
    Mathias Mahorner vs. William D. Hooe et al.
    The general doctrine, that the disposition of personal or movable property by succession and testaments, is regulated by the law of the domicil, through comity, is undoubtedly true -, yet the rule is not of universal application ; it ceases whenever the law of the domicil is repugnant to the established policy of the state in which it is sought to be enforced ; and this, whether it be a law of contracts or a law of property.
    No foreign law, by mere rule of comity, can be allowed to counteract a general prohibitory law, which regulates the policy of a state, or in which all the citizens of a state are interested. With regard to mere enabling laws, or laws which regulate successions in a manner differing from the law of the domicil, comity may require that they should yield, as nothing but individual rights are affected, which may well be held to yield to the general benefits resulting from national comity.
    No special interdiction is necessary to exclude the lex domicilii; its exclusion may result from general laws declaring public policy, as well as from special laws, framed for that purpose. Courts in this country have not the power to declare policy, except as it may be indicated by direct legislation, or result from the spirit and object of statutes. 4
    
    H. domiciled in Yirginia by last will and testament made in that state in th* year 1844, directed the emancipation of certain of his slaves in this state, and that they should be sent to Africa; his will also contained a similar provision for his slaves in Yirginia ; by the law of Yirginia, this disposition of the slaves is valid ; by the act of 1842 of the state of Mississippi, it is provided, “ that hereafter it shall not be lawful for any person, by last will or testament, to make any devise or bequest of any slave or slaves for the purposes of emancipation, or to direct that any slave or slaves shall be removed from this state for the purposes of emancipation elsewhere.” (Acts' of 1842, p. 69, § 11.) Held, that the will of H. was inoperative as to the slaves in this state ; that it contravened the public policy of the state, as declared by the law of 1842; and therefore was not embraced in the general rule of comity regulating the law of the domicil.
    The provision in the constitution of Mississippi (since changed), which prohibited the introduction of slaves into this state for sale or as merchandise, did not establish a policy for this state inconsistent with that provided for by the law of 1842, which prohibited the emancipation of slaves, or their being sent out of the state ; it might have been good policy to exclude slaves, and also to retain those in the state.
    It is true as a general principle, that an illegal bequest or devise defeats all dependent bequests subsidiary to and inseparable from it, and which would otherwise be valid ; yet if any portion of the alleged illegal bequest, on which the others depend, be valid and capable of execution, the dependent bequests will not fail of necessity.
    Where, therefore, H., by his will directed his slaves in Virginia and Mississippi to be emancipated and sent to Liberia, and in another clause of his will directed his lands in Virginia, Alabama and Mississippi to be sold, and the proceeds of sale to constitute a general fund for the transportation and payment of all his slaves, as well those in Virginia as in Mississippi; and ordered, that if there was any surplus of the money arising from the sales of the land left, after sending the slaves to Liberia and paying them, it should be equally divided between M. and G. ; and the emancipation of the slaves in Mississippi was declared by the court to be void, as being contrary to the policy of the state ; it was held, that by the will, the lands in Virginia, Alabama and Mississippi had been converted into money ; of which M. and G. were the special residuary legatees, of what should remain after the removal and payment of the slaves ; and that the fact, that the emancipation of the slaves in Mississippi had been declared void, did not while the emancipation of those in Virginia remained valid, affect the rights of these special residuary legatees of that fund ; but was merely an accidental circumstance which swelled their residuum.
    Mr. Justice Clayton, concurring in all other respects with the opinion of the court, considered, that as the bequest in regard to the emancipation of the || slaves in this state failed, the fund provided to carry out the testator’s intention in that particular, sunk into the general residuum of his estate, and did not constitute a portion of that surplus which was directed specially to go to M. and G.
    On appeal from the district chancery court at Columbus, Mississippi; Hon. Henry Dickinson, vice-chancellor.
    William D. Hooe and Nathaniel H. Harrison, the latter an infant by his father, and next friend William A. Harrison, both of the state of Virginia, filed their bill on the —■ day of-•, A..D., —-, in the vice chancery court at Columbus, in this state, in which they set forth, that Nathaniel H. Hooe, late of King George county, Virginia, the father of the one, and the grandfather of the other complainant, died in the summer of the year 1844, possessed of large real and personal property both in Virginia and this state. That he made his will, of date May 17th,. 1844, which, on the 7th day of November, 1844, was admitted to probate in King George’s county, and on or about the 16th of February, 1845, was also admitted to probate in Noxu-bee county, in this state, at the instance of Mathias Homer, the executor named in the will, and who was made defendant to the bill; and to whom letters testamentary were granted without bond. A copy of the will was exhibited with the bill. [As the points made on the will cannot be so well understood by an abstract of the will, as from the will itself, the entire will, which is short, is published.] The will was in these words :
    
      “ In the Name of God, Amen. I Nathaniel Harris Hooe, of Forest Hill, King George County, and State of Yirgia. being of sound mind and disposing memory (for which I thank God,) and calling to mind the uncertainty of human life, and being desirous to dispose of such worldly estate as it has pleased God to bless me with, I bestow it in manner and form as follows, to wit:
    lsi Item. My Will is that my Executors hereinafter named, dispose of my perishable Estate in King George County only, (excepting such as they may deem necessary to retain on the different plantations for the supplies of the slaves and use of the plantations, until the plantations are sold as is hereinafter directed,) on a credit they may deem best, taking bonds and security of the buyers"; pay all my just debts, of which I know of none in this State but the debt due with James D. Thomas to Sebastion’s Estate for wood, and the annuity of f 100 to my sister Hansbrough; Also pay all the debts due at my Death by my poor son William D. Hooe.
    
      2nd Item. As my son William Daingerfield Hooe lacks the gift of managing property, and refuses to be controlled or advised by me, What Interest can I take in him, on whom all culture is thrown away ? Why should I cherish him % He is too feeble to support my increasing age. What I lay out on him, I lay out to utter loss, and expend it without even receiving empty thanks. I forget his deficiences only to remember his birth, and will make the following conditional provision for him. I loan to him, William D. Hooe, if he lives on it, for and during his life, That portion of my Pine Hill Estate embraced within the following bounds, Beginning at my line near Mrs. Rollens’s western gate on the main road leading to Fredericksburg, Thence westerly as the road runs to a red oak formerly used as a gate post in Clift’s line, Thence Northerly with Clift’s and James Arnold’s lines to D. Lewis’s line where formerly stood an old Heckry corner to Arnold, and the Pine Hill lands, Thence with Lewis’s line Easterly, to Bernard’s Corner, Thence, with Bernard’s and Rollins’s lines southerly to the beginning road and gate. Also Jim Pick and his wife Rachel, Carpenter Moses, Anthony, hired now to Charles Tayloe, Letty, Black Patty, and old Sarah now at Tetotum, and Fanny now in his possession : Also three hundred dollars a year for and during his life, The three hundred to be collected by my Executors, as the Interest will fall due on the Debt of $5,000 oo due me by Coin John Hooe of Prince William Cty, and paid over to William D. Hooe regularly; which debt, may at the discretion of my Executors remain in the hands of John Hooe if he pays the interest regularly in advance for the life time of William D. Hooe. Now, it must be understood that the above devise to William D. Hooe is contingent, and upon this express condition and no other, That he William D. Hooe yield up, and surrender to my Executors, all the slaves I loaned him and their increase, that are o.r may be in his possession at my death, except old Fanny above mentioned. The delivery of the slaves to my Extors to be disposed of as hereinafter directed, must be before he Wm. D. Hooe receive the first annuity, he having sold none of the negroes after my Death. Now if William D. Hooe complies with the conditions in this my will, He may dispose of and will at his death to any, or all of his children, that part of my Pine Hill estate within the boundaries mentioned above; Also the five thousand dollars due me by John Hooe, and the eight negroes above mentioned ; But if he the said Wm. D. Hooe refuse to abide by the above devises to him, and fails to give up my slaves to my Executors, Then and in that case, I do hereby make void all and each of my devises to him, and will give to Wm. D. Hooe in lieu thereof fifty Dollars, and no more to be paid by my Executors, and the Pine Hill Land mentioned for him ; the $5,000 oo Due by John Hooe, and the eight negroes mentioned above, my Executors are to hold and dispose of as the other lands, slaves and money are hereinafter directed.
    
      3rd Item. I give to my Grandson Nathaniel Hooe Harrison, when he arrives at the age of twenty one years, my Gold watch. If he be living, and if he be dead to Elizabeth Mahor-ner, Noxubee Cty, Misspi.' The said Elizabeth to wear the watch until the said Nathl. comes to that age. I also give to my grandson Nathl. all the lands, and the moneys and the ne-groes, the Accounts, and the goods mixed of whatever kind that his Father William A. Harrison has purloined, and cheated me out off while he was in my confidence and trust. I further give to him all his Father’s kind letters which he wrote me from 1831 to 1839, with all the bills, answers, Depositions, &c, which are exhibits in the suits between us; this devise is made as far as my rights go and no farther; Here the sin of the Father is visited on the child for which I hope to be pardoned in the world I must shortly go, to be judged of according to my deeds done in this.
    
