
    Jane B. Ross et al. Appellants, v. Vertner et al.
    
    Where the testator, by his will, directed that his slaves should be sent, by his executors, to Liberia, there to remain free, it was held to be a valid trust.
    As it is not against the policy of the state of Mississippi, for the owner of slaves to send them out of the state for manumission, he may direct it to be done by will.
    APPEAL from the Court of Chancery.
    The appellants, as the heirs of Isaac Ross, and Margaret A. Reed, filed their bills in chancery, to set aside certain bequests of the testator and testatrix, in their respective wills, to trustees, directing that their slaves should be sent to Liberia, there to remain free. There was a demurrer to both bills, and the suits dismissed, from which an appeal was taken to this court. The cases were submitted together, and the opinion applies to both.
    On the 26th day of August, 1834, Isaac Ross made his last will and testament, to which he afterwards attached several codicils. The said will and codicils are in the words following, to wit:
    
      “ In the name of God, amen: I, Isaac Ross, of the county of Jefferson, and state of Mississippi, being of sound mind and disposing memory, do make this my last will and testament, hereby revoking all and every other will or wills by me heretofore made.
    In the first place, I give and commend my soul to that merciful being who formed it, and my body to the earth, to be decently interred at the discretion of, and in such manner and form, as my executors, hereinafter to be named, may deem fit and advisable.
    In the second place, I give and bequeath to my grand daughter, Adelaide Wade, the sum of ten thousand dollars, to be paid her within twelve months after my decease. I also give and bequeath to my said grand daughter, Adelaide Wade, my negro woman cook, named Grace, and all her children living at the time of my decease, unless the said negro woman Grace should elect,, of her own free will and accord, to go to Africa, as hereinafter provided, in which event she and her children to be transported thither, upon the same footing with my other slaves. I also will and desire that my grand daughter, Adelaide Wade, shall take charge of and maintain comfortably during the remainder of their lives, my negro man Hannibal and his three sisters, viz: Daphne, Dinah and Rebecca, and 1 give and bequeath to Hannibal the sum of one hundred dollars annually during the remainder of his life, and to his above mentioned sisters, Daphne, Dinah and Rebecca, the sum of fifty dollars each, to be paid them annually by my executors, on the first day of January in each year: and it is further my will and desire that if the said Hannibal and Ids three sisters, Daphne, Dinah and Rebecca, should elect to go to Africa in preference to remaining under the care of my grand daughter, Adelaide Yfade, they shall be permitted to do so, and shall be sent upon the same footing with my other slaves, with this express understanding, however, (which is to be fully explained to them by my executors,)'that if they do elect to go to Africa, the legacies above bequeathed to them, are to be null and void.
    In the third place, 1 will and desire that my slave Enoch and his wife Merrilia and her children be, within twelve months after my decease, conveyed to such free state as Enoch may elect, free of expense to them, and that the said Enoch and his wife Mer-rilia and her children be then and there legally manumitted, and the sum of five hundred silver dollars paid to him, the said Enoch, at the time of manumitting him. It is further my will and desire that if the said Enoch should elect to go to Africa, he with his wife Merrilia and her children, shall be sent there upon the same footing with my other slaves, and that the above mentioned sum of five hundred silver dollars be paid him by my executors at the time of his departure.
    In the fourth place, it is my will and desire that should a crop be planted (or about to be planted) at the time of my decease, such crop shall be worked out, gathered and sold, and within ten days after the complete finishing of the crop, or if at the time of my decease the crop shall have just been gathered and completed, then within ten days thereafter, all my slaves of the ages of twenty-one years and upwards, except Grace and her children, Hannibal, Daphne, Dinah, Rebecca, Enoch and Merrilia and her children, be called together by my executors, and the provisions of this will then and there explained to them, and the question put to them whether they will go to Africa upon the terms hereinafter specified. If a majority of the whole number thus called together of the ages of twenty-one years and upwards shall elect to go to Africa, then it is my will and desire that all of those thus called together, and all my other slaves, excepting always Grace and her children, Hannibal, Dinah, Daphne, Rebecca, Enoch, Merrilla and her children, shall be sent to Africa, under the directions and su-perintendance of the American Colinization Society. And it is my will and desire, then and in that event, that the entire balance of my estate, both real, personal and mixed, excepting always Grace and her children, Hannibal, Daphne, Dinah, Rebecca, Enoch and Merrilla and her children, be exposed to sale at public auction, one monthfs public notice being first given thereof in the papers printed at Port Gibson and Natchez, and the same sold on the following terms, to wit: one half of the purchase money to be paid in cash and the other half in twelve months from the day of sale, bond and unexceptionable security to be required of the purchasers, and to be judged of by my executors. It is further my will and desire that the proceeds of the sale, together with any money that may be on hand at the time of "my decease, and any that may be owing to me, after deducting the amounts necessary for the payment of the legacies herein bequeathed, and all necessary expenses that may be incurred, be paid over to the American Colinization Society, provided they will agree to appropriate it in the following manner, to wit: First, to pay the expense of transporting my slaves to Africa; and, secondly,to expend the remainder for the support and maintenance of said slaves when there, the same to be done in such manner as the Society in their discretion may deem most to the interest and welfare of said slaves.
    If, however, upon my slaves, being called together by my executors, in manner and form as above directed, a majority of the whole number of the ages of twenty-one years and upwards, always excepting Grace and her children, Hannibal, Daphne, Dinah, Rebecca, Enoch and Merrilla and her children, should refuse to go to Africa, then it is my will and desire that all of my slaves, always excepting Grace and her children, Hannibal, Dinah, Daphne, Rebecca, Enoch and Merrilla, his wife, and her children, shall be exposed to sale, at public auction, at the same time, in the same manner, upon the same terms and subject to the same regulations with the remainder of my estate, as- hereinbefore provided, with this understanding, that they be sold in such lots as my executors may deem best calculated to command the highest prices, and with this further and most express understanding and provision, that the families are not to be separated. .
    Then and in this event, it is my will and desire that the proceeds of such sale, together with any money that may be on hand at the time of my decease and any that may be owing1 to me, after deducting the sums that may be required to pay all the legacies herein bequeathed, and all other necessary expenses, be paid over by the executors to the American Colonization Society, upon the condition that they form a fund of it, or vest it in such a manner as to bring in not less than six per cent, interest per annum, which interest is to be applied by them to the establishment and support of one single seminary or institution of learning in Liberia. And it is further my will and' desire that said fund shall be continued and kept at interest, and the interest appropriated as above for the benefit of said seminary, for the term of one hundred years after my decease, at the expiration of which time I desire that 'all that remains may be given up to any government that may be in existence at the time in Liberia, to be appropriated by them in the same manner to the support and continuance of the same institution. But if at that time there should be no government in Liberia, then it is my will and desire that the same be given up to the government of the state of Mississippi, to be by them appropriated to the establishment or support of some one institution of learning within the state, which they in their discretion may select.
    To carry the above provisions and bequests into full and entire effect, I do hereby nominate and constitute Daniel Yertner, James P. Parker, Dr. Elias Ogden, now of Natchez, Isaac Ross Wade, and John B. Coleman, executors of this my last will and testament.
    In witness wheréof, I have hereunto set my hand and affixed iny seal, this 26th day of August, 1834. ISAAC ROSS.
    
