other slaves excepting always Grace and her children, Hannibal, Dinah, Daphne, Rebecca, Enoch, Merilla and her children, shall be sent to Africa, under the directions and superintendence of the American Colonization Society*. And it is my will and desire, then and in that event, that the entire balance of my estate, both real, personal and mixed, excepting always Grace and her children, Hannibal, Daphne, Dinah, Rebecca, Enoch and Mer-illa and her children, be exposed to sale at public auction, one month’s public notice being first given thereof, in the papers printed at Port Gibson and Natchez, and the same sold on the following terms, to wit: one-half of the purchase-money to be paid in cash, and the other half in twelvemonths from the day of sale, bond and unexceptionable security to be required of the purchasers, and to be judged of by my executors. It is further my will and desire, that the proceeds of the sale, together with any money that may be on hand at the time of my decease, and any that may be owing to me, after deducting the amounts necessary for the payment of the legacies herein bequeathed, and all necessary expenses that may be incurred, be paid over to the American Colonization Society, provided they will agree to appropriate it in the following manner, to wit: First, to pay the expense of transporting my slaves to Africa; and secondly, to expend the remainder for the support and maintenance of said slaves, when there, the same to be done in such manner as the society in their discretion, may deem most to the interest and welfare of said slaves.
    “If, however, upon my slaves being called together by my executors, in manner and form as above directed, a majority of the whole number of the ages of twenty-one years and upwards, always excepting Grace and her children, Hannibal, Daphne, Dinah, Rebecca, Enoch, and Merilla and her children, should refuse to go to Africa, then it is my will and desire, that all of my slaves, always excepting Grace and her children, Hannibal, Dinah, Daphne, Rebecca, Enoch, and Merilla, his wife, and her children, shall be exposed to sale at public auction, at the same time, in the same manner, upon the same terms, and subject to the same regulations with the remainder of my estate as hereinbe-fore provided, with this understanding, that they be sold in such lots as my executors may deem best calculated to bring the highest prices, and with this further and most express understanding that the families are not to be separated.
    
      “ Then and in this event it is my will and desire that the proceeds of such "sale, together with any money that may be on hand at the time of my decease, and any that may be owing to me, after deducting the sums that may be required to pay all the legacies herein bequeathed, and all other necessary expenses, be paid over by the executors to the American Colonization Society, upon the condition that they form a fund of it, or vest it in such manner as to bring in not less than six per cent, interest per annum, which interest is to be applied by them to the establishment and support of one single seminary or institution of learning in Liberia. And it is further my will and desire that said fund shall be continued and kept at interest, and the interest appropriated as above for the benefit of said seminary, for the term of one hundred years after my decease, at the expiration of which time I desire that all that remains may be given up to any government that may be in existence at the time in Liberia, to be appropriated by them in the same manner to the support and continuance of the same institution. But if at that time, there should be no government in Liberia, then it is my will and desire that the same be given up to the government of the state of Mississippi, to be by them appropriated to the establishment or support of some one institution of learning within the state, which they in their discretion may select.
    “ To carry the above provisions and bequests into full and entire effect, I do hereby nominate and constitute, Daniel Yertner, James P. Parker, Dr. Elias Ogden, now of Natchez, Isaac Ross Wade, and John B. Coleman, executors of this my last will and testament.
    In witness whereof I have hereunto set my hand and affixed my seal, this 26th day of August, 1834. Isaac Ross.
    “Signed, sealed and acknowledged, in presence of us,
    “John Bloleman.
    “PeteR C. Chambliss.
    “By way of codicil to my will and testament and in addition to the matters and things therein contained, it is my will and desire, — First: That forty feet square of the land appropriated by me for my family burying ground be reserved from sale and held in trust by my executors and their successors forever. Second: That whereas I have left it optional with my negro woman Grace, and her children, to go to Africa, with my other slaves; now if the said Grace shall elect to go to Africa with her children, it is my will and desire that the sum of two thousand dollars be paid by my executors, to my grand-daughter Adelaide Wade, in addition to the sum of ten thousand, already bequeathed to her. Third: I give and bequeath to my grandson, Isaac Ross Wade, my secretary and book-case, and all my books of every kind and description. Fourth: It is my will and desire that no security is to be required from my executors, Daniel Yertner, James P. Parker, Dr. Elias Ogden, Isaac Ross Wade, and John B. Coleman.
    “In witness whereof I have hereunto set my hand and affixed my seal, this 17th day of October, 1834. Isaac Ross.
    “ Signed, sealed and acknowledged in presence of us,
    “SaRah Wilson.
    “Olivia M. Sxinner.
    “B. C. Coox.
    “ By way of further codicil to my last will and testament, it is my desire, upon mature reflection, to alter some of the provisions therein. First in relation to that part of my will which provides for taking the voice of my negroes, in relation to their going to Africa, or remaining here and being sold. I now desire that those who wish to go to Africa, be allowed the privilege of doing so, upon the terms and conditions heretofore provided, and those who elect to remain, be suffered to remain and be sold as previously directed, and the proceeds of their sale applied under the provisions of the will, for the benefit of those who elect to go to Africa.
    “It is further my will and desire that the privilege of electing to go to Africa, be withheld from Tom, William, Joe, Alik, and Henrietta, being the negroes I bought from Franklin in 1833 and 1834; and from Jeffrey, the son of Harry, and that they be sold by my executors, in manner and form as provided in the previous part of my will, and the proceeds of their sale appropriated as therein directed.
    “It is further my will and desire that if Hannibal elect to go to Africa, instead of the provision heretofore made for him, in that event he shall be paid, at the time he starts, the sum of five hundred silver dollars. And it is also my will and desire that if my man Dunke^elects to go to Africa, he shall also receive, at the time of his departure, the sum of five hundred dollars. In witness whereof I have hereunto set my hand and affixed my seal this 24th day of February, 1835.
    “Isaac Ross.
    “Signed and sealed in the presence of us,
    “B. C. CooK.
    “John B. Coleman.
    “ By way of further codicil to my last will and testatment, it is my will and desire that my daughter, Margaret A. Reed, have the uncontrolled use (and occupation) of my house, wherein I now reside, with all the offices and buildings appertaining to it and all the land attached to it, which may be necessary for her comfortable enjoyment of it, as a dwelling, together with all the furniture of every kind and description in or attached to it, and likewise all the yard and house servants, for and during the term of her natural life, or until she shall think proper and desire to relinquish the possession thereof; and it is further my will and desire, that the sale of my estate, as directed in a previous portion of my will, be postponed until after the death or relinquishment of possession by my said daughter, Margaret A. Reed, and the plantation be cultivated under the direction of my executors, and the proceeds of the crops, received by them, to be ultimately applied, as heretofore directed in my will.
    “ In witness whereof, I have hereto set my hand, and affixed my seal, this 16th day of March, 1835.
    “Signed and sealed, in presence of us,
    “ SaRah R. Woodward,
    “ John B. Coleman,
    “ Walter Wade.”
    
