
    ALFRED HAYLEY and others v. WILLIAM H. HAYLEY, Adm'r with the will annexed, &c.
    A testator, who died in 18G4, by will dated in 1857, gave their freedom to> certain slaves; and then, by subsequent clauses, also gave 1 ‘ to the above-named liberated slaves ” property both real and personal: Meld, {Battle, J.,, dissenting,) that by the effect of the recent Emancipation, such gift was; valid.
    
      Also, l>y the court, that emancipation was the primary, and the method! thereof but a secondary object with the testator.
    
      Also, by Pearson, C. J., and Meade, J., that, waiving all questions as to the; time and manner in which emancipation was effected, the testator, from, his knowledge of the issue which at the time of his death was notoriously involved in the result of the war then existing, must now be presumed to have intended, that if such war resulted in emancipation the; gifts should take effect, otherwise not. And, that such intention wa® not against any public policy which the State can now recognize. And',, that the contingency was not too remote.
    By Battle, J,, that the Proclamation of President Lincoln could have no* effect in liberating slaves where they did not come under the control of the armies of the United States, as these did not until after the death of the testator.
    
      Also, that the phrase “liberated slaves,” unexplained, included only slaves: that were such at the death of the testator.
    
    
      {Blossom v. Van Amnnge, ante, p. 133; Wiley v. Worth, this term, at LawMordccai v. Boylan, 6 Jon. Eq., 3Go; Shinn v. Motley, 3 Jon. Eq., 480; Simla! v. Johnson, 2 Jon. Eq., 202, cited and approved.
    Bill, filed to Spring Term, 1866, of the Court of Equity for Northampton, when a demurrer was put in and th 13-cause set down for argument and transmitted to this, court. The demurrer was argued at the last term of the court, and having been retained under an aclvisari, was. again argued at the present term.
    The bill showed that one Holiday Hayley, late of Northampton county, died in June, 1864, leaving by will to-the complainants, who were his slaves, their freedom and ■certain real and personal estate, and that for this they had applied to the defendant without success, &c. The prayer was for an account, payment of their legacies, and for further relief. f
    The will was filed as an exhibit to the bill, and bore date 5th of August, 1857. Its contents, so far as here material, are: “Item 1. My will and desire is to set free the following slaves, viz:” &c., “ and to the above named slaves I hereby give, grant and bequeath, to each of them, freedom forever. Item 2. I give and bequeath to the above-named liberated slaves half of the tract of land I now live on, to them and to their heirs forever, including the buildings. Item 3. I give and bequeath to the above-named liberated slaves the sum of seven hundred dollars annually for ten years,” &c.
    The demurrer was a general one.
    
      Biggs and Peebles, for the complainants.
    
      Bragg, for the defendant.
    The Judges delivered their opinions seriatim, as follows.
   Pearson, O. J.

It is clear that if the defendants, who are his next of kin, are declared to be entitled to the property in controversy, and the complainants, who are his “liberated slaves,” and the peculiar objects of his bounty, are left ttf enter their new field of existence without anything to start on, the wishes and expectations of the testator will be disappointed.

It is also clear that if the testator had died in 1857, when his will was executed, or in 1866, after the ordinance of emancipation, the legacies would have vested and the intention of the testator been carried into effect. So the inquiry is, upon what ground does the fact that he happened to die in 1864, during the war, work the effect of defeating his will ?

1st. It is said: The complainants were not persons in esse capable of taking a legacy at the death of the testator. True; but under the doctrine of trusts, and of executorydevises and bequests, property may be given to a person not in esse; for in such cases the trustee or heir at law or executor holds the legal title and fills the ownei-ship until the event happens, or the person is ascertained. Thus, a legacy to such of the children of A (he having no child) as may arrive at the age of 21 years, will be carried into effect. This doctrine is settled.

2d. It is said: The contingency in our case is too remote. The rule is, that the estate must be so limited that if it takes effect at all, it will take effect within a life or lives in being and 21 years, and a few months for gestation. In our case., as will be shown below, the result of a war then pending-was the event upon which depended the vesting of their legacies. That event could hardly, in the nature of things, be protracted beyond a life or lives in being and 21 years.

