
    *Elder v. Elder’s Ex’or.
    February, 1833.
    Slaves — Emancipation—Election’—Case at Bar. — Testator bequeathed, that his negro woman C. and her child A. and C.’s increase be given to G. D. in trust to be sent to the colony of Libéria, provided the expense of sending them would be defrayed by the colonization society; and that the rest of his negroes who might be willing to go. should also be lei t in trust to said G. D. to be sent to Liberia in same manner; but that those who should prefer to stay here, should be given, within twelve months, to his brother. Testator’s estate being involved in debts, which the other personal assets did not suffice to pay, the executor hired out the slaves for several years, to raise a fund out the profits to pay debts: Held.
    1. Same — Same—Necessity for Election in Prescribed Time. -This was an effectual emancipation of such of the slaves as preferred to go to Liberia; and it was not necessary to perfect their title to freedom, that they should elect to go within the year, provided they made such election when it was offered to them, — or that the colonization society should agree to defray the expense of sending them, provided any person would agree to do so.
    2. Same — Same—Effect as to Those Born after Death of Testator. — The, slaves born after the testator’s death and while the executor held their mothers in slavery, were also emancipated.
    3. Same — Same—Right of the Mother to Elect for Infant. — As to the infant slaves incapable to make election for themselves, it was right to take the election of their mothers for them.
    4. Same — Right of Executor to Hire Outto Pay Debts. —The executor did right in hiring the slaves out, in order to raise a fund out of their profits to pay testator’s debts, and consequently in forbearing to offer the slaves their election to go to Liberia within the year; for,
    5. Same — Emancipation—Right ot Executor to Re° funding Bond. — when slaves emancipated by will, are set free by the executor, he is not entitled to a refunding bond to indemnify him against the claims of the testator’s creditors, though the manumitted slaves are, notwithstanding manumission, subject to debts; and,
    6. Debts of Testator — Liability of Freed Men.— Tiie burden of debts ought to be distributed amongsuch freed men as equally as practicable.
    Herbert Elder, late of Petersburg, died in June 1826, having by his last will and testament, after directing that all his debts should be paid, and bequeathing some trivial legacies, bequeathed and provided as follows: “It is my will that my negro woman Clara, and her child Ann Eliza, and Clara’s increase, be given to Gabriel Dissosway, in trust to be sent to Africa to the colony at Liberia, provided the expense of sending them will be defrayed by the colonization society — And it is my further will, that the remaining part of my negroes who may be willing to go, shall be left in trust to the said Gabriel Dissosway, to be sent to' the colony *at Liberia, in the same manner as Clara and her increase — Those of them who prefer staying, shall be given, within the space of twelve months after my decease, to my brother John Elder and his heirs forever —And it is further my will and desire, that all my remaining property not mentioned or disposed of in the above items, shall be given to my brother John Elder and his heirs forever — Lastly, I appoint my friend Minton Thrift executor of this my last will and testament.” Thrift qualified as the executor in the hustings court of Petersburg at July term 1826.
    In March 1828, the residuary legatee exhibited bis bill in the superiour court of chancery of Richmond, against Thrift the executor, and Dissosway the trustee, — setting forth the will of his brother: charging, that the debts of the testator were few and trivial, and his other personal estate besides slaves, was much more than enough to pay them; that the slaves conditionally emancipated by the will, had never elected to go to Liberia; but that, on the contrary, the executor having fully explained the will to them, and their rights under it, they had declared they would not go to Liberia, and preferred to remain in Virginia in slavery; and that they had remained here for near two years since the testator’s death : claiming the slaves, therefore, as the property of the plaintiff: and praying an account of Thrift’s administration, a decree for the slaves and their increase, and for the surplus of the assets.
