
    JOSIAH THOMPSON & AL. vs. JOHN NEWLIN.
    Where n testatrix left certain slaves to A. B , without expressing any trust on the face of the will, but there was a secret understanding, that the slaves should be sent out of the State for the purpose of being freed, upon the conditions prescribed by law, Held, by a majority of the Court, that A. B. should be compelled to execute this trust within a reasonable time, ■ by procuring au order of the Superior Court, entering into bond as required by law, and removing the slaves to some Country where they would be free.
    
      Held by Peakson, J., dissentiente, that, the trust being secret, it must be inferred that the testatrix intended that the slaves should be sent out of the State to be free, without complying with the provisions of the law but evading them, and that the bequest was therefore void and the next of kin ■were entitled.
    The cases of Cox v. Williams, 4 Ire. Eq, 15, and Thompson v. Newlin, 3 Ire Eq. 338, cited and approved.
    Cause ■ removed from the Cour,t of Equity of Orange County at the Fall Term 1846,
    
      Sarah Freeman, by marriage articles with her intended husband, Richard Freeman, became entitled to her property to her separate use, with the power of disposing-of it by a will during her coverture. She had some real estate, about thirty slaves, and money or securities for money to the amount of some seven or eight thousand dollars ; and by her will, dated in May 1835, she devised a piece of land to her husband during his life ; and the remainder therein and all her other land, her negroes, money, debts, and every other part of her estate she gave to the defendant, John Newlin, and appointed him her executor. She died in 1839, and the executor propounded the will, which was contested by her husband, and heirs, and next of kin ; but the will was finally established early in 1843. In August following, this bill was filed by her next of kin against Newlin and Freeman, and charges, that, although the devises and bequests to Newlin are absolute in their terms and without any trust expressed in the will, yet they were all upon the secret and unlawful trusts following : That the negroes should be held here, not for the benefit of Newlin, the apparent donee, but for the benefit of the negroes themselves, and in a state of quasi freedom, and that the devises and bequests of the other parts of the estate were in secret trust for the use and benefit of the negroes. The bill prays a discovery of those trusts, and that they may be declared unlawful and void, and also that it may be declared, that a trust resulted to the plaintiffs, and for an account and distribution of the slaves and other personal estate.
    The answer of Newlin admits, that the bequest of the slaves to him was not to his own use : and states, that the testatrix wished them to be emancipated and gave them to him in trust, that he should have them emanci-. pated according to law. The defendant states, that the testatrix and he frequently had consultations together upon the subject of emancipating them, and at one time she bad determined to manumit and send them out of the State( but afterwards abandoned that purpose with the View, that the defendant should have it done after her death. He states, that both the testatrix and he were fully informed, that the negroes could not remain in North Carolina as free persons ; and that it was at no time intended by them that they should remain here, but that they should go out of'-the State : that the defendant told the testatrix she might express the trusts in the will, that the slaves should within a certain time be sent out of the State, according to law, to any other State or Country, in which they might enjoy freedom : that the testatrix preferred not to express the said trust in her will, but to confide in the defendant to execute her wishes and to take the necessary steps to carry them into effect; which he undertook and promised her to do; and that upon the faith thereof she executed her will in the terms in which it appears. The defendant states further, that the testatrix seemed to prefer Liberia as their place of destination ; but that she left to the defendant’s discretion the place, and also the manner of transporting the negroes to some other Country than North Carolina. He further states, that, having accepted the said trusts with the purpose of executing them to the best of his ability, he would long ago have done so by sending the negroes out of this State, if he had not been prevented by the continued litigation at the suit of the plaintiff's touching the will and property ; and that it is still his purpose to execute the trusts according to the laws of the State ; ancj he submits to do so under the direction of the Court. He denies, that that there was at anytime an understanding between the testatrix and himself to violate or evade the law, by holding the negroes in a state of qualified slavery.
    The answer further states, that the devises and bequests of the other parts of the estate were upon the trusts to apply as much thereof as should be required to defray the expenses of removing the slaves and make some provision for them ; and in part to compensate the defendant for his trouble in carrying into effect the wishes of the testatrix.
    The Reporter, at the request of one of the Judges, annexes a full copy of the will, as follows :
    “I, Sarah Freeman, of the County of Orange and State of North Carolina, being of sound and disposing mind and memory do make, publish, and ordain the following to be my last will and testament, that is to say : First, I give and bequeath to John Newlin all my negro slaves to him, his executors, administrators and assigns forever.
    “Secondly. I give and devise all my lands or other real estate of which I may die seized or possessed unto John Newlin his heirs and assigns forever.
    “Thirdly. 1 give and devise unto Richard Freeman, my husband, during the term of his natural life my lands on Rocky River in Chatham County, and after his death then to John Newlin his heirs and assigns forever.
    "Fourthly. 1 give and bequeath unto John Newlin his executors, administrators, and assigns all my monies, notes, bonds, stock, household furniture and all my personal property of whatsoever denomination it may be, and I do hereby revoke and make null and void all former wills by me at any time heretofore made.
    "Lastly. Ido hereby appoint the above named John Newlin, the devisee of all my estate, real and personal, to be the executor of this my last will and testament, and to which I have set my hand and seal this the 20th day of May one thousand eight hundred and thirty five.”
    Norwood, W. H. Huy wood, Mebane and Badger, for the plaint id's.
    