      4¿h Item. I will that ten thousand dollars may be put at Interest in sums not exceeding five thousand dollars on unincum-bered good lands, or laid out in six per cent Yirginia State stock, at the discretion of my Ex’ors, or good bonds due me retained of the above amount, and the interest accruing regularly collected, as far as necessary, be applied to the contingent expenses of Boarding, Clothing, and Educating of my natural Daughter Elizabeth Magee, Daughter of Susan Magee now living on my Neck Quarter Estate, and when she Elizabeth Magee comes to lawful age or marry, then all the interest that may have accrued beyond her supplies during her minority must be paid over to her; Also the yearly interest that may and will accrue on the $10,000 — for and during her life. And the ten thousand dollars she Elizabeth may will at her death, as she may be pleased, to her children if any, and my Extors are requested then to collect the ten thousand dollars and pay it over according to her Will, and if she Elizabeth have no children then living, Then and in that case the interest of the $10,000 may go and descend to her sister Sewez Magee, and if they, Elizabeth Magee, and Sewez Magee, have no children living at their deaths, then the money devised to them must be collected by my Ex’ors and equally divided among the living children of Mary Ann Yeatman now of Baltimore, as they come of age or marry. I also loan to Elizabeth Magee her life two sections of my Texas land scrip, to be willed by her to her issue as she may please at her death, and to be under the above reservations and restrictions. I give in fee simple to Elizabeth Magee my one sixth interest (bought of George Hudson) in the negroes held by Mrs. James Wramy her life. It is particularly requested of my Ex’ors that Elizabeth and Sewez Magee be educated generously in Baltimore or Philadelphia and kept at good boarding.
    
      5th Item. I loan to my Natural daughter Sewez Magee same mother, Ten thousand dollars in money or good bonds due me, also two sections of my Texas land scrip under the same limitations, reservations and restrictions as in the above and fourth clause, in this my will, saving that the mother Susan Magee, must be paid thirty dollars yearly from the interest for her child’s support as long as it remains necessarily with her, and then Susan Magee shall receive twenty dollars of the interest arising from this devise during her life after Sewez is removed to be educated as above.
    
      6til Item. I give forever to Matthias Mahorner now my agent in Mississippi, Noxubee County, my six eighths of land in section eight, also three eighths in section 17, and one eighth in section 20, Township 14, R. 18; Also six eighths in section 27, also five eighths in section 28, two eighths in section 35; All my rights in section 34, all my rights in section 33, all my rights in section 32, and all my rights in section 31, all lying and being in Township 14, Range 18, Noxubee County, Misspi: Also my -t in section 2, § in section 4, four eighths in section 5, and § in section 6 — Township 13, range 18, same County and State, being forty-one eighths of land, If I gain the suits against Wm. A. Harrison depending in the Chancery Court at Columbus ; also four sections of my Texas land scrip, to be taken by lot; Also eleven hundred dollars Texas Government funded debt, taken by R. M. Forbes for Fielding Lewis, who paid my money for it. The interest of this funded debt is reserved for twenty one years to meet the payment of the Taxes on all the lands I purchased in Texas, but if this fund falls short of paying the taxes as I intend, Then the said M. Mahorner must pay them from the portion of estate I have given him; But if any of my legatees at any time take possession of their Texas land it will be by allotment, and each person as they receive it must pay the tax on it. I further give to Matthias Mahorner, the one half of all the ready money he may have in his care, and the one half of all the debts due me in the states of Mississippi and Alabama, including judgments, bonds and accts subject to the payment of all my just debts due in either of the aforesaid states of which I know of but $800 oo. And further I give to him the said Mahor-ner, one half the cotton crops growing or on hand, or that may hereafter be made during the stay of my slaves under his care preparatory to their removal to Africa, which' must be within three years next succeeding my death, with all the other crops of corn, &c, and all my stocks of every kind including mules, horses, jackass, cattle, hogs, sheep, wagons, ploughs, gearing, tools, iron anc^ mixed property of every kind, subject to be kept together for the easy and profitable management of the farm, and well feeding and clothing of my slaves so long as they remain under his care. I further give to the said Matthias Ma-horner forever, the following named slaves, Henry and wife Nancy now at Tetotum, Ellis and wife Winny, Robin and wife Aggy Cook.
    
      7 th Item. I give to John Yeatman, oldest son of Mary Ann and John W. Yeatman, of Baltimore, two sections of my Texas lands and two thousand dollars, when he comes of age, the interest of said sum to be paid him yearly, to aid hitn in getting an education. The balance of my Texas lands I give to Mary Ann Yeatman’s children equally, and five hundred dollars each, as they come of age or marry. The interest of the $500 may be paid them yearly, to aid them in getting educated.
    
      8th Item. I will that the balance of my lands in the state of Misspi. not devised, say seven eighths in Octibaha Cty, also the Quarter section formerly owned by Dtr. Craig, and lately purchased in, Also my three eighths of land lying in Fox Trap prairie, Nuxubee Cty : Also my lands in Alabama, Pick-ens Cty, when title can be made, be sold by my Ex’ors Matthias Mahorner, to the highest bidder, he, Mahorner, making title when paid for; also my lands in King George Cty, Yirginia, (by my Ex’ors in this County) that is to say, my Forest Hill estate, where I now reside; Also my neck Quarter estate; Also my Tetotum estate, also the balance of my Pine Hill estate, not embraced in the contingent devise to Wm. D. Hooe, also eight acres of land near Sjd. Massey’s house that was allotted to Dade Massey, Be all sold by my Ex’ors in this Cty to suit purchasers, so as to raise the most money, and to bear Interest till paid. The money arising from the sales of the above lands, and all other collections of money due by bond or other assets, to be deposited in the Yirginia Bank at Fred-ericksburg by my Ex’ors in this state, and Matthias Mahorner, my Ex’or in Misspi, making his Deposite of that half of the money in his hands now, and the half of *the money arising from the moneys due by bonds, &c., and also the half of the amount arising'from the cotton he may make and sell after laying in the reasonable supplies for himself and slaves, also the money arising from the sales of land he is directed to sell, and collect, In the Bank of Mobile or at New Orleans, at his discretion, subject to his order, or my Ex’ors hereinafter named should he be dead, and for purposes mentioned in the 10th Item.
    
      9th Item. I give to my man Willis and his son George Henry, when they start for Africa, one hundred dollars each, besides a full share with the others of my slaves, for their better conduct. To old Lymous and his sister Sharlotte, old Ambrose at Teto-tum, and old Sally at the Neck, I give to them their freedom as far as I can, and the tenement where Oliver now lives near Edge Hill, to live on during their lives, and to be fed and clothed by my Ex’ors during their lives, and a cow to milk, Miller Joshua and his wife Alice, if she is my property, to remain at the mill until it is sold, and to receive ten dollars a year and clothed, and after the mill is sold to have the same privileges as the above named Lymous, &c.
    
      10th Item. I do by this my last will emancipate and set free to all intents and purposes, all my slaves in Tirginia, King Ceo. Cty, excepting those designated by name in devises; and those set free to be sent to Africa by my Executors, and their expences paid out of any moneys under their controul which may have arisen from the sales of land or collections from debts, &c., and my Ex’ors may keep, at their discretion, as many slaves on the farms, until-the farms are sold, to save and keep the farms from going to waste, and employ an overseer to keep order among the slaves until they can be shipped to Africa. I do further emancipate and set free to all intents and purposes, all my slaves in the possession of William D. Hooe which I loaned him, If he yields them up to my Ex’ors when.called for, to be kept and used by my Exors as the above are directed and restricted, and when a part of the slaves, or all of them, are sent to Africa, to each and every head of a family, on their landing and discharge, to be paid twenty five dollars, and to adults having no families ten dollars, and to each of my slaves I give decent clothing before they start for their home in Africa. I do also emancipate and set free to all intents and purposes, each and every one of my slaves in the state of Mississippi, now under the controul and management of Matthias Mahorner, in Noxubee County, to be under the same restrictions of being retained for a short time, to be cloathed, &c., as above directed, before starting for Africa, I also do emancipate and set free to all intents and purposes, all my slaves and their increase, that I loaned to William A. Harrison, (and for them I took his receipt, but unfortunately lost it) If I recover them of him' who resists my claim to them, and if I recover they are to be under the same restrictions and reservations, of those above mentioned, in the care of Matthias Mahorner, my Ex’or, and my Ex’ors to defray the expences of transporting my slaves to Africa, and paying them, are authorised to use any money that may come to their hand from the sale of my lands herein directed to be sold, or from the collections of money due me by bond or otherwise. Having made ample provision for the transportation and payment of my slaves in Africa, should there be a surplus left of money, It may be equally divided between Matthias Mahorner, my Ex’or, and John Yeatman above mentioned, and should there be a deficiency of money to carry out my design of emancipating m'y slaves, then the slaves that may be under the care of Matthias Mahorner, may be retained on my cotton farms three or four years to make up the deficiency of money lacking, should Blacksmith Bill, Billy Monroe, and Bill Beverly, be unwilling to go with the others of my slaves to Africa, they may be sold by my Ex’ors to the highest bidder, and the money arising from their sale be assets in my Ex’ors hands.
    