    Thrift answered, that the testator died much indebted ; that he had in vain exerted himself to collect the assets, and pay the debts, within the year after his testator’s death; that some debts were still due, and known to be so, and others were claimed but contested; that the slaves, being liable for the debts, which the other personal estate should prove inadequate to pay, and being unable to give the executor a bond to make good the debts for which they might be held liable, and the executor thinking the sale of any of the slaves to raise a fund to pay the debts, would have been an injustice toward them, he had, therefore, hitherto continued *to hold them all, and hire them out, to raise a sufficient fund for debts from the profits, and this with the approbation of the trustee Dissosway; that, under these circumstances, he had not yet given the slaves their election, to go to Liberia or remain in slavery in Virginia, though he had explained their rights to them under his testator’s will, and he did not doubt, that wnen they should be allowed to make their election, they would prefer to go to Liberia, rather than remain the slaves of the plaintiff in Virginia.
    The chancellor by consent of parties, ordered an account of the executor’s administration, and appointed five gentlemen of Petersburg, or any three of them, commissioners, to examine, privily and impartially, all the slaves of the testator’s estate, and to ascertain from each individual, and report to the court, whether he or she was willing1 to go to Liberia.
    The accounts of the executor’s administration were reported in 1829, shewing that he had been fairly administering the estate during the interval since the testator’s death; that there was a balance of 92 dollars due from the executor to the estate at the end of the year 1828; that the administration was not completed, there being yet some debts due the estate to collect, and some claimed from it which were not yet liquidated; and that the executor had hired out the slaves for the year 1829, on condition that they should be returned to him at any time during the year, when called for, to be sent to Liberia.
    The commissioners returned a list of the slaves (other than Clara and her children) specifying their names, sexes and ages; that there were fourteen of them; of whom eight were under age of twenty-one years, six between fourteen and twenty, one six, and one two years of age: and that they had examined them according to the directions contained in the order of the court; that upon that examination, the terms of the testator Herbert Elder’s will being fully explained to them, one of them named Mingo refused to accept his freedom on the terms proposed, but all the rest ^declared, that they preferred to accept their freedom and go to Liberia; that, however, in respect to the two infants of six and two years of age, who were incapable of determining for themselves, they had considered it their duty to take the election of their mother for them, as their election.
    And the defendant filed a document in the cause, in these words: “Office of the colonization society, Washington, December 23, 1829. At a meeting of the board of managers of the american colonization society, June 11th 1826, the following resolution was adopted — Resolved, that the resident agent state, in reply to the letter of Mr. Dis-sosway, that the society with pleasure accept the late Herbert Elder’s slaves on the terms proposed in his will, and will transport the persons left by him as soon as they can prepare an expedition — Teste R. R. Gurley, secretary.”
    The plaintiff excepted to this document, as evidence; which exception was overruled. And the court directed the commissioner to state and report the sequel of the executor Thrift’s accounts of administration.
    The commissioner reported the executor’s accounts to the end of the year 1830, shewing a balance in his hands, principal and interest, of 454 dollars, which consisted entirely of the hires of the slaves for the years 1829 and 1830, and that the administration was not yet quite completed.
    In this state of the cause, it was transferred to the circuit superiour court of law and chancery of Petersburg; and that court, upon a hearing in November 1831, decreed, that the executor Thrift should deliver to the plaintiff, the slave Mingo who had elected not to go to Liberia, upon the plaintiff giving bond to the executor, if required by him, in the penalty of 250 dollars, with condition to refund in case the assets should be necessary for debts of the testator; and that he should deliver to the defendant Dissosway all the other slaves of the testator, upon his giving bond to the executor, if required by him, in the penalty of 4000 dollars, with like condition to refund if the assets should be necessary *for debts. And the court directed accounts of the sequel of the executor’s administration, till it should be completed.
    From this decree the plaintiff John Elder, by petition to this court, prayed an appeal; which was allowed.
    Spooner and Taylor, for the appellant.
    W. M. Atkinson and Stanard, for the appellee.
    