But a conclusive answer to this objection is, that the legacies are given to individuals who are named, to be paid to them if liberated, or when liberated, and that fact is obliged to be determined in the lifetime of the individual.

Our case, then, falls under the class of cases referred to by Mr. Smith, in his learned treatise on the subject of Executory Interests; 2 Fearne on Remainders, under the head Of Limitations of life annuities.

3d. It is said that the act of 1861 declared void all directions for the emancipation of slaves made by will; so that these slaves could not have been emancipated in the manner contemplated by the testator; ergo, he did not intend to make any provision for them if they should be liberated in any other manner.

After full consideration, according to my judgment, the fact of being liberated is the essence of the thing, and the manner of its being done is a mere circumstance which does not affect the validity of the legacies; for, as it seems to me,, the paramount intention to make ample provision for these slaves if liberated, no matter how, and to give them •a fair start in the world, is clear.

If allowed to make a guess I should say this old man never heard of the act of 1861. But it is a public statute. We must act on general rules, and take for granted that he •did have notice of it. We are also to take for granted that he had notice of President Lincoln’s Proclamation of the 1st of •January, 1863, and of the fact that the condition of slavery had become an issue in the war; so. that if the United States succeeded in suppressing the rebellion every one expected the slaves to be liberated. And from the fact that this old man, with a knowledge of these matters, died, leaving his will unaltered and unrevoked, I feel bound to consider the matter as if he had said in so many words, “ should these ■slaves be liberated by the result of the war, or in any other manner, (I don’t care how,) I do, by this my last will, make provision for their support.” ■

The testator, in framing his will, had two objects in view; first, that the slaves should be emancipated; second, that when liberated they should be provided for by competent legacies.

The second depends upon the first, for should the slaves riot be liberated, they would have no occasion for, and be in•capable of, taking legacies.

But the fact of prior emancipation is not imposed by the testator as a condition precedent, and is merely a thing collateral. and necessary in the nature of things in order to make the legatees capable of taking; so there is nothing to .■show that the legacies were at all to depend on the manner in which their emancipation was effected.

It is true, when the will was executed the maimer contemplated by the testator was that it should be done according to the provisions of his will; but from the fact that he kept the will unaltered and unrevoked, and left it at his death as an instrument to be of full force and effect, and that at this time events were transpiring which would probably result in emancipation in a way not contemplated by him at the time he executed his will, makes it clear that his intention was that the slaves should have the legacies “ when liberated,” without reference to the manner in which the liberation might be effected.

If this conclusion required further demonstration it is furnished by taking another view of our case. Suppose the testator had lived until after the ordinance of emancipation, or suppose the testator in his life time, to meet the requirements of the act of 1861, had taken the slaves out of the State and set them free, no question could have then been made as to the validity of their legacies. This proves that emancipation was the substance, and the manner of it was not of the essence of the thing on which the legacies are made to depend.

4th. It is said that, apart from the act of 1861, as the State was at the time of the death of the testator at war with the United States, his intention to give legacies to these slaves, should they be liberated by the result of the war,- will not be carried into effect by the courts of the State, because it was an act against the policy of the State at that time, and was in substance an inducement or bribe held out to the slaves to aid the government of the United States in its war upon the government of the Confederate States.

That the courts will not give effect to an agreement or a will which is against the public policy is a settled rule; but in my opinion that rule does not apply to the case before us.

We have a complicated form of government, or rather two forms of government. The citizen owes allegiance to both, and both act directly upon the individual. At the time of the death of the testator the government of the State was in the possession of men who were not qualified to discharge the duties of their offices, not being bound by oath to support the Constitution of the United States, but on the contrary bound by an oath to support the Constitution of the Confederate States, which was at open war with the United States. None of the acts of the State government, as then administered, were valid. See the ordinance of 1865, making valid certain acts of the de facto government, and Blossom v. Van Amringe, ante, p. 133, and Wiley v. Worth, decided at Law during this Term.

In other words, at the time of the death of the testator, wJjen his will took effect, the State government was -wrongful, and formed a part of the government of the Confederate States. The legacies under consideration were against the policy of the Confederate States, and of the wrongful State government, but was in accordance with the policy of the government of the United States and - of the rightful government of the State, which was then suspended by usurpation, but must be taken to have-been.identical in interest and policy with the government of the United States.

