
    CASE 26 — PETITION EQUITY
    JUNE 30.
    Ludwig (of color) vs. Combs.
    APPEAL FROM LOSAN CIRCUIT COURT.
    1. The rule which prohibits the creation of perpetuities, as applied to a deed in which the grant is good in part and void for remoteness as to the residue, is, that the limitation must, beyond contingency, take effect within twenty-one years and nine months after a life or lives in being at the time of its creation. Otherwise, the limitation is void.
    2. M., a negro girl, five years of age in October, 1824, was, by deed of that date, emancipated when she should arrive at the age of twenty-five years, and by the terms of the deed the children which she might have were to be slaves until they arrived at the like age of twenty-five years, when they and their increase to the latest generation were also to bo free. The grantor died in 1831. M. is still living. L., a son of M., was born in 1839. Held — That the limitation of freedom to L. is void for remoteness ; and that the circumstance that subsequent events have so transpired that the right to freedom will vest within the prescribed period does not affect the operation of the rule which prohibits the creation of perpetuities.
    On the 4th day of October, 1824, Alexander Adams executed • the following deed, which on the same day was acknowledged and admitted to record in the Logan county court: “ I, Alexander Adams, of the State of Kentucky and county of Logan, am desirous to liberate my negroes after arriving at a certain age. Now I do by these presents, for and in consideration of the premises aforesaid and the sum of one dollar to me in hand paid, the receipt of which is herely acknowledged, manumit, emancipate, liberate, and set free, and secure to her her freedom forever, one certain negro woman named Hannah, aged twenty-one years, from and after she shall attain and arrive to the age of thirty-one years, from which time she is to be free for life; and all the children which she shall have before she attains to the age of thirty-one years shall be slaves until they shall arrive to the full age of twenty-five years, and their children and grandchildren, &c., to the latest generation, are to be slaves until they shall respectively arrive to the full age of twenty-five years, after which time, as they shall attain respectively to said age of twenty-five years, they shall be and remain free for life. And whereas, the said negro woman has two daughters and a son, one of the daughters named Martha', aged five years, and the other named Eliza, aged four years, and the boy named Thomas J., aged one year: now I do by these presents emancipate and set free the said three last named negroes forever, from and after they shall arrive respectively to the age of twenty-five years, and all their children which the two last named females shall have before they shall arrive to the age of twenty-five years, and their increase to the latest generation, are to be and remain slaves until they shall respectively arrive to the full age of twenty-five years, after which time they are to the latest generation to be free to all intents and purposes.
    “ It is the express understanding of these presents, that the said negro woman is to be free at the age of thirty-one, and that all her offspring are to be slaves until they shall respectively arrive to the age of twenty-five years to the latest posterity, or so long as there shall be one of the breed in being, and shall be free as aforesaid after attaining to said age of twenty-five years.”
    On the 6th June, 1831, the said Alexander Adams made his last will and testament, and shortly thereafter died; which will was, at the August term, 1831, of the Logan county court, proved and admitted to record. By the first clause of the will the testator gave to his wife all his estate, whether real or personal, during her natural life. The third clause of the will is as follows : “ 3d. I give after the death of my wife a negro girl named Martha to my grand-children, heirs of Harriet Ragan. I also wish my daughter Harriet to have the use of said girl during her natural life, or until said girl arrives to the age of twenty-five years, at which time she is free, her increase until that time to go to the children.” The 2d, 4th, 5th, and 6th clauses relate to the disposition of other negroes. The 7th clause is as follows: “ I wish it distinctly understood that the increase of those negroes are to serve my heirs until they are twenty-five.”
    This action was brought by the appellant, (suing by Martha, his mother, as his next friend,) who, after setting out in his petition the foregoing facts, alleges that he is a son of the negro Martha named in said deed and will; that before she arrived at the age of twenty-five years Thomas Beauchamp purchased the time she had to serve; that in March, 1839, and before she arrived at that age, the appellant was born; that he continued to serve said Beauchamp until October, 1855, when said Beauchamp sold him as a slave for life to the appellee for the' sum of $850, &c. He prays a decree securing to him his right to freedom under said deed and will, at the expiration of his term of service therein mentioned, and in the mean time for a restraining order against the appellee, requiring him to have appellant forthcoming to answer any decree of the court, and for general relief.
    The appellee demurred to the petition, and the circuit court sustained the demurrer and dismissed the petition, and the appellant has appealed to this court.
    
      J. C. WilKins for appellant—
    Taking tbe deed and will together, it is palpable that Alexander Adams intended to emancipate his slaves then in being1 and those to be born thereafter. The construction given by the court below to the will is erroneous, according to the various adjudications.
    J. HahlaN for appellee—
    An executory devise, either of real or personal estate, is good if limited to vest within twenty-one years and nine months after a life or lives in being; and the contingency may depend upon as many lives in being as the settler pleases, for the whole period is no more than the life oí the survivor. When the limitation extends beyond this, it is in general too remote and void. (10 Johnson, 12; 15 Johnson, 169; 10 Ohio, 1; 1 Jarman on Wills, 221; 3 J.J. Mar., 91; 5 Manford, 457 ; 6 lb., 114; 26 Wendell, 229.) Also cited, Lends on Perpetuities.
    
    The provisions of the deed and will in this case relied upon by appellant are void, and he is not entitled to his emancipation.
    A devise of unborn slaves is void. (Spicer vs. Pope, Jeffer-. son's Va. Rep., 49.)
    Jones and Smith on same side — ■
    The law against the creation of perpetuities applies to gifts of freedom to slaves. (Delia vs. Hays, MS. Opinion.)
    
    The appellant was born while his mother was a slave; and is, moreover, not entitled to his freedom, because the contingency upon which it is made to depend by the deed is too remote.
   JUDGE DUVALL

delivered the opinion or the court:

The rule which prohibits the creation of perpetuities, either by deed or will, requires that the limitation shall be such as that it must take effect within twenty-one years after a life or lives in being, and the usual period of gestation.

Tested by this well established rule, the provisions of the deed and of 'the wall under which the appellant claims his right to future freedom, are obviously void. According to the terms of the deed, Martha was to be free at the age of twenty-five years, and her children were to be slaves until they arrived at the like age of twenty-five, when they and their increase to the latest generation also were to be free. Martha, who is the mother of the appellant, was only five years of age at the date of the deed, and her son was not born until after the death of the grantor. If Martha had died within a year after the birth of Ludwig, it is perfectly clear that the right of the latter to his freedom, as limited by the deed, could not have vested within the prescribed period, but could only have vested after the lapse of more than twenty-one years and nine months from the death of the mother.

The circumstance that subsequent events have so transpired that the right to freedom devised by the will, will vest within the prescribed period, does not affect the operation of the rule, or obviate or cure the defect in the limitation. The rule is, as applied to a deed like the present, in which the grant is good in part, and void for remoteness as to the residue, not that the limitation may take effect, but that it must certainly, and beyond every contingency, take effect within twenty-one years and nine months after a life or lives in being at the time of its creation; otherwise the limitation must be held void for remoteness.

In this view of the case, it is unnecessary to refer to other objections which might probably be urged to the-validity of the deed and will, so far as they relate to the right in question.

The judgment is affirmed.  