      
      Slaves-Emancipation — Election.—See what is said in foot-note to Bailey v. Poindexter, 14 Gratt. 132. The principal case is cited at pp. 193, 194, 190, 204, 206, 210, 211, 212; Williamson v. Coalter, 14 Gratt. 404, 410; Jones v. Jones, 92 Va. 593, 24 S. E. Rep. 255.
    
    
      
      Same — Same—increase,-For discussion of this question, see the principal case cited in Osborne v. Taylor, 12 Gratt. 127, 128, 129, and foot-note: foot-note to Binford v. Robin, 1 Gratt. 327; foot-note to Lucy y. Cheminant. 2 Gratt. 36; Erskin v. Henry, 9 Leigh 194, 197, 198; Anderson v. Anderson, 11 Leigh 621, 622 ; Wood v. Humphreys, 12 Gratt. 336, 351 ; Taylor v. Collins, 12 Gratt. 398; Hunter v. Humphreys, 14 Gratt. 297.
    
    
      
      Same— Same — Rights of Creditors — Chancery Jurisdiction. — On this point, the principal case is cited in foot-note to Ruddell v. Benn, 10 Leigh 467; foot-note to Woodley v. Abby, 5 Call 326; Jincey v. Winfield, 9 Gratt. 713. See monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
   CARR, J.

In the construction of wills, we are to find out the meaning, the intention, the will, of the testator; and unless that violates some principle of law, it must be carried into execution. To my mind it is just as clear as any form of words could make it, that this testator wished, that all his slaves should be given up to Dissosway, to be transported to Liberia, there to be free, if the colonization society would paj' the expenses of removal; unless any of them should prefer to stay here and be slaves- — and such (he willed) should be the slaves of his brother, the appellant. I do not believe he had an idea of making their election within twelve months, a condition, which, under all circumstances, should be strictly performed, and on failure of which they should be the slaves of his brother. He thought it probable, I suppose, that the choice would be submitted to them within the twelve months; and meant, that all who, upon such submission, should express a preference for remaining, should thereupon be handed over to his brother. The executor has explained this matter fully. He certainly had, for the creditors, the paramount right of assenting or not to this bequest, and of saying when he could with safety assent. He tells us, that he found the state of the debts such, that he could not discharge them without selling some of the negroes, or hiring them out. He very properly preferred the latter; and this making delay inevitable, he did not think it proper to submit to them, at once, the question of election. In the meantime, the appellant filed this bill — and then the subject being before the court, the chancellor very properly ^appointed commissioners to examine the ne-groes. Those commissioners have reported, that all but one have elected to go to Liberia; that two of them were too young (one being six and the other two years old) to make a choice; and that in these cases, they had taken the choice of their mothers. In this, I think, they acted very properly. It is certain, that the testator did not, on account of their infancy, intend to condemn them to unconditional slavery; and who so proper to decide for them as their mother?

It was said, that the children born since the testator’s death must be slaves, because their mothers were so at their birth. But admitting the fact, the consequence does not seem to follow: for the testator wills, that all the rest of his slaves shall be given to Dissosway, to be taken to Liberia. Now, if these children were born slaves, they were the slaves of the testator, and come within the bequest as well as their mothers. It is not worth while then to inquire whether they were born free or not.

It was also said, there is no evidence of the willingness or the ability of the society, to pay the expense of transportation. I think there is such evidence of willingness as justifies the decree; and as to the- ability, the testator required no guaranty for that.

With respect to the hires, I do not think that a question before us. This is an appeal from an interlocutory decree, and in such cases, we have often said, that the appeal is only from what the chancellor has done, not from such parts of the case as he has not yet acted upon — as to these, when the cause goes back, he may make such decree as all parties will be satisfied with. At any rate, he has as yet done nothing with respect to the profits, which can be appealed from.

It is objected by the appellee’s counsel, that the chancellor ought not to have required that Dissosway should give bond to refund, if debts should afterwards come against the estate. I had thought, at first, that this point was not before us, as the appeal was taken by the other party; but, upon ^reflection, I think we ought to take notice of it; for it is a requisition which vitally affects the negroes, since the failure to give the bond, would frustrate the intention of the testator as to their freedom, and the3r being no parties to this proceeding, could not appeal from it; nor could their trustee do so, as he has never been before the court; and the executor would not appeal from it, for it is in his favor. It seems incumbent on us, therefore, to see whether the decree is right in this respect.