Admit that the courts which formed a part of the wrongful State government in 1864, a.t the- death of the testator, could not have given effect to these legacies; the whole condition of things is now changed. Such proceedings have been had that the State now has a rightful government, and it seems to me clear that the courts, which make a part of this rightful government., cannot refuse to give effect, to legacies which are not opposed to the policy of the United States or to its policy as a part thereof, and acting in accordance therewith, on the ground that the legacies, at the time of the death of the testator, were opposed to the policy of the government of the Confederate States, and of the wrongful State government, which was then acting in accordance with the government of the Confederate States.

So far from this being the case, we have seen that our court could not have given effect either to the legislative or judicial acts of the wrongful State government, except by force of the ordinance of a convention.

This view of the subject relieves me from the duty of expressing an opinion upon a point much discussed at the bar, and into which I choose not to enter, because both of the difficulty of its solution and the many important consequences involved.

I refer to the question, At what time, and by Avhat act, was emancipation effected?

For whether it was by the proclamation of the 1st of January, 1863, or by the surrender and general military order of May, 1865 find the action of the owners of slaves in accordance therewith, or to the ordinance of 1865, is immaterial, it being only necessary for the purpose of my. conclusion that a war was pending at the death of the testator, upon the result of which emancipation was made to depend as an issue tendered and accepted.

In my opinion the complainants are entitled to a decree for the legacies claimed by them.

Reade, J.

I have carefully considered the opinions filed by my brothers Pearson and Battle, and I agree with the former, and for the reasons assigned by him. I have examined the case of Shinn v. Motley, 3 Jon. Eq., 490, and I do not think it has the resemblance in principle to this case, which is attributed io it by my brother Battle. If a legacy is given to the children of A, and A has no children living at the testator’s death, but subsequently has children, the subsequent children will take when they come into being, because it is evident that the testator meant that A’s children should take, and as he had no children at the testator’s death, the testator must of necessity have meant his after-born children. But if a legacy is left to the children of A, and A has children at the testator’s death, then they answer the description and take the whole to the exclusion of after-born children, because there being persons filling the description, it is to be supposed that they are the persons meant, and the legacy will not be withheld from them to see if others may not come into being- who will answer the déscription also. The rule then is, that all who answer the description at the time when the legacy,is to be paid,will take, as where there is a life estate, and then to children, all the children at the end of the life estate will take, although they were not in being- at the testator’s death. Sims v. Garrott, 1 Dev. & Bat. Eq., 393; Petway v. Powell, 2 Dev. & Bat. Eq., 308. So here, if at the testator’s death he had had any liberated slaves, they would have answered the description, and would have taken the legacies, to the exclusion ot such as might thereafter be liberated; but, as he had no liberated slaves at the time of his death, and yet gave legacies to his “ liberated slaves,” he must of necessity have meant such as should be thereafter liberated.

I concede that the conflict of opinion makes this a doubtful question. And the fact that the opinion at which I have arrived effects the clear intention of +he testator, has not been without its influence.

Battle, J.,

Disserting. The pleadings show that the will of the testator was made on the 5th day of August, 1857, and that he died on the 13th day of June, 1861. This will purported to emancipate certain ‘of his slaves, who are the present complainants, and then proceeds to give “ to the above-named liberated slaves ” both land and money. ’ The question presented for consideration is, whether under the circumstances the complainants can take this land and money.

