
    *Crawford v. Moses.
    May, 1839,
    Richmond.
    (Absent Brooke, J.)
    Slaves — Emancipation—Right of Issue — Case Approved. — The principle decided in Maria &c. v. Sturbaugh, 2 Rand. 228, that where the mother is a slave until she attains a particular age, her children, horn in the mean time, are horn slaves, and continue to be so even after the mother’s right to, freedom accrues, again recognized and acted upon.
    Same — Same—Same—Case at Bar. — A will contains the following clause : “It is my will and desire that after the death or marriage of my wife, all my negroes shall have their right to freedom when they arrive to lawful age or 21 years old ; and if any should be born hereafter, it is my will that they shall have a right to freedom when they shall arrive to the aforesaid term of years.” The testator, at his death, has a slave named Winney, who afterwards, while the widow is alive and unmarried, has a daughter named Jane. After the death of the widow, and before Jane attains the age of 21 years, she has a son named Moses. Moses, upon arriving at the age of 21, brings a suit for his freedom. Heed, he is a slave.
    James Johnson of Houisa made his will, bearing date the 21st of the 2d month 1785, whereby, after certain bequests, he devised and bequeathed as follows :
    “Item, I lend to my beloved wife Huey Johnson, during her widowhood or life, the land whereon I now live, with all my ne-groes, stock and every other part of my estate not already given, during the above mentioned time.” Then came a devise of the reversion in the land, and after that devise, the following' clause :
    “Item, It is my will and desire that after the death or marriage of my wife, all my negroes shall have their right to freedom when they arrive to lawful age or twenty-one years old ; and if any should he born hereafter, it is my will that they shall have a right to freedom when they shall arrive to the aforesaid term of years.”
    In a suit in the circuit court of Powhatan against James Crawford, by Moses a man of colour to recover his freedom, *a special verdict was returned, whereby the jury found, that after the death of James Johnson, to wit, on the 8th of December 1788, the said will was duly proved and recorded ; that among the slaves belonging to the testator at the time of his will and at his death, was a woman named Winney, who survived the testator, and after his death, and during the life and widowhood of his wife, had issue a daughter named Jane Robinson, who afterwards, and before she the said Jane attained the age of twenty-one years, had issue the plaintiff; that the widow of fhe testator was dead, and the plaintiff had attained the age of twenty-one years, before the institution of this suit; that Jane Robinson the mother of the plaintiff, after the birth of the plaintiff, to wit, on the 11th of July 1816, was registered in the county court of Powhatan, and obtained her free papers, being then twenty-one years old, and has ever since been and still is free within this commonwealth; and that the plaintiff is detained in slavery by the defendant, and has been so detained from his birth.
    The circuit court, being of opinion that the law was for the plaintiff, entered judgment that he recover his freedom.
    Whereupon Crawford presented a petition to this court for a supersedeas, stating, that he was advised that this judgment was not to be sustained by any authority, unless it could rest upon the opinions of two judges (Carrington and Pendleton) in the case of Pleasants v. Pleasants, 2 Call 319. Whatever respect might be due to the authority of those opinions, this case, he insisted, was not brought within their protection ; for they have not carried the right of freedom farther than to maintain it against the family of the testator, or volunteers claiming under them, to the exclusion of creditors and purchasers ; and the jury have not, in this case, found that the petitioner was a member of the family, or a volunteer claiming under them.
    *But the opinions of those two judges, the petitioner was advised, were not authority. He insisted that the doctrine maintained by them had never since been sanctioned by any judicial opinion ; that it violated some of the best settled rules of law; and that, if followed, it would introduce an anomaly in the laws of civilized society — a state of hereditary slavery for years. If such be the law, he was advised that it ought to be pronounced by at least a majority of the court of appeals.
    By the decision in Maria and others v. Surbaugh, 2 Rand. 228, recognized in Pulton v. Shaw, 4 Rand. 597, and again in Isaac v. West’s ex’or, 6 Rand. 652, it was obvious, he said, that Jane Robinson, the mother of Moses, was born a slave, and continued to be a slave till the age of twenty-one ; that Moses, her son, was alsb born a slave; and that, if he was entitled to his freedom at the age of 21 years, he derived that title from the will of a testator who died as early, at least, as the year 1788, giving law to the third generation after his deceased: and it was equally obvious that if this will could give freedom to Moses, in the third generation, it might equally give freedom to those born in any generation, however remote.
    He urged, that before such a doctrine as this should be established as the law of the land, it ought to receive the gravest consideration.
    The supersedeas was allowed.
    The case was elaborately argued in this court, by Johnson, for the plaintiff in error, and Rhodes and Scott, for the defendant in error. But no note of the argument has been preserved.
    