      11th Item. Now if there should be any difficulty in construing this my last will in devises and bequests herein contained, for any cause whatever, I do hereby empower and authorise my executors hereinafter named, to make and execute any Instrument of writing that may be deemed necessary to remedy any defect in this my last will, and carry my intentions and meaning in every respect into its full and complete effect.
    
      12th. Lastly. I constitute and appoint my friends Matthias Mahorner of Noxubee County, Misspi. Dtr. Abram B. Hooe, Barnsfield, and Daniel Coakley of King Geo. Cty, my nephew Arthur H. Bernard, Mr. ■ Gurley of the District of Columbia, executors to this my last will and testament, revoking all other wills by me heretofore made, and it is my wish and will that no security be required of Matthias Mahorner, either by the probate Court in Noxubee County, Misspi, or in King George County Court, nor of either of my Ex’ors named and qualifying as such. In testimony hereof, I, Nathaniel Harris Hooe, hath hereunto set my hand and affixed my seal, this 17th day of May, A. D. 1844.
    Nathl. H. Hooe. [seal.]
    My hand writing being so generally known I deem it unnecessary to call in witnesses to this my preceding will.
    Nathl. H. Hooe.
    
      
      At a Court of Quarterly Sessions, begun and held for King George County, on the 7th of November, 1844.
    A Writing, purporting to be the last will and testament of Nathaniel H. Hooe, dec’d, was produced in Court, and there being no subscribing witnesses thereto, Solomon J. S. Brown and William E. Stuart were sworn, and severally deposed that they are well acquainted with the testator’s hand writing, and verily believe the said writing and the name thereto subscribed, to be wholly written by the testator’s own hand; whereupon the said writing was ordered to be recorded as the true last will and testament of Nathaniel H. Hooe, deceased. And on motion of Daniel Coalriey, one of the Executors named in the said will, who took the oath of an Executor, and entered into and acknowledged a bond in the penalty of one- hundred and fifty thousand dollars, conditioned as the law directs; certificate was granted him for obtaining a probate of the said will in due form — the said testator requesting that no security should be required of his Executors. And on motion of R. R. Gurley, another Executor named in the said will, who took the oath of an Executor, and together with Thomas B. B. Baber and Edward T. Tayloe, his securities, entered into and acknowledged a bond in the penalty of one hundred thousand dollars, conditioned as the law directs; certificate was also granted him for obtaining a probate of the said will in due form.
    
      Test, S. J. S. Beown, Clk.
    
    
      State of Virginia, King George County, to wit:
    
    I, Solomon J. S. Bro wn, Clerk of the Court of the said County of King George, in the State aforesaid, do hereby certify, that the foregoing is a true copy from the records of my office.
    In testimony whereof, I hereto set my hand and annex [seal.] the seal of the said Court, this 8th day of January, 1845, in the 69th year of the Commonwealth.
    S. J. S. Beown.”
    The bill further avers that the complainants are the only heirs at law of the testator, who possessed at the time of his death one hundred and fifty slaves in Noxubee county, in this state, in the care of the defendant Mahorner; which slaves, by the 10th item of his will, he ordered to be emancipated and sent to Africa. The bill avers that this clause in the will was void, as being contrary to the law and policy of the state, and the slaves consequently descended to the complainants, as heirs at law. That for the purpose of carrying into execution this void bequest, the testator had directed the executor, in this state, to sell the lands of the testator, in this state and Alabama, as mentioned in the 8th item of the will, and apply the money arising from their sale to the emancipation and removal to Africa of the slaves. The bill charges that this portion of the will, for like reasons is void, and the lands thus ordered to be sold descend to the complainants as heirs at law. That the testator further directed his executor to appropriate other means of his estate to accomplish the same illegal end, and to make certain dispositions thereof for that purpose, all of which dispositions of the will the' bill charges to be void, as contrary to the law and policy of the state; and insists that, as to the property thus disposed of by the will, the testator died intestate.
    
    The bill proceeds to detail the course of the defendant Ma-horner, in the control and management of the testator’s property thus left to his charge; which, for the proper understanding of the opinion of the court, need not be detailed. It further charges that the defendant Mahorner, although the estate was amply able to carry into effect the devises in the will touching the emancipation of the s aves, tvithoul selling the real estate, was proceeding to, and would sell the lands of the testator in this state, unless restrained, and would use the rents, issues, and profits of the lands and slaves, to carry out the illegal and void devises; that he had already accumulated large sums of money from the labor of the slaves, sale of cotton, and other sources enumerated, which he would ex; end in carrying out these devices, and that Mahorner was asserting claims to portion of the property, and its proceeds, inconsistent with complainants’ rights, and was not a fit person to have charge of the slaves and other property. Much of the bill is taken up with charges on the subject of Mahorner’s unfitness for the office of executor, the danger to the property in his hands of loss; and his unwillingness and inability to give security. The prayer of the bill is for an injunction to restrain Mahorner from proceeding to carry out these illegal devises and trusts; from removing, or taking any steps to renr.ve, the slaves, or any of them, from this state to Africa, or elsewhere; from selling or disposing of the lands directed by the will to be sold; from raising or applying any means of the testator for the emancipation of the slaves, or in furtherance of the illegal devises and trusts, and from executing any of those illegal devises and trusts. The bill prays also for an account; that the will may be declared void as to the illegal devises complained of; and that the complainants, as heirs at law, may take the property in the same manner as if the testator had died intestate, as to it; or for other relief. The injunction was granted by Yice-Chancellor Dickinson.
    The answer of Mahorner admits the principal allegations of the bill, as to the execution of the will and the possession by him of the property; and submits to the court the questions as to the will on the points complained of, and his own rights under it; denying, however, that if the obnoxious clauses in the will are void, the complainants, if the testator’s intention is to prevail, can reap any advantage therefrom; but the slaves, as property would, under the will, go to himself and Yeatman; and this point he also submits to the court. He states his intention is, if allowed by the court to carry into effect the testator’s will, as to the lands devised to be sold, and the slaves to be emancipated; and he submits to the court whether, if the clause emancipating the slaves be void, it at all affects his right to sell the land, which by the will became money. He insists that, by the will, Yeatman and himself constitute the residuary legatees of testator, and as such, if the emancipation clauses are declared void, are entitled to the slaves and other property.
    The answer at length replies to all the charges and interrogatories of the bill, and discloses the condition, nature and value of the estate in his hands; avows the executor’s intention if allowed, to execute the will to the letter, and states that no portion of the lands devised to be sold have been sold, but he intends, if allowed, to sell them. That the testator had a deep-seated and growing aversion to the complainants, and did not intend they should inherit his property, all of which property he included in his will. The answer also repels all charges of personal unfitness on the part of the executor.
    Depositions were taken to prove the validity of the emancipation clauses in the will, as to the slaves in Yirginia; the value of the lands in Mississippi and in Virginia, and to show that the testator did not dispose of all of his property by his will. It is not deemed necessary to refer to them more at length, except to state that it was in proof that the property in Yirginia, appropriated by the will for that purpose, was sufficient to pay the debts and legacies, and to send the slaves, emancipated in Yir-ginia, to Africa, according to the will.
    At the November term, 1846, of the vice chancery court, the vice-chancellor decreed the clauses of the will emancipating the slaves in this.state, void; perpetually enjoined Mahorner from executing those provisions of the will; decreed the 8th item, directing the sales of the lands in Mississippi to carry out the iHegal devises, void, and perpetually enjoined Mahorner from selling them; declared the parts of the will which appropriated the ready money on hand to like purposes, void, and enjoined Mahorner perpetually from using the money, or depositing it in the places specified for that end. He also directed an account, by a commissioner, to be taken of the rents of the lands and hire of the negroes since the death of Mahorner; and decreed the slaves and lands and money to belong to the complainants as heirs at law and distributees of the testator.
    Mahorner prosecuted this appeal.
    
