
    *Walthall's Ex’or v. Robertson and Others.
    June, 1830.
    (Absent Coai/teb and Oabjbli,, j.)
    Will-Construction — Emancipation of Slaves — Case at Bar — Testator, by will in 1819. bequeaths and provides— “If it be agreeable to tlie laws of this state Virginia, that alter death of my wile, it is my will, that the following slaves owned by me, viz. Joan &c. shall, as soon as they attain the age 31 years, bo freed: and X appoint my friends J. M. and E. H. IX. trustees for the liberation of said slaves, and for them to make the necessary application to court, on said slaves’ behalf, both as to their freedom and their remaining in the state. If the laws of the state be against such procedure, then my will is, that said slaves be eon ally divided among my children &c. ” Iíkijd, upon construction of this will, that it was not testator’s intention to emancipate these slaves, unless by change of law they might be permitted to remain as free persons in Virginia; and as by the law at date of will and of testator’s death, and at death of his widow, these slaves, if emancipated, could not be allowed to remain in Virginia, they are not entitled to their freedom, but pass to testator’s children.
    Rrancis Walthall, late of Buckingham, who died in 1819, by his last will and testament, duly made, published and recorded, devised and bequeathed his whole estate to his wife Marjr for her life; and that after her death, the whole estate, excepting specific legacies afterwards bequeathed, should be sold by his executors, and the proceeds divided among six of his grandchildren named in the will. And after sundry specific legacies of slaves, he bequeathed and provided as follows: “Item, if it be agreeable to the laws of this state, Virginia, in which I live, that after the death of my said wife Mary, it is my will and desire, that the following slaves owned by me, viz. Joan senior, Gary, Jack, Tom and Peter, shall as soon as they attain the age of thirty-one years, shall be freed; and I appoint my friends J. Morris and L. H. Hendrick, trustees for the liberation of said slaves, and for them to make the necessary application to court on their the said slaves’ behalf, both as to their freedom and their remaining in the state. If the laws of the state be against such procedure, then my will and desire is, that the said slaves shall be equally divided among my children *who shall be living at the time and the heirs of those that be dead.’’
    It appeared that the testator himself was an illiterate man, perhaps unable to write; for instead of signing his name to his will, he made his mark.
    The testator’s widow being dead, and the slaves Joan, Gary, Jack, Tom and Peter, having all, before her death, attained to the age of thirty-one years; the testator’s children and grandchildren exhibited their bill against Morris, the executor, in the county court of Buckingham in chancery, insisting, that under the testator’s will,, and according to the laws of Virginia at the time of his death and of the death of his widow, these slaves were not entitled to their freedom; and praying a decree that the executor should divide them among the testator’s children and descendants. The executor in his answer, insisted, that the plaintiffs were not entitled to the slaves, and that they were entitled to their freedom ; and submitted this question to the court.
    The county court was of opinion, that the slaves were not entitled to their freedom ; and decreed a division of them among the plaintiffs. The executor appealed to the superiour court of chancery of Richmond, which affirmed the decree: and then he appealed to this court.
    Leigh for the appellant.
    The law of Virginia, as it stood at the time of the testator’s death, and as it continued and stood till and at the death of his widow, author-ised any owner of slaves to emancipate them by will; providing, however, that if an3>- emancipated slave, being of full age, should remain in the commonwealth, more than twelve months after his right to freedom accrued, such freedman should be sold into slavery again, by the overseers of the poor; unless the freedman had been emancipated for some act of extraordinary merit, in which case the county court, upon his application, and on satisfactory proof of the act of merit for which he was emancipated, and of his general good character and conduct, was empowered to grant him *leave to remain in the state. I Rev. Code, ch. Ill, $ S3, 61, 62, pp. 433, 6, 7. The principal object of the testator here, was, to emancipate these persons, at his wife’s death, if the laws should continue to allow of emancipation at that time: if it should be agreeable to the law of Virginia, his will and desire was, that, after his wife’s death, and their attaining to the age of thirty-one, respectively, they should be freed. But he intended them another subordinate benefit; that leave should, if practicable, be obtained for them to remain in the state. The main design which was lawful, ought not to be sacrificed to the subordinate one, which turned out, in the event, to be unlawful, and therefore impracticable; for it must be admitted, that these slaves, not having been emancipated for any acts of merit, the county court had no power to give them leave to remain here. But the legislature had such power, and has often exercised it. It was only in case “the laws of the state should be against such procedure,” that these persons were not to be emancipated, and were bequeathed to the testator’s children and their descendants. If the laws should be against what procedure? Against the emancipation, which was the main procedure; not against their remaining in the state, which was a subordinate object; not against the asking leave for them to remain, of the county court, which- was only the form and manner of procedure for obtaining that subordinate object.
    Daniel for the appellees.
    As the laws of the state, at the time the testator made his will, authorising him to emancipate his slaves, gave them the benefit of the act of manumission on condition of their leaving the state, his reference to the state of the law on the subject, which should exist at the time of his wife’s death and the slaves’ attainment to thirty-one years of age, clearly evinces his knowledge that the law, as it stood in his own time, would not allow his object to be accomplished, and that he looked to a possible or probable change of the laws, which would give effect to his purpose. What object was it, which required a change of *the law to give it effect? The manumission of these slaves, with the right of remaining and enjoying freedom in Virginia. Their freedom and their residence here, were purposes so blended in his mind as to make one in-tire purpose. The procedure of emancipating slaves upon condition of their leaving the state, was one which it required no change of the laws to allow: the procedure of emancipating slaves to remain here, could only be allowed by a. change of the policy and the laws of the state, which might or might not take .place, in the interval between his own death and that of his wife. This consideration explains the import of those words of condition-, “if it be agreeable to the law of the state,” and “if the laws of the state be against such procedure;” which are correlative and alternative conditions, both looking to such a change of^he laws, as should allow of the accomplishment of the testator’s whole purpose, namely, the emancipation of these slaves to reside in Virginia.
   CARE, J.