      H. Waddell, Gruham and J. H. Bryan, for the defendant.
   Ruffin, C. J.

If the trusts charged in the bill had been those, on which the gifts were made, they would have been contrary to the policy of the law and void : and, of consequence, there would-be a resulting trust for the plaintiffs. But the trusts disclosed in the answer for the emancipation and removal of the slaves are not unlawful. They are, indeed, in accordance with the policy plainly appearing in the act of 1830; which, moreover, always prevailed here, provided only the emancipated slaves were carried, and kept, without our borders. If those trusts had been expressed in the will, they would undoubtedly be valid, and the executor and donee in trust would be compelled to execute them. Cox v. Williams, 4 Ired. Eq. 15. When this case was here before, it was held, that the trusts would be no less obligatory on him in conscience and by the law of this Court, if the gifts were in fact made upon such express trust, though not declared in the will, but resting in -personal confidence between the parties. The defendant, when he acknowledges the trust, cannot be allowed to hold the property to his own use. The.onty questions in such a case are, as to the effects of his breach of trust in not emancipating the slaves according to the laws of the State and deporting them, and as to the modes of enforcing the execution of the trust. We suppose, that one, who accepts the property upon such trusts,is bound to execute them, and that, having once undertaken the trust, he may be compelled to preform it in those methods, which the law prescribes for the benefit, alike of the subjects of ihe trust and the public security; and it would seem that he could certainly be thus compelled, either at the instance of the Attorney General, by regarding such disposiitons in the light of charities, or at the suit of the negroes themselves, upon the capacity imparted to them by their incipient right to freedom under the wi! 1 of their former owner, as authorised by the statute. If that be so, the right of the next of kin would seem to be extinguished by the creation of such a trust; for it it does not belong to them to enforce it, nor does the breach of it work any injury to them, but only to the negroes or the State. However, it is not incumbent on the Court now, nor, perhaps, is it proper, to discuss the' rights of the next of kin, in the event the defendant should fail to emancipate the negroes and carry them away, after he may do so without impediment, since this defendant submits to perform those trusts, according to law, under the direction of the Court, and it is to be presumed for the present that he will. The act of 1830 authorises the owner of a slave to direct the emancipation by will; and, of course, it is obligatory on the executor to do what is necessary to effect; it. But the act further requires, that, in order to obtain a grant of the emancipation from the Court, the executor shall give bond to answer to the creditors of the testator for the value of the slave, and also a bond in the sum of $1000 for each slave, that such slave shall be of good behaviour while in this State, and will leave it within ninety days and never return. Where a person aeting in the character -of executor and trustee submits to proceed in the execution of the trust under the direction of the Court, those acts must, of course, be included in the directions, as they are for the security of creditors and in furtherance of the public policy; and a reasonable time allowed for procuring the emancipation and effecting the removal of the negroes — which, as the proceedings are to bq in the Superior Court, one year would, in this instance, probably be. It must be declared, therefore, that the trust to emancipate the slaves in question, as disclosed in the answer, is lawful and proper to be executed by procuring or making the emancipation in the manner prescribed by the Statute in such case made and provided ; and the defendant is allowed one year from this time to effect the same. When he shall have refused or failed to do so, it will be time enough to consider, whether the present plaintiffs can take benefit thereby; and, until that period, that point is reserved. It will be time enough then, because, if the'defendant should in that manner perform the trust, the next of kin would certainly have no rights in the matter; and it is not to be supposed the defendant will not perform a trust, which he submits to perform and about the execution of which he professes a sincere and conscientious desire.

Nash. J.

