
    *Reids Adm’r v. Blackstone & als.
    April Term, 1858,
    Richmond.
    Wilis — Precatory Words —Case at Bar. — Testator gives his whole estate, including lands, slaves, bonds, &c., to hiá nephew R. of Pittsburg. And then in a postscript he says, “I wish you to take the negroes to Pennsylvania where they will be free.” He appointed no executor, but B. qualified as administrator with the will annexed,
    i. Same-Same — 'Trust.—Quaere: If the will creates a trust in favor of the negroes,
    a. Same — Emancipation of Slaves — Duty of Adminis** trator. — if the negroes are entitled to their freedom, they cannot maintain an action at law for its recovery against B. the administrator; his duty is to deliver them to R.
    3. Same — Same—Right of Slave to Action at Law against Executor. — Slaves emancipated by will cannot maintain an action at law against the executor to recover their freedom, without proving the assent of the executor to the bequest.
    This was an action at law for freedom, in the Circuit court of Fairfax county, brought by the appellees against the appellant. The case is stated in the opinion of Judge Moncure.
    The Attorney General, for the appellant.
    Lawrence B. Taylor, for the appellees.
    
      
      Trust — Precatory Words. — There has been considerable fluctuation of judicial opinion of late years as to the doctrine of implying a trust on words of recommendation, entreaty, hope, etc. 2 Min. Inst. (4th Ed.) 250. The modern tendency seems to be to abandon the rule that, in the interpretation of wills, words of hope, recommendation, etc., prima facie, create a trust (4 Va. Law Reg. 545), and to give such recommendatory expressions their natural, ordinary, and familiar sense, and, having arrived at the intention of the testator, to let that intention, if lawful, be the rule of decision in the particular case. 2 Min. Inst. (4th Ed.) 251; note to Harrisons v. Harrison, 2 Gratt. 1, 44 Am. Dec. 377; Crump v. Redd, 6 Gratt. 372.
      In 4 Va. Law Reg. 545, it is said: “In Harrisons v. Harrison, 2 Gratt. 1, the language of the will was: ‘In the utmost confidence in my wife, I leave to her all my worldly goods, to sell or to keep for distribution amongst our dear children, as she may think proper. My whole estate, real and personal, are left in fee simple to her; only requesting her to make an equal distribution amongst our heirs.’ This was held to constitute a trust, carrying a life-estate only to the widow, with remainder in trust for the children of the marriage. Brooke, J., dissented, holding that no trust was created.
      “In Rhett v. Mason, 18 Gratt. 541, where the gift was to the wife for life, ‘for her maintenance and support and for the maintenance and support of our children,’ it was held that no trust was created for the children, but that the language, ‘for the maintenance and support of our children,’ was a mere expression of the motive of the gift. Moncure, P., in delivering the opinion, quotes, with apparent approval, the dissenting'opinion of Brooke, J., in Harrisons v. Harrison. The decision in Rhett v. Mason (supra) has been followed by a long line of Virginia cases, among the last of which is Fackler v. Berry, 93 Va. 565, 25 S. E. Rep. 887 (2 Va. Law Reg. 531, and note)."
      
      As to the effect of the words, “for the sole and separate use of herself and child or children,” on a gift to the wife, see foot-note to Leake v. Benson, 29 Gratt. 153, and cases collected; foot-note to Rhett v. Mason, 18 Gratt. 541, and cases collected.
      See also, on the subject of precatory trusts, an extensive note collecting the authorities appended to Harrisons v. Harrison, 44 Am. Dec. 365.
      Same — Same—Case at Bar. — Hon. John Randolph Tucker, who was counsel for the administrator in the principal case, narrates its subsequent history in a letter published in 2 Va. Law Reg. 231. He says: “The slaves filed a bill in equity, making the administrator and tbe legatee parties thereto. The court (Judge John W. Tyler) decided iu their favor, and decreed against tbe legatee in favor of tbe trust for emancipation. Tbe administrator and legatee appealed, and tbe question, free from all technical obstructions, was presented by me, on application for appeal, with full argument. The court refused to grant an appeal; so that tbe unanimous court held that tbe will clearly created a trust for emancipation. * * * This case is one where all the qualities required of precatory words in order to their validity are found to concur — certainty of object, of subject, and of purpose. Tbe use of tbe word ‘wish,’ which usually expresses only desire, is coupled with tbe summons of tbe legatee, as it were, to tbe presence of tbe testator, with tbe admonitory prefix, ‘N. B.’; and the statement presents tbe whole rationale of tbe testamentary disposal, in selecting as legatee a nonresident of Virginia, and a resident of a free state, to which, if slaves were taken, freedom would result.
      “Despite tbe late tendency in England, stated in Lambe v. Eames, L. R., 6 Ch. App. 597, by Lord Justice James, and followed in other decisions, cited and commented on in Brett’s L. C. Eq. 13, this decision in the Reid will case would be held valid. Tbe refusal of tbe appeal excluded all doubt in tbe mind of tbe court on tbe case, and was acquiesced in by my client, Judge Thomas and myself, as a sound decision, and valid as authority in Virginia.”
    
