
    Eleanor Leech vs. F. Cooley, Executor of James Leech, dec’d.
    L. died in 1836, in this state, and by his will directed his slaves to be set free and sent to Indiana or Liberia, as they might prefer; he directed also the sale of his property and part of the proceeds to be paid to the slaves thus liberated: Held, that the will was valid, and the executor could proceed in its execution, and that the bequest of property to the slaves was not void for want of capacity in them to take; if they do not comply with the terms of the will, the bequest is void, if they do it is valid.
    It is the policy of our state to prevent free persons of color remaining in it, nor does that policy conflict with the constitution of the United States, which declares ‘ that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states;’ as no person of color can become a citizen in the sense of the term used in the constitution.
    Appeal from the probate court of Wilkinson county; Hon. Francis Gildart, judge.
    On the seventh of August, 1845, Eleanor Leech filed her petition in the probate court of Wilkinson county, representing herself to be one of the heirs and distributees of James Leech, deceased, who departed this life on the 4th of March, 1836, without children, or descendants of them; that she was a sister of his, and that according to petitioner’s recollection there were three other sisters and three brothers of Leech; that her brother left a last will and testament dated the 4th of March, 1836, and admitted to record in the probate clerk’s office of Wilkinson county, in the same year; that at the time of his death he was possessed of considerable personal and some real estate; that by his last will and testament, it was willed that his negro woman Delilah and her four children, or whoever of- them should be living at his death, should be set free, and sent to the state of Indiana or Liberia, whichever they might choose, and . that the balance of his property, (except a lot in the town of Woodville,'which was willed separately to Delila) should be sold, and the proceeds equally divided between Delila and Jack, Harriet and Nancy, three of her children; that Jack, Hariet, Nancy and Delila, were the slaves of the said James Leech, deceased, at the time of his death; that the appraisement of his personal property amounted to $708,25 ; that some of the slaves mentioned have been appraised ; that on the 4th day of May, 1836, all of the real and personal estate of said James Leech, deceased, (except the slaves and the lot of ground devised to Delila) were by the executor sold on a credit of twelve months, and that the sales amounted to the sum of $3789,26; that an account of sales was returned of the above property into the probate court of Wilkinson county, and that that was the last settlement made by the executor on the estate; that so far as the will of Leech emancipates the slaves, and so far as the will devises or wills property to them, it is absolutely void, and that petitioner, as one of the heirs and distributees at law of James Leech, is entitled to her proportion or distributive share of said estate. The prayer of the petition is, that the executor inventory the slaves, as the property of the said James Leech, deceased, and that he make final settlement of said estate, and upon said final settlement being had, the court would decree to petitioner her distributive share. To this petition there was a demurrer by the defendant, which was overruled by the court, and this appeal taken.
    
      Montgomery and Boyd, for appellant.
    The principles of this case have been settled by the decision made by this court in 5 How. 343.
    The only difference suggested by counsel for the defendants in error is not a substantial one, it is rather a distinction without a difference. In the case of Ross v. Vertner, the phrase used by the testator was, that his slaves should be sent to Liberia, “ there to remain free,” &c. &c. In this case the language is substantally the same, but the order of the words is inverted; they are, that the slaves in question “ shall be set free and sent to the state of Indiana or to Liberia,” &c. The intent in both cases was the same, and the words used almost identical, though put together in a slightly different order. The correct rule in construing wills, is, that the intent shall prevail not only over the irregular grammatical structure of. the sentences, but even over the express words used, where they would wholly frustrate the design of the testator. Bad grammar will not vitiate a deed, much less a will. “ Mala grammatica non vitiat char-tam.”
    
    In the present case it is hardly necessary to resort to the principle alluded to. Without altering even the collocation of the words of the testator, the case comes within the rule laid down in Moss v. Vertner. “ To set the slaves free and remove them to Liberia ” is not a phraseology essentially different from that “ to send them to Liberia and set them free.” For this will does not direct the setting them free to be done within this-state, but generally, as a general direction to the executor. Their freedom was the object in view, and the sending them out of the state, the means designated to attain this object. This is apparent from the consideration, that if freedom within the state had been contemplated, and had even been lawful, then the subsequent direction to send them out of the state would not have been complied with. Once free, the executors would have no further control over them.
    These views are all sustained most satisfactorily in 2 Hill’s Oh. R. 805. There the direction in the will was, that “ thé negroes be set free by my executors,” and then, after directing a fund to accumulate for the benefit of the slaves, it was directed that this “fund was to enable them to go to St. Domingo or any other part they might choose.”
    Manumission within the state of South Carolina was prohibited, as with us, and the counsel for the next of kin of the testator, contended, among other things, that as the act of freedom was to precede the removal, according to the phraseology of the will, the whole was void. On the other side it was contended that the order of the words in the sentence or sentences of the will, made no difference. The intent being plain to send them away, and give them their freedom beyond the limits of the state. Of this last opinion was the court, and finally directed the executors to execute the will by sending the slaves away, and further ordered the fund which had accumulated for the benefit of those slaves, to be paid to them.
    This is conclusive both upon the true construction of the will now before the court, and upon the question of the right and duty of the executor to execute it, by sending them to Indiana, and sending them the several sums directed by the testator.
    