      “By way of further codicil to this my last will and testament, I do hereby revoke, and declare null and void, that portion of my will relating to my man slave, Enoch and his wife, Merilla, and her children. And I do now will that my said man slave, Enoch, be absolutely sold, without the privilege of choosing between going to Liberia and being sold here, and the legacy bequeathed to him in the previous part of my will, is entirely revoked. 1 do likewise will that Merilla and her children be put upon the same footing with my other negroes, and allowed a choice between going to Liberia, or remaining here and being sold, as directed in the previous portions of my will.
    “ In witness whereof, I have hereunto set my hand and affixed my seal, this 17th day of June, 1835. Isaac Ross.
    “Signed and sealed, in presence of us, John B. Coleman. .
    “Isaac R. Wade.”
    Complainants aver that Ross died about the 19th day of January, 1837; that his will and the codicils annexed thereto were duly proved and admitted to record in the probate court of Jefferson county; that letters testamentary were granted to James P. Parker, Elias Ogden, Isaac Ross Wade, and John B. Coleman, and they were duly qualified as executors, without giving any security for the discharge of their duties. Daniel Yertner never qualified or pretended to act as executor. Complainants charge that the executors, having qualified, took immediate possession of the real and personal estate of Ross under the will, which consisted of a large and highly improved plantation containing about five thousand acres, on which Ross resided, in Jefferson county, and a tract of land in Claiborne,,and negroes and other personal property, contained in an inventory thereof, returned to the probate by the executors and sworn to by Isaac R. Wade, which inventory was filed as an exhibit to the bill, and shows that there were about one hundred and sixty negroes and other personal property, the whole being appraised at $>103,665; that shortly after the grant of letters testamentary, Parker, Coleman and Wade met and agreed between themselves that Wade should superintend the plantation and negroes belonging to the estate, make the crop, purchase the supplies, &c., and for his services they agreed that he should be allowed the sum of fifteen hundred dollars per annum, if the probate court should approve of the same, and the business of the estate was accordingly conducted by Wade, the executors meeting occasionally, and directing Wade how the business should be carried on. Complainants charge that Ross, at the time of his death, owed very few debts, and they only of a small amount, all of which had long since been paid; that the pecuniary legacies mentioned in the will had also been paid, and no legal or equitable obstacle had existed for two years to prevent the execution of the trusts of the will, in which complainants are interested, in the manner provided in the will; that complainants have always been ready and willing to accept and appropriate faithfully the proceeds of the real and personal estate as provided for in the will; the object of the society by their charter being in accordance with the provisions of the will, and in furtherance thereof. Complainants aver that Margaret A Reed departed this life several years ago, and- that the slaves entitled to the choice of being sent to Africa under the will, desire to be sent there, and have always so desired to be sent, and complainants have ever been willing to take charge of them for that purpose, in fulfilment of the trust devolved upon them by the will. Complainants further aver that not long after the death of Ross, Jane B. Ross and others filed their bill in the superior court of chancery against the executors, to restrain them from the removal of the slaves under the direction and superin tendance of complainants, to Africa, and to set aside the provisions of the will for such removal and the trusts devolved by the will upon complainants, they claiming the estate as heirs and distributees of Isaac Ross ; that the executors demurred to that bill, and by agreement of the counsel of the respective parties it was decreed that the bill be dismissed upon the merits, and on an appeal therefrom by Jane B. Ross and others, the decree of the superior court of chancery was in all respects affirmed by the high court of errors and appeals; by which decisions the will and its provisions were fully established and the rights. of complainants to the slaves and the proceeds of the estate, after the payment of the debts and the pecuniary legacies, in trust as bequeathed in the will and for the purposes therein contained were fully confirmed ; and the rights of all persons claiming or pretending to claim any right or interest in the estate were finally settled and adjudicated. And the records of the proceedings in both courts were made exhibits to the bill. Complainants further aver that Isaac R. Wade, having obtained possession of the lands, slaves, and other property belonging to the estate under the agreement with the other executors above-mentioned, refuses to allow or permit Parker, Ogden and Coleman, or either of them, to have any control or management of any part of the estate; that Wade refuses to execute, and refuses to permit or allow his co-defendants to carry out the provisions of the will, and to execute the trusts devolved and sacredly enjoined on the executors and on complainants in the removal of the slaves of the estate (with the exceptions expressed in the will) to Africa, and the sale of the real and personal estate mentioned in the will, and the payment of the balance of the proceeds thereof to complainants for the purposes particularly set forth in the will; that Wade, instead of executing the benevolent intention of the testator, and joining or cooperating with his co-defendants to perform the trusts accepted by them to be performed in undertaking the execution of the will, holds the plantation, slaves, and other personal property in his own exclusive possession, and had converted the same to his own exclusive use and private gain, raising crops of cotton and other products of the plantation with the work and labor of the slaves, alike regardless of his own duties as a trustee in the premises, and of the objects and bequests of the will; that the defendants would not deliver up the slaves to be sent to Africa under the directions of complainants, although they had been informed and were fully aware that complainants were willing and had ever been ready and anxious to take charge of the slaves to be sent to Africa, and to secure the residue of the estate to which they were entitled under the provisions of the will and upon the conditions therein expressed; that they had at different times sent an agent to Mississippi to make known their wishes upon the subject to the executors, and to take charge of the slaves, and they then had an agent residing in Adams county, who was fully authorized at any time to take charge of the slaves to be sent to Africa, and to secure the proceeds of the residue of the estate upon the terms provided in the will. Complainants further aver that on the 26th day of February, 1842, the legislature of the state of Mississippi passed an act which, among other provisions enacted, that “in all cases of wills heretofore made and admitted to probate within this state, whereby any slaves have been directed to be removed from this state for the purposes of emancipation elsewhere, or whereby any slave or slaves have been devised or bequeathed in secret trust for such purpose, unless such slaves shall be removed from this state within one year after the passage of this act, it shall not be lawful for the executor or executors of such last will and testament, or the person or persons having possession of such slave or slaves under the provisions of such will, so to remove such slave or slaves; but the same shall descend to and be distributed amongst the heirs at law of the testator, or be otherwise disposed of according to law, in the same manner as if such testator had died intestate: Provided, hotoever, that if such executor or other person having such possession, shall be prevented or restrained within the said time of one year from such removal by injunction or other legal process, or otherwise, the time during which such restraint shall continue or exist, shall not be taken or computed at any part of the said time of one year.” Complainants charge that the mother of Isaac R. Wade is an heir and distributee of Isaac Ross; and in the event of the defeat of the objects of the will, would be entitled to a large portion of the estate; that Isaac R. Wade will endeavor to retain possession and continue the slaves in bondage under the act of 1842, unless the chancery court should interpose and prevent the same; and until compelled by due course of law, he would continue to use the estate for his own private use and gain, instead of executing the trusts devolved upon him, and delivering over the slaves to be removed to Africa, according to the wishes of the testator, who was the grandfather of Wade, and whose dying wishes and injunctions regarding the removal of the slaves, were by him fully made known to and impressed upon Wade; that Wade was insolvent and wholly irresponsible as to pecuniary compensation or damages for his violations of his duties, and of the provisions of the will, and that the object of the will would be defeated, and the estate wasted, unless Wade was compelled to unite with his co-defendants, and they are ordered and decreed to carry out in good faith the wishes of the testator, and execute the trusts, by delivering to complainants the slaves to be sent to Africa, and by disposing of the residue of the estate, and paying over the proceeds thereof, as provided for in the will, and also by paying to complainants all other moneys belonging to the estate; that Wade, in the summer of 1840, had converted about twelve thousand dollars, belonging to the estate, to his own use,, and the crops of cotton raised in the years 1840 and 1841, amounting to about seven hundred bales each year, had not been accounted for, nor the proceeds paid over according to the provi- . sions of the will. Complainants further aver that Wade will continue to use and abuse the trust estate, and entirely defeat the objects of the testator, unless the plantation and slaves and the whole of the estate were taken out of his possession and management, by the order and decree of the court, and placed under the control and management of a receiver, to be appointed by the court, or in the exclusive charge of Parker, Coleman and Ogden, to execute the objects and trusts of the will.
    The bill prayed for an injunction, the appointment of receiver, and that the court compel a fall and complete performance and execution of the trusts created by the will. On the 22d day of November, 1842, an injunction was granted by Hon. Robert H. Buckner, according to the prayer of the bill. The defendants, Parker, Coleman and Ogden, answered, admitting nearly all of the material allegations of the bill, but denying that they were liable, or in any way responsible for any of the acts of Wade, which were not strictly in accordance with the provisions; they deny that they ever directly or indirectly assented to any of his acts, which were not clearly authorized by the will; they aver that Wade has had the exclusive control and management of the estate, claiming to be the sole executor, because they had never returned an inventory of the personal estate belonging to Isaac Ross. Defendants, Parker and Ogden, stated that they were fully satisfied, from conversations with the slaves, that they were all anxious to be sent to Africa. Respondents admitted that persons representing themselves as agents of complainants, had called upon, and conversed with them, relative to the situation of the estate; but they denied that any demand had ever been made upon them for the possession of the slaves and other estate, either by the complainants or their agents ; they admitted, however, that had such demand been made, it would have been out of their power to comply with it, from the fact that they were out of possession, and were not permitted to exercise any authority or control whatever over the estate or any part of it; they averred their entire willingness and readiness to carry out to the fullest extent all the provisions of the will of their testator, whenever it shall be legally decided that they were entitled to the control and possession of the personal estate. The defendant, Isaac R. Wade, demurred to the bill. The chancellor disallowed the demurrer, and appointed a receiver to take charge of the estate, &c. from which Wade prayed an appeal to this court.
    