      George S. Yerger, for appellant.
    1. The testator was domiciled in Yirginia at the time of his death. The law of Yirginia authorized a testator to free his slaves, and send them to Liberia; whether his slaves were in Yirginia or elsewhere, makes no difference. The law of the domicil governs their disposition by deed or by will, or their distribution, where he dies intestate. This principle is at this day in all civilized governments of universal prevalence. 2 S. &. M. 628, and authorities cited; 10 Yerg. 286; 5 J. J. Mar. Rep, 429 ; 8 Simons Rep. 279 ; 1 H. Blk. 690 ; Story’s Conflict of Laws, sec. 380, 379, and note, 383,384,471,472, 465, 6, 7, 8; 1 Jarman on Wills, 2, 3 and note.
    This rule, so well settled, presupposes there is a conflict between the law of the two states or governments. Whether that conflict be the result of the “common ” or statutory law of the respective countries, can make no difference.
    2. The proof in the case shows that a disposition of this kind by last will and testament, is valid by the law of Virginia. But that it is, is settled in several cases. Elders v. Elders, 4 Leigh R. 252 ; Dunn v. Amey, 1 Leigh R. 465 ; Williams v. Mansels 1 Robinson Va. R. 647.
    Even if it were not shown what the law of Virginia was, the common law being in force there, the court cannot presume any restriction or alteration of it. 4 Bibb. R. 174.
    The law of Virginia must therefore prevail, unless there is some law of Mississippi, constitutional in its character, which* prohibits its operation, or unless it falls within some other settled exception to the rule.
    3. Is there any statute of Mississippi prohibiting the operation of the foreign law in this case, or in other words, repealing that principle of the Mississippi law, which declares, that movable property in it shall be disposed of according to the law of the owner’s domicil ?
    It is confidently believed no such statute exists. The statute of 1842, page 70, contains no such prohibition, unless in its construction settled rules of interpretation should be departed from.
    In order to prevent the operation of the foreign law, the prohibition must apply expressly in its terms to it; it must exclude it in plain, express language, or words, which are equivalent to it. Story’s Conflict, sec. 383, 384, 464, 465, 467; 5 J. J. Mar. 477, 479 ; 6 Binney, 361; 2 S. & M. 634.
    
      4. The language of the act of 1842, is, “That hereafter it shall not be lawful for any person, by last will and testament, to emancipate, &c., or direct that any slave shall be removed for the purpose of emancipation elsewhere,” &c.
    The statute does not in terms extend to persons domiciled in other states. It cannot be extended to them, unless the general words, any person, &c. will be considered as having an extraterritorial operation. To give this effect to them, will repeal the rule as to embracing the foreign law entirely.
    But the rule is settled, that in construing a statute of this kind, its general words will only apply to cases of wills made by persons within the jurisdiction of the state. 14 Peters R. 74; 5 J. J. Mar, 479; 4 Binney, 361.
    5. A state has a right to prohibit suits on contracts made abroad contrary to its laws, as in regard to usury, gaming,, &c. But a general statute, prohibiting suits on such contracts, without words extending it to foreign contracts, would not include them. 14 Peters, 74. As our usury statute prohibits all persons from taking more than eight per cent, using the same language as the act of 1842, yet in its construction it would only apply to persons contracting in the state. Story on Conflict, sgc. 242, &c. Language of Statute Distribution, H. & H. 351, 352. Gaming Act, lb. 677. Usury Law, lb. 374. Statute of Frauds, lb. 370.
    6. The principle, however, may be further illustrated. It is a rule of Mississippi law, (2S. &M. 628,) that a person residing or domiciled abroad, may dispose of his property by will, according to the law of the place where he lives. This, like any other rule of the common law may be repealed. It cannot, however, be repealed except by express words or necessary implication. If the repealing statute and the rule can stand together, or are not necessarily inconsistent, the rule is not repealed. Now the rule and the act of 1842, can well stand together, because the latter applies to wills of persons domiciled in Mississippi, the former to wills of persons domiciled abroad.
    7. It is said that there is an exception to this rule; that it will not apply, where it contravenes the policy of the state, and that the policy of the state as evidenced by the act of 1842, is to prevent slaves from being emancipated by sending them off.
    
      This is a great misapprehension of the exception. Nothing is contrary to the policy of the state which is tolerated by the common law, except so far as altered or declared by statute. In fact, this question is determined by the construction given to the statute. As to what constitutes public policy, see 1 Richardson Rep. 87.
    Before the passage of the act of 1842, it was clearly not contrary to the policy of the state to permit it, as is evidenced by the case in Ross v. Vertner, 8 Howard, 305.
    8. This argument of policy, as applied to cases like this, will sweep away the rule of comity entirely. The law declares eight per cent, interest only shall be taken, or that gaming shall be prohibited, but says nothing about foreign gaming or usury contracts. Will the policy of the state extend to these? The truth is, it is simply a question whether the act extends to foreign rules or not.
    9. But can the law be supported as to foreign wills ? Have the slaves not a right to freedom, (provided they leave or are carried out of Mississippi,) which no'law of Mississippi can take from them ?
    By the law of Virginia, emancipation by will is authorized, and an intention to emancipate, confers a right to freedom, which may be asserte4 in the courts of Virginia. Dempsey v.. Lawrence, Gilmer, 333; Williams v. Maundul, l Rob. Vir..R. 647 ; 1 Leigh, 471; Wade v. Colonization Society, 4 S. & M. 670;
    The testator was domicilled in Virginia ; by that law he could emancipate them by will. Has Mississippi the right to say, as to his slaves in her jurisdiction, he shall not? Certainly not. Mississippi may say they shall not be set free and remain in her jurisdiction. By the Virginia law, they had an inchoate right to freedom.
    By the law of Virginia, slaves may be freed by will; by the law of Mississippi they cannot. The former law must prevail where the owner is domicilled there, provided they are removed from Mississippi.
    Can Mississippi say, the owner shall not take his property out of the state? Can she say, his agent or executor shall not?
    
      10. By the eighth item, he directs his Virginia, Alabama and Mississippi lands to be sold. All the money arising from the sales of the above lands, and all other money collected by bond, See., and that may arise from cotton crops, &c., the executors are directed to deposit, subject to their order, for the purposes mentioned in the tenth item.
    By the tenth item, he emancipates his slaves in Virginia and in Mississippi, and directs them to be sent to Africa. To defray their expenses and pay them, the executors are authorized to use any money from sales of lands, or from collections, Sec., “ and having made ample provision for their transportation, should there be a surplus of money left, he gives it to Mahorner and Yeatman.”
    By the sixth item, he had given one half of the debts and money and crops to Mahorner. If the provision for the slaves is void, the bequest carries all to Mahorner and Yeatman.
    The eighth item is a conversion of the real estate into personalty. It is a conversion out and out. The proceeds after conversion he directs with other to be applied to emancipate his slaves in Virginia and Mississippi. Part is so applied as to the Virginia slaves. If, then, the proceeds are illegally applied, it is void, and they pass to Mahorner and Yeatman, because specifically given to them. 7 Bing. 664; 6 Paige, 600; 1 Dev. So Batt. 490; Leigh Sc Dalzell, 90, as to deeds; Ibid. 92, 93, as to wills; Ibid. 103.
    11. This is not a residuary bequest of the testator’s estate; it is a general bequest of the “ surplus money arising from the sale and of the debts,” &c. The surplus is what is left after carrying his intent into effect; his intent can only be carried into effect as to the Virginia slaves; what is left after that is done is the surplus.
    Where there is a direction as to where it shall go, the heir cannot take. Leigh Sc Dalzell, 105, 106.
    The cases of Gravenor v. Hallum, and Jones v. Mitchell, cited in Leigh & Dalzell, 106, 107, do not conflict with this view.
    In these cases a specific part was appropriated to an illegal purpose, and the residue given away. Here the residue, deducting the illegal part, was only disposed of. But suppose in those cases, the whole was appropriated to two purposes, one legal, the other illegal, and the surplus money arising from them, if any, given over — here the part illegally appropriated would pass. See Leigh & Dalzell, 108,109-128,132, and other cases. There can be no question as to the construction in this case. There can be no question that the money and cotton being personalty, pass. See 4 S. & M. 287.
    12. The decree is wrong in directing hire of the negroes and rent of the land. The sixth item, shows only half net profits, deducting supplies, &c. to negroes and to Mahorner, and should be appropriated.
    
