
    Pierre Adolphe Rost and another, Testamentary Executors of Stephen Henderson, deceased, v. George Henderson and others.
    A clause in a will directing that certain slaves shall be emancipated at a future period, and transported to Africa, will not be rendered void by a provision directing, in case of their return to the State, that they shall again become slaves. Tha, illegality of the condition does not render the previous provision null.
    
      The testator having provided that ten slaves should be drawn by lot out of the • whole number belonging to his estate, and transported to Africa, if willing to go, among the number so drawn was one under eleven years of age. In an action by the executors to compel the heirs of the deceased to give up the slaves so drawn, to be transported as directed by the testator, Held: that the slave under eleven years of age, being unable to give his consent, the provision of the will cannot be carried into effect as to him.
    Appeal by the plaintiffs from a judgment of the District Court of the First District, Buchanan, J.
   Mautin, J.

The late Stephen Henderson, by his last will and testament, directed his executors 'five years after his decease, to draw by lot out of all his slaves, five males and five females, to be furnished with a free passage to our settlement in Africa, and one hundred dollars each. This draft took place in due time. In the meanwhile, the heirs made a partition of all the slaves of the estate among themselves. The defendants are the heirs who, under this partition, own part of the slaves designated by the draft to be transported to Africa. The petition concludes with the prayer, that the defendants may be decreed to manumit the slaves’ in their respective possession, to transport them to Africa, and to furnish them with one hundred dollars each, &c.

The defendants denied their being bound by the will; averred that its provisions are void for uncertainty, contradictory in themselves, and in direct contradiction to the laws. The Attorney General of the State was, on motion of the counsel for the executors, made a party to the suit.

The court gave judgment for the defendants, being of opinion, that the clause in the will respecting the drawing by lot of the slaves, and providing that such of them as may come back from Africa shall return into slavery, is, in its opinion, a condition which is impossible in law ; and that, as the whole of the clause must be taken together, the illegality or impossibility of any part of if must destroy the whole.

We have been favored with a printed brief endeavoring to support the defendants’ conclusions.

We cannot concur in the opinion of the District Judge, that the clause of the will upon which the present action is brought is of no effect, because it contains the condition, that such of the slaves transported to Africa who may come back to this State, shall return into slavery, — a condition impossible in law. He has, however, correctly confined his attention to that portion of the de-fence which relates to the draft, and to the demand of the executors that the drafted slaves be transported to Africa.

The draft and transportation as ordered by the testator, were legitimate objects of his last will and testament; and the executors properly demand a compliance with that part of his will. If there be other parts of it which are objectionable, as contended by the defendants, it will be time to inquire into their legality when the execution of them shall be sought.

The defendants before us are Stephen Henderson, Jun., and George Henderson, and Caroline Eugenia Henderson, wife of Dr. Wilcox. The first of them is in possession of five of the slaves drafted, to wit: Martha, Sylvia, GifF, Old Leon and Jim Jackson, the youngest of whom (Sylvia) was twelve years of age at the time of the inventory, which we presume, as the instrument is not before us, was made in the year of the testator’s death, in 1838, and is now nineteen years of age. The two others are in possession of two of the drafted, slaves, Daniel and Milly, the first of whom was four years old only at the time of the inventory, and is now about eleven, and, iu our opinion, was improperly drafted, as he could not give his consent thereto.

The other three slaves drafted are Judy and Betsey, who are in the possession of a person not a party to the present suit, and John Mulatto, who is in the possession of P. A. Rosi, one of the executors and plaintiffs.

The defendants, by the act for the division of the slaves, and to which the executors were parties, bound themselves, in case that portion of the will which relates to the transportation of the slaves to Africa, should be declared valid by the courts having jurisdiction, to comply therewith, and to support all the charges and expenses attending the execution of the same.

The petition asked, that the defendants should be ordered to manumit the drafted slaves in their possession. The will is silent as to this, and its provisions render the manumission unnecessary.

It is, therefore, ordered and decreed, that the judgment be annulled and reversed ; and that, on the demand of the executors, the said Stephen Henderson, Jun., deliver to them for transportation, the slaves Sylvia, Martha, GifF. Old Leon and Jim Jackson, and the said George Henderson, J'un., and Caroline Eugenia Henderson, the slave Milly for the like purpose ; and that for each of said slaves respectively, the sum of one hundred dollars be paid by the said defendants, with the expenses of the transportation, that is to say, by the first for five, and by the latter for one of the said slaves, with the costs in both courts. 
      
       The provision of the will is in these words :
      “ At the end of the five years as aforesaid, there may be drawn by lot, out of all the slaves, ten — five females and five males, who-will be furnished with a free passage to our seltlement in Africa, and one hundred dollars each ; but they must go of their own free will, and to return back to slavery If ever they return back to this country.”
     