
    JAMES M WHEDBEE Ex’r. v. WILLIAM R. SHANNONHOUSE and others.
    A legacy to slaves upon their future contingent emancipation (provided for in the will) is not against public policy, even though a part of the fund so given is to be made up of their own earnings.
    Where a will contemplated an emancipation conpled with removal to Liberia or some such place, and provided a certain fund to be used to cover the expenses of such removal and also to supply clothing and implements of husbandry, and added that if any part of such fund were left, it should be divided among the slaves emancipated, Held, that as in the event they were emancipated without a removal by the results of the late war, such slaves were entitled to the fund undiminished by expenses, &e.
    The will for emancipation having been defeated as to a part of the slaves by the dissent of the widow, Held, that as the fund was bequeathed to the slaves as a class, those who fitted Che description at the time of division, took it all and there was no lapse.
    
      Semille, that the slaves who were reduced to their former condition by the dissent of the widow are, as things have turned out, entitled to a share of the fund.
    
      ([Myers t/. Williams, 5 Jon. Eq., 362; Halsey v. Halsey, ante 180; TJverman v.. Garter, 4 Jon. Eq., 50, cited and approved.)
    Bita to have a will construed, filed to Fall Term 1867 of the Court of Equity for Pasquotank, and then set for hearing upon bill and answers and transferred to this court.
    
      The complainant was the executor, and the defendants were the heirs at law, devisees and legatees of James P. Whedbee, whose will had been proved in Perquimans county court in 1853; and the bill was filed to obtain a construction of that will in various respects.
    The material parts of the will were, that his wife, who was also named as sole executrix, should have the use of all of his estate during her natural life or widowhood, and in the event of her marriage, then such interest therein as she would have had if the deceased had’ died intestate; at her marriage or death all of his estate was to be taken possession of by certain persons who were then to become his executors, and certain parts specified were to be sold, and the proceeds divided into seven parts: of which, after disposing of six parts, he gave the last as follows:
    “And one-seventh to be expended together with the several funds that may be raised by my wife as directed to be raised in items fourth and fifth, in fitting out and removing and settling all of my negroes except Demás, Jonah and old man Jack (whom I shall provide for hereafter) to Liberia or some other free foreign colony, as it is my wish that they shall be liberated and sent there. And I have made this bequest to them in order that this part of my will in relation to them may be effectually carried out to all intents and purposes as it is desired to do. And should any of the bequest be left after fitting said negroes out with all necessary clothing and implements of husbandry necessary for them to carry &c., and expenses of removing &c., then and in that case, for the balance of said fund to be divided among them having due regard to merit, old age and infirmity, and paid over to’ them in such a manner as they will be certain to get the same when they reach their place of destination, and in that case if any of them (which it is reasonable to suppose) should not be capable of receiving and managing their fund in a provident, 'wise and safe manner, then and in that case to appoint them a guardian who will be certain to do them justice. And I especially desire the American Colonization Society to have an eye to this bequest so that my negroes may in no wise be defrauded out of the bounty intended for them, unless defeated as hereinafter provided in the (9th) ninth clause of this will.”
    The ninth clause of the will, reciting the fact that the testator then had no children, made various changes in the disposal of his estate in case he should leave children at his death.
    The tenth clause gave to certain persons all of the estate “not herein disposed of, or which shall fail by reason of lapse or otherwise.”
    There was a codicil, revoking a legacy of one of the above seventh parts, which had been given to one James Shannon-house, and adding it to the share above given to the negroes.
    • .The bill stated that the testator died without children, and that his widow dissented from the will, and shortly after-wards married again and had her share of the estate (including slaves) allotted to her; that the other executors re-renounced, and he alone had qualified; that as executor he had sold those parts of the estate which were designated in the will as for sale (amounting to $98,000); that the breaking out of the late war had interrupted his plans for sending away the slaves that had been liberated, and that the results of that war, together with the death, disappearance &c., of the slaves had greatly embarrassed him in the discharge of his duties; that the residuary legatees claimed that as no removal of the slaves was necessary now, they were entitled to the money which had been provided by the testator to cover the expenses of such removal, &c. The-prayer was for instructions, &c.
    
      Separate answers were put in (1) for the residuary legatees, (2) the heirs and next of kin, and (3) for the freedmen.
    