    
      
      Wills — Emancipation—Right of Slave to Action at Law against Executor.—See Nicholas v. Burruss, 4 Leigh 289; Manns v. Givens, 7 Leigh 716, 717: Anderson v. Anderson, 11 Leigh 622.
    
   MONCURF), J.,

delivered the opinion of the court:

This is a supersedeas to a judgment of the Circuit court of Fairfax, in a suit for freedom, brought by Joseph Blackstone and two others against Henry W. Thomas, adm’r de bonis non with the will annexed of Patrick J. Reid. The jury found in a special verdict, that the said Reid died in the county of Fairfax, having first made his will, which, after his death, to wit, on the 16th of February 1852, was duty admitted to record in the County court of said county, and is in the words and figures following, viz:

*uIn the name of God, amen. I will and bequeath to my nephew John Reid of Pittsburg all that I die possessed of, land, negroes, bonds, cash, horses and cows and household furniture. If Barney Reid is living or any other of my relations, I wish him to divide equally among them.
P. J. Reid,
Nov. 15, 1851. From the county of Austin, Ireland.
N. B.--I wish you to take the negroes to Penn’a, where they will be free.
P. J. Ried.”

That the plaintiffs were negro slaves of said P. J. Reid at the time of his death, and are now held in slavery by the defendant, and have been so held since the death of said Reid. And if upon the whole matter so found, it should seem to the court that the issue was for the plaintiffs, then tile jury found for them, and assessed the damages of each of them at fifty dollars. But if it should seem to the court that the issue was for the defendant, then the jury found for him.

The court rendered judgment on the said verdict for the plaintiffs; and the defendant obtained a. supersedeas.

In the petition for the supersedeas, the first and main error assigned in the judgment is, that upon a true construction of the will of P. J. Reid, the plaintiffs were not entitled to their freedom. The question raised by this assignment of error is discussed at great length, in the petition and in the printed arguments of the counsel on both sides ; and many authorities, pro and con, are therein cited. But in the view which this court takes of the case, it will be unnecessary and would be improper now to decide that question. Two other grounds of error in the judgment are relied on, which are thus stated in the petition.

“1st. The administrator or defendant never assented x'to the bequest of emancipation, and an action at law could not be brought. Nor did it aj)pear by the special verdict that there were no debts, for which the negroes, though emancipated, might not be liable.

2d. The will, if it emancipated, did not require the administrator to grant it. The devise is to John Reid in trust for emancipation. It was the administrator’s duty to hand them over to the legatee; and a court of equity could alone execute the trust reposed in him. An action at law does not lie under the will against the administrator.”

These two grounds of error, in proper order, first present themselves for our consideration ; and i f they or either of them be well assigned, there is an end of the case. We think they are both well assigned.