      Evans and Topp, for appellant,
    in their brief, cited the following authorities, and commented on them and the facts in the cause: Laws of 1842, p. 69; 2 Powell on Dev. ch. 1, Law Lib. 19 vol.; King v. Melling, Vent. 231; Long v. Lansing, 2 Burr. 1112; Dodson v. Grew, 2 Wills. 322; Ram on Wills, chap. 1; 6 Law Lib. ch. 3, p. 31; 5 Term R. 323; 1 Eden, 43; 6 Law Lib. 32; Ram on Wills, 64, ch. 11, § 1; Ibid. 267, ch. 18; 1 Eden, 95; 1 Salk. 238; Douglas, 327; Amb. 277; Ram ch. 11, § 1, p. 65; 1 Peere Wms. 667; Vankleeck v. Members of Dutch Church, 6 Paige, 600; Precedents of Wills, by Taylor, 159, note; 6 Term R. 352 ; Kennon v. McRoberts, 1 Wash. 96; Prec. of Wills, 233; 2 Wheat. 62 ; 1 Dev. & Bat. Eq. R. 490; Selden v. King, 2 Call, 72; Ram, 42, ch. 4; Wilce v. Wilce, 7 Bing. 664; Colden v. Cornell, 3 John. Cases, 174; Dalzell on Conversion, 3 Law Lib. 99; Ibid, 103, 104, 107-110; Durour v. Motteux, 1 Ves. Sr. 320; Malebar v. Malebar, 3 Law Lib. 99; Ackroyd v Smithson, 1 Bro. C. C. 503; Kennel v. Abbott, 4 Ves. 802; Leigh & Dalzell on Conversion, 3 Law Lib. 128; Mc-Cleland v. Shaw, 2 Sch. & Lef. 538; Emblyn v. Freeman, 3 Law Lib. 90.
    
      A. W. Dabney, on the same side,
    contended,.
    1. That the court erred in restraining the executor from selling the lands in Octibbeha and Noxubee counties, and declaring the same to descend to the heirs at law.
    2. That the court erred in restraining the executor from depositing in the Bank of Mobile, or at New Orleans, half of the ready money in his hands and under his care, and half the money arising from moneys due by bond, &c., and half the amount arising from the sale of the cotton crops, and declaring that the heirs at law were entitled to those funds.
    3. That the court erred in requiring of the master to take an account of the profits of the labor of the slaves, since the death of the testator, and of the moneys and estate of the testator that have been received by, or that have come to the hands of the executor ; and also of the rents and profits that have accrued since the death of the testator, of the said Mississippi lands, in the eighth item mentioned.
    
      Henry Gray, for appellees,
    contended,
    1. That the law of the domicil will not be enforced by any state in opposition to the interest of its own citizens, and to its public interest and declared policy; notwithstanding the admitted general principle, that in the descent and disposition of personal property, the law of the testator’s domicil is to govern. He cited Story’s Conflict of Laws, 29, sec. 22, 23, 28.
    2. That it was the policy of this state to discourage emancipation, of Yirginia to encourage it; there was thus a conflict in the law and policy of the two states, in which, in reference to property in this state, the laws of this state must prevail; and the foreign law, if it conflict with our own declared prohibitory law, its spirit or its policy, must yield. 13 Pet. S. C. R. 589,
    3. Slavery is a subject of general concern; emancipation directly affects it; there must, therefore, ever be upon that subject a policy either expressed by positive legislative enactments, or growing out of the general laws by which slavery is regulated.
    4. The law of comity must yield on the subject of slavery to the laws of this state; otherwise, a testator domiciled in Virginia might liberate his slaves in this state, without restraint upon their freedom, as such liberation would be valid in Virginia; and thus overthrow the entire policy of the state as to the residence of free negroes here.
    5. Slaves are of that peculiar species of personal property which Lord Mansfield mentions as exempted from the lex dom-icilii ; the institution is of local character, not held by right of the owner’s domicil, nor by natural right, but by the right of the local law. 5 J. J. M. 479; Story’s Conflict of Laws, §27; Ibid. § 472, p. 397, 398.
    6. To prevent foreign laws operating here, it is not necessary that there should be express prohibitory laws in totidem verbis. The scope and aim of the local law is to be looked to; if inconsistent with the foreign law, it excludes that law as much as if it expressly prohibited it. Otherwise the local laws would have to enact prohibitory laws whenever the legislation of other states changed.
    7. The act of the legislature of 1842 is aimed at the removal of the slaves from this state for purposes of emancipation ; that is the malum prohibitum. It applies to all slaves in the state. The*executor is interdicted from removing the slaves; the-law of Yirginia, it is argued, gives the power; the local law prohibits it; and the court is called upon to make the local yield to the foreign law, on a subject of internal police, involving domestic interests, which should be confided alone to our own law-making power.
    8. The laws of foreign states have no force proprio vigore in this state; they are enforced only by our own tribunals, and with our own consent, and will not be enforced when in conflict with prohibitory laws of our own state. The legislature may give to personal property whatever features it may choose; may make it immovable, and thus exclude the law of the foreign domicil. The legislature has made it immovable so far as the power of emancipation goes. It is clearly the policy, whether good or bad is not now the question, of this state to discountenance emancipation.
    9. The executor in this case, a resident citizen of the state, claims the right to hold slaves in it for the express purpose of doing an act prohibited by our law. The evil to be guarded against is not the direction to emancipate, but the emancipation itself, and it cannot be material whether this direction to emancipate is made by will in or out of the state. The result is the same; the slaves themselves are to be liberated in this state, and the object and policy of the law as much defeated in the one case as the other; the one case is as much within the letter and spirit of the law as the other.
    10. If without the letter, but within the spirit of the law, it is affected by its operation, as much as if in the letter. Story’s Confl. Laws, § 550, p. 462; § 472, p. 397; § 23, § 22, p. 23,24; §25; 17 Mart. R. 569-596; Sto. Con. §§28, 29; Ibid. § 383, § 244 ; 2 Barn, and Cres. 448-471.
    11. The devises in the will emancipating the slaves in this state being on these principles void, the testator died intestate as to the slaves in this state ; and they must be distributed according to the laws of the domicil in Virginia, as property of which he died intestate. The courts of this state must direct the administration upon the property, according to the law of Virginia, the law of the domicil.
    
      Harris and Harrison, on the same side,
    contended,
    1. That the devises emancipating the slaves, were void, and cited and commented on the following authorities in their brief: Ross v. Vertner, 5 How. 359; Act, 1842, p. 70, § 11; Lucky v. Dykes, 2 S. & M. 60; Hamberlin v. Terry, 1 S. & M. Ch. R. 591; Story Confl. Laws, § 22, p. 23; § 18, p. 19; AT Outturn v. Smith, 1 Meigs R. 354; Kneeland v. Ensley, lb. 628, 629 ; Garland v. Rowan, 2 S. & M. 634; Frazier v. Frazier, 2 Hill’s Ch. R. 314, 315; Cameron v. Commissioners of Raleigh, 1 Ire-dell’s Eq. R. 440; Thompson v. Newlin, 3 Iredell Eq. 341; Trotter v. Blocker and Wife¡ 6 Port R. 291; 4 Desaus. 266; 2 Hawkes, 120, 613; 1 Dev. Eq. R. 493; 1 Dev. & Bat. Eq. R. 113; 2 How. 183: 1 Stewart, 320; 1 Harr. & M’Hen. 561; 6 Port. 296; Bank of Augusta v. Earle, 13 Peters, 519, 589; Hinds v. Brazeatte, 2 How. 842; 2 S. & M. 634; 5 How. 357; 2 Kent Com. 457, 458, note b, (3d ed.); 6 Hill, 529, 536; 1 Meigs, 342; 2 Mass. R. 84, 90; 6 lb. 358; 1 Rand. 23,24; Nations v. Alvis, 5 S. & M. 345.
    
