
    *Paup’s Adm’r and Others v. Mingo and Others.
    January, 1833.
    (Absent Brooke, J.)
    Wills — Manumission of Slaves — Decree—Case at Bar. —Testator by his will desires, that, when his affairs are settled and all his debts paid, his slaves be emancipated according to law, and those under age and over forty to be equally in the care of his wife, son and daughter, and that the aboye may be done by his executors: upon bill in chancery by slaves (suing in forma pauperis) against the executor, charging that ample fund has been raised out of their profits to pay debts, and praying an account of administration, and of their profits, and decree for tbeir manumission and for excess of profits above the debts, the chancellor, in 1809, finding that ample fund to pay the debts has been raised out of the profits, though debts not yet finally liquidated and paid, decrees, that the executor shall manumit them, reserving liberty to them to resort- to the court, for a distribution of any surplus of profits which might remain after liquidation and payment of debts, or for other arrangement in respect to such surplus: the debts are not finally liquidated and paid till 1827, when there appears a surplus of profits: and now, the freedmen claim this surplus, the testator’s next of kin claim it, and the executor claims it — Held,
    1. Same — Same—Same—Final.—The decree of 1809 is a final decree as to the manumission, but makes no disposition of the surplus of profits.
    2. Same — Same—Right to Profits Accruing during Bondage. — The freedmen are not entitled to the surplus of profits accruing while they were actually held in bondage; negroes recovering freedom by suit in forma pauperis, cannot, in any case, recover profits or damages.
    3. Same — Right of Executor to Surplus of Profits. — The executor is not entitled to the surplus of profits, but the same is part of his testator’s estate undisposed of by his will, which belongs to his next of kin.
    4. Same — Same—Statute.—It seems,, that since the statute of distributions of 1785, the executor is not, in any case, entitled to the residuum of his testator’s personal estate not actually bequeathed away by the will.
    ■William Walker, late of Brunswick, who died in 1789, by his last will and testament, devised and bequeathed as follows: “After my debts are paid and all accounts tog-ether with merchants’ accounts are settled and discharged by my executors hereafter named, I give my beloved wife Sarah the land I now live on during her life, and all the stock of each kind, and the household furniture, until my daughter Sarah and my son Leonard come of age or marry; then they shall have as much of either of these articles, together with stock of each kind, as she can spare— And the above land, after my wife’s death, to my daughter Sarah and her *heirs forever — And the land on James ’ river to my son Leonard, to him and his heirs forever. I also desire, when my affairs are settled and all my debts paid, that my negroes be emancipated according to law, excepting one known by the name of Lud, whose services of two years I reserve longer than the rest; then he also shall be liberated; and those under age or over forty, to be equally in the care of my beloved wife, daughter and son. I desire, that the above may be done by Benjamin Jones and my brother David Walker, whom I appointed executors &c.” Jones alone qualified as executor; he died in 1801 ; and Peter Robinson was his executor, and so became executor of Walker also.
    In 1805, the slaves of Walker’s estate (suing in forma pauperis, by leave of chancellor Wythe, under the statute 1 Rev. Code, ch. 124,) exhibited their bill in the superiour court of chancery of Richmond, against Robinson the executor of Jones and of Walker, and Leonard Walker, the son, and John Paup husband of Sarah the daughter, of the testator Walker ; Wherein after setting forth Walker’s will, they alleged, that a fund had already been raised out of the profits of their labor, more than sufficient to pay all the debts of that testator, and that therefore they were then entitled to demand deeds of emancipation, but that they were still held in bondage, some by Robinson the executor, and others by Leonard Walker and Paup ; and they prayed accounts of Jones’s and Robinson’s administrations of the testator’s estate, and of the profits of the slaves held by them, as well as of those held by the other two defendants, respectively ; and a decree for the immediate manumission of the plaintiffs, and for the surplus of their profits over and above the testator’s debts.
    Robinson in his answer, shewed, that he was informed, after the death of his immediate testator Jones, of the existence of large claims against the estate of the first testator Walker, chiefly for debts contracted by him to british merchants before the revolution, for which suits were soon afterwards brought against him, and these suits were still pending,*and the results very uncertain ; that, therefore, he had hired out such of the slaves whereof Jones died in possession, from year to year, and should continue to do so, until he should raise a fund sufficient to pay the amount of the debts claimed, and no longer; intending, if the amount of debts which should be recovered of him, should fall short of the fund so raised, to pay the surplus to the plaintiffs when they should be manumitted ; and that the other defendants, who were in possession of part of the slaves at Jones’s death, and had since withheld them from him, were bound to account to him for the profits thereof, to be added to the profits he should himself receive, and thus the sooner to accomplish a sufficient fund for payment of the debts, and hasten' the period of the plaintiffs’ liberation. .
    The other defendants answered, that the first executor Jones, from {he death of the testator Walker till 1795, left the old and young slaves in the care of the testator’s widow on the plantation devised to her, with as many able bodied slaves as sufficed to maintain those who were chargeable, and hired out the other able bodied slaves : that, in 1795, the widow being dead, he divided the young and old slaves under twenty-one and over forty years of age, equally between Leonard the son, and Paup the husband of Sarah the daughter, of the testator, retaining the slaves between twenty-one and forty, and hiring them out from year to year : that these defendants had ever since held the young and old slaves so put into their possession by Jones, and claimed to hold them ; for, they insisted, that the testator, in providing that the slaves under age and over forty should be equally in the care of his wife, son and daughter, intended to give them the young as well as the old, in order that by the labor of such as were profitable they might maintain those who were chargeable.