      Signed, sealed and acknowledged in presence of us.
    Jno. B. Coleman,
    Petek C. ChAmbwss.
    ■ By way of codicil to my last will and testament, and in addition to the matters and things therein contained, it is my will and desire,—
    First, That forty feet square of the land appropriated by me for my family burying ground, be reserved from sale, and held in trust by my executors and their successors forever.-
    Second, That whereas I have left it optional with my negro woman Grace and her children to go to Africa, with my other slaves; now if the said Grace shall elect to go to Africa with her children, it is my will and -desire that the sum. of two .thousand dollars be paid by my executors to my granddaughter Adelaide Wade, in addition to the sum of ten thousand dollars, already bequeathed to her. ' •
    Third, I give and bequeath to my grandson Isaac Ross Wade, my secretary and book case, and all my books of every bind and description. .
    Fourth, It is my will and desire that no security is to be required from my executors, Daniel Vertner, James P. Parker, Dr. Elias Ogden, Isaac Ross Wade, and John B. Coleman.
    In witness whereof, I have hereunto set my hand and affixed my .seal, this 17th day of October, 1834.
    ISAAC ROSS. .
    Signed, sealed and acknowledged in presence of us.
    SARAH Wilson,
    Olivia M. Seinnee,
    B. C. Cooe.
    By way of further codicil to my last will and testament, it is my desire upon mature reflection, to alter some of the provisions therein. • ' -
    First, In relation to that part of my will, which provides for taking the voice of my negroes, in relation to their going to Africa, or remaining, here and being sold ; I now desire that those who ivish to go to Africa, be allowed ihe privilege of doing so, upon the terms and conditions heretofore provided, and those who elect to remain, be suffered to. remain, and be sold as previously directed, and the proceeds of their sale applied under the provisions of the will, for the benefit of those who elect to go to Africa.
    It is further my will and desire that the privilege of electing to go to Africa, be withheld from Tom, William, Joe, Alick, and Henrietta, being the negroes I bought from Franklin, in 1833 and 1834. And from Jeffrey the son of Harry, and that they be sold by my executors, in manner and form, as provided in the previous part of my will, and the proceeds of their sale appropriated as therein directed.
    It is further my will and desire that if Hannibal elect to go to Africa, instead of the provision heretofore made for him in that event, he shall be paid at the time he starts, the sum of five hundred silver dollars. And it is also my will and desire, that if my man Dunke, elects to go to Africa, he shall also receive at the time of his departure, the sum of five hundred silver dollars.
    
      In witness Whereof, I have hereunto set my hand and affixed
    my seal, this 24th day of February, 1835.
    ISAAC ROSS.
    Signed and sealed in the presence of us.
    B. C. Cook,
    John B. ColeMan.
    By way of further codicil to this my last will and testament, it is my will and desire that my daughter Margaret A. Reed, have the uncontrolled use (and occupation) of my house wherein I now reside, with all the offices and buildings appertaining to it; and all the land attached to it which may be necessary for her comfortable enjoyment of it as a dwelling, together with all the furniture of every kind and' description in or attached to it, and ' likewise all the yard and house servants, for and during the term of her natural life, or until she shall think proper and desire to relinquish the possession thereof. And it is further my will and desire, that the sale of my estate as directed in a previous portion of my will, be postponed, until after the death or relinquishment-of possession of my said daughter Margaret A. Reed; and the plantation be cultivated under the direction of my executors, and the proceeds of the crops, received by them, to be ultimately applied as heretofore directed in my will.
    
