
    
      Anderson’s Ex’ors v. Anderson.
    March, 1841,
    Richmond.
    Wills — Slaves—Emancipation in Futuro — Increase— Case at Bar. — Testator bequeaths the raising of infant negroes to his son N. tmt not to he moved out of the state or so far as to deprive them of their freedom, and to other sons the labour and raising of other inf ant negroes, with a like restriction ; and then mentioning that four other negroes are in hands of other sons, bequeaths, that they and. all' the others shall, after his own and his. wife’s death, be free at their ages of twenty-one; and there is no other bequest of slaves in the will, though there was a general bequest of the residuum of his estate; the testator’s wife dies; among the negroes of whom the raising was bequeathed to the son N. was a female infant at testator’s death, who had two children born before she was twenty-one: Held, these two children are entitled to freedom at their ages of twenty-one.
    Equity Jurisdiction — Right of a Mother to Sue for Freedom of Children — Case at Bar. — Two infant negroes being entitled to freedom on their attainment to a'ge of twenty-one, under a bequest in a will to which the executors have not assented; upon a bill in chancery filed by their mother, a free negro, showing their prospective rights to freedom, and that the holders of them claim and intend to sell them as absolute slaves, whereby their freedom may be jeoparded, and praying an injunction to restrain the holders from selling or disposing of them so as to impair their prospective rights, and security for their enjoyment of their freedom when it shall accrue: Hecd, 1. the court of chancery has jurisdiction to give such relief: and 2. the mother may maintain such suit, in her own name, for the protection of her infant children.
    Jordon Anderson the elder, late of Chesterfield, died in 1805, and by his last will and testament, after sundry devises and bequests to his sons, Jordon, Charles, James, Thomas and Nathan Anderson, bequeathed as follows — “I also give nry son Nathan the raising of my young negroes, namely Anaca’s increase, and Tom and Patt and Peter, Phillis’s children, and her future increase, not to be moved out of the state, or so far as to deprive them of their freedom. It is further my will, that my son Thomas shall have all the labour and the raising of my young negroes, namely Amy’s and Milly’s increase and Sail, till they come to the age of twenty-one years, but not to move them out of this state, or so far as to prevent their freedom; but Matt is excepted, now with Charles. It is further my will, that my son Jordon shall have the labor and the raising of all Rachel’s increase, but not to move them out of the state, or so far as to prevent their freedom. As there are two young negroes now with Charles, and two with James, they and all the others to be free at twenty-one years of age. ” — “It is my will and desire, that all my negroes that shall be twenty-one years old, now living with me and my sons Thomas, Jordan and Nathan, shall be free on the first-day of January after my and my wife’s death, and they shall be wfell clothed, both male and female, and shall have their working tools, and bread corn for one year, and liberty to settle on thirty-three acres of land, where my son Thomas shall choose for them; and I earnestlj' request that no advantage may be taken of them, or suffer any to be taken of them, that can be conveniently prevented, but let them have wood land as well as cleared.’’ And the testator gave all the rest of his estate (charged with a legacy to charitable uses) to be equally divided among all his sons. There was no other bequest of or concerning slaves in the will, except the bequests above recited; nor did it appear that the testator owned any other slaves besides those named in the will and their increase. The testator’s wife died shortly after him, in 1805.
    The negroes Tom, Patt and Peter were the children of Phillis, born before the testator’s death. The woman Patt was then very young, and the testator’s son Nathan held her tili she was twenty-one years of age, and afterwards, in October 1821, she was registered, in the clerk’s office of the county court of Chesterfield, by the .name of^Patty Anderson, as a free negro emancipated-by the will of Jordan Anderson deceased.
    