As to the 1st. While the statute declares, that “Any person may emancipate anj' of his slaves by last will in writing, or by deed, recorded in the court of his county or corporation” (Code, ch. 103, $ 9), it also declares, that ‘ ‘all slaves emancipated as aforesaid shall be liable for any debt contracted by the person emancipating them, before such emancipation is made.” (Id. | 11.) The slaves of a testator emancipated by his will, are a part of his assets, which his personal representative is entitled to receive, and bound to apply if necessary to the payment of his debts. They cannot recover their freedom of the personal representative in an action at law, without proving his assent to their emancipation. Tucker, P., in Nicholas v. Burruss, 4 Leigh 289, 295; Anderson’s ex’ors v. Anderson, 11 Id. 616; 2 Lomax Ex’ors 236-238, new edition. He has a right to withhold his assent until he can ascertain that they will not be required for the payment of debts. If he improperly withhold his assent, or retain possession of them longer than is necessary, they are not without remedy, but may obtain relief by a suit in equity. That a court of equity had * jurisdiction in such a case before the enactment of the Code, is well settled by authority. 2 Lomax Ex’ors 338; Patty, &c. v. Colin, &c., 1 Hen. & Munf. 519; Dempsey v. Lawrence, Gilm. 333; Dunn v. Amey, 1 Leigh 465; Paup’s adm’r v. Mingo, 4 Leigh 163; Anderson’s ex’ors v. Anderson, 11 Id. 616; Ellis v. Jenny, 2 Rob. R. 597; Peter v. Hargrave, 5 Gratt. 12; Jincey v. Winfield’s adm’r, 9 Id. 708. There is no material difference between the old and the new law in regard to the remedy of persons unlawfully detained in slavery, as may be seen by comparing 1 Rev. Code, ch. 124, $ 4, 5, 6, 7 and 8, with the Code, ch. 106. The same reason exists under the new law as existed under the old for the jurisdiction of a court of equity in such cases ; and the authorities above cited are as applicable to the former as they were to the latter. No suit can be maintained, either at law or in equity, for the recovery of freedom, unless it has been conferred in the mode prescribed by law. And the suit must always be brought at law, when there is no impediment to the legal remedy. But the legal remedy may sometimes be obstructed; as where an executor improperly withholds his assent to the emancipation; and then the aid of a court of equity may be invoked to prevent a failure of justice. There can be no right without a remedy; and wherever the law gives a right, it gives by implication, if not expressly, such remedies as may be necessary to recover that right. On this principle the cases before cited depend. And on the same principle it has been held, and is well settled, that emancipated slaves may propound for probate the deed or will conferring their right to freedom. 2 Lom. Ex’ors 337; Redford’s adm’r v. Peggy, 6 Rand. 316; Manns v. Givens, 7 Leigh 689; Phœbe v. Baggess, 1 Gratt. 129; Ben Mercer v. Kelso’s adm’r, 4 Id. 106.

The assent of the defendant 1o the emancipation of the plaintiffs being necessary to maintain this action, *and no such assent having been found in the special verdict, the judgment must for that cause be reversed. In Nicholas v. Burruss, 4 Leigh 289, there was a demurrer to evidence, and the court inferred the assent of the executor from the evidence set out in the demurrer. In this case, even if there had been a demurrer to evidence instead of a special verdict, nothing appears from which such assent could have been inferred. But upon a special verdict, the court cannot infer other facts from those found by the jury. 1 Rob. Pr. 372-3, and the cases cited. In the case of Lemon v. Reynolds, 5 Munf. 552, there was a special verdict, in which it does not appear that the assent of the defendant was found, though the substance only of the verdict is set out in the report. The only question litigated in that case was as to the validity of an emancipation conferred by a will accidentally destroyed in the testator’s lifetime, but of which a copy was admitted to probate after his death. No question appears to have been raised, either in the court below or in this court, in regard to the assent of the defendant, who indeed had no counsel in this court. The case occurred in 1817, long before the necessity for proof of an executor’s assent to an emancipation conferred by the will of his testator, in. an action at law for freedom, had been settled, or even considered, by this court. It cannot be regarded as an authority to show that such proof in such an action is unnecessary, or that the fact may be inferred from a special verdict which finds nothing on the subject. In Hunter v. Humphreys, ante, p. 287, the action was not against the personal representative of the testator under whose will freedom was claimed by the plaintiff, but against the personal representative of a person claiming as legatee under the will. Proof of the former’s assent was therefore unnecessary.

As to the second of the two grounds of error last ^assigned. The devise of the testator’s whole estate, including negroes, is to his nephew John Reid: and whether it be to him in his own right, or as trustee in whole or in part, he alone can maintain an action at law for the estate, or any part of it. He is entitled to receive the whole estate, or so much of it as may remain after the payment of debts and expenses of administration. If the will creates a valid trust in regard to any part of the subject, and there should be a breach of trust, or any reasonable ground for apprehending one, the parties injured or likely to be injured thereby, can obtain relief in a court of equity. The negroes, if emancipated at all, are emancipated by means of such a trust. But whether they are so emancipated or not, is a question which it would be premature now to decide, and which can only be decided in a suit between proper parties. Whether an action at law could be maintained bjr them against John Reid, after he shall have received possession of them, is also a question which it is unnecessary, and would be improper, now to decide.

We think the judgment must be reversed.

Judgment reversed.  