It is an observation as trite as it is true, that, in construing a will, we are to look to the whole and to every part, in order to ascertain what the testator meant by any clause, sentence or expression. We are to inquire, what this testator meant in that clause of his will, which relates to the freedom of these five slaves. Did he mean, that they should be free, provided the laws, at the period appointed by him, should allow them to be free, and if not, that they should pass to his children? Or did he mean, that they should remain slaves, and pass to his children, unless the laws would permit both their freedom and residence in the state? The chancellor thought he meant the latter. I cannot concur with him. It is evident to me, that these slaves did not enter into the arrangement of his property, which the testator was making among his descendants. It is fair to conclude too, that they were favourites, as they were selected from among his slaves. Reasoning a priori, we should hardly suppose, that the testator who wished to confer the boon of freedom on his slave, would make that dependent *on his residence in this or that quarter of the globe. But all reasoning of this kind must yield to the actual expression of his will. Bet us analyze the words to ascertain what that is. “If it be agreeable to the laws, it is my will, that after the death of my wife &c. my slaves Joan &c. shall, as soon as they attain the age of thirty-one, be freed.” Here is a clear, definite, complete purpose expressed; the freedom of these slaves, after the death of his wife, as they attained to thirty-one, if the laws would permit. Is this purpose afterwards changed? “And I appoint my friends J. M. and E. H. H. trustees for the liberation of said slaves:” this, so far from changing, provides the means for effecting his purpose; he appoints trustees for the liberation of the slaves. “And for them to make the necessary application to court, both as to their freedom, and their remaining in the state.” Do these words indicate any change of the purpose? Not to my mind. They prove still farther, the solicitude of the testator as to the object in view. They are means employed to insure the end, the freedom of the slaves. He was an ignorant, illiterate man: he had an idea, that some application to court was necessarj’ as to their freedom: he directs his trustees to make this: and wishing still further to provide for their comfort, he directs his friends also to make the application to court necessary for their remaining in the state. It is clear to my mind, that this last application was never meant by the testator, in restraint of the freedom before given ; that he had no idea of saying that their freedom should depend on obtaining permission for them to remain in the state. Both the words he has used, and the reason of the thing, forbid this. They are to make application, in behalf of the slaves, “both as to their freedom, and their remaining;” shewing that, in the testator’s mind, they were two distinct and independent things; the freedom first, the residence afterwards. And this is true too, on the law of the case: no application for remaining in the state, could be made to the court, but for slaves already freed. The testator proceeds, ‘ ‘If the laws of the state be against this procedure:” what *procedure? I answer, the freeing his slaves. He had just before said, if it be agreeable to the laws of the state, I wish these slaves to be freed, and had provided the means to secure their freedom; then he adds, if the laws of the. state be against the procedure, then I give them to my children. Do we not see here, clearly, each alternative? If the laws will suffer it, I free these slaves; if they will not suffer it, I give them to my children.

GREEN, J.

The only question in this case, is, Whether the testator intended, that the slaves in question should be freed (to use his own expression) upon his wife’s death, at all events, unless the law in force when that happened, should prohibit emancipation upon any terms? or that they should be freed, only in the event, that the laws should then permit emancipation, and those emancipated to remain in the state, by leave of the courts or otherwise? This last was the construction adopted by both the courts below, and, I think, the correct one. The expression “if the laws of Virginia be against the said procedure,” refers to all which the testator had directed to be done, both to the emancipation of the slaves, and procuring permission to them to remain in the state, for which purposes trustees were appointed.

The laws in force when the will was made, permitted emancipation, but imposed upon those emancipated, the condition of leaving the state within a twelve month after their right to freedom accrued, or if infants, after they attained their age, under the penalty of being sold as slaves by the overseers of the poor, unless they were permitted to remain by an order of a county or corporation court, in cases in which the emancipation was founded upon the extraordinary merit of the slave, and the court was satisfied by proofs of his general good conduct and character. In the exercise of this power, the courts had a considerable latitude of discretion, which was restrained by the act of 1819, which was passed a few months before, and which was to take effect a few months after, this will was made, by the requisition that *the act of extraordinary merit, for which the slave was emancipated should be stated in the record. These laws, or at least those in force when he made his will, were obviously in the mind of the testator, and dictated the provision under consideration. He could hardly have doubted, but that, at his wife’s death, the laws would allow emancipation upon some terms; but he might very reasonably have doubted, whether they would allow the courts to give leave to the slaves he wished to emancipate, to remain in the state, or not. If they should, he desired to emancipate them ; if not, to distribute them amongst his children. Under these laws, no court has power to permit the slaves in question, if emancipated, to remain in the state, for they are not suggested to have done any act of extraordinary merit. I think the decree should be affirmed.

BROOKE, P., concurred with GREEN, J., and the decree was affirmed.  