      H. T. Ellett, for appellant.
    I. The chancery court has no jurisdiction, the case being exclusively cognizable in the probate court. 2 How. 822; lb. 856; 3 lb. 252, 258; 4 lb. 458; 7 lb. 143,162, 201, 316; Freeman, 501.
    It is not denied that a technical trust, devolved on the executor by a will, apart from his general duties as executor in the administration of the estate, is cognizable in equity.
    Every executor is a trustee, and all his duties are trusts, but such of his trusts as relate peculiarly to the administration of the estate, are exclusively cognizable in the probate court.
    
      There is no technical trust devolved on the executors of J. Ross, their duties are the ordinary duties of an executor. The Colonization Society is the trustee and legatee, and the case is the common one of a suit by a legatee against the executor to recover property bequeathed to them to hold in trust for certain purposes. There has been no settlement of the estate in the probate court, and no order of distribution, no allowance of the executor’s compensation, and no attempt to procure these, but the bill is filed to have an account settled here, and for a decree of distribution in this court.
    The petition of Mrs. Ross for distribution is surely a probate proceeding, and cannot be enjoined in chancery. She proceeds in the probate court as heir, the Colonization Society claim the same property in chancery. Both suits are against the executors. What right has the Colonization Society to restrain Mrs. Ross from suing the executors'? The executors might compel the two conflicting claimants to interplead, but certainly one claimant cannot enjoin the other.
    2. That the devises of the will, being in trust for the negro slaves, neither the slaves nor a trustee can take for them.
    Heirs are favorites of courts of justice, artificial reasoning will be allowed to prevent them from being disinherited. 1 Black. Com. 450, note; 2 Yes. sen. 164; lb. 389; 1 Atk. 339; 3 lb. 747, 387; Chit. Law of Desc. 311.
    Slaves cannot take property by devise, nor can it be held in trust for them. 2 How. 837; 7 Monr. 645 ; 4 Dess. 266; 2 Car. Law. Rep. 557; 1 Tay. 209; Am. Dig. 479, 480, 481, 538.
    A devise to a person incapable of taking is void. 2 Fonbl. Eq. 348; 6 Yes. jr. 52, 64; 2 Rob. on Wills, 30.
    