    It appeared that Jones, and after him Robinson, acted with perfect good faith towards the slaves whom their testator Walker intended to manumit, as well as to the creditors of his estate : That Jones’s object was, to leave in the care of his ^testator’s family, the young and old slaves, of whom the profits would not be more than equal to the charges, until he should complete his administration, and to raise a fund out of the profits of the middle aged and able bodied, to pay the debts he knew to be due, and such as he was apprised might be claimed ; and for some two or three years before his death, it seemed, he suffered the slaves he had retained in his possession, to take and enjoy the profits they earned, and only withheld deeds of emancipation from them, because he had reason to apprehend, that there might be other debts, particularly british debts, for which the slaves, as well as their profits, might be liable as assets in his hands : And that as to Robinson, suits were brought against him, by british creditors of Walker, for large debts, very shortly after he took upon him the ex-ecutorship ; that he was wholly ignorant whether these claims were just, or to what extent they were so ; that the suits were still pending and the results uncertain, and he was very diligently defending them ; and that in retaining the slaves, as he did, and hiring them out from year to year, he .was discharging his duty judiciously as well as faithfully, without the least design to reap any advantage to himself.
    The accounts prayed for in the bill, were ordered. And the accounts taken and reported by the commissioner, brought the account of profits of the slaves down to the year 1809, inclusive ; at the end of which year, it appeared, that Leonard Walker would have received profits of the slaves held by him, to the amount of 2335 dollars, and Paup, for profits of the slaves held by him, 2059 dollars ; that the balance of the profits received by Jones in his lifetime, was 4256 dollars ; and that the balance of the profits received by Robinson, at the end of the year 1809, would be 3628 dollars.
    Upon this report coming in, chancellor Taylor, at June term 1809, — finding that a fund amply sufficient to meet all claims against the testator Walker’s estate, had been raised out of the profits of his slaves, the plaintiffs in this suit,— decreed, that they should all (except Lud) be free to all '^intents and purposes on the 1st January 1810, and that Lud should be free on the 1st January 1812 ; and that Robinson should execute proper deeds of emancipation to each and all of the plaintiffs, and should execute bonds to the justices of the county courts of the counties wherein the plaintiffs resided, respectively, for the maintenance of the young and the aged and such as were unsound in mind or body, out of the estate of Walker in his hands — liberty being reserved to the plaintiffs, or any of them, to resort to the court for a distribution of any surplus of the fund raised from their profits, which might remain after the debts due from Walker’s estate should be liquidated and fully discharged, or for any other arrangement in respect to such surplus.
    In this decree all parties acquiesced. Robinson in pursuance of it, executed the deeds of emancipation, .and gave bonds for the maintenance of such of the freedmen as might become chargeable ; and shortly after-wards died. Meantime, the suits of the creditors of Walker’s estate were still pending ; they were all strenuously contested by Robinson’s executors, and some of them with success. These suits were not finally determined till 1827. Such of the creditors as recovered judgments, were paid out of that part of the fund arising from the profits of the slaves, which had been reported to be in Robinson’s hands, and the interest thereon accrued ; and after paying all the debts, there was a surplus remaining.
    Whereupon, Mingo and others, the freedmen manumitted by the decree of June 1809, ■presented their petition to the chancellor, shewing that there was a surplus in thehands of Robinson’s executors; claiming this surplus ; and praying, that accounts might be directed to ascertain the amount thereof, and the proportions in which it ought to be distributed among the petitioners. Robinson’s executors made no objection; and the accounts were ordered accordingly.
    In the accounts taken and reported in pursuance of this order, Robinson’s executors, were charged with 3628 dollars, the balance of profits in his hands in 1809, and with *all interest thereon accrued, and credited for the debts adjudged against Walker’s estate ; and the uncontested balance in their hands, in December 1827, was 4815 dollars, principal and interest. And a scheme was reported for the distribution of this balance of profits among the freedmen who had earned them; those, namely, who-had been retained by Jones in 1795, and coming after Jones’s death to Robinson’s possession, had been hired out by him.
    But, before any other order had been taken upon the petition, the representatives of Leonard Walker the son, and of Paup the husband of Sarah the daughter, of the testator Walker (the original parties being now dead), exhibited a bill against Mingo and others, the freedmen, and Robinson’s executors ; wherein they claimed the whole balance in the hands of the executors; insisting, that the freedmen were not entitled to any part of their profits which accrued before their actual emancipation ; and that whatever balance might be now in the hands of Robinson’s executors on this account, and the balance likewise which had been ascertained to be due from the estate of Jones upon the account taken in 1809, appertained to the testator Walker’s estate, and not having been disposed of by his will, devolved to his distributees.
    