      2. That the end being interdicted, the means to accomplish it must be declared void. Nemo potest facere per obliquum quod non potest facere per directum. Therefore the power to sell the lands given for the purpose of accomplishing the illegal end fails, and the money and lands fall to the heir as property un-disposed of by the will. 1 Jarm. on Wills, 205; Shelford on Mortmain, 195, 196, 200; 2 Pow. on Dev. 21; Ait. Gen. v. Hinxman, 2 Jac. & Walk. 270 ; 2 Pow. on Dev. 20; Durour v. Motteux, 1 Yes. Sr. 320; 3 Yesey, 140; 2 Rep. on Leg. 115; 2 Jac. & Walk. 270; Chapman v. Brown, 6 Yesey, 404; Att. Gen. v. Goulding, 2 Brown’s Ch. R. 428; Limbrey v. Greer, 6 Mad. 151; Price v. Hathaway, lb. 304; Adams v. Lemberry, 2 Jac. & Walk. 274; 1 Jarm. on Wills, 205 ; Att. Gen. v. Davis, 9 Yes. 535; Shelford on Mort. 203; 1 Jarm. on Wills, 200; Adlington v. Cann, 3 Atk. 155 ; 2 B. & Adolph. 710; Sharpstein v. Tillion, 3 Cowen, 660 ; 1 Roper on Leg. 362-365 ; Hutcheson v. Hammond, 3 Brown Ch. C. 128, 143, 147; Jones v. Mitchell, 1 Sim. & Stu. 290; 2 Roper on Leg. 364; Cruse v. Barley, 3 Peere Wms. 20; Grevenor v. Hallum, Ambler, 643; Collins v. Wakeman, 2 Yesey, Jr. 683; Maugham v. Mason, 1 Yesey & B. 410; Shelford on Mort. 220; 2 Pow. on Dev. 88; 1 Jarm. on Wills, 566, 570; 2 Sto. Eq. § 1196; Hawley v. James, 7 Paige, 213; Stephens v. Ely, 1 Dev. Eq. R. 310, and cases cited; Dudley’s Eq. R. 212; Wright v. Trustees, Spc. 1 Hoffman’s Ch. R. 203; Bogert v. Hertell, 4 Hill, 492; Smith v. Claxton, 4 Mad. 484; Cruse v. Barley, 3 Peere Wms. 20; Gibbs v. Rumsey, 2 Yesey & B. 294; 1 Jarman on Wills, 502, 503, and cases cited; 1 Roper on Legacies, 352, 354; 1 Jarman on Wills, 385, 386, 569, 572 ; Van Cleeck v. Dutch Church, 20 Wendell, 458; 2 Powell on Dev. 77, 85, 86, 87; 3 Harris & McHenry, 333; 6 Conn. R. 292; Shelford on Mortmain, 215, 216.
    If the sale be made for a special purpose, or the general purposes of the will, and these fail, conversion does not take place. 1 Hoffman’s Ch. R. 219; 5 Yesey, 588; 2 Sch. & Lef. 538; 4 Hill, 496; 1 Jarman on Wills, 556; Dudley’s Eq. 216; 1 Dev. Eq. R. 310; Shelford on Mortmain, 214; 1 Roper on Legacies, 363, 364; 2 Powell on Dev. 77, 79, 86 ; Henderson v. 
      Wilson’s Executor, 1 Dev. Eq. R. 310, and cases cited ; Shelford on Mortmain, 220.
    3. To establish a conversion of lands into money, the will must direct the sale absolutely, or out and out; for all purposes, not merely those of the devise; irrespective of contingencies, and independent of all discretion. If the sale be made for the purposes of the will, and those fail, there is no conversion. 1 Hoffman’s Ch. R. 219, and cases cited; 2 Story’s Eq. Jur. § 1214; 7 Paige, 472; 1 Roper on Leg. 352, 354; 1 Jarman on Wills, 523, 524; Amphlett v. Parke, 2 Russ. & MyI. 221; 1 Brown’s Ch. R. 502; 2 Tesey, Jr. 271, 683; 1 Jarman on Wills, 560 ; Bristol v. Hungerford, 2 Vernon, 645.
    Every conversion, however absolute, will be deemed a conversion for the purposes of the will only, unless the testator distinctly indicates an intention that on the failure of those purposes, it is to prevail, as between the persons on whom the law casts the real and personal estate of an intestate. 1 Jarman on Wills, 558, 562, 565, 569, 570, 571; Mangham v. Mason, 1 Vesey & B. 410; Kellet v. Kellet, 3 Dow. 488; 2 Story’s Eq. Jur. § 1214, and p. 112, note (11), 3d ed.; 1 Roper on Legacies. 352, 356; 2 Powell on Dev. 79.
    Where the testator directed the balance of his lands to be sold, and the proceeds applied to a purpose which failed ; held, there being no evidence of an intention to convert the land into money out and out, that a trust resulted to the heir at law, notwithstanding a residuary clause bequeathing “ any other thing not mentioned in this my last will.” Henderson et al. v. Wilson, 1 Dev. Eq. R. 309.
    In further confirmation of this principle, it is now settled that the undisposed of residue of a fund created in this manner will not pass under a general bequest of personalty. However clear this point might seem upon principle, the authorities, until recently, left it in some doubt. 2 Powell on Dev. 81; 1 Jarman on Wills, 562.
    4. Where lands are directed to be sold, and a part of the money to arise therefrom is given to charitable purposes, the heir at law, and not the residuary legatee of the testator, will be entitled to so much of the money, as is ineffectually given to those purposes, unless there was a complete conversion, and it can be inferred from the will that the testator intended the legacies which failed should be included in the gift of the residue. Shelford on Mortmain, 220.
    It signifies but little what the testator may have said in the introductory clauses of his will, if he does not clearly maintain the same view when he comes to that part of the will which relates to the residue; that, being, in effect, the title deed under which alone the residuary legatee takes, if he can take at all. Amphlett v. Parke, 2 Russ. <fc Mylne, 221; 13 Cond. Eng. Ch. R. 6; 4 Kent, 549, (3d ed.); Ram on Wills, 64, and cases cited; Cowper, 356, 657; 11 East, 320; Doug. 730 ; 3 Burr. 1618.
    Nor does equity look upon as done, anything but what ought to be done; nor will things be considered in that light in favor of every body. 5 Rand. R. 122; 1 W. Black. R. 129; 2 Story’s Eq. Jur. § 792.
    5. Great stress is laid in the answer on the presumed intention of the testator; on that point they cited and commented on Schacember v. Jackson, 2 Wend. 1; 2 Jarm. on Wills, 741; 1 Ibid. 294; 6 Paige, 612 ; 4 Beavan, 318 ; 7 Cow. 187; 5 Leigh, 233, 237; 6 Cow. 48; 9 John. R. 104; 18 Ibid. 31; 1 Caines Cas. 16 ; 3 Binney, 69 ; Vankleeck v. Dutch Church, 20 Wend. 469 ; 1 Story’s Eq. Jur. § 106 ; 2 Rop. Leg. 490 ; 2 Ves. Sr. 91; Shelf. Mort. 204, 205 ; 3 How. 194, 210 ; 6 Peters, 68; Ambler, 345; 8 Port. 197; 5 Leigh, 233, 243; 3 Peters, 346; 4 Kent, 534, 535 ; 6 Paige, 612; 2 Jarm. Wills, 742, 743 ; Yields Executor v. McDaniel, 3 How. 341; 1 Dana, 206 ; 20 Wend. 475.
    6. There is no general residuary clause in the will. If there were such a clause, undisposed of realty would still go to the heir; and personalty only to the residuary legatee. James v. James, 4 Paige, 115 ; 6 Paige, 608 ; 10 Ibid. 193 ; 5 Ves. 149 ; 12 Ibid. 49§ ; 15 Ibid. 589; 5 Ambler, 577; 2 Desaus. 138 ; 1 Hill’s Ch. R. 97; 1 Dev. Eq. R. 386 ; 1 Dana, 206. If the residue given be partial, of a particular fund, the rule has no application. Sorrey v. Bright, 1 Dev. & Bat. 115, 116; Peay & 
      Pickett v. Barber, 1 Hill’s Ch. R. 97; Bland v. Lamb, 2 Jac. & Walk. 399 ; Attorney General v. Johnston, Ambl. 517; Sinkler v. Sinkler, 2 Desaus. 138; Sutton v. Sharpe, 1 Russ. 146; 2 Rop. Leg. 457, 458 ; 3 Peere Wms. 40; 1 Term R. 262 ; 2 Wms. Ex. 896.
    7. On the subject of residuary legatees, in its application to this case,' they cited 2 S. & M. 70; Vick’s Executor v. McDaniel, 3 How. 337; 2 Roper on Legacies, 458. “If there should be any money remaining,” &c. 1 Turn. & Russ. 260 ; 2 Roper on Legacies, 459 ; Baker v. Hall, 12 Yesey, 497, 498 ; Moore v. Moore, 1 Bro. Ch. R. 127; 11 Yesey, 666 ; 1 Sch. & Lefr. 318, 319; Harper’s Eq. R. 117, (“the overplus, if any-there should be.”) Frazer v. Alexander, 1 Dev. Eq. R. 348; Mann v. Executors of Mann, 1 Johns. Ch. R. 231; Southcot v. Watson, 3 Atk. 232 ; 14 Johns. R. 11, 12; Hastings v. Hane, 6 Simons, 67; Ommanney v. Butcher, Turn. & Russ. 260; Gosden v. Dotterill, 1 Mylne & Keen, 56; Read v. Stewart, 4 Russ. 69.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

The only object'of this bill was to vacate a particular provision in the last will and testament of Nathaniel H. Hooe, by which certain slaves in this state were to be removed to Africa, to be emancipated. The testator’s domicil was in Yirginia, where the will was made, and where he died. It is contested only so far as it undertakes to emancipate the slaves in this state, and as to one other clause which directs the sale of real estate for the purpose of raising a fund for removing the slaves to Africa, and for paying them, on their arrival there, certain sums of money. The validity of this testamentary disposition raises a question on the conflict of the laws of Yirginia and of this state. The disposition of the slaves is admitted to be valid by the laws of Yirginia, but it is contrary to a statute of this state, passed in 1842, prior to the testator’s death, which occurred in 1844; the will having been also made in that year.