      Ross et al. v. Vertner et al, 5 How. 356, merely decides that the will is not unlawful, and that the executors will not be restrained from executing it.
    It was tacitly conceded by the counsel in that case for the will, (352) and by the chancellor, in Freeman, 603, that no suit could be maintained by the negroes or their trustee, but they contended that the executors ought to be let alone.
    The trust, though lawful, is yet discretionary in the trustee. 2 S. & M. 30; 4 Wheat. 33, 34, 35. 2 Hill’s S. C. Rep. admits the principle for which we contend, that neither the slaves, nor any person for them, can sue. That case, however, holds that on a bill filed by heirs against the executors for a partition, the court can decree an execution of the will by the executors. This part of the case is not law, it is a palpable absurdity. But if law, it does not affect this case. The confidence reposed in the executor is only guaranty of the execution of the will.
    2. The bill alleges that the society “ are duly and legally incorporated,” &c. but does not show that they were so at the death of captain Ross. This is essential to their right to maintain this suit, for unless they were incorporated at the death of Ross the devises could not vest at all. 4 Wheat. 1; 3 Pet. 497; 2 Story’s Eq. (3d ed.) 496, § 1146; Paulet v. Clark, 9 Cranch, 330; 3 Cond. R. 417.
    Our statute providing that a plea to the action admits the parties, and the character of the parties suing is relied on in answer to this point. How. & Hutch. 595, § 32, 33.
    This is no answer; we do not deny the parties, or the character of the parties. We admit the averments of the bill, that at the time of filing the bill the society was a corporation, duly and legally incorporated ; but we deny that they show any right of action in the character they assume.
    4. If the devise is void at law, can the chancellor sustain it as a charity, under his general jurisdiction at common law, or by virtue of the 43 Eliz. chap. 4?
    That the jurisdiction of the chancellor is not to be referred to his general jurisdiction in equity, but sprung up after the 43 Eliz., and is mainly founded upon it. 2 Story’s Eq. 510, § 1162; 4 Wheat. 1; 3' Pet. 382; 3 Leigh, 450 ; 4 lb. 327; 5 Harr. & Johns. 392. Story reviews all the English cases. See also Attorney General v. Bowyer, 3 Ves. 726; Morice v. Bishop of Dublin, 9 lb. 405.
    That the 43 Eliz. is not in force in this country, unless reenacted. See the above cases. 4 Wheat.; 3 Pet.; 3 Leigh; 5 Harr. & Johns.; 9 Cow. 481.
    In some of the states it is held to be in force as a part of their systems, by virtue of their peculiar laws. 12 Mass. 537; 16 Pick. 107; 18 lb. 328; 4 Dana 357; 7 Ver. 241. In Griffin v. Graham, 1 Hawks, 96, it was held to be in force in North Carolina, but subsequent cases show that it is no longer the case. Overton v. Overton, 4 Dev. & Bat. Eq. 497; Holland v. Peck, 2 Ired. 215.
    In Mississippi the 43 Eliz. is not in force, for it has been expressly repealed. The act of the territorial legislature of Feb. 10, 1807, (Toul. Dig. 19) furnishes a list of all the laws to be incorporated in that revision, and repeals “ all the statutes of England or Great Britain ” not included therein. Dig. State Miss. Ter. 247, § 4; lb. 249, § 8 ; Rev. Code 555, § 5 ; Ib. 1 — 8, § 8 ; How. & Hutch. 36, § 4.
    But whatever the origin of the doctrine of charities, it has no application to this case, for it only applies to public charities. 2 Story’s Eq. 536, § 1190. Nor has it any application in this country. The common law is adopted only so far as applicable to our institutions and circumstances. 2 Pet. 144; 8 lb. 591; 9 Cranch, 292 ; 1 S. & M. 562; 15 Johns. 115.
    The doctrine originated in the religious notions formerly entertained in England. 7 Ves. 69 ; 2 Story’s Eq. ch. 32, p. 489. It is sustained upon the arbitrary principle that the king is parens patria, and by virtue of his general superintending power of the public interests, has the right to guard and enforce public charities ; and the chancellor acts,'not in virtue of his jurisdiction in chancery, but as the personal delegate of the crown, administering a branch of the royal prerogative. 2 Story’s Eq. 535, § 1188 — 1190. There is nothing in the origin of the doctrine, in the principles upon which it is sustained, or the mode in which it is administered, that is in harmony with the enlightened spirit of this age, or consistent with the principles or practice of a republican government.
    It is odious even in England, though fastened on them by early adjudications. Mossridge v. Thackwell, the leading case, was decided by Lord Eldon with manifest reluctance. 7 Ves. 36, and he says in 1 Merriv. 55, 99, “ Much against my inclination.” Lord Thurlow (in 1 Ves. 474,) Arden (in 4 Ves. 14,) and Loughborough (3 Ves. 469,) disapprove of it, and so does Story. Such a doctrine ought not to be adopted.
    The doctrine is administered in some cases by the king, under his sign manual, in others by the chancellor on an information filed by the attorney-general, or by a special commission issued under the 43 Eliz. 7 Ves. 86; 2 Story, ut supra. All this is impracticable here. Our laws provide no such machinery. The states, on the revolution, succeeded to the rights of the crown, but “with many a flower of prerogative struck from their hands.” This is one of them, this superintendence of charities. 9 Cranch, 50.
    Even if the doctrine had ever prevailed here, the repeal of the statute 43 Eliz. should be held to abolish the whole doctrine. Such has been the case in North Carolina. See the cases before cited from that state. 2 Iredell, 255.
    In England no charity is now supported unless it comes within the 43 Eliz. and that statute was found to operate as a “public mischieftending “to the disherison of lawful heirs,” and the 9 Geo. II. chap. 36, was passed to restrain its operation. Story recommends its adoption in this country. 2 Story, 510, 3d edition.
    It has been seen that devises to slaves, or to trustees, for their benefit, are void. Yet, why hold them void, if the chancellor can sustain them as charities? See Tucker’s opinion, 3 Leigh, 480, and 2 Iredell, 255, as to the propriety of adopting this doctrine.
    5. The last point is raised by the demurrer of Mrs. Ross, only upon the 11th section of the act of February 26, 1842. Pamphlet Acts of 1842, 69, 70. There is no allegation that the executors have been restrained ; but it is alleged that they have refused to remove the negroes, and the question is, whether the statute is constitutional and operative, or null and void.
    The chancellor did not deny the validity of the law, but disputed its application to the case, because of the refusal of the executors to act. That was, in truth, the very case for which the statute provides, and unless it is void, it must apply.
    
      The act proceeds, apparently, on the assumption that the trust is discretionary, not compulsory; and it fixes the reasonable time allowed to the executor to act before the resulting trust in favor of the heirs takes effect. 2 S. & M. 30. If this assumption as to the character of the trust is correct, and if it is thought that the chancellor may sustain it as a charity, then it must be done upon the artificial reasoning before alluded to. The idea of a right in any person is excluded. If a legal right is vested, the parties must enforce it, and the crown cannot interfere. There is then no vested right divested — the obligation of no contract is impaired — and no constitutional prohibition is violated.
    But if the legal estate passed to the slaves, or the trustee, the ■statute is still good as a statute of limitation. Such laws, even ■when applied to antecedent contracts, have never been held to ■impair their obligation. 3 Story on Const. 351; 4 Wheat. 200, 206, 207; 12 Ibid. 262, 263, 349, 350.
    On the point which was made by consent, though not presented by the record, as to the corporate capacity of the colonization society to take under the will of Isaac Ross, the court is referred to the following authorities, to show that a grant to a corporation, for purposes not within its corporate powers, is void. Ang. & Ames on Corp. 60, 86, 139; 2 Kent’s Com. 298, 299; 1 Kyd on Corp. 72; Beatty v. Lessee of Knowler, 4 Peters, 152 ; Head & Amory v. Prov. Ins. Co. 2 Cranch, 127; 4 Wheat. 636 ; People v. Utica Ins. Co. 15 Johns. 358; Broughton v. Man. Water Works Co. 3 Barn. & Cress. 1; First Parish in Sutton v. Cole, 3 Pick. 237; McGier v. Aaron, 1 Penn. R. 49; Greene v. Dennis, 6 Conn. 304; Trustees of Phillips Academy v. King, 12 Mass. 555; In the Matter of Howe, 1 Paige’s C. R. 214; Jackson v. Hartwell, 8 Johns. 422; Mayor and Councils of Philadelphia v. Executors of Hills, 3 Rawle, 170.
    