When a testator wills freedom to his slaves, it is, as a general rule, cleariy not in the executor’s power to demand a refunding bond : for who is to give it? Nobody; and thus the will might always be frustrated. The law shews that this is so, by giving to' the creditors a resort to the slaves themselves, in case of defect of assets. The executor, too, if he finds the existing state of the debts demands it, may retain them, and hire them out, till he has raised a sufficient fund to pay the debts; and this, more especially in the case before us, where they are by the directions of the will to be removed beyond the reach of after claims. But even here, I do not think he can demand, or the court direct, that Dissosway shall give a refunding bond. The testator as he never meant to give Dissosway any beneficiary interest in the slaves, as little intended to subject him to any loss or risk; and, if he had so intended, could impose on him no such obligation. The direction, then, that .the slaves shall be given to Dissosway, to be sent to Liberia, gives no more right to the executor to demand security, than if they had been set free at once. And of this the executor seems fully sensible; for in his answer, he says, that while his anxious desire to further the benevolent intentions of his testator, and his conviction that no one would give the usual refunding bond, if he let the slaves go to Africa, induced him to determine to dispense with that bond, from those who should go thither, yet ordinary prudence forbade his doing so, at least until all the claims that he had notice of against the estate, were settled. Accordingly, he has hired them out, *until we find, that, after paying the demands against the estate, he had at the last settlement, which was brought down to the 31st December 1830, a balance of 449 dollars in his hands; and there being two years hires of the negroes since, he must have now upwards of 1000 dollars, beyond all known claims on the estate. In this state of things, it was clearly wrong, I think, to put it in his power to demand of Dissosway an indemnifying bond in the penalty of 4000 dollars. This would, in all probability, wholly defeat the will. While the fund now in his hands, shall remain with the executor, it surely furnishes ample security against outstanding debts; and when, upon a final hearing, it shall be disposed of, as it probably will be according to the principles established in Paup v. Mingo, (ante, p. 163,) the court will not suffer it to be taken from him, without requiring of the person to whom it shall be decreed, bond and security to refund. I think, then, so much of the decree as requires this bond of Dissosway, if the executor chooses to demand it, is wrong, and should be corrected.

It was urged, that we ought now to take precautions, and make provisions insuring the due execution of that part of the will, which looks to the transporting these persons to Liberia; that we ought to require bond and surety for carrying them, or to pronounce that unless transported within a reasonable time, they should be given up to the appellant as his property. I do not think we are called on, at this time, to take any such step. It would be premature, and might operate injuriously and unjustly. We cannot possibly foresee, what circumstances may occur, or how they may influence, the question hereafter. All that we can safely do now, is to direct the circuit court, to which we shall send back this interlocutory decree, to reserve to the parties, liberty to resort to the court for its further aid, if at any future time such aid, in their opinion, shall become necessary for the due execution of the testator’s will. Under such leave, if the appellant shall find that the transportation of the negroes is not likely to take place, or is unreasonably ^delayed, he may bring the subject before the court, and that which cannot now be foreseen, may then be decided, upon the actual circumstances of the case.

CABELL, J.

The intention of the testator to emancipate his slaves, is too evident to require argument; and it is equally clear, that there is nothing illegal in the mode which he has adopted, for the execution of that intention. Slaves may be emancipated by deed or will, at the pleasure of their owners: but they forfeit their freedom unless they remove, within twelve months, beyond the limits of the commonwealth. It can, therefore, be no objection to the emancipation, in this case, that the testator has directed it on the condition of their willingness to go to Liberia.

As to the objection that Dissosway, the trustee, may fail to perforin, or may violate, the trust, there is no reason to suspect such violation. , The testator who knew him, has confided to him the execution of his benevolent intentions; and we ought not to deprive him of all power to execute them, on the mere allegation that he may, possibly, act improperly.

