
    Jacob vs. Sharp.
    Freedom. Bequest of. A bequest of freedom is not to be defeated by any right of disposition, not exercised, which may be given to a legatee for life of the slave’s services.
    SAME. Ambiguity in bequest of. If there be in a will a bequest of a present right of future freedom, to be enjoyed after the determination of a life estate in the slave’s services coupled with a.contingent power of disposal in the legatee of the services, and there be doubt as to the meaning of those clauses, the power of disposition must be construed to be subordinate to the higher and more important right of freedom.
    S.AiyiE» Limitaton of.\ with power of disposal. A bequest of slaves to a wife to keep them if obedient to her, and at her death “to be set free,” but if disobedient, to dispose of them at pleasure, construed to aesithe slaves with-a present right of future freedom, defeasible by the -exercise of-the wife’s contingent right of disposal. Marriage is not an exercise of that right.
    On the 8th of January, 1825, Abraham Vernon of Hawkins, who appears to have been childless, made and published his‘last will and testament, of which he appointed Rebecca, his wife, sole executrix. After providing for the payment of his debts and of two small money legacies -to his brothers, he gave all the residue of his estate to his wife’; and then .the will concluded with the following clause. “And my negroes, Jacob and Jinne, and her two children, Jack and Malinda, I wish her (his wife) to keep them, if they are obedient to her, and at my wife’s death, I wish them to be set free: and if they should be disobedient to my wife, she may dispose of them as she pleases.”
    He died on the 14th of the same month; and on the 4th of October, 1826, his wife, who was about sixty years of age, intermarried with William Sharp, the appellant, who was of the age of 18 or 19 years.
    She died in May, 1834, without making any disposition of the slaves.
    After her death, Sharp took Jinne and Jack, Malinda having previously died, to Mississippi, where he sold them as slaves. Threatening to do the same with Jacob, he took refuge in the house of John A. McKinney, Esq. to whose protection his - mistress, a few hours before her death, had commended him, and by his next friend, Hasten Vernon, a brother of the testator, on the 29th of November, 1834, filed this bill, stating the devise above recited, and Sharp’s threats to sell him, and praying for an injunction to prohibit Sharp from disturbing him in his then place of residence, and from removing or attempting to remove him beyond the jurisdiction of the court till application could be made to a court of law to emancipate complainant according to the will, or until the merits of the cause could be heard and determined in the chancery court, and for general relief. The injunction was granted.
    On the 30th of March, 1835, Sharp filed his answer, in Which he put his defence, first upon the position, that the devise vested the testator’s- wife with an absolute estate in the slaves, which estate was devolved, by the marriage, upon the appellant; but if not, and the rights of the slaves- to freedom depended upon their good behavior, then it had been forfeited by numerous acts of disobedience, misconduct and crime, on their part, and especially, on part of Jacob, and the answer proceeded to enumerate several of these acts. A replication was-filed, and the cause was at issue.
    Upon the latter ground of defence, testimony was taken pro and con; and it showed that, in the testator’s life time, Jacob had been obedient and dutiful; that afterwards, he had fallen into habits of intemperate drinking, and at such times, had been insolent and disobedient to his mistress, and had, on one occasion, even threatened her life; and that he had been taken before magistrates on an accusation of stealing, been pronounced guilty and punished; that he had not been obedient to appellant after his intermarriage with his mistress; but that since- bis residence with Mr. McKinney, he had conducted himself with propriety.
    On the hearing, at September term, 1837, before Chancellor Beamlite of the Middle Division, his Honor declared the. complainant to be entitled, under the will, to all tlm rights' and privileges of a free man,- on his giving bond and- security to leave the State, within a period not exceeding, six mbntbá; according to the- provisions of the acts of Assembly in-such case made and provided; and he perpetuated the>injunction;
    J. A. McKinney for complainant.
    Peck, for the defendant,
    insisted that by the, Words- of- the will, the widow took the whole interest in the slaves, and cited Irwin vs. Farrer, 2 Supp. to Ves. 437; that she had a right of disposition, which she had exercised by the marriage with the defendant, and if there was a remainder in the right to freedom, as supposed in Pleasants vs. Pleasants, 2 Call’s R. 270, it was cut off by the power of disposition vested in the wife, Reeve’s Domestic Rel. 1, et seq.; that if a trust could be supposed, its exercise was discretionary, and this was a case where the discretion could not be controlled, Pigot vs. Bullock, 1 Supp. to Ves. 137; Kemp vs. Kemp, Id. 439; finally, that if the negro had a right to freedom by the will, still it was a contingent right, and whether it could ever become absolute depended upon himself* and he had defeated and lost it by his own acts. 2 Supp. to Ves. 162, note to Dashxoood vs. Lord Bulkeley, 5.
    June 15.
    
      
      No memoranda came to my hands of Mr. McKinney's argument.
      [Reporter.
    
   Green, J.

delivered the opinion of the court.

Jacob was the property of Abraham Vernon, who in 1S25 made his last will and testament, and shortly afterwards died. After devising some pecuniary legacies, the will proceeds, “and the residue to be at the disposal of my wife, as she wishes; and my negroes, named Jacob, Jinne and her two children, Jack and Malinda, I wish her to keep them if they are obedient to her, and at my wife’s death, I wish them to be set free, and if they should be disobedient to my wife, she may dispose of them as she pleases.” After the death of Vernon, his widow married the defendant, — since which time she has died. The defendant being about to take Jacob to the South, and sell him as a slave, this bill is filed by Jacob, to restrain defendant, and to obtain his freedom.