      The freedmen Mingo and others answered this bill, asserting their right to the money in question.
    And then Robinson’s executors (at the express instance of his distributees) insisted, that the money belonged neither to the freedmen nor to Walker’s distributees, but to Robinson’s own estate.
    The chancellor declared that the freedmen were entitled to the surplus of profits accrued before their actual manumission ; and, therefore, directed distribution among them, according to the scheme reported by the commissioner, of the balance of 481S dollars in the hands of Robinson’s executors; and dismissed the bill recently filed by the representatives of Paup and of H. Walker: but no order was taken as to the balances of profits reported in 1809 to be due *from the estate of Jones, from Paup, and from H. Walker, respectively. Prom this decree, Paup’s and Walker’s administrators, by petition to a judge of this court, prayed an appeal; which was allowed.
    The cause was argued here, by Johnson for the appellants, Spooner for the appellees Mingo and others, the freedmen, and Heigh for Robinson’s executors.
    
    I. Johnson argued, that the decree of June 1809, was erroneous in directing the manumission of the slaves of the testator Walker’s estate. The direction contained in his will, that his slaves should be emancipated by his executors after his affairs were settled and all his debts paid, was not an effectual instrument of emancipation, within the meaning of the statute, 1 Rev. Code, ch. Ill, § S3, p. 433. E'or, though prospective emancipations of slaves had been upheld, those were emancipations, so appointed to take effect at a certain time or on a certain event, as that when the right to freedom accrued, the slaves were emancipated by force of the will alone. Here, the period at which the manumission was designed, was altogether, uncertain ; and the actual manumission also depended on the discretion of the executors. It was only a delegation to them of the power to manumit. At any rate, the slaves were not entitled to emancipation until the affairs of the testator were settled and all his debts paid ; which (without the least suspicion of fraudulent procrastination) was not accomplished till 1827. Till then, the testator designed they should be held as slaves by his executor ; 'till then, they might justly, and ought to have been held as slaves by them : and so long as the executors' held them as slaves, they could not maintain any suit whatever against their owners; for only such persons unjustly held in *bondage, as are actually -entitled to freedom, can be allowed to sue their masters in forma pauperis, under the statute, 1 Rev. Code, ch. 124, § 4, p. 481.
    Spooner and Heigh said, they thought there could be no serious doubt, that the suit in forma pauperis brought by the slaves in 1805, with leave of the chancellor, was authorized by the statute concerning pauper suits ; and that the decree of June 1809, directing that these people should be manumitted, was entirely correct. But, supposing those proceedings were wrong, they maintained, that this court could not now examine and correct them. E'or the decree, so far, certainly, as it directed the manumission of the slaves, was final; and not the less so because it reserved liberty to them, to resort to the court for a distribution of any surplus of their profits ; Harvey v. Brans<on, 1 Heigh 108. E'rom this final decree, no appeal had ever been taken ; the decree had been acquiesced in, and executed ; and to any appeal from the decree now, the statute of limitatiou of appeals was a conclusive bar. Besides, in the bill exhibited by the appellants, they nowise contested that decree in respect to the manumission of the slaves ; they only claimed the surplus of profits, which, as they contended, were not thereby disposed of.
    ’ II. Spooner argued, very strenuously, that the slaves were entitled to the surplus of their own profits. He said, that the effect of the testator Walker’s will, was to give freedom to his slaves, subject only to the just claims of his creditors ; in which respect, this emancipation was nowise different from every other emancipation of slaves ; for, in every such case, the manumitted slaves were by law liable for debts. The first executor Jones, in fact, assented to the bequest of freedom to the slaves which after 1795 he retained in his own hands, some two or three years before his death, by permitting them to enjoy their own earnings ; and he was right in doing so ; for it was now certain, that the fund he had raised from the profits of the slaves retained by himself (independently of the profits of those he had *put into the possession of Paup and H- Walker), was much more than sufficient to pay all his testator’s debts. The fund which Jones had raised was 4206 dollars ; and a less sura, namely 3628 dollars, raised by Robinson afterwards, out of the profits of the same slaves to whom Jones before his death had given the rights of freemen, had proved not only sufficient to pay all the debts, but had left a large surplus ; and it was only this surplus, which the chancellor had distributed among the freedmen who had earned it. The slave retained by Jones in 1795, should be considered as having been actually emancipated from the time that he permitted them to enjoy their own earnings : it was not necessary to complete the manumission of them, that he should have given them deeds of emancipation ; the testator’s will was the instrument of emancipation; the executor had nothing to do but to liberate them ; Dunn v. Amey, 1 Heigh 465. When Robinson, after Jones’s death, took possession of these people, he took possession of persons who were, and of right ought to have been, freemen. He, indeed, did not intend any injustice : he was informed of large claims against Walker’s estate, which (if they were just), he knew these persons might have been sold to pay; and being ignorant whether those claims were ‘ just, or to what amount they were so, he resumed the rights of owner, only for the purpose of raising a fund out of the profits to pay the debts, with intent, as he declared in bis answer, to give them the benefit of the surplus ; so that, in truth, he constituted himself their trustee, and acted throughout with a view to their benefit ; in other words, he treated them as freedmen, In this point of view, he said, this case was altogether different from the common case of persons illegally held in bondage, recovering their freedom from the person holding them, and claiming to hold them, as slaves. In such case, it had been held, that profits accrued during the actual state of bondage, were not recoverable; which, to be sure, was hard enough. But Robinson took a very peculiar position ; that of trustee both for the creditors of Walker’s estate and for Walker's '"freedmen; trustee for the creditors to raise a fund equal to the satisfaction of their claims; and trustee for the freedmen (who were liable to be taken and sold for the debts) to raise the fund for the debts, out of their earnings, and to preserve the surplus of their profits, if any, for their own use. It would be most unreasonable to interdict, or to exempt, Robinson’s executors from doing what he intended, aid what was in itself at once benevolent and just. But he insisted, that this point also was determined and concluded by the decree of June 1809, in which the court, in effect, declared that the surplus of the profits belonged to the freedmen, by reserving liberty to them to apply to the court for distribution of it. The decree was as final and irreversible in respect to this point, as in respect fo the emancipation.