      Patty Anderson, after the testator’s death but before she attained the age of twenty-one, and while therefore she was still held by Nathan Anderson, had two children, Green and Henry, who were one sixteen and the other seventeen years old at the time this suit was commenced. Nathan Anderson continued to hold these two children of Patty till his death, which happened in the year 1834; and his executors William and Beverley Anderson took possession of them, claiming them as slaves for their lives of their testator’s estate.
    In November 1834, Patty Anderson, the mother of these two boys Green and Henry, exhibited a bill in chancery in the circuit court of Chesterfield, against Nathan Anderson’s executors, setting forth the facts above stated; insisting, that her children, Green and Henry, were presently entitled to their freedom, or if not presently, would be at their age of twenty-one respectively; representing, that the defendants claimed them as absolute slaves for their whole lives of their testator’s estate, that they designed to sell and dispose of them as such, and that the children might probably be purchased by negro traders, who would remove them out of Virginia; and praying an injunction to restrain the defendants from selling, removing or otherwise disposing of the boys Green and Henry, unless they should give bond and security to have them forthcoming to abide the final decree of the court; and general relief.
    The injunction was awarded.
    The defendants demurred to the bill; thus controverting the jurisdiction of the court to relieve in such a case, and the right of the plaintiff to sue, in her own name, to recover or to vindicate the right of her children to freedom. And then, by their answer, thej' admitted the facts alleged in the bill, but insisted, that the boys Green and Henry, having been born while their mother was actually held in slavery by their testator, were born his slaves, and so belonged absolutely and for their whole lives to their testator’s estate, and the defendants claimed the right to dispose of them as such.
    Upon the hearing at October term 1836, the circuit superior court, declaring that the boys Green and Henry, though born before their mother attained the age of twenty-one years, were free from their birth, perpetuated the injunction, and decreed, that the defendants should forthwith enlarge and discharge them from their custody, and pay the plaintiff her costs expended in this suit.
    The defendants, by petition to this court, prayed an appeal from the decree; which was allowed.
    May, for the appellants.
    1. The demurrer should have been sustained, and the bill dismissed, for want of jurisdiction. Por, if the fact, that a master intends to sell persons whom he holds as slaves, and the probability that traders may buy them, to be sufficient to give jurisdiction to courts of equity, it is obvious, that all pauper suits for freedom may be brought in those courts. And certainly, the mother had no right to sue, in her own name, to recover or to protect the freedom of her children. 2. The negroes, Green and Henry, were not emancipated by the will of the testator Jordan Anderson, unless the bequest that their mother should be free at her age of twenty-one, had the effect of emancipating her children born before her attainment to that age and while she herself was actually a slave. But the children followed the actual condition of their mother at the time of their birth, not the status she was to acquire at a future time. The mother was, at the birth of these children, Nathan Anderson’s slave; and, therefore, they were born his slaves. Maria v. Surbaugh, 2 Rand. 428; Fulton v. Shaw, 4 Rand. 597; M’Cutchen v. Marshall, 8 Peters 220, 241.
    *Taylor, for the appellee.
    1. As to the objection to the jurisdiction: though these boys were emancipated by the will of Jordan Anderson, their legal right to freedom could never be perfected till the executors assented to the bequest, which they have never done: their right was equitable, and the court of chancery was the proper and indeed the only forum to which they could resort. But they were infants ; infants held in bondage, for whom the law provided no guardian: surely, then, equity ought to entertain the bill of their mother to protect their rights, -which, but for her interference, might have been lost or jeoparded. 2. The effect of the will of Jordan Anderson was to give the woman Patty a present right to freedom, or a right to freedom to commence at his wife’s death ; and, at the most, to give the legatee Nathan Anderson a right to her personal services until she should attain to the age of twenty-one, by way of compensation for raising her, which was imposed on him as a duty. The case is like that of Isaac v. West’s ex’ors, 6 Rand. 652. But, if Patty was a slave at all, she was certainly not Nathan Anderson’s slave: the testator did not bequeath any slave property to him, or to any of his other children. If she was a slave, she belonged to the estate of the testator, and her sons, Green and Henry, were born the slaves of his estate; and were emancipated by the bequest, that the two young negroes then with his son Charles and the two then with his son James, and “all the others,” should be free at twenty-one years of age. The plain intent of the testator was to emancipate all his slaves and all their posterity. Elder v. Elder’s ex’or, 4 I/eigh 252; Erskine v. Henry, 9 Leigh 188.
    May, in reply.
    Let it be conceded, that the slaves were not bequeathed to Nathan Anderson ; that is no question in this case. None of the slaves were to be free till they attained the age of twenty-one years ; but before Patty was of that age, her sons Green and Henrj' *were born; therefore they were born slaves. Whether" 1hey belong to the appellants, or whether they passed under the residuary clause of the will, or whether the testator died intestate as to them, are questions that do not arise here. The only question is, whether Patty was a free woman or a slave when they were born. It is remarkable, that while the testator indicates his intent, that the future Increase of Patty’s mother Phillis, and the increase of Amy, of Milly, and of Rachel, shall be free, there is no such provision as to the , increase of Patty.
    