It is admitted that the bequest for emancipation is void by force of the act of 1860, ch. 37,- that being settled by the decision of this court in Mordecai v. Boylan, 6 Jon. Eq., 366. The status of the complainants as slaves remained then unchanged at the death of the testator in 1864, unless their emancipation was effected in some other mode. Their counsel contend that it was effected by the proclamation of the President, of the 1st day of January, 1863; not by virtue of any civil authority conferred upon him by the Constitution, but as commander-in-chief of the armies of the United States. In this capacity it is said that he had the right to set the slaves in the revolted States free, as an incident to the war power and as one of the means of suppressing- the revolt. This proposition may be viewed in two aspects; and in neither of these can it be maintained. First, if the States which formed the Southern Confederacy had no rig-ht to secede from the Union, their attempt to do so and to maintain their acts by force, was a rebellion, and in employing means for the suppression of that, the President was acting-under the sanction of the Constitution, and had no rig-ht to violate any of its provisions. The Constitution recognizes the fact that there may be insurrections, and points out the means by which they may be suppressed, and among these the abolition of slavery is not comprehended. Secondly, if secession was lawful, and the seceding States rightfully established the Confederate Government, so that the war which ensued became a foreign war, even then the proclamation of the President could not have had the effect to set free any other slaves than those which came under the control of the armies of the United States. This seems to be settled as the law of nations. See Dana’s Wheat, on Int. Law, Note 8, to sec. 347. See also the opinion of Judge Sheffey, of Virginia, in the case of Walker v. Loving. It is admitted that the complainants were never under tbe control of the Federal forces before the death of their master, but on the contrary remained with him until that event, serving him apparently as they had done before the commencement of the war. I conclude, therefore, that they were his slaves at the time of his death.

Supposing this to he established, the complainants still contend that as they have since-become tree, either as one of the results of the war or by force of an ordinance of the State Convention of 1865, they can claim under the will of their master as executory devisees and legatees. The argument is, that as the will of the testator speaks as at the time of his death, (See Rev. Code, c. 119, s. 6,) as he kept it by him unaltered, and as he must have been aware of passing events, he must have had in contemplation the event of the emancipation of his slaves .as being probable, and that therefore the language he uses must be construed with reference to, and by the light of all the circumstances by which he was surrounded. Hence, it is concluded that the devises and bequests to the complainants are all executory in their character, and that the event upon which they were intended to become vested, was not so remote as to come within the rule against perpetuities.

This argument is very ingenious, and I would be willing to give effect to it, if it did not, in my opinion, violate one of the most firmly established rules relating to devises and bequests. . This rule is, That where there is a bequest to the children of a particular person, and there is no life estate given in the meantime, and the time for a division is not postponed to a certain period after the death of the testator, only the children born at the testator’s death can take. Shinn v. Motley, 3 Jon. Eq., 490. It is true, indeed, that if the testator use words that can be made to embrace future children, such for instance, as children which now are or hereafter may be,” or “ which might be living at or after his decease,” they may take, Ibid, Shull v. Johnson, 2 Jon. Eq., 202; Defliss v. Goldsmith, 1 Mer., 417; Scott v. Lord Scarborough, 1 Beav., 154, (17 Con. Ch. Rep., 154.) It being thus the rule with regard to a bequest to the children of a living person that those only can take who are born, or are in

ventre sa mere at the death of the testator, why will not the same rule apply to a bequest to liberated slaves? Why should those who may become free after the testator’s death be allowed to take any more than future born children? The language of the will, in the case at bar, is very explicit in giving the testator’s land and money to his “liberated slaves,” and not to those “ who now are or hereafter may be liberated,” or “which might be liberated at or after his decease.” Had the testator made a bequest to the children of one of his living brothers, it would seem to me to be a strange incongruity to exclude the future born children, and let in the after liberated slaves, in the construction of similar language. The hardship of excluding the post obit freedmen is not greater than that of excluding the post obit children. It will be seen that I have not laid any stress in my argument upon the fact that the slaves were not emancipated in the manner contemplated by the will. I admit that if the language employed by the testator to express his wishes with regard to his slaves could be construed to embrace a future post obit emancipation, then it would make no difference how that emancipation was accomplished. But I cannot admit that such words used by a testator as cannot include children born after the testator’s death, in a bequest to children, may include slaves liberated after his death in a bequest to liberated slaves. The cases of Pandine v. Hubert, 14 La. 161; Woodruff’s Succession, Ibid, 295, and Deshotels v. Soilean, Ibid, 754, cited by the counsel for the defendants, were decided upon a statute of Louisiana similar to our act of 1860, ch. 37, and they tend to confirm the construction which we have adopted in relation to our act, and show that the status of the slaves intended to be emancipated by the testator remained unchanged at the time of his death. As slaves, they were incapable of taking a devise or bequest under his will at that time, and I cannot discover any tiling- in the language of the will to justify me in holding- that there is a provision for a future emancipation. My opinion therefore is, that the disposition of the land and money mentioned in the will to the compláinants is null and void.

Per Curiajt.

Decree for the complainants.  