      Quitman and McMurran, for appellees.
    The will of Isaac Ross, in controversy in this case, has been ■established by the high court, and its devises and bequests declared valid. Ross v. Vertner el al. 5 Howard. The decision in that case, by necessary implication, covers the following points:
    1. That a testator may by will direct his slaves to be sent out of the state, for the purpose of emancipation.
    2. That the disposition of the real and personal estate, is valid.
    3. That by the will the heirs and distributees of Isaac Ross, were entirely divested of all right and title to the whole or any part of his estate.
    The executors, however, having failed to execute the trusts devolved upon them by the will, the American Colonization Society have brought their bill to enforce the trusts.
    It is objected that this court has not jurisdiction, and that if complainants have any right, it should be asserted in the probate court. Courts of equity have jurisdiction even in cases of implied trusts. Toller on Ex. 480-489.
    The constitution of our state vests in the court of chancery full jurisdiction in all matters in equity.
    A legatee can file a bill after the expiration of one year. Toller on Ex. 313.
    Debts of a testator are presumed to be paid, three years after the grant of letters testamentary. 2 Meriv. 491.
    The probate court has no jurisdiction to enforce the performance of any duties not in the ordinary course of administration.
    The trusts enjoined in the will of Captain Ross; are not only express and technical trusts, but trusts of the most delicate character. The great object of the will is not the settlement of the estate, but its disposition after the mere administration has been completed.
    It is again objected, that it does not appear by the bill that the American Colonization Society were incorporated at the time of the death of Ross. It is sufficient that they aver that they are incorporated. It will be presumed that they were incorporated at the time of the decease of Ross. Ang. & Ames on Cor. 45. They allege they were always ready to perform their trusts. But this objection goes to the character of the parties, and can only be available by plea.
    
      It is not, however, necessary they should have been incorporated at the time of the decease of Ross. It was sufficient that the corporation should be in esse, when their right to take commenced. A devise to a corporation to be created is good, as an executory devise. Ang. & Ames on Cor. 122; Sanderson v. White, 18 Pick. R. 356 ; Inglis v. Sailor’s Snug Harbor, 3 Pet. 115, 144.
    But it is objected that these devises and bequests are for the benefit of slaves, and that slaves cannot take by direct bequest, nor as cestuys. Conditional emancipation is valid. Law of Slavery, 314, 315; 2 Call’s R. 319, 357; 2 Leigh’s R. 189. If they may be liberated conditionally, they may take by ex-ecutory devise. 2 Hill’s Ch. R. Leach v. Cooley, 6 S. & M. 93; Ross v. Vertner, 5 How. R. 305. In this case, however, it matters not whether the slaves to be freed can take or not. From the peculiar character of the trusts in the will the complainants can take for them.
    The complainants are a charitable association. Their chief object is to transport free negroes, among whom are those entitled to freedom when removed to Africa. The right of directing and superintending this removal, is conferred in the will. It is a right consonant with the purposes of the corporate creation, and a right which they can enforce. If the negroes conditionally entitled to freedom are not considered as ever having any rights which they could enforce, which is not admitted, still, if the right of superintending their removal is given to the society, it can be enforced by the society. The court will proceed as far as practicable in enforcing the lawful intentions of the testator. The words “ direction and superintendence” give to the society the right of receiving the slaves. In the case of the Commissioners of the Sinking Fund suing, this court held that the charter of the Planters Bank, authorizing the commissioners to manage and control the fund, vested in them a right to receive and sue for it, <fcc. Com. Sinking Fund v. Walker.
    
    Some of the trusts in the will are, although also for the benefit of the slaves to be freed, yet they may be considered equally for the benefit of the complainants, being promotive of their objects of colonizing negroes in Africa.
    
      Again, in case the slaves should refuse to go to Africa, the proceeds of the whole estate are to be paid over to the complainants, in aid of the very objects of their creation as an association. The colonizing of free persons of color in Africa unquestionably includes provision for their maintenance and education.
    The bequests are therefore for the benefit of the corporation as well as the slaves, and in one contingency are indeed for the exclusive benefit of the society. While we admit that American courts of equity have not in general the power to administer charities on the principle of cy pres, and also admit that in our state the statute of the 49th Elizabeth has been repealed, we insist that the current of authority is in favor of the jurisdiction of courts of equity over charities, where the objects are sufficiently designated by the will of the testator. Ang. & Ames on Cor.; Inglis v. Sailor’s Snug Harbor, 3 Pet. 115; Ang. & Ames, 116, et passim to 122; 7 Ver. R. 241; 2 Kent’s Com. 231; Griffin v. Graham, 1 Hawks, 96; 17 Serg. <fc R. 88; 16 Pick. 107; 3 Paige, 296.
    The decision in the case of Baptist Association v. Hart,. 4 Wheaton, has been overruled, and is now generally deemed, wrong. 6 Paige’s R. 549 ; 7 Paige, 77; 4 Drum. R. 357; 9 Cowen’s R. 437; 2 Kent’s Com. 287. Nor is it necessary, in such cases, where the trust is definite in its objects, and a trustee sufficiently designated, that the .attorney-general should be a party. Courts of equity will supply a trustee, if necessary, or designate who or what person or corporation was designed to carry out the trust; will even remedy defects in the trust. •
    The act of 1842 does not apply to this case. The bill states that three of the executors were willing to carry out the provisions of the will, but were prevented by the wrongful acts of one of the parties. They have been therefore prevented by the acts of Wade from removing them, and the case before the court comes clearly within the exception of the statute. But if not included within the exception, the law cannot be construed to affect vested rights then existing. It cannot be supposed that the legislature intended to violate private rights., actually- vested and in litigation. If they so intended, they could not do so.
    On the question of the capacity of the American Colonization Society to take under the charter of 1831, we refer to the arguments and authorities cited by Mr. Prentice, reported 5 How. R. 353, 354, 355, on this subject. The objects of the society, as set forth in the charter, were the colonization of free persons of color in Africa. The society are to determine what shall be conducive to that object. The word free persons of color certainly include those by the laws of a state entitled to freedom. Colonizing includes the power of maintaining and educating the colonists. These were the objects of the bequests.
    The act of 1842, violates vested rights in this, that the slaves were entitled to be sent to Liberia; that the Colonization Society were entitled to certain rights, upon an act to be done by the executors, and while endeavoring to compel the executors to do this precedent act, the law comes in and forbids the precedent act to be done, upon which the executory devise is to take effect.
    