      Smith and Bragg, for the residuary legatees.
    1. The doctrine of cy pres does not prevail in this State, and the legacy fails if the purposes of the testator cannot be ascertained or carried out. McOauley v. Wilson, 1 Dev. Eq., 276; Lea v. Brown, 3 Jon. Eq., 150; Bridges v. Pleas-ants, 4 Ire. Eq., 26.
    2. A residuary bequest passes every thing which turns out not to have been disposed of, whether it fail by lapse, illegality or death ef a legatee in testator’s life time. Taylor v. Lucas, 4 Hawks, 215; Beeves v. Beeves, 1 Dev. Eq., 386; Sorrey v. Bright, 1 D. & B. Eq., 113; Davis v. King, 2 Jon. Eq., 208; Jones v. Perry, o Jon. Eq., 200; Allison v. Allison, 3 Jon. Eq., 236; Ireland v. Foust, ibid, 498; Odes v. Balance, 1 Win. Eq., 89.
    They also cited, upon other parts of their argument, Morde- . caiv. Boylan, 6 Jon. Eq , 365; Livennan v. Garter, 4 Jon. Eq., 59; Thompsons, Newlin,% Ire. Eq., 32; Wooten v. Becton, ibid, 66; Green v. Lane, ibid, 70, and Bus. Eq. 102; Garrett v. Weatherly, 5 Jon. Eq., 46, and Thomas v. Palmer, 1 Jon. Eq., 249.
    
      W. A. Moore, for the freedmen.
    The devise and bequest is a charity, and not the less so for being subject to the discretion of the trustees. 6 Jon. Eq., 384; 1 Jon. Eq., 440; 1 Hawks 125; 3 P. Wins., 145;
    1 Yes. Jr., 295; 2 Att- 87; 3 Peters 116, &c. (Inglis v. Trustees, &c.;) 5 Jon. Eq„ 216.
   Pbkrson C. J.

Although it be conceded that, as the testator died before the war, the will should be construed according to the idea of public policy then acted on by our courts, still the position that the provision for emancipation being prospective is illegal, and consequently that the legacy given to the slaves was void, is not supported by any authority or principle.

The whole subject is so fully discussed in Myers v. Williams, 5 Jon. Eq. 362, as to make it useless to elaborate it further. It is there taken as settled, that a provision for emancipation after the termination of a life estate is not against public policy. The fact that a large fund was to be made up in part by their future earnings does not affect the question.

Assuming therefore that, if the war had not occurred, and if the widow of the testator had died without marrying again, the slaves would have been emancipated in the manner provided for by the will, and would have taken the legacy, the question is: Do these tacts separately, or in connection, have the effect of depriving them of the legacy or any part of it ?

One of the results of the war was to effect the emancipation of slaves without the cost of transportation to Liberia, or other free countries, and the controversy between the claimants is, to whose benefit shall this saving accrue.

Upon a general view, it would seem that this collateral advantage caused by what, as between these parties, was a mere accident, should be a “wind fall," or piece of good luck to the freedmen; because they are the immediate object of the testator’s bounty in regard to the legacy under consideration rather than to the persons who are in no respect the objects of this bounty. Especially should this be the case in the absence of any indication of an intention on the part of-the testator that the legacy given to his slaves was in any wise to depend on the manner in which their emancipation should be effected. Haley v. Haley, ante 180. There is nothing in the will to show that the application of a part of the fund to the payment of expenses of transportation was to be of “the essence of the gift,” and make a condition. On the contrary this direction may be ascribed entirely to the fact that, at the time, there was no other mode of emancipation except by removal from the State, and affords no ground for an implication that the testator desired that the slaves should remove from the State; indeed, judging by the many cases in which the court have been called on to enforce this provision of the law, there can be no doubt that, as a general rule, testators l^ve submitted to this requirement unwillingly, and would gladly have .been .relieved from it. • ■

Taking a more particular view of the case, it was said on the argument, “This legacy is given as the means of effecting the emancipation of the slaves. That object has been .accomplished by the general emancipation which was a result of the war, so there is no occasion to resort to the means, and for that reason the legacy fails.”