      
      Wills — Slaves—Emancipation in Futuro — increase.— On this question see the principal case cited in footnote to Erskine v. Henry, 9 Leigh 188; foot-note to Binford v. Robin, 1 Gratt. 327; foot-note to Lucy v. Cheminant, 2 Gratt. 36; Osborne v. Taylor, 12 Gratt. 129, and note; Wood v. Humphreys, 12 Gratt. 336, 339; Hunter v. Humphreys, 14 Gratt. 297.
    
    
      
       Equity Jurisdiction — Suit for Freedom. — See the principal case cited in foot-note to Peter v. Hargrave, 5 Gratt. 12 ; Reid v. Blackstone, 14 Gratt. 365, 366, and note.
      
    
    
      
      Neither Green nor Henry (the hoys whose freedom was in Question) were twenty-one years old at the time of the decree. — Note in Original Edition.
    
   ALLEN, J.,

delivered the opinion of the court. The cases of Elder v. Elder’s ex’or and Erskine v. Henry are decisive in favour of the negroes. Judge Carr remarked, in the first of those cases, that “in the construction of wills, we are to find out the meaning, the intention, the will of the testator, and unless it violates some provision of law, it must be carried into effect.” This is the polar star to guide us in the construction of all wills. The law permits emancipation by will, and where the intention is clear, it must be observed. In the present case, upon the whole will, there would seem to be no doubt of the intention of the testator to emancipate the whole of his slaves. The will intends a disposition of his whole estate. But his slaves are not specifically bequeathed as slaves to any person. A limited interest, coupled with a charge, is given to the legatees, “the labour and raising” ; with a further restriction as to the slaves in question, that they were not to be removed out of the state, or so far as to deprive them of th«ffr freedom. And after making similar provisions as to other slaves, and the two young negroes with his sons Charles and James, he directs, that they and “all the others” shall be free at twenty-one years of age. Many of the slaves no doubt exceeded that age at the execution of the will: others might probably ^attain it before his and his wife’s death ; and for those in that condition, he provides that they shall be free on the first of January succeeding the death of himself and wife. Such as were then under that age were left to the operation of the preceding clauses, which gave their “labour and raising” to his sons, and conferred freedom on their attainment of twenty-one. No disposition being made of the slaves or their increase, they continued to be the slaves of his estate, and as such were embraced by the comprehensive grant of freedom to all the other slaves of his estate. In the case of Elder v. Elder’s ex’or, the testator directed that all the rest of his slaves should be given to a trustee to take to Liberia. It was contended there, in reference to the increase, that the mothers were slaves at the birth of the children: to which it was replied by judges Carr and Tucker — “If the children were born slaves, they were the slaves of the testator, and come within the bequest as well as their mothers.” In Erskine v. Henry, the testator bequeathed all his estate, real and personal, to R. C. during her life, and at her death all his negroes to be free: the court held, that not only the slaves living at his death, but the children born during the life estate, were his slaves, belonged to his estate, and as such were emancipated. The words in the present will are equally comprehensive; and the intention not to dispose of any of the slaves as slaves, but to emancipate all, is equally manifest. ’ ' ‘ •

We do not think there is any thing in the objection to the jurisdiction or' form of proceedings. Though a testator may” emancipate by will, the right to do so is subject to the claim of creditors. ■ The assent of the executors is necessary, and until given, the slaves have no legal title to freedom which could be asserted in an -action at law; hence the necessity of an application to a court of equity. The slaves here were infants, bound to' servicd until they attained the age of twenty-one; the legatee and his representatives had a fight to the custody of them. The bill avers an- intention to sell; and this allegation is not denied’. The ' executors insist upon their right to hold and dispose of them as absolute slaves; and if the condition of the estate' required it, they would, if their view was correct, be bound, in the proper discharge of their duty, to sell them. If redress could not be afforded by a court of chancery, the slaves would be without remedy. On both grounds,- it seems ■ to me, the ’ jurisdiction could- be maintained.