I concur in the opinion of his Honor, the Chief Justice. The trust, disclosed in the answer, is one sanctioned by the laws of the' State, agreeable to its policy, and ought to be enforced by a Court of Equity. The defendant submits to execute the trust under the direction* of the Court; and those directions are set forth in the opinion of his Honor with sufficient clearness. Another question has been argued in this case, as to the true and proper construction of the Act of 1S30. ch. 9, sec. 3. Rev Stat. Ill, sec. 59. as applicable to the execution of such trusts as are set forth in this case. I give no opinion on the point discussed, as I do not think it arises here.

Pearson, J.

The slaves were not given to the defendant for his own use, but upon a trust. If the trust be unlawful, it is void, and they belong to the plaintiffs.

What is the trust? It is admitted tobe a secret one. The defendant swears, he did not disclose it to any one, until ten years after the death of his testatrix, when he told it to his counsel, who drew his answer, and the pleadings show, he filed a demurrer and objected to making it known. It is admitted to be a secret trust by design. The answer states, that the testatrix was distinctly told, that her purpose of emancipating the slaves might be accomplished by expressing the trust in her will and having them set free “according to law” or by making her wish known to some person, in whom she had confidence, and reposing in him the trust of transporting the slaves to Liberia, or some other free country, where they could enjoy their freedomi She elected the latter mode.

Secrecy' is ,a badge of fraud, and this trust, being a secret one by design, must be received with suspicion.

The admissions of the answer leave no doubt in my mind, that the trust was, that the defendant would transport the slaves to a free country', so as to give them their freedom in that way, without complying with the provisions of the statute. If it was the intention to emancipate according to the statute, what reason can be assigned for not expressing the trust in the will ? The defendant can suggest none. The testatrix knew such a trust was lawful ; and the preference she gave to the secret trust, sat*isfies'me, either that it was her intention, that the slaves should remain in this State as free negroes — which is denied by the answer — or that they should be carried to a free country' and in that way set free, without giving the bonds required by law. The latter, the defendant says, was the trust, and that he would have executed “said trust, by transporting the slaves to Liberia soon after the death of his testatrix, but for the litigation in which he has been involved.”

Is such a trust lawful, laying aside the secrecy ahd supposing it.inserted in the will? This depends upon the construction of the act of 1830. It provides, “that any inhabitant of this State may emancipate his slaves by giving bond of 81000 for each slave, with two sufficient securities, that the slave will leave the State and never return.” This is the security taken by the public from the master. A security is also taken from the slave, by the provision, “that his emancipation shall be on condition, that he will never return, if he does, he is to be sold as a slave and the proceeds of the sale shall belong to the informer and the Wardens of the County.” The act further provides, “that no slave shall be set free, but according to the provisions of tliis Act”

The intention of the law-makers should be ascertained, and the Courts should then see that this intention is carried into effect and in no wise evaded

The legislature intended, that slaves should not be emancipated, unless the public had both securities, that they would leave the State, and never return : the obvious policy being, not so much to get clear of the slaves, as to keep clear of free negroes. Here, then, is a law, providing that any person may emancipate his slaves vpon certain conditions. Does not this, as a matter of coursq, make unlawful a mode of emancipation, without complying with those conditions, and without giving the two securities required ? Did the legislature do a vain and foolish thing ? Is this the language of the law? You may emancipate your slave by giving a bond of $1000, and upon condition, that, if the fteed man comes back, he shall be. sold as a slave ; but you may also eman~ cipote him. simply by sending him to a free country, without the bond or the condition. If so, the latter mode will always be adopted. The master will prefer not to incur liability, and if the slave returns, he will belong to his former owner; for the title has not been divested, or if, by a forced construction of the statutes concerning free negroes, the slave, is considered as a free, negro migrating into the State, he will not be liable to be sold as a slave, but will be hired out. for ten years, unless he leaves the State in twenty days ; and in the case of females the children would be free negroes. The act of 1830 seems to have been drawm with much, care, and the fact of requiring the. security of a bond and the condition necessarily renders any o'her mode of emancipation, in which both or either of these securities arc not given, repugnant and unlawful. If it had been the intention still to allow the mode of emancipation, by simply transporting the slave, this repugnance could only have been avoided, by providing, that, if the slave returned, the master should be liable to a higher penalty, say §2000, and the slave to a stronger condition — say7 thirty nine lashes, in addition to his being sold as a slave. Without some such provision the act of 1830 would be nugatory and lie as a dead letter upon the statute book. For, why7 should it be resorted to, as the other mode is the plainest and is free from all liability7? No such provision is contained in the statute, and from abundance of caution, there is an express provision, that slaves shall be emancipated in no other way.