    Johnson answered, that if the decree of June 1809 was final as to the emancipation (indeed, he could not help wishing that it might be so regarded), it certainly was not final as to the surplus of profits; for the decree made no disposition of it; it did not adjudge it to the freedmen ; it only reserved liberty to them to ask it. Then, as to the right to the profits, he shewed, that, in fact, Jones never liberated the slaves of Walker’s estate, nor intended to do so; that he intended, as his duty required him, to hold them as slaves till the debts of his testator should be ascertained, and the affairs of his estate settled; that, if he gave them their own earnings, or any other money, or any other indulgence, he yet retained all his right of property in them, and it had been folly in him to relinquish it: that Robinson succeeded to the rights of Jones, as well as his duties, and acted on the same principles, he too holding these people as slaves, and taking the profits of them as property, till the chancellor directed him to manumit them : in short, that the actual manumission of the slaves was accomplished by the decree of June 1809, and the execution of the deeds of emancipation in pursuance of it. Such being the .state of facts, the claim of the freedmen to the surplus of profits could not be sustained. The course of adjudication, long ^before as well as since the case of Pleasants v. Pleasants, 2 Call 319, 342, 3, had been quite uniform on this point; and it must be regarded as the settled law, that persons illegally held in bondage recovering their freedom, are in no case entitled to recover profits : a rule which might, at the first view, seem hard and unjust, but if it was necessary, it were easy to shew, the considerations of justice and policy, and even humanity, on which it was founded. Much less were the freedmen, in this case, entitled to profits ; for they had been legally held in bondage, until the chancellor directed them to be liberated. Robinson’s intention to give these people the surplus of profits, is immaterial : the surplus of profits was not his own to dispose of; or, if it was, his executors were not bound to fulfil such his mere intention to give away this money, conceived, probably, under a mistake of law on the subject.
    III. Supposing the chancellor’s decree wrong in giving the surplus of profits to the freedmen, a question arose, between the representatives of Paup and of R. Walker and Robinson’s executors, whether the former were entitled to this money as distrib-utees of the testator Walker, or the latter entitled to hold it as part of Robinson’s own estate?
    On this point, Leigh argued, for Robinson’s executors, 1st, That as the subject in question was certainly nowise disposed of by Walker’s will, it devolved to his executors. The common law, without doubt, would have given it to them : the question was, whether the statute of distributions of 1785, had repealed the common law in this particular, and given the residuum of a testator’s estate, not otherwise disposed of *by his will, to his next of kin? In Shelton’s ex’ors v. Shelton, 1 Wash. 64, xiresident Pendleton suggested (for he did not intimate an opinion) that the statute of 1785 might have that effect ; that the words in the statute, or any part thereof, referred to, and directed distribution of, every thing that was not actually bequeathed in a will. But Green, J., in Wernick v. M’Murdo, 5 Rand. 78, controverted that suggestion, and shewed, that the right of an executor to the surplus stands on the same footing in Virginia as in England. But however this might he, he contended, 2ndly, That Walker’s distribu-tees were not entitled to the money in question : that Robinson, in holding Walker’s freed men as slaves, after having raised out of their profits a fund sufficient to pay the debts of that testator, must be regarded as a wrong-doer towards the freedmen, and towards them only — an unintentional wrongdoer, certainly, if there ever was one, for in the actual situation of the estate when he succeeded to the executorship, to have liberated them might have rendered him personally liable to the creditors, for a devastavit to the full amount of their value — but still he was a wrong-doer towards the freedmen only. He said, there was no principle on which Walker’s distributees could found a claim for money received by Robinson, in consequence of a tort 'committed by him toward the freedmen. The freedmen, but for the peculiar rule of law applicable to such cases, would be entitled to the profits accruing- from themselves while they were illegally held in bondage, — profits which accrued after they were entitled to freedom, but before it was adjudged to them : but the rule which exempted Robinson from accountability for the profits to them, did not give the profits to the distributees of Walker, the purpose of whose will was the emancipation of his slaves, subject only to the payment of his debts. The claim of Walker’s distribu-tees was, in effect, a claim to make the fruits of Robinson’s injustice towards his freedmen, a part of Walker’s estate.
    ^Johnson for the appellants,
    maintained, 1st, That president Pendleton’s suggestion as to the effect of the statute of distributions of 1785, was founded on the just construction of the statute; that the legislature, in providing that when a person should die intestate as to his goods and chattels or any part thereof, the estate should be distributed, intended to provide for the cases of entire and of partial intestacy, in the common acceptation of the phrase ; cases, namely, in which a decedent should leave no will, or should leave a will in which no disposition was made of part of his personalty ; not for cases of intestacy, in the technical sense in which a decedent was said to be intestate, only because, though he left a will, he had omitted to appoint an executor. 2ndjy, He adverted again to the will of the testator Walker, which directed that his slaves should be emancipated by his executors, “when his affairs were settled and all his debts were paid and, he said, the testator could not have intended, that the executors should raise out of the profits of the slaves, a fund barely sufficient to pay his debts, and then emancipate them ; for he must have known, that the amount of his debts was uncertain, and that his executors could form no estimate of them. He intended, then, that his executors should hold his slaves as slaves, until his affairs were settled, since, until then, it could not be known what would be the amount of 'debts to be paid. If upon the final settlement of his affairs, it should appear, that the profits of the slaves exceeded the amount of debts, that was a consequence arising from the uncertainty as to the debts, which he might naturally have anticipated ; and yet he did not direct his slaves to be emancipated, when a sufficient fund should be raised out of their profits to pay his debts,— but, when his affairs should be actually settled and all his debts actually paid. Robinson committed no wrong. It was his duty, undoubtedly, to retain the slaves, as he did; and it was as certainly his duty to contest claims against Walker’s estate, which he believed to be unjust; but he acted in both respects, not in his own right, but in his fiduciary character, *as executor of Walker. So long as he held the slaves, he held them as the property of his testator, and for his estate. Therefore, the surplus of profits eventually found in his hands, belonged to his testator’s distributees.
    