1. The first question is upon the construction of the will/ It is earnestly contended by the counsel for the defendant, that the right of disposition conferred upon Mrs. Vernon, by the will vested in her the absolute title to the slaves, and is wholly'inconsistent with their right to freedom after her death. On the other hand it is insisted by the counsel for Jacob, that the true meaning of the phrase in the will that “she may dispose of them as she pleases,” does not author^ ize the exercise of an absolute right to them, dr impair theii title to liberty.

It is unnecessary to determine which side is right in the construction contended for, inasmuch as this court has deter» mined in the case of Latina vs. Duffield's Executors, that the principie contended for by the counsel of the defendant, doe's not apply to the case of a devise of freedom. The liberty which a testator intends to bestow, is of so high a value to the objects of his benevolence, — and must be supposed so to occupy his thoughts,- and so strongly to fix his purposes, that a devise of freedom is not to be defeated by any right of disposition (not exercised) which may be given to a devisee for life; — and if there be any doubt of the meaning of the will, the power of disposition, must be construed to be subordinate, to the higher, and more important right of freedom.

But in this will, no absolute power of disposition is given. The' testator says, “if they should be disobedient to my tvifej she may dispose of them as she pleases.” Here the right of disposition, depends upon a contingency which may never happed, and of course, she could acquire no absolute right to them, until they become disobedient, — and in the exercise of her power she should actually dispose of them. It will not do to say, they were disobedient, and therefore an absolute right to them vested in her. The will only confers the right to dispose of them, on the happening of the contingency mentioned. She is left free to determine what conduct on their part should constitute a “disobedience,’’.¡that would justify her in selling them. The testator did not contemplate that the slightest disobedience should constitute the tight of disposition, for he knew that perfect obedience, had never been attained by mortal man. And, therefore, proof of Jacob’s disobedience could have no effect on conferring on Mrs. Vernon an absolute title to him, unless she had acted üpon it, and executed the power conferred on her by the will, by actually disposing of him.

2. It is next contended that Mrs. Vernon did actually dispose of Jacob by her marriage with the defendant. It is true she conferred on the defendant, by that act, all the title to Jacob which she herself had — which was an estate for life. But it is not easy to comprhened, how Sharp, by the marriage, acquired a greater estate in Jacob, than his wife possessed before the marriage, — or how the marriage could enlarge Mrs. Vernon’s rights under the will.

3. It is next insisted that Jacob’s right to freedom depended upon a condition precedent, — (his good behavior) with which condition he has not complied, and therefore the right does not exist. This position is taken, because of inattention to the terms of the will. It will be perceived upon inspection of the will, that the right to freedom is absolutely conferred, — but the power to defeat that right, is given Mrs. Vernon, on the happening of a contingency. The principle here insisted on, has no application to this case.

4. It is next insisted, that Jacob’s character is too bad to justify this court in consenting on the part of the State, that he should be free. We .do not think the proof is such as to .authorize us to say that Jacob is unfit for the freedom this will ¡confers .on him,; — more especially as he is to leave the State.

Affirm the decree. 
      
      Jobn Duffield, of Davidson county, made his last will and te&tameut, on the 6th of March, 1807, in which, after providing for the payment of his debts-, there was the following disposition relative to the residue-. “AH to belong and be at my loving wife, Elizabeth Duffield’s disposal and command, during her life time; and at her death, all the negroes of mine to be emancipated agreeable 'to the following directions, wbicii are, — all my male negro slaves are lo be free at 22 years of age, and the females at 19 years of age.” fío died in June, 181^', and his wife in 1832. The executors of his will neither qualified nor acted in the administration. Ou the 8ih of August, 1833, Davina, who was one of Duffield’s slaves at the date of the will aud at his death, filed her bill, hi which Jackson, her son joined, in the chancery court at Pulaski, against the surviving executors of her master’s will and John Goff, who held them in slavery, praying the court to decree them their freedom, and for general relief. Th£ bill was dismissed as to one of the persons sued as executor, by consent. The other answered and disclaimed, never having qualified or acted as executor. Goff answered, admitting that he had held the complainants as slaves for eight or nine years, “as he had a right to do*,” without stating the grourtds of said right, aud denying that Lavhia was one of the negroes owned by Duffield at thfe date of his will, and thence up t j his death, and that she was one who was intended by him to be emancipated. This denial Was made upon information which respondent believed to be tiue*, but he did not stale who gave him the information, or what facts it consisted of.
      The proof Í3 that Lavina had been in Duffield’s possession before and at his death, at least; and according to the belief of the witness, had been born on hi& plantation, and positively that she was raised by him, but whether she was his property or his wife’s the witness could not declare.
      At September term, 1837, Chancellor Williams dismissed the bill. The Complainants appealed; and ou the hearing, cn the 3rd of iMarclr, 1838, the court pronounced a decree establishing their freedom. After stating the material facts in the case, the opinion of the court, which was delivered by Judge Turley, proceeds:—
      “It is admitted that the right of the Complainants to be emancipated depends fcpon the construction of the will of Duffield. The defendants insist, that an absolute title to the negroes was invested in Elizabeth Duffield by its provisions. But the court cannot give it such a construction. It is obvious that the intention of the testator was only to give a life estate to his widow; and the words used do not give it a greater. The devise is comprised in one sentence, viz:— Ho belong to, and be at my loving wife* Elizabeth Duffield’s disposal and command during her life time, and at her ’death} all the negroes of mine to be emancipated.’ Exposition cannot make this provision plainer. There is no pretence for saying that more than a life estate in the negroes was given to Elizabeth Duffield. This court is, therefore, of opinion, that the complainants are entitled to their freedom; and order that they be emancipated, upon their giving bond and security to indemnify the county of Davidson — the place John Duffield’s residence at the time of his death — according to the existirig laws ou the subject»”
     