If there was any thing in the will to show that the legacy was given simply as a means to effect an object, and that the slaves were the objects of the testator’s bounty to that extent only — as for instance, if the testator had directed so much of this one-seventh part of his estate to be applied to defray the expense of transportation, as was necessary for that purpose, and that the balance of the fund should be paid over to A, B & C, there would have been much force in the argument, and the case would have fallen within the principle adopted in Liverman v. Carter, 4 Ire. Eq., 59. There the testator appropriated $100 to the use of schooling and educating a boy, with a limitation over to A, in case the money was not used for that purpose. The boy arrived at age, married, and had two children before the testator died; and it was held that the legacy passed over to A, on the ground that the special application was a condition procedent, and the limitation over showed that the testator intended its use in that mode to be of the essence of the gift to the boy. But, in our case, one-seventh part of the estate, increased by the codicil to two-sevenths, is given to the slaves as a distinct bequest; a part to be applied to pay expenses of transportation; a part to meet expenses of buying farming utensils and settling them; and the balance of the funds to be paid over to the slaves; so that, instead of a limitation over to a third person of the fund, or any part of it, being made under any circumstances, or in any event, the whole of it is given to the slaves, and it is an absolute bequest under the principle recognised as the general rule in Liverman v. Carter, supra; and settled by many cases. Barton v. Grant, Nevile v. Nevile, 2 Vern. 430; Barlow v. Grant, 1 Vern., 254; Barton v. Cocke, 5 Vesey, 461; Cope v. Wilmot, Amb. 704. The principiéis this: When there is no limitation over, directions in regard to the application of the fund, e. g., “to enable him to complete his education,” or, “to study law,” or, “to buy a Library,” are taken as merely “advisory,” and suggestive of the motive for making the gift, and of the opinion of the testator as to the best mode of using it, but the legacy is absolute, — and it is only held tobe conditional when there is a limitation over to a third person, in case the fund should not be psed in the manner directed.

There is a large class of cases in which the principle is carried further, and applied to legacies where express words of condition are used; for instance a legacy to a wife, but in case of marriage the legacy is to be void; or to a daughter, but if she should marry under the age of twenty-one, without the consent of her mother, the legacy shall be forfeited”; or a clause of this kind, “should any one or more of my legatees contest this will, the provision I have made for them is to be void and of no effect.” In all of these cases, in the absence of a limitation over, such words are taken as no more than the expression of an earnest request or a strong remonstrance, and are technically termed words “m ierrorem,” and the legacies are absolute. It is only when what is given is, in default of the first taker, given over to a third person, that the nature of a conditional limitation is fixed upon it, so as to become a part of the essence of the g-ift, whereby it may be defeated. See 1 Jarman on Wills, 538, and other text writers, where all the cases are cited.

It is said, in the second place, that in regard to that portion of the fund which would have fallen to those of the slaves who were again reduced to slavery by the legacy to the widow in the event of her marriage, and who Avere assigned to her as her portion of the testator’s estate, the legacy fails, for at the time Avhen it was to Amst, (to-AAÚt, upon her marriage,) they Avere not capable of taking, and this incapacity to take is not aided by the fact that they Avere subsequently emancipated, so that this part of'the fund passed either to the residuary legatees or to the next of kin.

If the legacy had been given to the slaA’es nominatim, oías individuals, this conclusion Avould have been true, but a complete ansAver to it is, that the legacy is given to the slaves asa class, and such of them as answer the description and make up the class are entitled to the Avhole fund. This is settled: ex gr., a legacy to the children of A, and some of them die in the life time of the téstator; there is no lapse, and such as answer the description at his death take the Avhole; or, it the division be postponed until a future event, as the tailing- in of a life estate, all Avho ansAver the description at that time are entitled to the whole fund.

This disposes of the case except as between the freedmen. The pleadings do not raise any matter of controversy as to them, and we are relieved from the necessity of deciding, Avhetlier, upon principles of equity, those of them who were so fortunate as not to be reduced to slavery a second time by the effect of the widow’s dissent from the will, or by her second marriage, could be heard, or allowed to take the ground, that ihose upon whom the misfortune fell should be further injured by being thereby excluded from a right to participate in a fund, which the testator intended for them all; but it may not be amiss to say, it is a settled principle in equity that where two or more are liable to a common burden, and the whole falls upon one, he is entitled to contribution from the others; and if would seem that according to natural justice, the others could not by reason of his misfortune, in having the burden fall on him, make that aground of further prejudice, because the burden was common, and, but for accident, it might have fallen on them. There will be a decree according to this opinion; costs to be paid out of the fuud.

Per Ooriam.

Decree accordingly.  