      Parish, for appellee.
    The object of the petition was not to review the proceedings of the probate court in relation to the will of James Leech, deceased, but on the contrary to compel the executor to continue the administration of James Leech’s estate, to inventory property which no account is taken of, and to distribute that property according to law. By the demurrer it is admitted that petitioner is one of the sisters of James Leech, deceased ; it is further admitted that Leech died without children or descendants of them. These admissions are sufficient to entitle the petitioner to her distributive share of James Leech’s estate, if that part of James Leech’s will, emancipating the slaves mentioned in the will, be void. This was not an application to the probate court to render void the entire will of Leech, but to treat as a nullity that portion of it emancipating the slaves and devising the proceeds arising from the sale of the property to these slaves. The first item of the will enables the probate court to hold good the probate of the will so far as the debts of the deceased are concerned, and so far as a settlement of the executor is required. The demurrer insists that the petitioner is not entitled to relief, because Leech left a last will and testament, and by that last will and testament the property of Leech was devised to different persons other than the petitioner. The heirs and distributees of James Leech, deceased, claim their distributive share of the personal estate of said Leech upon the ground that the devise of said testator emancipating the slaves, mentioned in the will, is void, and that a void devise cannot preclude the right of petitioner under the statute; the consideration for this court is whether the clause in the will of Leech emancipating his slaves is void or not, the language of that clause is: “ It is my express will and desire that my negro woman Delilah and her four children, or whoever of them is living at my decease, shall be set free, and sent to the state of Indiana, or to Liberia, whichever they may choose.” I contend that this is a direct attempt on the part of the testator to emancipate his slaves by the will. It cannot be said that this is but a direction to the executor to take the slaves to Indiana or Liberia, there to be free; such a construction would do gross injustice to the direct language of the will: the taking of the slaves from this state is a subsequent act to the emancipation. In the case of Ross v. Yertner et al. the judge who delivered the opinion of the court, uses this emphatic language: If the will in this case provided for the manumission of the slaves in this state, it would then unquestionably be opposed to the principles of the statute, and could not be enforced. And it would be inoperative for the same reason that a deed or any other instrument for the same purpose, executed by the testator, would have been so. 5 How. 358. The question presented by the record to the court, in. the case of Ross v. Yertner, was not whether the testator had the ability to manumit his slaves, without the consent of the legislature, but whether he possessed the power to send them to Africa, there to remain free ? Does the record in this case present such a case to the court 1 The question here presented is, whether the testator can manumit his slaves by will, without the consent of the legislature. It will be no answer to the position I have taken, to say that the testator did not intend to violate the policy of the statute, inasmuch as he provided that the slaves might be taken out of the state. I do not pretend to controvert the object which the legislature had in view in passing the act found in H. & H. 166, s. 47, to wit: to prevent the increase of free negroes in this state; but the statute is positive that slaves cannot be emancipated by will or otherwise, without the sanction of the legislature. Now suppose the language of this will had been, that it was the express will and desire of the testator, that Delila and her four children, or whoever of them was living at his death, should be free and sent to Indiana or Liberia, whichever they might choose ; would there have been a doubt as to the intention of the testator to manumit by the will 1 Certainly there would not. In what does this differ from the language used? Simply in the word set before free. Can it be contended that this is a trust to be carried out by the executor? The enjoyment of the freedom was to take place from the death of the testator, and therefore could not wait for the action of the executor. No one can, by his mere act, unsanctioned by the public authority, set his slaves free in this country, either by will or deed. 5 How. 358.
   Mr. Justice Clayton

delivered the opinion of the court.

This controversy grows out of the will of James Leech, deceased, which directs that his four slaves be set free, and sent to Indiana or Liberia, as they may prefer. He also directed the great portion of his estate to be sold, and paid to the slaves thus directed to be liberated. One house and lot, however, he devised specifically to the female slave, but the validity of this particular devise was not in issue in the court below, and the executor, as such, is not the party with whom to contest this. The validity of the other provisions of the will, is the point in litigation.

The will bears a strong resemblance to that of Isaac Ross, which has been the subject of so much controversy in the courts of the state. Ross et al. v. Vertner et al. 5 How. 305. In that case the will directed the slaves to be sent to Liberia, there to remain free. He also bequeathed a fund to the American Colonization Society to'defray the expenses of transportation of the slaves, and to apply the residue to their support in their new home. This will directs the slaves to be set free and then to be sent off; the order of the words being inverted. It is insisted that as the slaves cannot be liberated here, without the consent of the legislature, the bequest is wholly void.

The mere collocation of words, if their meaning be the same, cannot vary their construction. It is the policy of this state, as evinced by its legislation, to prevent the increase of free persons of color therein. No one is permitted to emancipate a slave by deed or by will, to remain in the state without the consent of the legislature, specially obtained. If a free person of color come from another state into this, and remain beyond a certain time, he may be apprehended and sold. H. & H. 166-7. Nor is this legislative policy controlled by the provision in the constitution of the United States, which declares, that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” No person of color can become a citizen jn this sense of the term. They may become denizens in particular states, and may enjoy in them all the rights of citizenship, so far as state legislation can confer those rights. But when they leave the limits of such state, and enter another, they become subject to the laws of the latter, and must be governed by them. The general government does not interfere with the regulations of the states in this respect.

With this view of the subject, if the executor, in good faith and with strictness, comply with the terms of the will, we see nothing in the law to prevent its execution. The right to freedom under the will is inchoate, and becomes complete, when the subjects of it are removed to another state or couniry, according to its provisions.

The bequest to the slaves is not void either, for want of capacity in the legatees to take. If they do not comply with the terms of the will, the whole bequest is void; if they do, it will be valid. The case referred to in 5 Howard and of Frazier v. Frazier’s Ex’r. 2 Hill Ch. R. fully sustain these principles.

The demurrer to the petition was therefore improperly overruled in the court below, and this court directs that order to be reversed, the demurrer to be sustained, and the petition dismissed, without prejudice to any claim which petitioner may prefer to the house and lot in the will named.

Order reversed, and petition dismissed.  