      In ivitness Whereof, 1 have hereunto set my hand and affixed my seal this 16th day of March, 1835.
    ISAAC ROSS.
    Signed and sealed in the presence of us.
    Sabah R. Woodwaed,
    John B. Coleman,
    Waltee Wade.
    By way of further codicil to this my last will and testament, I do hereby revoke, and declare null and void that portion of my will relating to my man slave Enoch and his wife Merrilla and her children; and I do now will that my said man slave Enoch, be absolutely sold by my executors without the privilege of choosing between going to Liberia, and being sold here, and the legacy bequeathed to him in the previous part of my will, is entirely revoked; I do likewise will that Merrilla and her children be put upon the same footing with my other negroes, and allowed a choice between going to Liberia, or remaining here, and being sold as directed in the previous portions of my will.
    
      In witness Whereof, I have hereunto set my hand and affixed my seal this 17th day of June, 1835.
    ISAAC ROSS.
    Signed and sealed in the presence of us.
    John B. Coleman.
    Isaac R. Wade.
    
      Jefferson county and State of Mississippi:
    
    We the undersigned do hereby certify that during the last illness of captain Isaac Ross, at his dwelling house in said county, on or about the fifteenth day of January, 1836, being as well as we recollect about three or four days previous to his death, he called us to his couch, and stated to us that it was his will and desire, that in the event of his man slave Enoch, serving Mrs. Margaret A. Reed, faithfully and well during her life, then that portion of the codicil to his the said Isaac Ross’s last will and testament, which deprived Enoch of the privileges and legacies conferred upon him in the main body of the will, should be considered null and void, and the said Enoch at the time of the ultimate distribution of the property, placed in exactly the same situation as if said codicil had never been written.
    Given under our hands and seals this 37th day of January, 1836.
    MARGARET A. REED.
    
      Attest, ISAAC R. WADE.
    John B. ColeMAn,
    D. Vertner,
    Walter Wade.
    STATE OF MISSISSIPPI, 7
    Jeeeerson County. 3
    Personally appeared before me the undersigned, Judge of the Probate court of Jefferson county, in open court, John B. Coleman, who made oath that he saw Mrs. Margaret A. Reed sign her name to the within statement on the date of said statement, to wit: on the 37th of January, 1836.
    JOHN B. COLEMAN.
    Sworn and subscribed in the presence of
    Jno. M. Whitney, Judge of Probate.
    
      February 34, 1836.
    STATE OF MISSISSIPPI, 7
    Jeeeerson County. 5
    Personally appeared before me the undersigned, a justice of the peace of Jefferson county, Margaret A. Reed, who made oath that she was called on to sign the within, for the purposes therein contained.
    Given under my hand and seal 31st April, 1836.
    ISAAC A. B. ROSS, J. P.
    Isaac Ross died on the 19th day of January, 1836, leaving three heirs, to wit: complainants and one Margaret A. Reed. Margaret A. Reed died before the commencement of this suit, having devised and bequeathed to defendants, Butler and Duncan, ail her right and interest in the estate of her father, the said Isaac Ross.
    Appellants then filed their bill in the court of chancery, as sole remaining heirs of Isaac Ross, to set aside the principal devises and bequests in his will,’and to enjoin his executors from proceeding further to execute the same, on the ground that such devises are illegal and void, and that the estate embraced in such illegal and void disposition results to said appellants as heirs at law.
    
      The bill set forth the will and codicils thereto, and averred that all the provisions and trusts in relation to the transportation of the slaves of the testator to the coast of Africa, are in violation of the policy of the state of Mississippi, on the subject of domestic slavery; in fraud of the statute prohibiting manumission except on certain conditions, and consequently illegal and void. Also, that the direction to sell the remainder of the estate, and to pay over the proceeds to the American Colonization Society, on condition “ that they would agree to appropriate it in paying the expense of transporting said slaves to Africa, and the remainder to be expended for the support and maintainance of said slaves when there, in such manner as the society in their discretion, might deem most to the interest and welfare of said slavesis illegal and void, because the bequest is in trust for an illegal purpose. Also, that the contingent bequest to the Colonization Society of the proceeds of the sale of testator’s estate, in trust for the establishment in Liberia of a ■ seminary of learning, is void, because against the policy of the state of Mississippi; and also because said society has no capacity by its charter to take for such a purpose.
    The bill further avers that all legacies have been paid except those complained of — that the debts of the estate are fully satisfied, and that the executors and American Colonization Society are proceeding to execute the remaining trusts, and will execute the same, unless restrained by injunction, &c. also, that all the slaves have expressed their desire to be transported to Africa, pursuant to the provisions of the will.
    The -bill finally prays injunction, &c. and that the estate embraced in said illegal and void trusts, be decreed to the complainants as sole remaining heirs at law. To this bill there was a general demurrer by all the defendants.
    By consent, a decree was entered below sustaining the demurrer, and the case now comes up upon appeal from that decree.
    In the case of Mrs. Reed, the bill was filed by appellants, as heirs at law of Margaret A. Reed, deceased, to set aside the will of said Margaret, and to establish a resulting trust in favor of themselves. ' •
    It set forth the will of Margaret A. Reed, published on the 14th June, 1838, in which all her estate, both real and personal, was devised and bequeathed to appellees.
    Also, a codicil thereto, published on the 4th day of September, 1838, dn which was devised to said appellees, all the interest of the said Margaret A. Reed, in and to the estate of her father Isaac Ross, before that time deceased, in case the will of the said Ross should be declared invalid. The bill-further averred the death of Mrs. Reed, and that her said will and the codicil thereto are in fraud and violation of the laws and policy of the state of Mississippi/and therefore void.
    It was averred that the estate so devised, was given in secret trust that the said Butler and Duncan should convey all the said slaves of testatrix to Liberia, there to remain free.
    
