
    
      Ellis v. Jenny and Others.
    January, 1844,
    Richmond.
    Slaves — Emancipation — Rights of Issue* — Case Followed. — The decision in Maria and others v. Sur-baugh, 2 Rand. 228, still adhered to.
    In 1792 the will of William Clarke was duly admitted to record, whereby he devised and bequeathed as follows:
    “Touching such wordly estate as it has pleased God to bless me with, I give and devise in the manner and form following, to wit: Imprimis, I give and bequeath to my loving wife Ann Clarke my land and plantation whereon I now live; also I give to my said wife, Huey, Charles, Jenny and Rhoda, together with all my stock of horses, cattle, hogs ' and sheep, together with my household and kitchen furniture; all the above to her during her life. X give to William Clarke, son of my brother Edward Clarke, after the death of my wife, the abovementioned plantation, to him and his heirs forever. My desire is that the above-mentioned negroes, as they arrive at lawful age (after my wife’s death), shall have their freedom ; and if the said Charles should not be of age at my wife’s death, my desire is that my brother Edward Clarke have the said Charles until he arrives to the age of twenty-one years; also my desire is that if the said Jenny and Rhoda should not be of age at my wife’s death, that Benjamin Lennard have the said Jenny and Rhoda until they arrive to the age of twenty-one years. My desire is that my negro woman Rachael be sold for the payment of my debts. Also my desire is that at my wife’s death all my estate, except land and negroes, be divided between my sister Sarah Bowry and Elizabeth Lennard daughter of Benjamin Lennard.”
    598 *The will concluded with the appointment of an executrix and executor, and they qualified as such.
    In Eebruary or March 1833, the widow died. At her death there were living various descendants of Lucy, Jenny and Rhoda, born after the testator died. In a suit in chancery between the next of kin of the testator, a decree was made upon the principle that he died intestate as to the descendants so born between the time of his death and the death of his widow, under which decree a division was made.
    A bill of injunction was afterwards filed in the circuit court of Charles City, by Jenny and other descendants, suing in forma pauperis lor their freedom, against John Ellis and the other next of kin, some of whom it was alleged were about to remove some of the plaintiffs out of the commonwealth.
    The plaintiffs contended that the will bestowed on Lucy, Jenny and Rhoda an immediate right to freedom, though it postponed the enjoyment thereof until they should respectively attain the age of 21 years, and until the death of the tenant for life: and they claimed that all the descendants of the said Lucy, Jenny and Rhoda, born after this right to freedom was given, and before the time of its enjoyment, were free also. The circuit court was of opinion that this claim was well founded, and, by a decree made the 13th of July 1843, declared the plaintiffs entitled to their freedom.
    Erom which decree, on the petition of Ellis, an appeal was allowed.
    The cause was argued by Taylor and Leigh for the appellant, and by Robert G. Scott for the appellees.
    For the appellant it was contended that this case was like that of Maria and others v. Surbaugh, 2 Rand. 228, which had been since adhered to in Crawford v. Moses, 10 Leigh 277, and Henry v. Bradford, 1 Rob. S3, and the principle of which is confirmed by de-599 cisions in *Tennessee, Kentucky and Maryland, as appears by M’Cutchen and others v. Marshall and others, 8 Peters 220. For the appellees it was insisted, that, taking the whole will together, this case was distinguishable from Maria and others v. Surbaugh, and that it fell more properly within the principle of Isaac v. West’s ex’or, 6 Rand. 6S2. The subsequent cases of Elder v. Elder’s ex’or, 4 Leigh 2S2, Erskine v. Henry and wife and others, 9 Leigh 188, and Anderson’s ex’ors v. Anderson, 11 Leigh 616, were also relied on.
    
