
    Rucker’s Adm’r &c. v. Gilbert.
    May, 1831.
    Wills — Direction That Slave Shall Enjoy Benefit of His Own Labor, but Shall Be under Control of Executor— Effect.Testator expresses liis will and desire, that his slave J. Gilbert should be free, but finding- it would be difficult for it to be so, and for him to remain in Virginia, he directs his ex’ors to lay off three acres of land for him, and to let him settle on it and have the use of it during his life and good behaviour, and that he wished Gilbert to enjoy the benefit of his own labour, but to be always under control and direction of his ex’ors; and Gilbert is carefully excepted out of every disposition of testator’s slave property in the will: Held, this slave is not hereby emancipated.
    The appell.ee Gilbert brought suit, in forma pauperis, against the appellant Riche-son administrator with the will annexed of Rucker, to recover his freedom, in the county court of Amherst. The proceedings and pleadings were in the usual form, putting in issue the plaintiff’s right to freedom. Upon the trial, the jury found a special verdict, staling—
    That the plaintiff Gilbert was the slave of the defendant’s testator Rucker, at the time of his death. That XRucker by his last will and testament, duly proved and recorded in the county court of Amherst, after making certain dispositions of slave property, directed, devised and bequeathed, as follows : “My said executors and trustees are hereby authorized to act in hiring out the balance of my negroes, except my mulatto man James Gilbert, from year to year, and rent land &c. during the lifetime of my wife, and apply the money arising therefrom to the best advantage for the benefit of my estate. Item, it is my will and desire that my mulatto man James Gilbert should be free; but finding there would be some difficulty for it to be so, and for him to remain here, I therefore request my executors to lay off three acres of land for said James Gilbert, at any comer of my land, and let him settle on it, that they may think proper; and he is to have it during his natural life on good behaviour, and then to return to my estate. I wish the said James Gilbert to enjoy the benefit of his labour, but always to be under the control and direction of my executors and trustees.” That, in a subsequent part of the will, the testator directed all his personal estate and lands to be divided among his children, excepting said James Gilbert, and all his slaves to be valued, excepting said James Gilbert, of whom he made no other or further disposition than as above mentioned. And that the plaintiff was the same person mentioned in the will by the name of James Gilbert. And the jury referred the question to the court, Whether, upon this state of the case, Gilbert was entitled to his freedom ?
    The county court gave judgment that he was. Rucker’s administrator appealed to the circuit court, which affirmed the judgment ; and then he appealed to this court.
    Johnson, for the appellant,
    cited Wal-thall’s ex’or v. Robertson and others, 2 Leigh, 189.
    Nicholas, assigned counsel for the pauper, said, that the judgment, in a doubtful case ought to be in favorem libertatis; *andhe endeavored to maintain, that the main intent of the testator in regard to this man, to be collected from the whole will was to emancipate him, and that the other provisions respecting him, ought to be held subservient or subordinate to the main intent. He insisted, that the court ought to look to the main intent, and give it effect if consistent with the law. He said, the words willing and desiring, in a will, have always been held to create a trust for the person in whose favour the will and desire are expressed. Harding v. Glyn, 1 Atk. 470 ; Sanders’ Edi. note 1 ; Dunn v. Amey, 1 Leigh, 467. This testator expressed “his will and desire that his man Gilbert should be freeand throughout the will, there was no disposition made of Gilbert, as property. The emancipation of the man was the testator’s main object, as well as his wish : but finding that there was a difficulty in his remaining in Virginia, he proceeded to make a provision for his subsistence and comfort, supposing he should remain here ; and, as this provision was perfectly consistent with, and indeed auxiliary to, the main object, the court ought not to allow it such an effect as to defeat the main intent. That provision was a devise of land to the man he had before willed and desired should be free; a devise of lhnd, which he could not hold unless he was made free: therefore, this very provision of itself implied an emancipation, instead of operating to defeat the will and desire to emancipate before expressed.
    
      
       Slaves — Emancipation.—For the proposition that an ancipation of slaves, to be effective, must be absolute, the principal case is cited in the following: foot-note to Wynn v. Oarrell, 2 Gratt. 227; Forward v. Thamer, 0 Gratt. B39. and note; Smith v. Betty. 11 Gratt. 765; Bailey v. Poindexter, 14 Gratt. 193; Williamson v. Coalter, 14 Gratt. 397: Adams v. Gilliam, 1 Pat. & El. 161.
    
   BROOKE, J.

The question of freedom or slavery in this case, depends on the construction of the two clauses in Rucker’s will, set out in the special verdict. No doubt the intention of testators must always be carried into effect, if consistent with the rules of law. But the question is, Whether this testator did intend, that at his death Gilbert should be a free man ? If he did, the provisions in the will are very inconsistent. He says, “it is my will and desire that my mulatto man James Gilbert should be free: if he had stopped here, there would have been no doubt, that James *Gilbert would have been free and here he would have stopped, if he had simply intended to emancipate him : “but finding” (as he says) “there would be same difficulty for it to be so, and for him to remain here,” that is, as a freeman, he does not desire his executors to remove that difficulty, by sending him out of the state, but desires them to lay off three acres of land, which he is to have on good behaviour; certainly not as a freeman, because as such he could impose no such condition upon him ; nor could he, as he has •done in the last member of the clause, subject him to the control and direction of his executors, in the character of a freeman. However much the testator desired that Gilbert should be free, it was very clear, that he was deterred by the difficulties which the law presented with respect to residence here ; and, under the circumstances, determined to do what he considered next best for him ; to settle him for life on a piece of land, there to enjoy the fruits of his own labour.

Both judgments are to be reversed, and judgment entered for the appellant.  