The decree is to be affirmed.

BROOKE, L,

dissented: he' said — this case is, I think, an important dhe, since it involves the point decided in the case of Maria v. Surbaugh. There, a testator bequeathed a female slave to his son, with a provision that she should . be free at the age of thirty-one years; she had children born after the testator’s death and before she was thirty-one; and the 'question was, whether these 'children were born slaves? or born free? or persons bound to service for limited time? The point had never before been ¡decided ; and the court after great consideration held, that they rhüst follow the actual condition of their mother at the time of their birth, and that as she was then a slave, though she. was afterwards to be free, therefore they were born slaves. In the case before us, I think the boys, Green and Henry, born while their mother Patty was a slave though she- was to be free at the age'of twénty-óne, must be held *to be slaves until they attain to the age of t'wenty-o'ne, according to the particular provisions of his will. In Maria v. Surbaugh, the claim was, that 'the children of Maria born before she attained to the age of thirty-one,' were free born; and that case was decided on its merits. Here, it is admitted, that Green and Hénry were slaves; and the object of the bill was to protect them from the treatment of their masters till they shall attain to the age of twenty-one, when they are to be free. Their case is a hard one; every case of slavery is a hard one: but there are considerations connected with it of á very delicate nature. The rights of the master musí be controlled, the 'moral influence that subjects the slave to the master disregarded, and a spirit of hostility engendered while they continue to be slaves, calculated to diminish their value while slaves': the property of t^e master is to be invaded in a manner subversive of the institution ' of slavery, and likely to have an influence on those who are slaves for life; and the next step maybe to interfere with th'e master in their case also, if the humanity of' the court is to be appealed to. I admit the' right of a testator to emancipate'his slaves prospectively, because I" submit to' the' decisions of this court, though I think there is nothing in the law, which authorizes it': but while I do this, I insist that, i'n such case, the testator must make complete provision for the object, . and not rely on the court of chancery to become the guardian ' of his infant slaves, and thereby to enfeeble the master’s rights' while they continue slaves.

■ The case of Erskine v. Henry is entirely unlike this. That' case was decided by a bare court; I did not sit in it, or I should have dissented. There the question was presented upfon the will of ‘one M’Coy, by parties who claimed the negroes as their property; and the court, instead of deciding that question, which was a pure question of property, decided that the negroes were free under the will; and that too, notwithstanding *that in a former suit brought by the negroes against Erskine for théir freedom, they had been adjudged to be slaves, and this court had refused to' allow a supersedeas to the judgment; for it was said, Erskine had no title to them, though' he. had a verdict and judgment against them as slave's, in their jjauper suit for freedom. This was confounding the question of property with the question of freedom; which, unfortunately, has been too often done. Elder v. Elder’s ex’or has as little application to the present case. In that case, the testator’s will provided amply for the emancipation of all his slaves, the young and the old, if they would consent to go to Liberia; they were free at the testator’s death upon condition that they should consent to go to' Liberia; and it was only necessary to apply to the court of chancery to carry the provision into effect. — Though I reluctantly differ from my brothers, I am of opinion that this decree ought to be reversed, the injunction dissolved, and the bill dismissed.

Decree affirmed. 
      
      The court held, that the boys Green and Henry were bound to service till they attained to twenty-one years of age : that the representatives of tne legatee Nathan Anderson had a right to the custody of them till then. Yet it affirmed the decree of the circuit superior court, which held that they were free from their birth, and ordered that they should be forthwith discharged from custody, though neither was then twenty-one years of age. The reason of the general affirmance probably was, that, at the time of the decree of this court, they had both attained to that age. — Note in Original Edition.
     