      
      SIaves — Emancipation—Rights of Issue. — The principal case is cited in Wood v. Humphreys, 12 Gratt. 334, to the point that where a female slave is entitled to freedom in futuro, her increase, horn while she continues in servitude, are slaves.
      This was the decision in Maria v. Surbaugh, 2 Rand. 228, which has been recognized and confirmed in many subsequent cases. Isaac v. West, 6 Rand. 652; Erskine v. Henry, 9 Leigh 188; Crawford v. Moses, 10 Leigh 277; Anderson v. Anderson, 11 Leigh 616; Henry v. Bradford, 1 Rob. 53; Ellis v. Jenny, 2 Rob. 597; Osborne v. Taylor, 12 Gratt. 117. The principal case is cited for this proposition in Taylor v. Cullins, 12 Gratt. 398; Wood v. Humphreys, 12 Gratt. 346. See foot-note to Osborne v. Taylor, 12 Gratt. 117.
      Same - Same — Consent of Personal Representative Withheld — Equity Jurisdiction. — The principal case is cited in Reid v. Blackstone, 14 Gratt. 366, for the proposition that the equity has jurisdiction, where a personal representative improperly withholds his assent to the freedom of slaves emancipated by will, or retains possession of them longer than is necessary. See also, Patty v. Colin, 1 Hen. & M. 519; Dempsey v. Lawrence, Gilm. 333 ; Dunn v. Amey, 1 Leigh 465; Paup v. Mingo, 4 Leigh 163; Anderson v. Anderson, 11 Leigh 616; Peter v. Hargrave, 5 Gratt. 12; Jincey v. Winfield, 9 Gratt. 708. See foot-note to Peter v. Hargrave, 5 Gratt. 12.
    
   CABELL, P.

The court is of opinion that this case is not distinguishable from that of Maria & others v. Surbaugh. The decree is therefore reversed, and the bill dismissed.

BROOKE, J,

I entirely concur in the opinion delivered by the president for the whole court, that this case comes within the rule which governed the case of Maria & others v. Surbaugh. But as that rule has been sometimes questioned, I shall make some remarks upon it.

The rule is, that the issue shall follow the condition of the mother;, a rule taken from the civil law, and adopted by one of our early statutes. The application of the rule in Maria & others v. Surbaugh was to the condition of the mother at the time the issue were born, and not to her prospective condition when she should arrive at the age of thirty-one years, at which period she was to be free. At the birth of the issue she was a slave to all intents and Í purposes. That was the condition the \ issue were to follow. To have extended to ' the issue the future condition of the mother would have been to place them in a condition the mother might never attain, as she might die before she arrived at the age of thirty-one, or she might be sold for the debts of the testator, and might never be free. *The application of the rule by the court to the actual condition ' of the mother at the birth of the issue \ avoided these contingencies, and was more ; humane as regarded the issue. There was I no legal obligation on the master to take care of the issue, especially in cases in : which the mother might be set free at an early age, and before he could be compensated by their labour for the expense of raising them. The property in a slave did : not give the right to the master to create ! a new status of slavery unknown to the law. I differ with justice Thompson in j what he says on this subject in his opinion in the case of M’Cutchen & others v. Mar-j shall & others, 8 Peters 220, in which case I the rule and application of it in Maria & others v. Surbaugh was followed. He says, that as a general proposition, it would seem a little extraordinary to contend that the owner of property is not at liberty to renounce his right to it, either absolutely or in a modified manner, as he may think proper: that as between the owner and his slave, it would require the most explicit prohibition by law. . All this is undeniable as regards his property: but his slave would still be a slave, unless he was authorized by law to manumit him, by renouncing all property in him.' I think it one of the highest acts of sovereignty to exalt a slave into the rank of a freeman, as I have before said in one of these cases. It is true that at an early period there was a law prohibiting persons to emancipate their slaves. But it is not to be inferred that the right existed before. As soon as the mischief was felt, it was corrected by law. That maxim of the law, sic utere tuo ut alienum non tedas, forbade it, until afterwards the legislature pointed out the mode of emancipation ; which unfortunately has not been pursued according to its terms, or the cases of prospective emancipation would never have existed.  