    In support of this averment, appellants exhibit in their bill, a letter from testatrix to appellees, dated 14th June, 1838, which they say points out the secret and illegal trust.
    To the bill there Avas a general demurrer, which was sustained by the Chancellor, and a decree of dismissal entered, from which an appeal was taken, upon which appeal the cause now comes up. The only point raised was the legality or illegality of the secret trust set up in the bill. . In other words, whether it is illegal for the owner of slaves to send them out of this state to a foreign country — there to remain free.
    
    J. B. Thrasher, counsel for appellants.
    This is an appeal from the decree of the chancellor, entered pro forma, sustaining the demurrer to the bill of the complainants. To sustain the bill we propose to establish,
    1st. That the principal devises in the will, and the whole tenor thereof, constitute indirect attempts to emancipate numerous slaves, contrary to the laws and policy of this state, and in contravention of the same.
    2d. That the devises in the will, which are to slaves, and in trust for slaves who cannot take by devise, are absolutely void, and that the devisees were slaves at the death of the testator, and still remain slaves by the laws of this state.
    3d. That the devises being void, and the devisees slaves, both descend to the heirs at law, and that the executors hold the same as trustees for the legal heirs, and as such are bound to account to them for the same, and cannot dispose of the estate for charities, or other objects to be selected either by the executors or by the court.
    1st. In the case of Playwood v. McCraven’s executors, 2 North Carolina Law Repository, 557, and in numerous other cases, it has been decided that a devise to emancipate slaves, although in some instances to be sent out of the state to foreign countries, is void. The court said, that such a devise is repugnant to the positive provisions by statute, which has pointed out but one method by which slaves can be emancipated, and only one instance in which it can be done at all, to wit: for meritorious services ; and such is our statute, see 8 Peters, 285. Can the testator therefore choose a different, or can the executors who represent the deceased, select another method, or can the courts sanction any other than that pointed out by the statute ? certainly not: and to this, add the further elementary principle consecrated and acknowledged by the accumulated wisdom of ages, that in a primitive state and by the law of nature, no person had any right or power to make a will, or to make any disposition of property to take effect after his or her death. How then is this power derived of making last wills and testaments ? It is derived solely by virtue of conventional powers, conferred on us by municipal regulations, and prescribed by the law-making power of the state. Have we any right or power to disregard this municipal regulation? If we go back to the law of nature or primitive state and adopt that, we cannot make wills. If we devise our property, we must do it by virtue of the lex loci, or conventional rights secured to us by government; and when acting under a limited delegated power, the well known maxims of the law and of the government prohibit us from exercising any other powers, than those delegated. If therefore wernttempt to emancipate slaves by last will and testament, or by last will and testament to dispose of them in any other manner than that pointed out by the statute, we act in violation of the law or in fraud of the law; and in the case of the Win. King, 2 Wheaton, 148; and of Lee v. Lee, 8 Peters, '50, it is laid down as a general rule, that whatever is done in fraud of law, is done in violation of it. The law, therefore, having made no provisions authorizing persons, by last will and testament to send or direct their slaves to be sent to Africa, or out of the country, it follows as a principle, incontrovertible, that the executors have no power whatever, to send the slaves to Africa, or out of the state; and therefore' the devises in the will for such a purpose, are in fraud of the law and cannot be executed.
    Solon, says JBlackstone, was the first legislator that introduced wills into Athens; but in many other parts of Greece they were totally discountenanced. In Rome they were unknown till the laws of the twelve tables were compiled, which first gave the right of bequeathing. And among the northern nations, particularly among the Germans, testaments were not received into use. And this variety serves to evince, that the right of making wills and disposing of property after death, is merely a creature of the civil state; which has permitted it in some countries, and denied it in others; and even where it is permitted by law, it is subject to different formalities and restrictions in almost every nation under Heaven. 1 Chitty’s Blackstone, 411. By the seventy-fifth section of the Revised Code, p. 385, it is declared that it shall not be lawful for any person, being the owner of slaves, to emancipate them by last will and testament or otherwise, unless it is proven to the satisfaction of the General Assembly, that such slave or slaves, have done and performed some meritorious act for the benefit of the owner, or some distinguished service for the benefit of this State; and without the sanction of the legislature, the acts of emancipation is void. Such is the law and policy of the laws of this state. The above recited act furnishes conclusive evidence to the court, not only of the law, but of the public policy of the state; and here it might be well to remark, that this statute has reference solely to the owner or owners of slaves while alive, acting in propria persona, and not to the executors or trustees, who have no power to emancipate under the statute, neither for distinguished nor meritorious services, nor for any other cause whatever. With the death of the owner, also dies the power to emancipate his slaves, until they are legally vested in full ownership elsewhere.
    An instrument of emancipation must conform to the Jaws of the country where the emancipator was domiciled at the time of his death, or it is void. Such is the principle settled in 1 Randolph, 234. Story’s Conflict of Laws, 215-16-17-18-1,9, and the case in 6 Randolph, 563-4, shows that an attempt to emancipate slaves contrary to the laws in force at the time, is void, although a trust was created to support it, as in the present case. In the case of Bynum v. Boswich, 4 Desauss. 266, the court decided that a be-qirest of slaves to a trustee with directions to liberate them, was void, being in opposition to the provisions of an act of South Carolina, which forbids emancipation in any other way than by deed executed in the life time of the master, a certain time before his death, and in a prescribed form; and in the case of Cunningham v. Cunningham, 1 Taylor, 209, the court decided, that a devise for the maintenance of slaves, was void. See also 3 Amer. Dig. 480.
    And in the case of Haywood v. McCraven, 2 Car. Law. Rep. 557, 3 Amer. Dig. 538, where a testator bequeathed to his executor after the death of his sister, his slaves in trust to have them set free; and also devised and bequeathed to his executors real and personal estate for the use of his slaves, it was held by the court that the bequests were void, as being contrary to the policy of the law, and that whenever the intention was to create a trust that could not be disposed of, the property reverted to the heirs at law, or next of ldn: and that a devise of land to be rented out for the maintenance of a slave was void also. C. &. N. 352. 3 Amer. Dig. 479.
    In the case of Moses v. Denigree, 6 Randolph, 561; and 5 Amer. Dig. 499, it was decided that a deed of emancipation of a slave executed in 1781, (at which time emancipation was not permitted except in certain cases,) although it directed the freedom to commence when he should come of age, (in 1796,) is absolutely void, notwithstanding the law had been changed so as to admit of emancipation in the mean time. If the slaves had been manumitted conditionally, to have their freedom when the laws would permit, it seems it would have been good, and such is the case in 2 Call’s Rep. 319, 357.