The will imposed no obligation on the slaves to express their willingness to go to Liberia, until they were properly called on to make their election. If the residuary legatee wished to avail himself of the rights which would accrue to him, on their refusal to go to Liberia, it was his duty to take measures for compelling them to make their election.

I approve of the principle declared by this court, in the case of Isaac v. West, 6 Rand. 652, that every instrument conferring freedom, should be construed liberally, in favor of liberty. And under the influence of this principle, I am of opinion, that, even if the colonization society should be unable or unwilling, to transport these people to Liberia, they would still be entitled to their freedom, provided any other person would furnish the means of sending them there. The testator did not mean to bur-then his estate with this expense; but he cared not who else might bear it.

*1 think the children born since the death of the testator, are entitled to their freedom, equally with their mothers. If the mothers, are to be' considered, by relation, as free from the death of the testator, then the children, following the condition of the mothers, were free at their birth — or, if the children were born slaves, they were the slaves of the testator, and, as such, they passed by the will, with their mothers, to be sent to Liberia.

It is not to be believed, that this benevolent testator, in emancipating the mothers, intended to separate from them their infant children, and to consign them to slavery. He intended that the election of the mothers should decide the destiny of their infant offspring.

But the decree is erroneous in the particulars mentioned by my brother Carr, and I concur in the correction of it proposed by him. u

BROOKE, J., concurred.

TUCKER, P.

The first questions in this case, turn upon the intention of the testator and the legality of that intention. Of the intention, I think, there can be no reasonable doubt. It has become a matter of history that a colony has been established at Liberia for the-reception of emancipated slaves, and that slavery is there unknown. The testator, in reference to this well known state of things, devises his slaves to a trustee, for the purpose of being sent to that colony. If his will be executed in terms, they must be free; and it is therefore equivalent, to say that he willed that they should be free. However, or by whatever words, the intention Is expressed, that intention must prevail; for there is no prescribed form in which the benevolent design to emancipate a slave is required to be expressed. As little doubt exists of the legality of this intention. The slaves were not to be free until they should be sent to Liberia; and they were not to be sent there against their consent. It is not perceived, that there is anything in the policy of the *law, as there certainly is not in its statutory provisions, which forbids an emancipation by transportation to a free colony.

That such transportation will necessarily operate as an emancipation, has been questioned in the argument, because the slaves may be brought back to Virginia, and then upon the principle decided by lord Slowell in the case of The mongrel woman Grace, they will be slaves again. But this argument is refuted by two considerations: 1, that bringing them back by force or against their will, Would not restore them to their original status; for it is the voluntary return to their own country in slavery’, from which it is implied, that the original status was not changed during their residence in a land where slavery is unknown: and 2. to bring them back again into slavery, would be directly to frustrate the testator’s will, that they should be free, and is therefore not an admissible supposition.