      
       Slaves — Emancipation—Right of issue. — See footnotes to Osborne v. Taylor, 12 Gratt. 117 ; Ellis v. Jenny, 2 Rob. 597.
      The principal case is cited in Wood v. Humphreys, 12 Gratt. 334, 346, 352 ; Taylor v. Cullins, 12 Gratt. 398.
      Same — Same—Gift of Freedom in Futuro — Construction of Statute. — In Wood v. Humphreys, 12 Gratt. 339, the court said: “Some judges have doubted whether the statute, 1 Rev. Code of 1819, ch. 111, § 53, p. 433, giving owners of slaves a right to emancipate them, authorized the gift of freedom in futuro. But these judges have admitted that the statute has been long and uniformly construed to give such authority, and that the construction could only be changed by legislative power. Tuckeb, P., in Crawford v. Moses, 10 Leigh 279, Brooke, J., in Anderson v. Anderson, 11 Leigh 624.” The principal case is cited in Wood v. Humphreys, 12 Gratt. 341. But see principal case cited in opinion of Daniel, J., in Wood v. Humphreys, 12 Gratt. 357.
      Same — Same—Definition of Manumission. — The principal case is cited in Williamson v. Coalter, 14 Gratt. 398.
    
   TUCKER, P.

This is a case of prospective emancipation by will, and presents some of the difficulties which have resulted from construing the statute to authorize *the gift of freedom in futuro.

Such, I am persuaded, never was its design, and such an effect is at variance with every principle. Eor, in the nature of the act, emancipation is immediate, not prospective. If the act be not executed, but executory, it is but a contract for freedom between the master and slave, which is void. If, on the other hand, the act be considered as executed, it must take effect immediately, and intermediate servitude is incompatible with it. The act of assembly seems distinctly to recognize the principle; for in giving the power to emancipate by deed or will, it declares that the slave “shall thereupon ” (that is, upon the probat of a deed or will of emancipation) “ be entirely and fully discharged from the performance of any contract entered into during servitude, and enjoy as full freedom as if he had been particularly named and freed by this act.” 1 Rev. Code, ch. 111, § 53, p. 433. It is not easy to perceive how, under this clause, emancipations in futuro could have been countenanced; yet they have been so long recognized, that it is only left for us to follow the steps of those who have gone before us, until a change is effected by legislative power; and the subject is only mentioned here, as affording a motive for limiting ourselves at least to the strictest rule which former decisions will permit.

According to my construction of the will in the case before us, all the testator’s slaves in existence at his death, and all the issue of his female slaves, born during the life of the widow, were emancipated by the operation of the clause declaring that all the testator’s slaves should have their freedom after the death or marriage of his wife. Eor the afterborn slaves, if born in the widow’s lifetime, were, according to the decisions of this court, as much the testator’s property, and as much subject to his disposition, as those in existence at his death. Accordingly they passed, as fast as they came into being, to the widow during her life, under *the bequest to her of all his slaves. It cannot be denied that she had a life estate in the posthumous children, who, but for .this clause in the will, would have fallen into the residuum for division .among the distributees. If the' posthumous children are embraced by the words “ all my negroes ” in the bequest to his wife, they are equally embraced by the same words in the clause of emancipation, and hence all born during the widow’s life and after the death of the testator, were free after the death of the widow and their arrival at age. If Moses was in this predicament, he was therefore free.