      George S. Yerger, in reply.
    It is contended, on behalf of the complainants, that the question has been settled by this court, in the case of Ross v. Yert-ner, 5 How. 305. If that case settles this, of course its authority is decisive, and we have nothing further to say. But we deny that that case decides anything more than that the execu tors were the persons to execute the trust, that the trust was valid, and that the court would not interfere by injunction. The court did not decide, for the question was not raised in the record, that the executors could be compelled to execute the trust, or if they could, that complainants could compel them.
    It will not be disputed, that many trusts are valid if executed by the trustee, that cannot be carried into effect compulsorily. This is admitted by the chancellor, and by the counsel who argued the case of Ross v. Yertner. Free. Ch. R. 603; 2 S. & M. 30. It is clear, where a trust is created or directed, and the law has provided no means of enforcing it, it is in such case a discretionary, as contradistinguished from a directory or positive trust, as in 2 S. & M. 30.
    Suppose the American Colonization Society had not been mentioned, could the slaves maintain a suit ? Unquestionably not. They have no civil capacity; they cannot sue or be sued.
    In Tennessee and other states provision is made by statute. They authorize suits to be brought in such cases by the slaves by next friend, which removes the incapacity. But here there is no such statute ; but a statute prohibiting such devises altogether.
    It is admitted, in the case in 2 Hill, that the suit can be maintained, but the court say, relief can be given incidentally, that is, if a suit is instituted by the heirs, to enjoin, that they will in such suit decree the executor to 'perform, and this without a cross-bill or any prayer in the bill. And they say, such a decree might be made, when a bill was filed by partition. To say the least of it, this dictum of the court is a novelty. The heir prays the executor to be enjoined, and the court decrees the executor shall be compelled to perform.
    But suppose the executor refuses to carry the will into effect? Suppose the devisees divide by consent, or there is but one legatee, how then will the court get along 1
    
    At all events no such decree was made in the case of Ross v. Yertner, and it cannot be made now in the case in favor of complainants, unless they have such an interest as will sustain the suit, unless there is a valid devise to them.
    The question then is, not whether this is a valid trust, which the executor may execute, but whether it is one which the complainants can compel him to execute; or, in other words, whether a mere stranger in interest, as I think the complainants are, have any right to file this bill.
    II. Have the complainants any interest ? If they have not, although the trust is a valid one, they cannot enforce it.
    It is contended they have. It is contended that the devise that the slaves should be sent to Liberia under their supervision, is a devise to them in equity of the slaves, for the purpose of executing the trust.
    It is contended, that the words “superintendence” and “direction ” of the American Colonization Society, gives to them, in equity, after the crop is raised and the debts paid, the custody of the slaves, the right of possession, and to send them off, &c. Admitting this to be true, could the complainants, by virtue of their charter, take or hold the slaves, or take or hold any property for such a purpose 1
    
    This depends upon their charter. The charter was granted by Maryland. The law of Maryland governs its extent. We cannot give to it any greater power than by that law is given to it. Bank of Augusta v. Bari, 13 Pet. R. 879.
    A corporation maybe a trustee, I admit, where its charter authorizes it, or where it is silent; but where there is a prohibition, it cannot hold for charitable or any other purpose.
    The charter is express as language can make it. It is only authorized to hold property, real and personal, money, &c., to colonize free persons of color residing in the'United States, and for no other purpose whatever. Here is a devise of land and money and property, not for the propose of colonizing free, but for sending off slaves, that they might thereafter become free. This is negatived by the express language of the charter. The law of Maryland prohibits it. 8 Gill & Johns. 319; 6 Con. Rep. 293.
    There is not only no power for it to take a devise of slaves to colonize them, but it is directly prohibited. The devise is therefore void, not merely for want of power in the corporation, to take for such a purpose, but also because the charter prohibits them from holding for any purpose but that specified in it.
    In England, the statute of wills prohibited a corporation from being a devisee; this was construed in favor of charitable bequests to mean in equity bequests for its own use. But when there was a devise for a charity, not for itself, it was holden good in equity.
    But suppose the statute had given it power to hold in trust for one charitable purpose, i. e. to establish seminaries of learning there, and for no other purpose, could it have held for any other 1 It is believed not. No court could have so held.
    The cases cited from Ang. & Ames on Corporations, 100, are cases where there was nothing in the charter prohibitory in its character. The cases cited in fact prove my position.
    It is admitted, that where a corporation has capacity to take and hold property for itself, it may hold it as trustee, unless restrained to particular trusts, or restrained from holding as trustee. All the cases cited were cases where there was no prohibition, and where the corporation could hold property, except cases which arise under the statute of wills, and in regard to these, the devise was void at law, but good in equity, because it held not for itself, but for another. But if the statute had said it should not hold, as devisee, a trust, except for certain specified trusts, and no other, it could not surely, either in law or equity, hold for another such prohibited trust.
    III. But it may be said, if this be so, if the decree is-void for incapacity in the devisee, the court will not let the trust fail for want of a trustee ; but in the case of personal property, the personal representative will be deemed a trustee, and the heir a trustee of the realty. 2 Story, § 976, and cases there cited.
    This I admit to be true as a general rule. But I have two answers to give to it.
    1. Admit it to be true, that this is a valid trust and not a mere power, the.complainants cannot enforce the execution of the trust, as they are not trustees, and have no legal or equitable interest. It defeats this bill.
    
      2. Where there is no trustee appointed or the appointment is void, and there is a valid trust created, the heir or executor will be decreed to be a trustee. But this only applies to cases, where the cestui que trust can sue or compel an execution. A court of equity can only declare their trustees, at the suit of those interested as cestui que trusts. If they cannot maintain a suit, equity cannot enforce the trusts, but must leave it to the voluntary action of the trustee. As is illustrated in the case in 2 S. & M. 30. The case is analogous to trusts clearly created, but the objects of which are uncertain. 2 Story’s Eq. sect. 979 a, 979 b. Here are cases of trusts, which could not be executed, although the trusts were certain. In Tennessee a statute was passed to meet this identical case.
    The decree to complainants of the money, land and slaves, is therefore void; and whether any other person can maintain the bill, is not the question. If they cannot maintain it, they must go out of court.
    The same rule applies to all the bequests. The devise of the money and property to transport the slaves and support them in Liberia is void, because prohibited by the charter.
    IY. So the devise for a school in Liberia is void, because if the charter does not prohibit holding for this purpose, or if it be such a charity as will be sustained, although void at law, yet it is given upon the condition that the slaves refuse to go. The bill is not filed to sell them for this reason; it does not aver, they refuse to go; it avers they have not refused to go, therefore this bequest cannot take effect — under this bequest nothing vests, unless they elected not to go.
    Y. The chancellor, in his opinion, endeavored to sustain the bequests upon the ground that they were charities, and although void at law, yet equity would sustain them.
    There is only one charitable bequest in the will; that is the bequest to the society of the real and personal estate, to establish a seminary of learning in Liberia, and this is given upon condition that the slaves refused to go, and elected to be sold in this country. The bill and its prayer were not filed with a view to this; and, in fact, this never vested, because they did not elect to stay.
    A devise to slaves or to trustees to set them free, may be a benevolence, but it is surely not a charity, within the meaning of that term. See 2 Story’s Eq. as to what are charities, sections 1155,1157, 1158, 1160, 1161, 1164.
    But if it were a charity, as the charter prohibits from holding for such a purpose, or such a charity, it could not be enforced by complainants as a charity by bill, in the name of the society, as it cannot.hold either in law or equity for such a purpose, but must be enforced some other way, either by act of the legislature or otherwise.
    