I ask, then, can it be possible, that in spite of this repugnance and in the face of this provision, a trust, by which slaves are to be set free by sending them out of the State without giving the securities required, is lawful ? It is said, this mode has been frequently pursued since the act of 1830. That maybe true. If so, it is time attention was called to it, and the Couits should not countenance so palpable an evasion of an important law, by recognising, under any circumstances, those slaves as free persons, who have been sent out of the State since its enactment, without a compliance with its provisions.

Again, it is said, this is not an open question, but is settled by the case of Cameron v. the Commissioners of Raleigh, 1 Ire. Eq. 436, the opinion delivered in this case, when it was before the Court upon the demurrer, 3 Ire. Eq. 338, and the case of Cox v. Williams, 4 Ire. Eq. 17.

If the point had been directly decided in those cases, as the decision would make the act of 1830 a dead letter, I should hesitate long before adopting the conclusion, that this Court was bound to consider the question settled. But, the point was not directly decided in either case, and the attention of the Court not called to it. In the case of Cameron, there was an expressed trust, and the slaves had been sent to Liberia and settled there before the bill was filed; and the question was, to whom a certain fund belonged. The Court, assuming that the slaves had been duly emancipated, say, “the policy of our law never did forbid the removal of slaves to a free country, in order to their residence there as free people, and the act of 1830 provides for their emancipation, so that they beremoved( and kept removed, without the State.” The question was not made, whether the mode of sending off slaves without giving the bond and subjecting them to the condition, was not unlawful, as evading the provisions of the act of 1830» and, in fact, directly in violation of it. It is not intimated, how the slaves are to be ‘'kept removed without the State.” So, in this case upon the demurrer* the bill charged, that the slaves were given to the defendant, “in trust for their own benefit, and for the purpose of their enjoying a qualified freedom in this State.” The decision is, that, if the trust be as charged and admitted by the demurrer, it is unlawful and void. It is true, in discussing t.he question, the Chief Justice says, among other things, “since the act of 1830, it is not unlawful to bequeath or convey slaves for the purpose of being removed out of the State, and kept away from this State. If, in truth, the trust was to send them out of the State, and the defendant intends to do so, and will enter into the obligations, which the law requires, that they shall not return, let him so answer.” The question was not before the Court, and if any inference is to be drawn from the opinicn of the Chief Justice, it is. that he considered the modj? of emancipating, by simply sending slaves to a free country, unlawful, as evading and violating the act of 1830; for, he says, “bonds must be given as the law requires,” and evidently had in his mind “a trust” to emancipate according to the statute, and not a trust to transport slaves to a free country and thereby set them free— which is the trust set up in the answer.

In the case of Cox, the bequest is of slaves to the Colonization Society, upon condition, that the slaves are to be sent to Liberia. The decision is, that such a trust is lawful. In what manner the trust, was to be executed was not before the Court. So, there has been no decision, that the mode of emancipation by simply sending slaves to Liberia is la’, ml since the act ot 1830; and for the reasons given, I think it is clearly unlawful.

It is urged for the defendant, that, admitting the trust, as originally declared, to be unlawful, he may claim the .aid of this Court "to remodel it.” and make it a trust to emancipate under the provisions of the act of 1830, and he submits to act under the directions of this Court and to give bond, &c.

The defendant asks aid, with an ill grace, after having concocted an unlawful trust, and after his testatrix lias made her election, to declaro an unlawful instead of a lawful trust. I find no ground, upon which to remodel the trust, and make- it the very trust, which she refused to insert in her will. If this Court had the power to do so, to exercise it would be to give encouragement to secret unlawful trusts, by allowing them to be made lawful in case of detection. But this Court has not the power. It would violate the wish of the testatrix, and be making a trust for her in place of the one she chose to make for herself, and it would violate the rights of the plaintiffs. They have a vested right to the slaves, if the trust be unlawful and void. Is it in the power of any Court to deprive them of it ? In the cases of Cameron and of Cox, there was an open express trust to cause the slaves to be sent to Africa. The general words imply, that it was to be executed as the law requires. The fact, that it has not been legally executed, does not render the trust void, although the slaves cannot be treated as free persons until the law is complied with. In this case, the trust is secret, and the implication, that it was to be executed as the law requires, is repelled by the positive refusal of the testatrix to insert it in the will.

Per Curiam.

Decree for emancipation of the slaves upon the defendant’s complying with the requisitions of the law.  