      
      Decrees — Cause Retained on Docket — Effect upon Finaiity of Decree. — In Nelson v. Jennings, 2 Pat. & H. 381, it is said, in Harvey v. Branson, 1 Leigh 108 (see also, foot-note to same case), a decree was rendered disposing of the whole subject, deciding all questions in controversy, ascertaining the rights of the parties and awarding costs, and a commissioner appointed to sell the property, to account for and pay the proceeds to the parties, with liberty to them to apply to the court to add other commissioners, and substitute new commissioners, or have a decree for a partition of the property directed to be sold. By the unanimous opinion of all the judges who sat in the cause it was held that the decree was final. The principle of this case was affirmed in the cases of Paup v. Mingo, 4 Leigh 163, and Thorntons v. Fitzhugh, 4 Leigh 209, in each of which cases the causes were retained on the docket, for further proceedings to be had therein showing clearly that the mere fact that the cause being retained in court and on the docket does not divest a decree of its finality.
      See monographic note on “Decrees” appended to Evans v. Spurgin, 11 Gratt. 615.
    
    
      
      Slaves — Suit for Freedom — Profits —On this question, the principal case is cited in foot-note to Peter v. Hargrave, 5 Gratt. 12; foot-note to Pleasants v. Pleasants, 2 Call 319; Elder v. Elder, 4 Leigh 259, 264; Osborne v. Taylor, 12 Gratt. 130.
    
    
      
      Same Same — Assent of Personal Representative.— The principal case is cited in foot-note to Ellis v. Jenny, 2 Rob. 597; Reid v. Blackstone, 14 Gratt. 366; Nicholas v. Burruss, 4 Leigh 297.
      § Wiiis — Residuum—To Whom ft Passes. — The principal case is cited va. foot-note to Shelton v. Shelton, 1 Wash. 53. See monographic note on “Wills”; mono-graphic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
    
      
      They had put in no answer to the hill filed hy the representatives of Paup and of L. Walker; hut, hy consent of counsel for all parties, it was agreed, that their claim to the subject should he now considered hy this court, and determined, as if they had put in their answer to that hill, asserting such claim. — Note in Original Edition.
    
    
      
      The statute of distributions of 1785, ch. 61, § 25,12 Hen. Stat. at large, p. 146, provided, that "when any person shall die intestate as to his goods and chattels, or any part thereof, after funeral debts and just expenses paid,” the estate shall be distributed among the next of kin. as therein directed. The words or any part thereof, were .first introduced into the statute of distributions by the a.ct of 1785, as may be seen by comparing it with the former statute on the subject; 1705, ch. 33, §2, 3, 3 Hen. Stat. at large, p. 371. The provision of the statute of 1785, has been ever since retained; 1 Rev. Code. ch. 104. § 29, p. 382. —Note in Original Edition.
    
   CARR, J.

A question was made in the argument, whether the will of the testator Walker was an effectual instrument of emancipation of his slaves ; but that question is not open for inquiry, unless the decree of June 1809, by which they were directed to be-manumitted, can be examined by the court. It certainly cannot: it was a final decree, from which no appeal was ever taken, and none can now be taken : and -if the decree were examinable as to the question of emancipation, the appellants have not raised it in their bill recently exhibited ; they there ask only the surplus of the profits. On the other hand, it was contended, that the right of the freedmen to this surplus, as well as their right to freedom, was adjudicated by the decree of 1809; but neither is there any foundation for this position. The .question comes before us, on the appeal from the last decree ; and we are now to decide to whom the surplus of profits belongs — shall the freedmen have it ? shall the executor retain it? or shall we decree it to the testator’s-next of kin ?

It was strongly contended for the freedmen, that this fund having been raised from their labours, after they were entitled to-their freedom, ought of right to go to them. There is much in this argument, which-addresses itself to our sense of justice, and to our feelings j, but unfortunately for them, the point has been irrevocably settled against them. Suits of this kind have been very frequent in Virginia, for more than a century past. There have been numerous cases of recovery of freedom by persons illegally held in bondage ; and in many of them, the violation of freedom has been gross and palpable, and the public feeling strongly on their side ; yet, in not one single case, have damages for the detention been given. In Pleasants v. Pleasants, the-chancellor *had allowed profits, contrary to the established rule; but this-court reversed his decree in that particular and the rule which denies profits in such cases, has been invariably followed ever since. Hard as the case may seem upon the freedmen, I for one, can never think, at this day, of breaking through this settled course and policy of the country.

Ret us next inquire, whether the executor shallretain this surplus, as a residuum undis-posed of. With respect to the influence of our statute of distributions on this question, my impression is, that the suggestion of president Pendleton, in Shelton v. Shelton, is correct. I believe too, it has from that time been taken as the law: I see that judge Roane, in delivering the opinion of the court in Hendren v. Colgin, 4 Munf. 235, takes it as a settled point. Vet, as it has been questioned by a brother judge in Wernick v. M’Murdo, as the point is very important, and there is now a bare court, and as the question before us may (as I think) without the aid of the statute, be easily settled by the long established doctrines of the law, I have thought it best to give no opinion on the construction of the statute.