    No State is under any obligation to give effect to any acts of parties, which contravene its own policy or laws. 2 Story’s Equity, 429. Story’s Conflict of Laws, 98, sec. 106, says, that no nation will suffer its own subjects to evade the operation of its own fundamental policy or laws, or commit frauds in violation of them.
    As the testator, Ross, could not by the laws of this state, free his slaves in Mississippi, they were, unquestionably, slaves at the time of his death,.left undevised to any person who could take; and being slaves at his death, they descended to, and vested in his heirs by the law of intestacy, (the debts of the testator all being paid.) 1 Howard’s Rep. 558. Personal propert3r is undoubtedly subject to that law in point of distribution, which governs the owner; in other words to the law of the owner’s domicil; real property, to the lex loci rei sitae. 2 Kent, 344. 2 Bos. & Pul. 23.9; note. 3 Yesey, 198. ' 5Vesey, 750. 3 Orach, 319. iBin-ney, 339. 3 Johnson’s Ch. Rep. 210. 1 Mason, 408. 4 Green-leaf, 134.
    Otherwise to allow the testator to interfere, says Kent, with the established rules of law, would be to permit every man to make a law for himself, and thus to disturb the metes and bounds of property. 4 Kent, 520:
    By the second codicil in the will, the provisional devises in favor of the Liberian Government and a school, as well as that in favor of the state of Mississippi, and other provisions in the will, are all whittled away, and the freedom of the slaves as well as the authority of the American Colonization Society to transport them to Liberia, is made to depend on the election of the slaves themselves, to be held on the plantation of the testator. That neither the slaves nor the testator could empower the members of the Colonization Society to transport them to Liberia, even did it not contravene the laws and policy of the state, is clear upon the principle, that the American Colonization Society, if legally in existence as a chartered society or body corporate, was chartered solely for the purpose of transporting free persons of color, to Africa, of their own free will and accord; and her corporate powers do not extend to the transportation of slaves.
    The negroes of Ross, were at the time of his death, and yet are, unquestionably, slaves by the laws of this state.
    There is no devise in the will, of the slaves to the Colonization Society, either in trust or otherwise: but in case they elect to go to Africa, the will says that they shall be sent « under the direction and superintendance of the American Colonization Society.” This society has nothing to do with them until sent, and then they are only to direct the manner and superintend the voyage, as being best acquainted with the nature of such shipments, and able to give safe counsel in such cases.
    The language of the will, will bear no other construction.
    But, it is said, in case a majority of the whole number of slaves should, by election, refuse to go to Africa, then they are all to be sold, and the proceeds paid over to the American Colonization Society, upon condition that they will agree to appropriate the interest on the capital, to the establishment and support of one single seminary or institution of learning, in Liberia, for one hundred years, and at the end of that time, both principal and interest are then to be given up to any government that may be in Liberia. But if, at the expiration of the one hundred years, there should be no government in Liberia then it is to be paid over to the government of Mississippi.
    All these latter and visionary provisions of the will, in case a majority of the slaves refuse to go to Africa, are abolished by the second codicil, which, after abolishing that part of the will, directs that such of his slaves as wish to go to Africa, shall be allowed the privilege of doing so, and that the balance shall be sold for the benefit of those who elect to go.
    The bill avers that'all the slaves have elected and determined to go to Africa, and that the executors are now preparing to transport them thither.
    The demurrer admits the averment to be true. In such caso there is no provision in the will to sell and pay over to the American Colonization Society. They take no interest whatever, nor is there, in such case, any provision in favor of the school or government. So that the will in truth and in construction, amounts to nothing more nor less, than a devise to the slaves themselves of their own freedom, and of the balance of the estate for their benefit.
    The devises are therefore, void, and the property vests, if not otherwise disposed of by the will, in the next of kin, 4 Wheaton, 26-8. That the slaves have no power to emancipate themselves by their own election, and thereby to authorize the members of the American Colonization Society to transport them to Liberia, is evident from the fact, that it would be in derogation of the rights of the heirs, and contravene the whole policy and laws of the state on the subject of domestic slavery: and upon this latter principle the executors cannot nor can the members of the American Colonization Society transport them :
    1. Because, although it may be contended that the liberation from slavery is to take place in a foreign country, and as it regards the law and policy of this state, is extra territorium, yet the principle is well settled, that when the object of a devise is to be executed in a foreign country, it must not be against the public policy of the state where it is sought to be put in execution, or the courts will declare.it void, 2 Story’s Equity, 429. The case of Strickland v. Aldridge, was a devise to the Reverend Adam Aldridge, and his assignees, made upon an implied trust, that he would, upon the devised premises, build and erect a chapel for the Methodist sect, and held void as being contrary to the statute of Mortmain, and is very analogous to the case under consideration, 9 Yesey, 516. As in like manner, the case of Mucklestone v. Brown, 6 Yesey, 52. In both cases the devises were contrary to the policy and laws of England. Thus, when a bequest was given in England, in trust for certain nunneries in foreign countries, it was held void, 4 Vesey, 434, (note.) And in like manner, when a pecuniary legacy was given,for such purposes as the superior, of a foreign convent should judge expedient, it was held void, and the court refused to execute it in a foreign country, 6 Vesey, 567. The bequests in both cases, being for Roman Catholic establishments, which was against the policy and laws of England. That a deed, says Chief Justice Boyle, or other instrument purporting on its face to do an act prohibited by law, cannot be valid nor constitute a medium through which a right can be decreed, is a proposition too evident to admit of controversy. The end being interdicted, the means for its accomplishment must be' considered illegal and void, 2 Bibb, 58.
    2. it is an undoubted maxim in law, that a legacy must take effect at the death of the testator, or be void at that time, and the right vest in another, 3 Peters, 497-8; Ambler, 636, 640. If the devise was either to the executors, or to the American Colonization Society, in trust, (though there is not the slightest ground for such a construction,) neither can take or hold it individually; they must execute it, or it descends to the.heirs. In whom, therefore, did the devises of Captain Ross vest at the time of his death ? for if they did not legally vest elsewhere, they descend to the heirs at law. They could not vest either in the executors or the American Colonization Society in absolute right, 2 Story’s Equity, 427, for if they were devised to them it was in trust. It could not vest in them as trustees, because those for whose use it was devised, (if devised to them,) were, at the time of the testator’s death, and still are, slaves, and incapable in law of taking. A trust for one in law incapable of taking is void, 2 Fonb. 348; 6 Ves. 52, 64.
    By the provisions in the will, and especially the second codicil thereto, which abolishes the 4th clause in the will, it will be seen that all the principal devises are either direct .to the slaves themselves or as declaration of intention without any devise. That slaves cannot take, either by devise, descent or purchase, has been settled by this court in the case of Thomas Hinds v. Henry Bra-zeale, et al. 2 Howard, 836.
    