      The cases in Angel & Ames, 100, I have shown, were cases where the corporators were not prohibited from holding.
    The case of Baptist Association v. Hart, 4 Wheat, is directly in point. In that case the devise was void, because devisee could not take, and the party for whose benefit the charity or trust was created, could not sue, as the trust was too indefinite to be maintained in their names. So here the complainants cannot sue, because the devise is void; nor can the slaves for whose benefit it was created, because they cannot maintain-a suit. But that case is said to be shaken or overruled. But on what ground? Because that was clearly a .charity, and although the devise was void as a direct bequest, yet as a charity, chancery would support it, according to the cy pres doctrine. 2 Stor.y, sections 1169, 1170. But that case is unquestioned law, in cases where the devise is not a charity within the technical meaning of the term. When bequests to individuals, no person questions it. If the devise had been to a corporation to be afterwards created, it might be good as an ex-ecutory devise. But- a bequest to a corporation not in existence, or to one in existence, which it is prohibited from taking, is surely void. This case of Baptist Association v. Hart, is not doubted as law, upon any principle, except that it was a charity, which is governed by peculiar rules, and may be enforced, when devises to individuals will not by the rules of the common law.
    VI. The act of 1842 is a complete bar. It is not unconstitutional; it is a mere act of limitation. It gives one year to remove them. The exception in the statute cannot be extended. This court can create no exceptions not engrafted on the statute.
    Do the complainants come within any of the exceptions? They do not. They must remove them, or commence proceedings for that purpose within the year. The law of this state, limiting the lien of old judgments, is void, if this is void. That this is a mere act of limitations, see 13 Pet. R. 45. The act was intended to bar, when those interested do not act. It was intended, if those to whom the trust was confided do not act, it shall be barred. The principle is familiar. Executor and trustee may refuse to sue for property, and the cestui que trusts are barred. Wyer v. East India Company, 1 P. Williams, and many other cases. The law is well settled, that if the case made by the bill is barred by limitations, it may be reached in equity by demurrer. Story Eq. PI.; Dunlap v. Gibb, 4 Yerg. R.; Gordon v. Blackman, Richardson’s Eq. R. 61.
    
      
       See a report of the case in 5 Howard, 305.
    
   Mr. Justice Clayton

delivered the opinion of the court.

The contest in this case grows out of the same will which was the subject of controversy in the case of James B. Ross et al. v. Vertner et al. 5 How. 305. The bill was filed, in that case, by the heirs and distributees of the testator, against his executors, to prevent the execution of the trusts of the will; in the present case it is filed by the American Colonization Society, as a trustee, against the executors to compel the execution of those trusts, and to carry out the provisions.

It may aid our conclusion on this occasion, to ascertain precisely what was the controversy in the former suit, and what was determined by it. That “bill sets out the will, and avers that its provisions and trusts in relation to the transportation of the slaves to the coast of Africa, are in violation of the policy of this state, and in fraud of the statute on the subject of manumission, and are therefore illegal and void. That the provision for their support and maintenance, when carried to Africa, is illegal and void, because the trust is for an illegal purpose. And that the contingent bequest for the establishment of a seminary of learning is void, because against the policy of the state of Mississippi, and because the American Colonization Society has no capacity to take for such a purpose. The bill concludes with a prayer, that the estate embraced in said illegal and void trusts, be decreed to complainants, as sole heirs at law.”

There was a general demurrer to the bill. The case was elaborately argued; and the several positions assumed in the bill were discussed with much zeal. It was contended that if the bequests and devises of the will were void, the executors were trustees for the heirs, and could not dispose of the estate for charities or other objects to be selected, either by the executors or the court.” The court decided that the trust created by the will was valid.

To the present bill, there is likewise a general demurrer; and the first ground assumed in support of it is, that the chancery court has no jurisdiction, because “it is purely a matter of administration cognizable in the probate court.”

In Carmichael v. Browder, (3 How. 255,) the leading case upon this subject, the court say, “ The broad proposition that an administrator cannot, for any purpose, resort to a court of equity, or that he cannot, in that capacity, be there proceeded against for any contingency, was never intended to be asserted, nor do the opinions warrant any such conclusion. We do not mean to decide, that there are not cases arising in the course of administration, which may be proper for the interposition of a court of equity. The same rule which is applicable to other courts of law, will no doubt apply to this. If it be wholly incompetent to give relief, and the party have not, by his own laches, lost his remedy, then it might be a proper case for equity jurisdiction.”

It is thus plain, that there may be cases growing out of wills, which are the proper subjects of equitable jurisdiction. Of this class must be many trusts. They are creatures of courts of equity; and the abuses of trusts and confidences are wholly without any cognizance at the common law, and beyond the reach of legal process. See 1 Story’s Eq. 28. Trusts may arise under a will; if they be of a character which requires equitable interposition, the fact that they were created by a will cannot exclude the jurisdiction of equity. It may not be easy to draw a line, which in all such cases separates the jurisdiction of the two courts. The power of the probate court to give full and adequate relief, must always be a material circumstance. We think here the full measure of relief could only be attained in equity, and therefore that the court had j urisdiction.

It is also insisted in argument that these bequests are void, first because they are to slaves, and that slaves have no capacity to take — next that they are void because the trustee, the American Colonization Society, has no capacity to take, and lastly, that being void, a court of chancery cannot enforce them, as charities.

The first of these objections is directly opposed to the decision of this court in the former case. It is also opposed to the case of Leach v. Cooley, 6 S. & M. 93; in which it was holden, that “the right of freedom under the will is inchoate, and becomes complete when the subjects of it are removed. The bequest to the slaves is not void for want of capacity in the legatees to take.” Precisely the same principle is recognized in Henry et al. v. Hogan, 4 Hum. 208; a case in which the slaves were obliged to go to Liberia, to obtain the benefit of the bequest of their freedom, and in which the property appropriated to raise a fund for the payment of their expenses, was held tobe properly applicable to that purpose. See also Hope v. Johnson, 2 Yerg. 123; 8 Pet. 239. In Virginia such dispositions have been supported. Elder v. Elder's Ex. 4 Leigh, 252; Dunn v. Ames, 1 Leigh, 465. So in South Carolina, 2 Hill’s Ch. R. 305.

The capacity of the Colonization Society to 'take, is of necessity, also directly affirmed by the former decision. On no other principle, could the trust have been pronounced valid. A bequest to this very society was sustained in Burbank v. Whitney, 24 Pick.; so in Bartlett v. Nye, 4 Met. 378, in which a bequest to unincorporated societies was held valid. But we need not go the length of this latter case. This objection is made upon demurrer to the bill, and it seems confined and narrowed down to the point, that the bill does not aver that the society was incorporated, at the death of the testator. The bill states that the complainants are duly and legally incorporated; that they are willing to accept and appropriate the funds, as provided for in the will; the object of the society by their charter being in accordance with the provisions of said will and in furtherance thereof. It further alleges that by the decisions of the courts, the said will and its provisions were fully established, and the rights of complainants to said slaves and estate, in trust as bequeathed in said will and for the purposes therein contained, were fully confirmed.” Taking all these statements together, we see no room for this objection. If the society be incorporated; if its purposes be in' accordance with this will; if the provisions of the will have been theretofore established, and the rights of the complainants fully confirmed, all of which are admitted by the demurrer, then it was properly disallowed.

