
    Isaac v. West’s Executor.
    December, 1828.
    Deed of Emancipation — Construction—Increase—Case at Bar. — A Deed of Emancipation. by which the master manumits his slaves at his death, directs, that they shall serve him as long as he lives, and at his death go free Irom all persons; and, for himself, his heirs, executors, and administrators, relinquishes all his right and title to the said ne-groes, is to be construed as passing a present right to freedom, reserving a right in the grantor to their personal services during his life, as a condition of the emancipation. Therefore, a child born of one of the emancipated females in the Interval between the execution of the Deed and the death of the grantor, is free from its birth.
    Same — Same—Rule oi If the construction of a Deed of Emancipation be doubtful, resort may be h ad to the rule, that the Deed is to be taken most strongly against the grantor, and to the spirit of the laws of all civilized nations which favors liberty.
    This was an appeal from a Judgment of the Superior Court of Law for the County of Accomack. The Appellant Isaac, instituted an action in forma pauperis against John G. Joynes, Executor of Abel West, deceased to recover his freedom. The Jury who tried the cause, found a special verdict, as follows: That Abel West, in the year, 1806, was possessed of a negro woman named Jenny, as his slave; that on the 8th April, 1806, he manumitted ihe said Jenny by a Deed in these words, to wit: “Know all men by these presents that I Abel West of Accomack County and State of Virginia, for divers good causes and considerations, thereunto me moving, have and by these presents do manumit and set free the following negroes at *my death: they shall serve me as long as I shall live, and at my death shall go free from all persons, and I do hereby for myself, my heirs, executors and administrators, relinquish all my right and title in, and unto the aforesaid négroes, Josiah. Joshua, Nanny, Brittany, Fanny, Toby, Stephen, Alcy, Sampson, Nancy, Jenny, Jack, Mary, Perey, Peter, Frank, Levin, Strong, Kesiah, James, Annet, Candis, Adam, , Mehala. . In testimony ■whereof, I have hereunto set my hand and seal this 8th April, 1806, Abel West, (Seal.)” Which deed was duly recorded. They found, that on the 1st January, 1806, the said Abel West placed the said negro Jenny, and other negroes belonging to him, upon that part of the tract of land supposed to be two hundred acres, which in his Will he devised to the negroes which belonged to him, and the said Jenny continued to live on the said land, from that time until the death of Abel West, and from that time till Isaac, the Plaintiff, was taken possession of by the Defendant: that the Plaintiff is the son of Jenny, and was born in 1813, and lived with his mother from the day of his birth till the day of the death of the said Abel West: that the said Jenny and the other negroes cultivated the said two hundred acres of land, and used the profits; and the said West neither cultivated, nor interfered with the cultivation of the said land after Jenny and the other negroes were placed on it, nor had it been cultivated for many year before by any one: that all the negroes who were placed on the said tract were considered in the neighbourhood as free, and were dealt with, and dealt witn others as such, from the time they were placed there till West’s death: that Nanny, in the said Deed mentioned, who lived on the said tract, hired out her son Toby, from 1810, to 1813, inclusive and her son Sam, for 1813, and received the hires: that Jack, in the said Deed mentioned, is a child of Jenny, and that the said West, when he placed Jenny on the land,- gave up to her the boy Jack, who continued in possession of his mother till he arrived to the age of twenty-one years, and *that for three years, beginning in 1811, he was hired out by her, and she received the hires: that the said West never made any objection to the dealings and transactions of the said Jenny and the other negroes, or exercised any control over them: that in 1803, the said Abel West declared that he intended after his death, that his slaves should never serve his relations.'or any one else. They found, that Abel West died 3uth May. 1816, having first made his last Will and Testament, bearing date 22d of that month, which Will is found in hsec verba. [After devising sundry tracts of land to his relations, and bequeathing them sundry valuable cattels, he says. ‘‘Item, I give all the negroes which belonged to me the land lying above the Neck road, supposed to be two hundred acres more or less, it being part of the land where I now live, to them and their heirs forever on the female side in common amongst them all as a place of refuge. I also authorise my Executors to give them thirty barrels of corn, and one thousand weight of pork. I also give them all the flax, wool, and leather that may be in the house at my death. Item, I give to my men Joshua, Will, Sam, Parker, Edmund, and Adam, forty dollars each should they finish the crop.” He appoints the Defendant his Executor.]
    The Jury also found, that the two hundred acres given by the Will to the negroes, is the same land on which Jenny and the other negroes had been placed by West, at the time aforesaid: that the said West, after the payment of his debts, left, besides negroes, personal estate of the value of more than $4,000: that Joshua, Brittany, Sampson, Mary, Perry, Frank, and Adam, named in the said Deed lived with West till his death, and that Brittany and Mary had several children born after April, 1806, all of whom also lived with West till his death, and that Alice was placed by West with John G. Joynes, after April, 1806, and continued with him till West’s death. The Jury also found a Deed executed by West, bearing date 27th June, 1808, by which, after reciting that he had *by the Deed of April, 1806, manumitted Josiah after his death, he released to the said Josiah his life estate in him, and all claim to his services, from that time, making him as completely free in every respect as he had a right to do, which Deed was duly recorded. They also found that the said Abel West had, by Deed of the 24th February, 1806, which was duly recorded, emancipated sundry other slaves, eleven in number, absolutely, and without any reservation of right to their services. It was also agreed that Adam and Joshua, mentioned in the Will, were the same negroes named in the Deed of April, 1806.
    Upon this statement of facts, the question was referred to the Court, to decide whether the Plaintiff Isaac was entitled to his freedom or not. The Superior Court adjudged the Law to be for the Defendant, from which the Plaintiff appealed.
    Leigh, for the Plaintiff.
    Johnson and Stanard, for the Defendant.
    