    A devise of land to be rented out for the maintenance of a slave, is bad, 3 Amer. Dig. 479.
    A devise for the maintenance of slaves is void, sec. 3 Amer. Dig. 480 — 1. 1 Taylor, 209, in point. 4 Desauss. 266. Civil Code of Louisiana, 142, art. 945. 8 Martin Rep. 161. 1 Stewart’s'Ala. Rep. 320.
    Where a testator bequeathed his slaves to his executors, after the death of his sister, in trust, to have them set free by the laws of the state ; and also devised to his executors, real and personal property for the use of his slaves, it was held that the bequests were void, being contrary to the policy of the law, 3 American Digest, 538.
    A devise to one incompetent to take, is a void devise, 2 Roberts on Wills, 30.
    A devisee must be able to take, to make a good devise, 1 Rob. 52.
    The slaves as devisees, are incompetent to take; and there is no devise, either to the executors or to the American Colonization Society, by implication or otherwise.
    
      The will of Isaac Ross, by the 1st, 2nd, 3rd and 4th clauses, disposes of his entire estate: and these clauses certainly do not contain a devise of any portion of it, either to the American Colonization Society, or the institution of learning contemplated in Liberia: nor to either the government that may be in Liberia one hundred years hence, or to the state of Mississippi after that period, either in presentí or in futuro.
    
    If however, (in the language of the will) upon the slaves being called together, a majority of the whole number of the age of twenty-one years, should refuse to go to Africa, then they are all, excepting, &c. to be sold at public auction: and then, and in that event only, are the proceeds of such sale to be paid over to the American Colonization Society, upon the condition that the society will form a fund of it, and apply it according to the provisions relative to the institution of learning and governments spoken of in the will. If a majority of the slaves do not refuse to go to Africa, then there is no fund to apply, no trustee to apply it, and no objects to apply it to. It is therefore upon the condition only and solely that a majority of the slaves refuse to go to Africa, that the provisionary devises in favor of the institution of learning and governments are made to depend, and upon such condition only, is the American Colonization Society constituted trustee.
    By the second codicil to the will, the condition upon which the provisionary devises are made to depend, is abolished. The object for which they were made, therefore, ceases to exist, and consequently the appointment of the society as trustee is revoked.
    The language of the codicil is in these words:—
    “Byway of further codicil to my last will and testament, it is “ my desire upon mature reflection, to alter some of the provisions “ therein:—
    “ 1st. In relation to that part of my will which provides for “ taking the voice of my negroes in relation -to their going to “ Africa or remaining here and being sold, 1 now desire that those “ who wish to go to Africa be allowed the privilege of doing so “ upon the terms and conditions heretofore provided, and those “ who elect to remain be suffered to remain, and be sold as pre- “ viously directed, and the proceeds of their sale be applied under “ the provisions of the will for the benefit of those who elect to “ go to Africa.”
    
