
    Peggy and Mary v. Legg.
    Decided, Nov. 25th, 1818.
    i. Wills — Emancipation of Slaves Dependent on Condition Subsequent. — A testator, in tbe year 1790 bequeathed his slaves severally to his children, with a proviso, “that none of them be sold out of the families to whom devised; that, if offered for sale by any of them, out of the family of his wife, his daughter and sons, they be immediately liberated.” A son of the testator to whom a female slave was bequeathed, being in possession by virtue of the bequest, died intestate, and she came into the possession of a granddaughter, by whose husband a child of the said slave was sold to a stranger, to be carried out of Virginia. It was decided that a right to freedom did not thereby accrue.
    This was a suit for freedom in behalf of Peggy and Mary, filed against the appel-lee, in Loudoun County Court. It was removed, by consent, to the Superior Court of law, where a case was agreed, shewing the following facts.
    Peggy was the daughter of Lucy, a slave who belonged to William Carr, whose will, dated in January 1790, was proved in the County Court of Prince William in 1791; the testator having departed this life in Nov. 1790.
    After bequeathing Lucy to his son John Carr, he added; “My will and desire is, that the negroes bequeathed to my dear children should remain with my dear Wife during her life, unless he should marry: in that case, my will and desire is, that my slaves should go immediately to those to whom they are devised, and that none of them be sold out of the families to whom devised ; if offered for sale, by any of them, out of the family of my wife, my daughter and sons, that they be immediately liberated, and I do hereby desire they may be free to all intents and purposes.”
    John Carr, under the devise, had possession of Lucy, of whom, while in his possession, Peggy was born. He died intestate, and Margaret Tebbs, daughter of Betsy Tebbs who was thei testator’s daughter, came into possession of Peggy. Margaret Tebbs married Thomas Triplett who sold Peggy to Nathaniel Legg, (a stranger *not connected with the Carr family,) on condition that he would take her out of Virginia.
    On these facts, the case was submitted to the Court, which gave judgment for the defendant. The plaintiffs appealed.
    Gilmer for the appellants.
    There must be a venire de novo as to the child Mary; for it is not found in the case agreed whether she was sold to Legg, or not, or whether she was born before, or since the sale of her mother. If she was herself sold, or was born since the sale, she is entitled to freedom; otherwise not.
    But, as to Peggy, the Court may proceed to judgment, though the case agreed be insufficient as to Mary. The question then is, whether Peggy is entitled? If her case were subject to the law concerning bequests of chattels on remote contingencies, I should ask a venire de novo in her case also; for it is not found whether Lucy (her mother) is yet dead, or whether the contingency happened within 21 years after her death. But bequests of freedom to slaves are not subject to such restrictions,  By the . common law, -when we adopted it, all men were free. It is in violation of the common law that they are slaves. It is vain therefore to appeal to it to support an authority to which it is repugnant throughout. The right to emancipate by Will is given by Act of Assembly. And here is a Will, emancipating, on a condition which has actually happened. There must be overpowering arguments, to take away this double confirmed natural right; the right to be free, and the right to bequeath.
    It may be said, that the condition was repugnant to the bequest to the testator’s children. But this case is not like Bradley v. Peixoto, 3 Vesey jr. 324, or King v. Burchell, Ambl. 379; for the condition does not prohibit alienation altogether, as in those cases; the members of the family may alienate the slaves to each other, and each may alienate, to the slaves, by emancipating. If then the testator could alienate them in that manner; if he could, in Pleasants v. Pleasants, annex to the bequest a condition binding the legatees to give them freedom in a certain event; what shall invalidate this condition? The ^reason of the doctrine against restraints upon alienation, is to favour the legatee : this operates equally in favour of the slaves; for after the condition happens, they become objects of the testator’s' bounty, and then the condition should be construed favourably for them.
    A condition not to alienate except to particular persons, is good,  This condition, therefore, is not repugnant to the estate; and, if it were, it would still be good; for the law allows the destruction of an estate in slaves.
    ^Neither is this came within the meaning or policy of the laws against perpetuities. A perpetuity is defined in Stanley v. Leigh, 2 P. Wms. 688, and Washborn v. Downes, Cases in Ch. 213, to be “the limiting of an estate in such manner, as would render it unalienable longer than for a life, or lives, in being at the same time, and some short or reasonable time after. According to this definition, the condition annexed to the bequest of these slaves does not create a perpetuity; for (as I stated before,) the restriction is not complete; but alienation is permitted, to persons of the same family, or to the slaves themselves. Here is no restraint of family setlements ; nor of commerce; for the restriction in the Will is only upon voluntary, not compulsory, sales; and the law allows slaves, actually emancipated, to be sold for debts contracted before emancipation, 
    
    Ho Counsel appeared for the appellee.
    
      
      Emancipation of Slaves — Condition Subsequent. — In Forward v. Thamer, 9 Gratt. 539, it is said: “It was within the power of the testator, either to keep his slaves in a state of slavery, or to emancipate them. If he had bequeathed them as slaves, he could annex no valid condition subsequent, which would be repugnant to the state of slavery. Peggy and Mary v. Legg, 6 Munf. 229; Rucker v. Gilbert, 3 Leigh 8; Wynn v. Carrell, 2 Gratt. 227. So if he emancipated them, he could annex no condition subsequent, repugnant to the freedom conferred. Parks v. Hewlett, 9 Leigh 511; Judge Green’s opinion in Isaac v. West, 6 Rand. 652; Fulton v. Shaw, 4 Rand. 597; Commonwealth v. Fowler. 4 Call 35.” The principal case is also cited in Wood v. Humphreys. 12 Gratt. 354, 355. See further, on this subject, foot-note to Osborne v. Taylor, 12 Gratt. 117.
    
    
      
       Pleasants v. Pleasants, 2 Call 347.
    
    
      
       2 Huberus, title 13, c. 14; Pothier, 121: 35 Dig. ti. 1. b. 3.
    
    
      
       Doe v. Pearson, 6 East 180; 1 Bac. Abr. 647.
    
    
      
       5 Bac. Abr. 809.
    
    
      
       Edit. of 1794, 1803 and '14, c. 103, s. 37.
    
   .November 25th 1818, the Court affirmed the Judgment.  