By the common law, the whole personal estate devolved on the executor; and if after payment of debts, legacies, and other charges, a surplus remained, it vested in him beneficially. But this rule was considered to operate hardly ttpon the next of kin ; and, therefore, wherever it appeared, on the face of the will, either expressly or by sufficient implication, that the testator meant to confer on the executor, merely the office, and not the beneficial interest, equity interposed, and converted him into a trustee for the next of kin. President Pendleton, in Shelton v. Shelton, has shewn, with his usual ability, how, in the progress of this doctrine, variant and irreconcileable decisions took place, as different chancellors favored the legal, or the equitable, rule. Thus lord Thurlow laid it down, that the rule that the executor shall take the residue, must prevail, unless Lhere be an irresistible inference to the contrary; while lord Macclesfield *had held, that the next of kin have the apparent right, and there must be a devise of the surplus to the executors, either expressly, or by unavoidable implication, to exclude the next of kin: “An executor, he said, from his name, is but a trustee, he being to execute the testator’s will, and therefore called an executor.” I confess, I think the reason and justice of the case wholly with lord Macclesfield ; and though he has been thought to carry the doctrine a little too far, I think lie is in the main supported by the cases, especially the later ones. Thus, if there be a residuary clause, though the name of the legatee be left blank, and thus rendered in effectual; or, if there be a residuary legatee, and he die in the life of the testator ; or, if there be a particular legacy given to the executor; in all these cases, he is held to be a trustee for the residue. See the cases collected by Cox, in a note on Farrington v. Knightly, 1 P. Wins. 550, and Nourse v. Finch, 1 Ves. jun. 344 ; 2 Id. 78. It has also been decided, in numerous cases, that if one of several executors is made a trustee, for any particular purpose connected with his office, all shall be held trustees of the residue for the next of kin. In Urquhart v. King, 7 Ves. 225, a testatrix commenced her will by saying she intended to dispose of part of her personal estate : she then gave several legacies to relations of her deceased husband, residing in the U. States, and, after very particular directions as to those legacies &c. she concluded thus — “1 constitute and appoint the honorable Eufus King, minister plenipotentiary from the U. States, or such other person who at the time of my death shall be minister plenipotentiary from the U. States, to this kingdom, and Francis Gregor &c. executors of this my will.” She then by a codicil gave other legacies, specific and pecuniary, and made no disposition of the residue. The executors claimed it, beneficially, and the next of kin filed the bill against them : the only question was, whether the executors were trustees of the residue for the next of kin ? Sir W. Grant said, “It is true, at law, the appointment of an executor is. a gift of every thing not otherwise disposed *of. But, in equity, it is always a question of intention, whether he is entitled beneficially, or as a trustee ; and the question always arises upon the sufficiency of the evidence, by which the intention is made oul.” He proceeds to state it as settled law, that the leaving a legacy to an executor, raises a presumption, which, unless he can rebut it by evidence, makes him a trustee ; and adds —“In this case, the circumstances much more strongly indicate the real intention that the executors should not take beneficially, than a legacy would have done.” He then points out those circumstances ; among others, that the appointment of Mr. King was notin his individual capacity as a friend, but as minister — or such other person who at her death should be minister; and concludes, “It is evident, therefore, she meant to confer an office only ; and the intention is much more clear than it would be from the single circumstance of a trilling legacy to each :” and he decreed for the next of kin.

Bet us look now at the will before us, and see whether it is not most clear, that the testator intended to confer on his executors an office merely ; to constitute them trustees for the purposes of his will, and more especially, for the emancipation of his slaves. His property consisted of two parcels of land, stocks, furniture and slaves; arid, after giving his lands, stocks and furniture to his wife, son and daughter, follows the clause desiring that after his debts are paid, his slaves may be emancipated according to law : Adding, “I desire this may be done by Benjamin Jones and my brother David, whom I appoint executors” &c. Can any one fail to perceive, that this testator meant to dispose of, and in fact disposed of, every atom of property he had in the world; thereby evincing, as clearly as any residuary clause could do, that he meant to leave nothing to be taken by his executors ? Is it not most apparent, that, with respect to the emancipation of his slaves, and every measure necessary to effectuate that end, he constituted them trustees, without dreaming that they were to draw one cent of profit from *the execution of the trust? Could he have used any words of inhibition, however strong, that would have made this more clear ? Suppose he had left these two executors 100 dollars apiece ; would that have made it more manifest than it is now, that he did not intend to have his slaves hired ¡out beyond the period when a sufficient sum was raised to pay his debts, for the purpose of creating a fund to go into the pockets of his executors ? Assuredly, not. If it be said he had as little intention of creating a fund in this way for his next of kin, I agree to it fully ; but the same consequence does not follow to them as to the executors. Here is the money ; it is part of his estate undisposed of, raised by the error of the executors; to them we cannot give it: but it is different with the next of kin ; for (as lord Hardwicke says in Southcot v. Watson, 3 Atk. 231,) they “take by a kind of succession ab intestato, without the assistance of this court; and it is the law throws it upon them.”

CABEBB, J.

I am of opinion that the decree of June 1809, declaring the pauper plaintiffs free, was clearly final, and that, not having been appealed from, it is no longer examinable. If it were otherwise, and it were now regularly before us, I should think that it ought to be affirmed. But, I do not •think that the subject of the surplus profits of the freedmen, accrued before the date of the decree, was, in any manner, disposed of by it. It may, probably, be inferred, that the chancellor entértained an opinion that the freedmen were entitled to this surplus ; but he did not give to that opinion the form or character of a judicial decision. The right to them, therefore, is now properly before us, on the present appeal.

I consider it the settled law of this country, that a person held in slavery, no matter how long and unjustly, cannot recover damages in the form of profits, or otherwise, for his illegal detention in slavery. This being the settled law, I deem it unnecessary to inquire into its policy or abstract justice. I am not disposed to disturb it. The decree is erroneous in this particular.

*Nor do I think, that the executors are entitled to this surplus of profits. They cannot claim to hold it merely on the ground of having received it, provided any other person can shew a better title to it. While they held the slaves of Walker’s estate, they held them as fiduciaries, for the benefit of the estate ; and their reception of the profits followed the character of their ownership of the slaves themselves, and, consequently, was fiduciary also.