It was next contended, that the gift of freedom by this will, depends upon the performance of two precedent conditions, with which that gift has been clogged; namely, that they shall make their election in the space of a year, and that the expense of transportation shall be paid by the colonization society. As to the first, the phraseology of the will is not exactly what the argument supposes. It is, as to the remaining slaves besides Clara and her family, as follows: “Those who are willing to go shall be sent to Liberia j those who prefer staying, shall be given, within twelve months after my decease, to my brother John Elder.” By this clause, it was argued, the testator intended to create a condition, and that his slaves should only be free on condition. But what was that condition? It was that they should be willing to be transported. But, surely, there is nothing from which we can infer, that the time of declaration of their willingness, was of the essence of the condition. Contemplating that the affairs of his estate would speedily admit of the execution of this bequest, desirous to hasten that execution, on the one hand, and to pass over the property at once to his brother, on the other, if they should refuse to go, he *fixes on the twelve months, as the probable time when they should be delivered to him. II the affairs of the estate should unexpectedly prevent an assent of the executor to this bequest of freedom within the year, or if the slaves should have been kept in ignorance of his benevolent intentions, until the year had gone by, can we believe, for a moment, that it was his design that they should lose their right to the .boon he bequeathed to them? I think not. But this is not all. The will does not say they must elect within the year. It declares, that those who prefer to stay shall be given within twelve months after his death, to-his brother. The question then would be, have any preferred to stay within the twelv,e months; and if not, then the gift over cannot take effect, if we are to give this rigorous construction to the clause. But the truth is, such a construction is incompatible with a fair view of the testator’s designs; of the nature of the case; and of the character of the beneficiaries. They were ignorant slaves: they could not be free without the executor’s assent, and the great object of their master was to effect their liberation, as soon as it was probable that assent could be safety given. Whenever the executor was prepared to assent to ' this, legacy of freedom, the testator gave them a choice: that choice implied that the proposition should be submitted to them; submitted by that individual (the executor) who still held them in his hands. Until that was done, they were not, I conceive, called upon to declare, whether they 'were willing to go, or preferred to stay. I, therefore, think there is no obstacle to the execution of the will in their favor, arising out of the delay. Then, as to the provision, that the expenses should be defrayed by the colonization society. There is no assignable reason for supposing-the testator made it a sine qua non, that that society should pay the expenses. His object was merely to provide that his estate should not be charged with them. But be this as it may, the case is not that of a bill by the slaves, to carry the trust into execution, in which they would have to prove that the society or some other ^person was ready to incur the charge; but it is a bill by Elder, to reduce them to slavery, in which the onus would be upon him to shew, that the society had refused to defray the expenses; for that is easily proved, if it be true. I think, therefore, there is nothing in this objection.

As to the increase born since the testator’s death, they were born slaves, as their mothers are yet slaves; but they fall as fully as their mothers, within the general expression, “the rest of my negroes,” and of course are equally the objects of the trust. How their election shall be ascertained has been a subject of difficulty. In these anomalous cases respecting slaves) we must be guided by reason and good sense, in the absence both of authority and analogy. The course which was taken in the court below, seems to me both natural and judicious, and is therefore approved.

As to the hires: these must be brought into the account of the estates. I cannot distinguish this case from Paup v. Mingo. Dissosway was a mere trustee, and takes nothing but in that character. He is, therefore, not entitled to the hires; nor are the slaves or the executor so entitled.

Upon the whole, I think the decree is right in all substantial points; though I do not concur in the correction of its details proposed by the other judges. I should have preferred a decree, directing the circuit court, to limit some reasonable time, within which the trustee Dissosway (or in case of his refusal or failure to execute the trust, such other fit person as may be willing to execute the same, to be appointed by the court) shall proceed to transport the slaves, who assent to be transported, to Liberia, agreeably to the directions of the will; and to require from Dissosway (or such other trustee) bond with surety in an adequate penalty, with condition, either to execute the trust to the best of his ability within the time so limited, or to deliver the slaves (deaths and accidents excepted) to the appellant as his property. I concur in the opinion of the other judges, that the circuit court erred in requiring the refunding bond, which in cases of emancipation, cannot property be demanded; *and that liberty should be reserved to the parties, to resort to the court, at any time hereafter, for its aid, in any future event which may render it necessary and proper.

The decree entered by the court, declared, that there was no error in so much of the decree, as directed the executor to deliver the slave Mingo to the appellant, on the terms therein stated, and to deliver the other slaves to Dissosway, to be by him sent to Liberia; but that so much of the decree as suspended the delivery of these slaves to Dissosway, till he should give bond and security in the penalty of 4000 dollars, to refund in case debts should subsequently come against the estate, was erroneous; this court being of opinion, that, under the circumstances of this case, no such bond should be required — and that liberty ought to be reserved to the parties, to apply to the court for its further aid, if, at any future time, such aid should, in the r opinion, become necessary for the due execution of the testator’s will.

Decree reversed, with costs to the appellee, as the party substantially prevailing, and the cause remanded to the circuit superiour court of Pertersburg &c.  