It seems to have been supposed that the particular provision for those born “ hereafter,” excluded them from the operation of the general clause above mentioned. If so, the case would not be materially varied. The children born during the wife’s life were, as. has been already said, subject to the testator’s disposition, and. were given to the wife during her life or widowhood. Their freedom, then, was subordinate to this gift; for we cannot suppose for a moment that he intended freedom, before her death, to the posthumous, more than to those in existence at the date of the will. The will, as to them, must therefore be read thus: “And if any should be born hereafter, they shall have a right to freedom, after the death or marriage of my wife, upon their attaining the age of 21 years.” Now this language can only apply to those born during the widow’s life ; it is inappropriate to those born after her death or marriage ; for as their right to freedom is .postponed until the death or marriage, their pre-existence during her life is inevitably implied. If this be so, we must still further mould the expression, so as to read it thus : “And if any should be born hereafter during the life and widowhood of my wife, they shall have aright &c.” Thus construed, it is clear that Moses is free if he was born during the life or widowhood of the wife ; *and if not born until after her death, he is a slave, as he is in that event within neither clause of the will. There must then be a venire de novo to ascertain this fact, unless the parties will agree it in this court.

After this opinion was prepared, an order was made, by the consent in writing of the parties by their counsel, that the record be amended so as to supply the defect in the special verdict, by admitting the fact that Moses was born after the death of mrs. Lucy Johnson, the widow of James Johnson.

STANARD, J.

The special verdict, on which the questions involved in this case arise, was defective in not ascertaining whether or no the birth of Moses (the plaintiff in the court below) was before or after the death or marriage of mrs. Johnson the relict of the testator. That defect has been cured by the admission on behalf of the pauper, that he was born after the death of mrs. Johnson. If, then, on the just construction of the will, none can claim title to freedom, as derived immediately from the dispositions therein, but those born before the death of mrs. Johnson, the right of Moses is that only which he could derive from his mother; she being one of those who the will directs shall have their freedom at the age of 21, and he being born before she attained that age.

, My opinion is that a just construction of the will gives it the same meaning that would be distinctly expressed had the clause been framed thus — “ After the death or marriage of my wife, all my negroes then living, as well those that shall be born hereafter as those now in being, shall have a right to their freedom ; those aged 21 years and upwards, immediately; and those under that age, when they attain it.” The slaves living at the death or marriage of the widow were within the immediate scope of the will, and entitled to claim *their freedom under it. The testator obviously apprehended that the first member of the clause of the will giving freedom to all his slaves after the death or marriage of his wife, might be interpreted as applicable and restricted to the slaves he possessed at the date of his will, or at his death. This apprehension caused him to add the second member ; and its function being to supply the supposed defect of the first, it should have a corresponding interpretation. According to the decision of this court in the case of Erskine v. Henry & ux., 9 Leigh 188, the first member of the clause would have comprehended af terborn slaves ; and for that purpose the second was superfluous. But this in no wise weakens the suggestion that this testator apprehended it was not sufficiently explicit, and added the second member to remove all doubt as to his purpose to comprehend all that might be living, either at his death, or the death or marriage of his widow. The result is, that on the just construction of the will, those slaves that were living at the death or marriage of the wife derived their title to freedom directly from the will, and those born afterwards must derive their title from their mothers. This is the construction contended for by the counsel of the pauper ; and as Moses was born after the death of the widow, and before his mother attained the age of 21, the counsel has attempted to distinguish this from the case of Maria &c. v. Surbaugh, by treating the postponement of the emancipation of the mother to the age of 21, as a retention of service in the nature of an apprenticeship — as temporary service which would not affect the offspring born during that time. The distinction cannot, in my opinion, be sustained. Though my judgment has never been convinced of the correctness of the decision in the case of Maria &c. v. Surbaugh, I feel judicially bound by its authority ; and under that obligation I must decide that Moses, being born before his mother’s right to freedom *was consummated by the attainment of the age of 21, is a slave.

I forbear to express an opinion, or even to enter into the investigation of the question so much and so ahly discussed by the counsel of the appellant, as to the validity of the will, had its construction been such as to provide for the emancipation of slaves at a period more remote than the law allows for an executory devise or bequest of property. The inclination of my mind is against the application of that rule respecting the limitation of property, to cases in which property is not fettered, but renounced ; in which property is not granted, but extinguished. The case of Maria &c. v. Surbaugh rests mainly on the proposition, that by emancipation, property is not granted, and the right of one to prospective emancipation is not a right to property, or analogous to, or having the incidents of such a right. But I have formed no definitive opinion on the question, and therefore give none.

Judgment reversed. And this court, proceeding &c. is of opinion that the matters of law arising upon the special verdict found by the jury are for the said James Crawford, the plaintiff in this court : therefore it is considered that the said Moses, the defendant here, take nothing by his bill, &c.  