But it was contended, that the executors will be entitled to the hires, as a part of the surplus of the estate, after the payment of debts and legacies. And this brings on the question, whether executors, in this country, are entitled to such surplus, in any case whatever, since the statute of distributions of 178S. Before the passing of that statute, the law as to the surplus of an estate, after the payment of debts and legacies, was certainly the same here, as in England. President Pendleton, in Shelton v. Shelton, speaking of the principles which should govern the decisions on this subject, said— “There are two, which seem the ground work, and are fixed: 1st, a legal one — That the naming of an executor, is a disposition to him of all the personal estate ; and after payment of debts and legacies, the surplus belongs to him as a recompense for his labour and trouble. And if the spiritual court at this day, are about to compel the executors to distribute .the surplus to the next of kin, the king’s bench will grant a prohibition. 2ndly, A contending principle of equity, that where there is fraud in obtaining the executorship, or where it manifestly appears to have been the testator’s intention, that the executor should not have the surplus, a court of equity will consider the executor as a trustee only as to the surplus for the next of kin.” But, although these principles were fixed, much difficulty had been experienced in applying them to particular cases. What is to. be regarded as proof of the testator’s intention that the executor should not have the surplus ? This question perplexed the judges in almost every case. At first, they confined themselves to a few circumstances only, as affording this proof. But, afterwards, *“they branched (as president Pendle-ton expressed it) into other' considerations, which produced determinations, not to be reconciled, in principle, to each other, and which must be resolved into the different inclinations of the chancellors to favor, some the legal, others the equitable rule ; and to make the favored rule apply to the case before them.” And, I believe, it may be confidently affirmed, that no subject in the whole law, has given rise to more contradictory decisions, and that, consequently, none has been more fruitful of litigation. It was in this state of things, that our legislature passed the statute of 178S. Did it mean only to provide thereby, for those very few and rarely occurring cases of partial intestacy, mentioned by judge Green, in Wernick v. M’Murdo ; or, to put an end to the perpetual controversies between executors and the next of kin, as to the surplus after the payment of debts and legacies ? It seems to me absolutely certain, that the legislature, in using the terms, “intestate as to his goods and chattels, or any part thereof,” did not mean to apply them to a case of mere technical intestacy; to a case where a man, although he actually leave a will disposing of his whole estate, is, never-' theless, held to be intestate in law, because he has appointed no executor, or because the executor appointed, has refused to act. If the statute of 1785, were to apply to such a case, the consequence would be, that a man’s estate would be distributed among his next of kin, in opposition to his declared and written will to the contrary, if he failed to appoint an executor, or the -executor named died before him, or refused to qualify. Such a consequence was never contemplated, and would not be tolerated by the legislature. The statute can be applied only to cases, where a person has failed to declare by his will, expressly or by necessary implication, his intentions as to the disposition of his property ; to cases, where he has failed to make an actual bequest. But, then, it extends to every such failure, whether that failure be partial or total; for the language of the statute is, when a person dies intestate as to his goods and chattels, or any part ^thereof. When we advert to the numerous and contradictory decisions of the courts, and the evils consequent on such an unsettled state of the law, prior to the statute of 1785, and to its peculiar phraseology, (the words, or any part thereof, having then, for the first time, been introduced into our statute of distributions) I am constrained to believe, that the legislature had in view, this very case of the surplus after payment of debts and legacies, and intended to put an end, forever, to all controversies concerning it, by giving it, in all cases, to the next of kin. This was the opinion of this court (extrajudicially expressed, it is admitted) in Shelton v. Shelton, and of judge Coalter, in Wernick v. M’Murdo; and, indeed, I have never heard a different opinion expressed, by any person whatever, except by judge Green, in the last mentioned case.

TUCKER, P.

I consider the decree of June 1809 as concluding the right of the pauper plaintiffs to freedom. If that decree is erroneous (which I am not disposed to think it is) this court cannot, at this day, correct its errors, or even question its accuracy. It was the decision of a court of competent jurisdiction upon the matter in litigation, from which there was no appeal taken, and which cannot now be reversed : the matter has passed completely in rem adjudicatam. It is not only binding, but we must take it to be a correct decision, in proceeding to adjust the ulteriour pretensions of the parties growing out of it. I take it, therefore, as a postulate, that the freedmen, in this case, were justly entitled to their freedom in 1809, under the will of Walker ; and that it was properly decreed to them by the court of chancery.

But though, by that decree, the right to freedom was placed beyond question, the right io the profits was not so definitively settled, as seems to have been supposed by counsel. 'That the opinion of the chancellor may have been at that time made up, is very possible. But that opinion can have no influence, unless it has passed into the form of a *decree determining the rights of the parlies. From such a mere opinion, there could have been no appeal for the purpose of correcting its -errors ; a.nd it would be strange, that the party should be bound by it. without having power to have it corrected, if erroneous. Ira inierlocutory decrees, indeed, where the principles of a case are settled by the court, and ulteriour measures resting upon those principles are directed, an appeal will lie, because it may be necessary to arrest an expensive or dilatory course of proceeding, by striking at the principles of the decree out of which it is to grow. But here, the chancellor settled nothing as to^this point. He merely reserved to the plaintiffs, liberty to resort to the court, for distribution of any surplus remaining after the debts should be paid, or for any other arrangement in relation to such surplus. Surely, this is any thing but a decree for the surplus. Whether the whole profits might not be absorbed by debts, did not appear,' and therefore, whether Walker’s freedmen would ever get any thing, or his distributees lose any thing, it was impossible to say. Had Robinson, the executor, appealed from that order, and the whole amount been absorbed by debts, so as to have left no subject of controversy, the absurdity of such an appeal would have been manifested. Therefore, I think, we must consider the reservation, not as settling the rights of the parties definitively, but as merely providing for the mode of bringing them before the court for final adjudication, when the affairs of the estate should have been comp'eteiy wound up.