      
      Deed of Emancipation — Construction -Increase.— See principal case cited on this subject in Manns v. Givens, 7 Leigh 717; Kogan v. Corn., 2 Gratt. 574; Wood v. Humphreys. 12 Gratt. 334, 335. 346. The principal case was cited in Forward v. Thamer. 9 Gratt. 539, to the point that a testator cannot emancipate a slave and annex a condition subsequent repugnant to the freedom conierred.
    
    
      
      Same — Same—Rule of. — “I approve of the principle declared by this court, in the case of Isuaesv. West, 6 Hand. 652, that every instrument conferring freedom, should be construed liberally, in favor of liberty.” Judge Cabbed in Elder v. Elder, 4 Leigh 260 To the same effect the principal case is cited in Manns v. Givens, 7 Leigh 714.
    
    
      
      Absent, the President.
    
   December 18.

JUDGE GREEN.

In April, 1806, Abel West emancipated many of his slaves, by a Deed, which in the same month was duly recorded, upon his acknowledgment. Amongst these was Jenny, the mother of the Appellant, who was born in 1813. West died in 1816. The operative words of the Deed were: “I, Abel West have, and by these presents do manumit, and set free the following negroes at my death; they shall serve me as long as I live, and at my death shall go free from all persons; and I do hereby for mj'self, and my heirs, executors, and administrators relinquish all my right, and title of, in, and unto the aforesaid negroes Josiah,” &c.

In the month of January preceding the date of the Deed, many of the negroes were settled by West, upon two hundred *acres of land, which he afterwards devised to the negroes, which had belonged to him. These were from the time of that settlement, practically tree, rendering no service to West, and appropriating all their earnings to their own use, some of the women hiring out their children, and receiving their hires. Some of the slaves named in the Deed, continued to serve West until his death.

If the civil condition of Jenny was changed from that of slavery to freedom, immediately on the execution of the Deed, Isaac was born free, although she might have been bound to service during her former master’s life. On the contrary, if she continued a slave till West’s death, he was born a slave, and so continues, notwithstanding the subsequent change of his mother’s condition.

If the first clause of the Deed conferring freedom on these slaves, was the only one having that effect, it is clear that they would have continued slaves to all intents and purposes, until West’s death. On the other hand, if the last clause was the only one in the Deed whch had that effect, they would have been immediately free. And if there were no other clause affecting the construction of the Deed, I should think the generality of the last would be modified by the first so as to give effect to the manifest purpose of holding the slaves during West’s life-time, and in the absence of any evidence of his intention as to the mode of holding them, it must have been taken that he intended to continue to hold them as he then did, as absolute slaves, to be disposed of during his life, as he pleased, by transferring them for that time to any other purpose, or otherwise. The second clause, which declares that they should serve him during his life, seems to indicate that he did not intend to reserve his original and general power over them, as a master entitled to dispose of them during his life, at his pleasure, by selling them to others, but only to impose on them the obligation to serve him personally as he should require.

*The three clauses, then, taken together, may be considered, as modifying each other, so that all may have some effect, and be construed to give immediate freedom, to all intents and purposes except to hold them bound to serve West himself, personally, during his life. They may be read together thus: “I Abel West have, and by these presents do manumit, and set free, and do hereby for myself, my heirs, executors, and administrators, relinquish all my right and title of, in and unto the following negroes Josiah, &c. But they shall serve me as long as I shall live, and at my death shall go free from all persons.” The effect of this would be that he renounced all his right and title as master, from that moment, reserving a right to claim their personal services to himself only, as a condition of the emancipation. If this condition was against Law, as inconsistent with the right granted, it would not frustrate the grant. Thus, a condition that the grantee should not enjoy the estate granted, but in a particular way, or should not alienate it, would be void, and not affect the validity of the grant; and so in case of a grant of present freedom to a female slave, with a condition that her future issue should be slaves, the condition is against Law', and void, but does not invalidate the grant, as was held in Fulton v. Shaw, 4 Rand. 597.

If this construction is doubtful, some weight is due to the maxim, that every Deed is to be taken most strongly against the grantor, and to the spirit of the Laws of all civilized nations which favours liberty. “In obscura volúntate manumitten-tis, favendum est libertati.” Dig. Lib. £0, tit. 17, § 179, Ulpian. And for the Common Law, see Coke Lift. 124, b.

The Judgment of the Superior Court ought to be reversed, and Judgment entered for the Plaintiff.

JUDGES CABELL, COALTEE, and CAEE, concurred.  