By the tenth item of the will, the testator declared, that he did thereby emancipate and set free, to all intents and purposes, all his slaves in Virginia, except those specifically devised, and directed that those emancipated should be sent to Africa by the executors, and their expenses paid out of any money that might have accrued from the sale of lands, or by the collection of debts. He further emancipated and set free all the slaves which he had loaned to William D. Hooe; and he further emancipated and set free all his slaves in Mississippi, to be also sent to Africa, as directed' in reference to his slaves in Virginia. He appointed five executors, three in Virginia, one in the District of Columbia, and the appellant, Mahorner, in this state.

The act of 1842, which is said to be violated by the above bequest, is in these words : “ That hereafter it shall not be lawful for any person, by last will or testament, to make any devise or bequest, of any slave or slaves for the purposes of emancipation, or to direct that any slave or slaves shall be removed from this state for the purposes of emancipation elsewhere.” Acts of 1842, p. 69, sec. 11. The power to make a testamentary provision for the removal of slaves from this state to Liberia, for the purposes of emancipation, prior to the passage of this act, was sustained by this court in the case of Ross v. Vertner, 5 How. 305, which was decided at December term, 1840. It will be seen, by reference to dates, that shortly after this decision was made, the subject was taken up by the legislature, and the law changed, and a different policy adopted.

The chief ground relied on for the appellant is, that as Virginia was the place of the testator’s domicil, the will having been also made there, and as this is a disposition of personal or movable property, valid by the laws of Virginia, the laws of that state must control it, on the general doctrine that the law of the domicil must furnish the rule of succession, and testaments.

That this is true as a general rule, on principles of comity, is a position which has not been controverted. It has been recognized by this court, after a very full and thorough investigation, in the case of Garland v. Rowan, 2 S. & M. 617. In that case, it was decided that distribution of personal property within this state, would be made according to the laws of Virginia, the place of the intestate’s domicil. But we are now to inquire whether this rule of comity is one of universal application, and therefore to control the present case, or whether it is not abolished by the law of 1842.

It is undoubtedly true, that every state may regulate the transfer of property real and personal within its limits, either by last will, or inter vivos, because all property must be bound by its laws. The necessary result of sovereignty is a power to regulate and bind property according to prescribed rules, not inconsistent with the fundamental law of the state. This general proposition is not denied, but the argument pressed upon us is, that by comity the law of the domicil of the owner is the law of personal property wherever it may be, and that this law will prevail unless it be expressly excluded in terms. That it is not changed by implication, merely because it is repugnant to the laws of the state in which the property is situated, and this position it is said, is sustained by authority. Pressed to the extent to which the counsel would carry it, the bequest could be sustained; but this is inconsistent with the idea of mere comity, which is an act of courtesy. Nor do the authorities go to that length; on the contrary, they establish a limit much short of it.

In administering foreign laws, courts act upon the presumption that they have been tacitly adopted, but this presumption is only to be indulged in the absence of any law restraining or denying their operaiion. And such restraint may result as effectually from the general scope and object of a state law, as from prohibitory language. The presumption must of necessity cease when the foreign law is in direct conflict with a positive prohibitory law of a state, regulating its policy. “In the silence of any positive rule, (says Judge Story) afñrming, or denying, or restraining the operation of foreign laws, courts of justice presume the tacit adoption of them by their own government, unless they are repugnant to its policy, or prejudicial to its interests.” (Conflict of Laws, 37, sec. 38.) What, then, if a foreign law be contrary to the policy of a state 7 It is not to be presumed to have been adopted of course. And this section of the commentator must apply with increased force, when state policy is indicated by a prohibitory law, which has for its object the regulation of policy alone. Where such a law exists, there is no room for presumption; the state has spoken positively. And if it be a law of property merely, without regard to individual rights, it will apply to all property within the limits of the state, whether owned by citizens or foreigners.

This same exception was very explicitly recognized by the supreme court in the case of the Bank of Augusta v. Earle, 13 Peters, 589. In reference to contracts, Chief Justice Taney said, “Courts of justice have always expounded and executed them, according to the laws of the place in which they were made; provided that law was not repugnant to the laws or policy of their own country. The comity thus extended to other nations, is no impeachment of sovereignty. It is the voluntary act of the nation by which it is offered; and is inadmissible when contrary to its policy, or prejudicial to its interests.” There is no difference between a law of contracts and a law of property; the principles of comity are the same as applicable to both.

In the case of Forbes v. Cochrane, 2 Barn. & Cress. 448, Mr. Justice Best said, it is a maxim that the law of comity cannot prevail in any case where it violates the law of our own country, the law of nature, or the law of God. And in the case of Saul v. His Creditors, 17 Louisana Rep. the court said, that no nation will suffer the laws of another to interfere with her own to the injury of her citizens.

In sec. 25 of the Conflict of Laws, Judge Story says, “ No nation can be justly required to yield up its own fundamental policy and institutions, in favor of those of another nation. Much less can any nation be required to sacrifice its own interests in favor of another; or to enforce doctrines, which in a moral or political view, are incompatible with its own safety, or happiness, or conscientious regard to justice and duty.” And again, in sec. 472, when speaking of the administration of foreign laws, in cases of wills and testaments, he says, But the discussion in which we are engaged does not respect the effect of any local prohibitory laws over movable property within the particular territory; but the general pi'inciples which regulate the disposition of it, where no such prohibitory laws exist.”

In the case of Garland v. Rowan, it was said in the decision, that “ An exception to the general rule, as firmly settled as the rule itself, is, that the international law, or law of comity, is not permitted to operate within a state to the prejudice of the government, in opposition to its settled policy, or to the interests of its citizens.”

As a general rule, a contract, valid where it is made, will be enforced everywhere. Conflict of Laws, sect. 242. And still the exception prevails, that no nation is bound to recognize or enforce any contracts which are injurious to its own interests, or to those of its own subjects. Ib. sec. 244. Whiston v. Stodder, 8 Martin’s R. 95. The reason would seem to be even stronger for holding that property within a state should be subject in all respects to its laws, where they differ from the law of the domicil, than it is in regard to contracts; as in the one case the laws operate on the thing, and in the other on ,the person.

The principle which seems to be clearly established by these authorities is, that no foreign law, by mere rule of comity, can be allowed to counteract a general prohibitory law, which regulates the policy of a state, or, in which all the citizens of the state are interested. With regard to mere enabling laws, or laws which regulate successions in a manner differing from the law of the domicil, comity may require that they should yield, as nothing but individual rights are affected, which may well be held to yield to the general benefits resulting from national comity.

Are there any authorities which sanction a different conclusion, and sustain counsel in the position that foreign laws are not restricted except by express declaration, or by an intention plainly and manifestly embodied in the law 1 Section 383 of the Conflict of Laws, is cited for this purpose; it is in this language: “ It follows as a natural consequence of the rule, which we have been considering (that personal property has no locality) that the laws of the owner’s domicil should in all cases determine the validity of every transfer, alienation, or disposition made by the owner, whether it be inter vivos or post mortem. And this is regularly true, unless there is some positive or customary law of the country where they are situate, providing for special cases, (as is sometimes done,) or, from, the nature of the particular property, it has a necessary implied locality.” We understand the author as only alluding to the general rule, without regard to the exceptions. And the law “providing for special cases” can be understood to refer to such cases as would otherwise be subject to the rules of comity. But it has been shown, we think, that a certain class of cases do not fall within the customary range of comity. For such cases, special provisions are unnecessary; and to such, therefore, the remarks of the author cannot apply. We do not understand him as saying that the law of the domicil will in all cases control the alienation or disposition of movable property elsewhere, for that is contrary to what he has previously said.

The case of Sneed v. Ewing, 5 J. J. Marshall, 460, has also been referred to, in which the court used this language : “ The rule is not universal, because it is not obligatory on a state that withholds its assent to it.” “ But the rule as to the law of the domicil has generally obtained, and will apply where it has not been interdicted.” “ Conceding that a state may rightfully refuse to admit the application within its borders of a public law adopted by other states for regulating international rights, still such a selfish policy should not be attributed to any respectable state, without clear proof that it was intended.” If by this language we are to understand the court as holding that a special and particular interdiction is necessary to exclude the operation of the lex domicilii, we cannot yield an assent to the proposition. It is probable, however, that the court did not intend to push the doctrine to that extremity, as it was admitted in the outset that the rule was not universal. We hold that the interdiction may result from general laws, declaring public policy, as well as from special laws, framed for that purpose. And whilst we freely concede that in this confederacy of states, comity is indispensable, and should be extended in the most ample manner, yet it cannot be allowed to defeat the general policy of a state, declared by the legislative authority. We have nothing to say as to the good or bad policy of the law of 1842; it is sufficient for us to know that the legislature thought it wise and proper. Courts in this country have not the power to declare policy, except as it may be indicated by direct legislation, or result from the spirit and object of statutes. And here we would say a word in reference to an objection made to this law on the ground of its being contrary to the policy of that provision in the constitution which, at the time, prohibited the introduction of slaves into this state. We do not perceive any such repugnancy as would avoid the law. It might have been good policy to exclude slaves (that provision has been changed); and it may also be good policy to retain what we have. At all events it was competent to discountenance emancipation by last will and testament, by defeating the declared intention of the testator, although that intention was to be consummated beyond the limits of the state. A sovereignty may guard its policy by imposing restrictions on all property within its limits. It may look to the ultimate destination of that property- abroad; and if that destination be incompatible with the best interests of the state, the intention of the testator may be defeated if it has been made known. We accordingly think the law of 1842 is a valid prohibition, paramount to that rule of comity, which, in the absence of such prohibition, might sustain the bequest on the law of the testator’s domicil.