      Can any thing be more clear and certain, than that the foregoing codicil abolishes the sole and only provision in the will upon which the devise in favor of the institution of learning and governments, is made to depend, and under which alone the society could claim to act as trustee.
    The bill, as before remarked, avers that most, if not all, of the slaves, have elected and determined to go to Africa: and the demurrer admits the fact. What, then, becomes of the conditional appointment of the society as trustee, and of the contingent devise in favor of the institution of learning and governments ? They must be numbered among the things that were, but are not, and considered as though they had never been.
    It is therefore clear that neither the executors, nor the American Colonization Society can take, either in their own right or as trustees, because in neither capacity was it devised to them: and it is equally clear that a slave cannot be a cestui que trust: and thus we find the estate undevised to any person who can legally take. Are we then to be told, that notwithstanding the void devises and inability of any person to execute the will, and the at tempted fraud upon the laws and policy of the state, yet that the court will sustain the devises as charities, and execute the will according to the odious doctrine of cy-pres — so long a farcical proceeding in the English courts of chancery?
    This power in a court of this state, we dispute.
    1st. Because the devises are void, both at law and in equity.
    2d. Because the devises are for a definite object specified — in point of law. not sustainable; and trustees appointed to execute them. In such a case, a court of equity will never execute it in a different manner, as a charity, when it .is void at law. If therefore, (says Judge Story,) the testator had clearly but one particular object in his mind, as for example, to build a church at W. and that purpose cannot be answered, the next kin will take, 2 Story’s Equity, 424. 2 Co. Rep. 364, 865. 4 Vesey, 419. 433-34, (note.) Jeremy on Equity, Juris. B. 1 ch. § 2, p. 243-44-45. So if a fund should be given in trust, to apply the income to printing and promoting the doctrines of the supremacy of the pope in ecclesiastical affairs in England, the trust, would be held void on grounds of public policy ; and the property would go to the personal representatives of the party creating the trust; and would not be liable to be applied to other charities by the crown, because it was not intended to be a general trust for charities, 2 Story’s Equity, 424. 5 Russ. Rep. 22S.
    And such was the doctrine of Judge Marshall, in the case of the Baptist Association v. Hart’s executors, 4 Wheaton, 27: and of Judge Story, in the same case, reported in 3 Peters, 482.
    The jurisdiction exercised by the English chancellors in executing a general devise for charities, (which was void at law,) in a different manner, was solely by virtue of the statute of 43d Elizabeth, or as enforcing the prerogative of the king, as parens patrias, before the statute, and formed no part of the jurisdiction of the court of chancery, as a court of equity. In reviewing Porter’s case, 1 Co. Rept. 22, Chief Justice Marshall says, (in substance) that it is impossible to resist the conviction that chancery, previous to the statute of 43d Elizabeth, could afford no relief to the cestui que trust in a devise, as a charity which was void at law, 4 Wheaton, 35: and that the original interference of chancery in charities, when the cestui que use had not a vested interest, was founded on the statute of Elizabeth, and still depends on it, ibid 36 and 39. Judge Story in the same case remarks, that the jurisdiction of chancery over charities, when no trust is interposed, or there is no person in esse capable of taking, or when the charity is of an indefinite nature, rests upon the provisions of the statute of Elizabeth, 3 Peters, 497, ibid, 494.
    Such were the conclusions arrived at by judges Marshall and Story, after a full review of all the English cases in 4 Wheaton, 27, 50, and 3 Peters, 482, 503, and there is no pretence that the statute of Elizabeth ever was in force in this country.
    If, however, there were grounds for such a presumption, the Revised Code, p. 8, § 8, repeals all statutes, acts, and parts of acts, of a public and general nature, not published in the Revised Code, and the statute of 43d Elizabeth, was not so published.
    Yet the argument of the counsel for the appellees, on this branch of the question, seems to be based entirely upon the authority of the statute of Elizabeth, and the numerous decisions under that statute, as affording evidence of the common law. Indeed, they say in their printed, brief, in express terms,
    