Considering the question of the profits as being open to inquiry, I think there is little difficulty in denying the correctness of the decree which has given them to the freedmen. No instance has ever occurred, I believe, in the history of our adjudications in these anomalous cases, in which profits or damages have been allowed to the claimants, as a compensation for detaining them in slavery. In Pleasants v. Pleasants, the demand was refused ; and for thirty years, this decision seems to have been so far acquiesced in, that *no such pre-tence is believed to have been since set up. It is too late, now, to make a precedent; and if it were not, there are many grave considerations which ought to be weighed before we should undertake to do so. It is, perhaps, difficult to say whence the opinion first arose, though it very probably originated in the nature of the suit or demand. Though its form was that of an action of assault and battery and false imprisonment, yet, in substance, it was always considered but as a fictitious action moulded by the courts for the purpose of trying the mere question of freedom. “Actions like the present” (said president Pendleton in Coleman v. Dick, 1 Wash. 233,) “are merely fictitious, and are very properly in this respect (as to number of parties joining) likened to actions of ejectment.” They are, in effect, to try the right, not to try the injury ; as the writ of right, at common law, settled the mere right, but never gave damages. The issue made up between the parties is upon the rig-ht to freedom only, not upon the quantum damriificatus, and still less upon any idea of contract, express or implied. There is no room for such an implication where one party is held by another in slavery. There is little reason for it, when we consider that the slave, in his birth and his infancy, has been a burden, and that if the master could have foreseen his emancipation and his demand for profits, he mighi have been altogether averse from incurring such a charge. Moreover, having held and enjoyed the slave as his own, and acted entirely on that supposition ; having spent the profits made by him daring a long course of years, in the confidence they were his own ; there is much reason for the application of the principles laid down by the court in Skyring v. Greenwood, 4 Barn. & Cres. 272, 10 Eng. C L R. 335. In that case, the paymaster of a corps had credited an officer with increased pay, which he was informed by the board of ordnance would not be allowed, but which information he did not communicate to ihe officer. The court refused to permit the paymaster to rectify the credit, by setting it off against *the officer’s demand: chief justice Abbott said, — “they suffered him to suppose, that he was entitled to the increased allowances. It is of great importance to any man, not to be led to suppose his income is greater than it really is. Every prudent man accommodates his mode of living to what he supposes to be his income ; it therefore works a great prejudice to any man, if after having credit given to him in account for certain sums, he may be called upon to pay them back.” The principle here avowed lies at the root of many of the doctrines of the law. Upon this ground, in part, no damages were given in droiturel actions ; upon this ground, even now, rents and profits can only be recovered for five years anteriour to the demand. Why 7 Not because they are presumed to have been paid, but because there ought to be some reasonable limit to a reclamation which might beggar a party, who, in good faith, had only spent and enjoyed what he believed to be his own. These principles apply a, fortiori to the demand of a pauper who has recovered his freedom. Held by his master as his own property, brought up at his expense in in fa ncy, sustained at his charges in sickness and in health ; treated, perhaps, with an indulgence, which would not have been extended to one whom he knew to be a hireling ; it would be ruinous, indeed, to many a master if these unexpected demands for profits were permitted or countenanced by the courts. While, therefore, it cannot be denied to be a hardship on the person illegally held in bondage, it is not improbable that the difficulty of doing complete justice, together with the policy of protecting the master from a demand he could not have expected, lay at the foundation of the practice now firmly established. From that practice, I shall not deviate, nor admit a single exception. The legislature by the statute concerning pauper suits, 1 Rev. Code, ch. 124, § 4, has prescribed the course to be pursued in suits for freedom. The statute gives the courts authority to permit the petitioner to sue in forma pauperis for the recovery of his freedom ; but it provides nothing as to damages or profits, *though the courts had uniformly denied them. I argued from hence, a legislative assent to the principles established by the general practice of the country ; and until a new law shall otherwise provide, I hold myself bound to adhere to that practice. 1 do not think it necessary, in addition to what I have said, to rely at all upon the proposition, that as no contract for profits can be implied, as they could only be recovered as damages for unlawful detention, there could be no such demand in equity. Yet this would of itself, perhaps, be a sufficient answer to such a demand in that court. Nor is it necessary to dilate on the particular character of the will, in this case, which does not direct the slaves to be hired out, and that when the debts should be paid out of their profits, they should be emancipated. It merely fixes upon the time when the affairs of the estate should be settled up and the debts paid, as the time for their eman-cipation. This has been settled by the former decree in the year 1809, at which time their title to freedom was consummate. The profits were, accordingly, received for the estate, and cannot be paid over to the freedmen, since they were not free, when the profits accrued. They derived their freedom, indeed, from the will; but it was not perfected until the execution of the power under the will by the executor.

The question as between the distributees and the executors of Walker next presents itself. Without again adverting to the language of the will, in this particular case, as decisive of the point that all the profits of these slaves until their actual emancipation, belonged to the estate, I will remark, that, as the executors came to the reception of these profits in their fiduciary character, they can have no title to retain them. The argument indeed, was most ingeniously and imposingly put — that the distributees had no pretence of right to the profits of these persons, who ought to have been in the enjoyment of their freedom; that, as profits are not recoverable by the plaintiffs in a pauper suit for freedom, the person who may chance to be the holder, will be entitled *to the benefit, and that Robinson, the executor, being the holder, and a wron g-doer, he was entitled to retain the profits remaining in his hands, because there is no other person who has a right to demand them. The defect of this argument consists, I think, in the omission to consider Robinson as holder, not for himself, but for the estate. Whatever incidental advantage might be derived from the possession of these people while held as slaves, belonged to the estate of his testator, since he had that possession only in a fiduciary character as representing that estate. An agent or overseer could not claim to retain the profits of a slave who recovered his freedom, though he may have actually received them, since his possession and his receipt of the profits, were not in his own right, but in right of another.

With respect to the question of the right of the executor to the residuum, I have always considered president Pendleton’s suggestion in Shelton v. Shelton, as perfectly correct. For more than forty years, it has been deemed the law in Virginia; and thousands of wills have been probably drawn with a conviction, that it was no longer necessary to give the executor a legacy, or in any other manner to provide for his exclusion from a right to the residuum. A law of property has thus grown up, which I think it would .be unwise to disturb, even if there were sound reasons for questioning the ' interpretation given to the statute by president Pendleton, and acquiesced in ever since by the legislature and the courts of justice.

1 Upon the whole, I am of opinion that Walker’s distributees are entitled to the fund which had arisen from the profits of the-slaves, so far as the same has been unex-hausted by debts, and that the decree must be reversed.

Decree reversed.  