For the appellant it is argued, however, that even assuming that clause of the will which directs the. negroes in Mississippi to be emancipated, to be void, still the appellees, as distributees, will not be entitled to these negroes, because there is a residuary clause in favor of the appellant. This position rests upon a provision in the 10th Item, which is in the following words : “ My executors to pay the expenses of transporting my slaves to Africa, and paying them, are authorized to use any money that may come to their hands from the sale of my lands herein directed to be sold, or from the collections of money due me by bond or otherwise. Having made ample provision for the transportation and payment of my slaves in Africa, should there be a surplus left of money, it may be equally divided between Mathias Mahorner, my executor, and John Yeatman, above-mentioned; and should there be a deficiency of money to carry out my design of emancipating my slaves, then the slaves that may be under the care of Mathias Mahorner, may be retained on my cotton farms three or four years to make up the deficiency of money lacking.” This is not a general residuary clause. The surplus spoken of is too clearly confined to the residue of a particular fund to leave any room for doubt. It was not the residue of his property, but any surplus of money that might have accrued from the sale of the land directed to be sold, or from debts due, after the expenses of transporting the slaves to Africa had been defrayed out of that particular fund. This is entirely apparent from the context of the 8th and 10th Items, which refer to one another, and are to be construed together. The one provides the means, and the other directs the end. By the 8th Item the testator had directed certain lands to be sold, and the money arising therefrom, and all other collections of money, were to be deposited in certain banks “ for purposes mentioned in the 10th Itemand in this item he appropriates the fund, and disposes of the remainder of it, if any should be left. It would be torturing the sense of the will to convert this into a general residuary clause. It is not distinguishable in principle from the cases of Ommanney v. Butcher, Turn. & Russ. R. 260, and Hastings v. Hane, 6 Sim. R. 67, in which similar residuary clauses were held to be special only. And there is less room for doubt than in the ease of Luckey v. Dykes, 2 S. & M. 60, in which a residuary clause was confined to a particular fund. On the principle of Mann v. Mann, 1 J. C. R. 231, the words used, “should there be any surplus left of money” would pass nothing but money.

For the appellees it has been contended, that as that part of the will which provided for emanci, ating the slaves in Mississippi, by removing them to Africa, is void, all bequests designed for the purpose of carrying out this object are also void, or at least must fai>, as mere secondary or subsidiary dispositions for an illegal purpose. Hence it is said, the executor cannot sell the land in Mississippi, and as a consequence, that Mahorner’s right to the surplus of money to arise from that sale, must also be defeated. The general principle is, as stated, that an illegal bequest or devise, defeats all dependent bequests, subsidiary to and inseparable from it, which wohld otherwise be valid. 1 Jarman on Wills, 205; Roper on Legacies, 115, 135; Greaves v. Case, 4 Brown’s Ch. R. 67. This results from the fact, that oftentimes as the primary disposition fails, that which is secondary or dependent cannot be ascertained. Or when the law will not permit the purpose to be carried out, the fund appropriated to that object must from necessity fall into the general residuum, or go to the heir. On this principle, if the testator had directed his lands in Mississippi to be sold, and the proceeds applied to the transportation of the Mississippi slaves, the courts here might interpose in favor of the heir. But that is not the case. The proceeds of the sale of the lands in Virginia, Alabama and Mississippi, constitute a general fund for the transportation and the payment of all his slaves, as well those in Virginia as in Mississippi. It is conceded, that the slaves in Virginia may be emancipated, as the testator has directed. If so, it is immaterial how much or how little it may require of the fund which is to arise from the sale of the lands to accomplish that object. When the courts of Virginia shall decide that the will is void in regard to the slaves in that state, then we may interpose. But it may turn out, that not one half or one fourth of the sum appropriated for that purpose will be required ; this does not affect the devise; it is one of those accidental circumstances which is calculated to swell the residuum, and operate in favor of the residuary legatee of that fund, precisely as a void bequest swells the portion of the general residuary legatee of personal estate.

By the eighth item, the testator directed his lands to be sold, and other moneys to be collected by his executors, “ for purposes mentioned in the tenth item.” Now what were the purposes in the tenth item mentioned? First, to pay the expenses of transporting his slaves to Africa, and to pay them their legacies when they arrived there. Second, that whatever remained should be equally divided between Mathias Mahorner and John Yeatman.

There is a class of cases so very much like this that it is necessary to advert to them for the purpose of showing the distinction. They contain this principle, that when lands are devised upon trust or for a par icular purpose, and there is an unexhausted residuum, as to which no further trust is declared, that residue results to the heir as real estate undisposed of. Jarman on Wills, 502. Judge Story says, “ Another form in which a resulting trust may appear, is where there are certain trusts created, either by will or deed, which fail in whole or in part; or which are of such an indefinite nature that courts of equity .will not carry them out; or which are illegal in their nature and character, or which are fully executed, and yet leave an unexhausted residuum. In all such cases there will arise a resulting trust to the party creating the trust, or to his heirs and legal representatives, as the case may require. 2 Equity Jurisprudence, 604, sec. 1196. This principle was very fully recognized in the celebrated case of Hawley v. James, 5 Paige, 318, and 7 Ibid. 213, and it was said if the devise be good in part and bad in part, there is a resulting trust in favor of the heir pro tanto. To illustrate this principle by the present case, the testator directed the whole of his lands to be sold, and the fund applied in emancipating his slaves in Virginia, and' also those in Mississippi. The trust fails in part because of its illegality, and if the will had been silent as to any further disposition, of course the heir could claim so much of the fund as would have been requisite to carry out the illegal purpose. But the will disposes of the residue, if there should be any, and thus takes the case out of this principle. It declares that if there should be any surplus of money, it shall go to Mahorner and Yeatman. The resulting trust in favor of the heir, seems to depend upon the silence of the will as to the residue. 4 Kent’s Com. 306. In the case of King v. Denison, 1 Ves. & Beames, 272, Lord Eldon said, “ Where, therefore, the whole legal estate is given for the purpose of satisfying trusts expressed, and those trusts do not, in their execution, exhaust the whole, so much of the beneficial interest as is not exhausted belongs to the heir. But where the whole legal interest is given for a particular purpose, with an intention to give to the devisee the beneficial interest, if the whole is not exhausted by that particular purpose, the surplus goes to the devisee, as it is intended to be given to him.” Here the land was directed to be sold, and the whole of the fund directed to be applied to a particular purpose, with an intention to give to the devisees the beneficial interest, if the whole was not exhausted by that particular purpose. It is manifest that the testator intended that all his real estate should be sold and converted into money. This was a conversion of the real estate into money. It is also manifest, that the testator intended all the money resulting from the sale, and not consumed by the trusts, whether much or little, should be equally divided between Mahorner and Yeatman. His intention, as far as it is consistent with law, must govern. He knew that he was making an ample provision for the trusts, and that there would be a fund left, and that fund he disposed of. The language of the will justifies the construction that the sale was directed with a view, in part, to a division of the proceeds between the residuary legatees of that fund. If the sale had been directed only for the purposes of the trust, why did he direct any more land to be sold than was necessary 1

The conclusion is, that the testator died intestate as to the negroes in Mississippi, and they must go to the distributees. But that the devise of the land to be sold, does not fail. The decree of the vice-chancellor was, therefore, wrong in declaring void that provision in the will, which directed the executors in this state to sell the land situated here, and as to the money to be raised from other sources, to which extent it must be reversed.

Mr. Justice Clayton

delivered this opinion.

I fully concur in the opinion of the majority of the court, except as to the part which relates to the legacies and expenses directed to be paid on account of the slaves in this state. As the bequest in regard to their emancipation fails, the fund provided to carry out the testator’s intention in that particular, in my view sinks into the general residuum of his estate, and does not constitute a portion of that surplus which, is directed specially to go to Yeatman and Mahorner.

This difference, however, is as to the application of an acknowledged principle ; not in relation to any principle itself. In all other respects the opinion has my unqualified assent.  