It is nest contended that if these devises are invalid, either for want of capacity to take on the part of the donees, or of the trustees; then equity cannot enforce them as charities. To this we reply, that if the trusts created by this will be valid, then there is no room and no necessity for the application of the doctrine of charities. It is only where the bequest or devise is too vague or indefinite, for those intended to be benefited, to claim any interest under them, that the doctrine as to charities arises. It is clearly settled that “ definite charities are trusts, which equity will execute by virtue of its ordinary jurisdiction.” Gallego's Ex’rs v. Lambert, 3 Leigh; 3 Peters, 100. Charities begin where definite trusts end. It is therefore wholly unnecessary for us to inquire whether the statute 43 Elizabeth is in force- in this state, and whether the court of chancery has any jurisdiction over charities to compel their performance, apart from and independent of that statute. It may not be out of place, however, to remark, as this point was urged in argument with great zeal, that in the late case of Vidal v. Girard’s Ex’rs, (2 How. S. C. R.) that court modified very much, if it did not overrule, the case of Hart’s Ex’rs v. Baptist Association, 4 Wheat. 1. The court there said, “ that new sources of information, recently developed, established conclusively, that long before that statute, courts of chancery exercised jurisdiction over charities, not only where they were indefinite in their nature, but where either no trustees were appointed or where they were not competent to take.” The opinion was delivered by Judge Story, and must be regarded also as an abandonment of the opinion upon this subject, expressed in his Commentaries upon Equity. But in this case it is matter of speculation rather than of practical use, because we see no reason to change the former opinion, that these trusts, so far as it is necessary now to determine them, are valid.

The other.counsel for the appellant does not controvert the case of Ross v. Vertner, and admits that decision to be conclusive so far as it goes. He says that was a proceeding to prevent the executors from acting; this is an attempt to compel them to act. The court then very properly declined to interfere. The question now is, according to this argument, not whether this is a valid trust which the executor may execute, but whether it is one which the complainants can compel him to execute. If the trust be a valid one, have the complainants any interest?

To this we reply, “ that if a bequest be accompanied by words expressing a command, recommendation, entreaty or hope on the part of the testator, that the property will be disposed of in favor of another, a trust will be created; first, if the words on the whole are sufficiently certain; second, if the subject be sufficiently certain ; and third, if the object be also sufficiently certain.” Hill on Trustees, 71. All these requisites concurred in the present instance. The- intention of the testator here cannot be mistaken, and that intention must be carried into effect if it be not opposed to the law of the land. Inglis v. S. S. Harbor, 3 Peters, 99. His request is imperative. The subject is certain beyond doubt — his slaves — and the object equally so — their liberation. The provisions of the will constitute both the executors and the colonization society trustees. Where the duty of the one ceases,- the other commences. It is the duty of the executors to deliver the slaves to the society for the purposes of the will; and it is the duty of the society to carry out those purposes. If a part of the trustees will not discharge their duty, and interpose obstacles to the execution of the trust by the others, clearly a court of equity may enforce the performance.

We need not now decide whether any remedy exists on the part of the slaves, if there had been no trustee under the will. That is entirely distinct from the right of the trustee to come into a court of equity to enforce the trust. It is in cases where there is no one capable of enforcing the trust, that in England the attorney-general is made a party. It is one of the rules of equity not to permit a valid trust to be defeated for want of a trustee. We need not decide this, but we take occasion to say, that in several of the states it has been held that the mere intention of the testator to emancipate, conferred a right to freedom, which, though it cannot be asserted in a court of law, may be enforced in a court of equity. Dempsey v. Lawrence, Gilm. 333: 1 Leigh’s R. 471; Charles v. French, 6 J. J. Marsh. 333; Throckmorton v. Jenny, 5 Monr. 585; 1 Ib. 130; Frazier v. Frazier, 2 Hill’s Ch. R. 317; Williams v. Maunsell, 1 Rob. Va. Rep. 647.

It is again insisted that this society is prohibited by its charter from taking or holding property except for one purpose, that “of colonizing with their own consent upon the coast of Africa, the free people of color residing in the United States.” We do not give to the charter the same restricted construction that the counsel do. It is true the charter confers no right to transport slaves to Africa, there to be colonized. But the slaves of to day may be free to morrow, and when free, may with their own consent be so transported. In the present instance these slaves are not now free, but they have an inchoate right to freedom. As soon as they are taken beyond the limits of this state that right is so far consummated, that by the terms of the charter they may be transported and colonized. In this there is no violation either of the laws of this state or of the charter; and such provisions have been repeatedly carried into effect by the society without objection.

Moreover, according to the authorities, this question can only arise between the corporation and the state which granted the charter. On this point the supreme court of the United States says: “ If the trust be repugnant to, or inconsistent with the proper purposes for which the corporation was created, that may furnish a ground why it may not be compellable to execute it; but it will furnish no ground to declare the trust itself void, if otherwise unexceptionable.” “ If the trusts were in themselves valid in point of law, it is plain that neither the heirs of the testator, nor any other private person, can have right to inquire into or contest the right of the corporation ; it could only be done by the state.” 2 How. S. C. R. 189, — 191.

Great reliance has been placed in argument on an act passed in 1842, which gives twelve months for the removal of slaves theretofore liberated, and declares the bequest of freedom to be void if they do not so remove.

It will be borne in mind that before the passage of this law, the provisions of this will had been declared valid by the judgment of this court, and the slaves declared entitled to an inchoate right of freedom, which would be perfect by their removal from the state. The bill shows the use of every means in the power of the complainants or of those for whom they act, to comply with this law. This suit was brought within the twelve months, to compel the executor to comply with the will, and to deliver them up for removal. If the statute have taken away their right to freedom it has been against their best efforts, and those of their trustees. It has been by a breach of trust and perversion of power. Can the end be attained by such means 1 This court has decided, upon very high authority, in reference to the Choctaw Indians, that if they have been prevented by force from complying with the condition imposed by the treaty, of five years continued residence upon their reservations, it will be regarded as if they had complied. Doe v. Coleman, 4 S. & M. 46. Rights acquired by fraud cannot be sustained. These objects of the testator’s solicitude and bounty have been detained here against their will, against the will of the society, and that of all the executors except one. If the act of the legislature stood free from any objection, we should be constrained to say, this was such a fraud upon the part of the executor so acting, that neither he nor any one claiming in virtue of his acts acquired any right. We need not determine the validity of the law. It has nothing to do with the case; the fraud of the party has placed him beyond its pale. How far it is constitutional might be a grave question, but that we do not now touch.

The order of the chancellor is affirmed.  