      “ That the statute of Elizabeth for the regulation of charitable uses, must be regarded as declaratory of the common law, and only intended to limit and control the operations of the statute of Mortmain.” To such a construction of the statute of 43d Elizabeth, we cannot consent, and it has never been so considered by any author or judicial decision with which we have any acquaintance, although some decisions or dicta may be found, which in some particular so consider it. But upon the contrary, we believe that it has ever been considered as giving rights and powers and as affording remedies, which did not exist at common law, prior to the statute.
    The jurisdiction exercised by the chancellor under the statute of 43d Elizabeth, ch. 4, over charitable uses, is held to be personal in him, and not exercised in virtue of his ordinary or his extraordinary jurisdiction in chancery: according to the authority of Judge Story in the second volume of his Equity, p. 431.
    In the case of the Baptist Association v. Hart’s executors, previously referred to, 4 Wheaton, 37, Judge Marshall says:
    There seem to have been two motives for enacting the statute : the first and greatest, was to give a direct remedy to the party aggrieved, who, when the trust was vague, had no certain and safe remedy for the injury sustained, who might have been completely defeated by any compromise between the heir of the feoffer and the trustee; and who had no means of compelling the heir to perform the trust, should he enter for the condition broken. The second, to remove the doubts which existed, whether these charitable donations were included within the previous prohibitory statute.”
    We have no trace, says Judge Marshall, in any book, of an attempt in the court of chancery, at any time anterior to the statute to enforce one of these vague bequests to charitable uses. But we have reports of decisions at common law, which notice points referred by the chancellor to the judges. Immediately after the passage of the statute, we find, that questions on the validity of wills containing charitable bequests, were propounded to, and decided by the law judges.
    Collison’s case was decided in the 15th of James I. only seventeen years after the passage of the act, and the devise was de-dared to be void at law, but good under the statute. Two years prior to this, Griffith Flood’s case, reported in Hobart, was propounded by the court of Wards to the judges; and in that case too, it was decided, that the will was void at law, but good under the statute.
    Had the court of chancery taken cognizance before the statute, of devises and bequests to charitable uses, which were void at law, similar questions must have arisen, and wpuld have been referred to the courts of law, whose decisions on them would be found in the old reports.
    Had it been settled before the statute that such devises were good, because the use was charitable, these questions could not have arisen afterwards; or had they arisen, would have been differently treated.
    Judge Marshall in the same case, p. 39, says, that the earliest decisions we have, trace the peculiar law of charities to the statute of Elizabeth, and that nothing is to be found in our books to justify the opinion, that courts of chancery, in the exercise of their ordinary jurisdiction, sustained, anterior to that statute, bequests for charitable uses, which would have been void on principles applicable to other trusts, and that the practice of filing an information in the name of the attorney general, if, indeed, such a practice existed in those early times, might very well grow out of the prerogative of the crown, and would by no means prove, that prior to the statute, the law respecting charities was what it has been since: and we have the testimony of Judge Story to the same point, after an elaborate review of all the English cases, in 3 Peters, 493.
    Our constitution, (Judicial Department, art. 1 and 16,) in conferring jurisdiction on the court of chancery, uses the term equity. But on this point there can be no question in an American court; nor could there be in England under such devises and policy as ours.
    The devises therefore being void, the heirs take, notwithstanding, says Kent, that the testator may have clearly declared his intention to disinherit them. 4 Kent, 510. The estate in such case must descend to the heirs, if it be not legally vested elsewhere. Cowper’s Rep. 657. 7 Cowen, 187. 2 Wendell, 1. 6 Conn. Rep. 292. The Revised Code, p. 40, sec. 50 and 52 however, is thought to be conclusive on this point.
    Whenever therefore the intention is to create a trust, which cannot be disposed of, the property reverts to the heirs at iaw, or next of kin. 3 Amer. Dig. 538.
    In the discussion of the case of Jane E. Ross et al. v. Duncan & Butler, we propose to establish:
    1. That the devise by the testatrix of her slaves, and her plantation called Ridges, to her executors, in secret trust and confidence, that they would transport the slaves to Africa for the purpose of effecting their emancipation, and sell and dispose of the plantation to defray the expense and provide for said slaves two years in Africa, was in fraud of the policy and laws of the state, and void, and that the trust in confidence for such purposes cannot bo executed by the executors.
    2. That the devises of the plantation and slaves to the executors, was in secret trust for the benefit of the slaves, who cannot take by devise, and are absolutely void, and the cestui que trust still remain slaves by the laws of the state.
    3. That the said devise of the plantation and negroes in secret trust and confidence being a premeditated fraud upon the laws of the state to avoid her policy, and the residuary devise to the executors, being a compensation to them, and upon condition that they would execute the will, are both void and descend to the heirs at law.
    4. That it is competent to prove said secret trusts or devises in confidence as charged in the bill, by parol and other extrinsic evidence.
    1. Whether a gift or legacy upon trust or in confidence that the donee or legatee would hand it over to one by law incompetent to take, is very particularly considered by Pothier, and denied to be, in conscience, an effective and binding trust. 1 Traite des Donationes Partie, chap. 2, act 3. 2 Fonblanque’s Equity, 348. The law will not permit secret agreements to evade, what, upon grounds of public pblicy, is established. 6 Yesey, 69. Lord Eldon says, the policy of the law requires, that courts of justice should distinctly state that it is incorrect conduct in both parties, both in him who projects such a trust or purpose, and in him who carries it into execution. 6 Vesey, 52,58, 66-7-8-9, in point. 9 Vcsey, 516, is in like manner similar to the case under consideration, being a bill by The Heir v. The Devisee, alledging that a devise was upon a secret trust or undertaking for charitable'purposes. It would be singular, says Lord Eldon in the decision of that case, if the court would protect individuals, and would not act to prevent a fraud upon the law itself. 9 Vesey, 519. Numerous however, are the examples that might be adduced to illustrate the doctrine of equity in setting aside agreements and acts in fraud of the policy of the law. 1 Story’s Equity, 094. The reason is, that the public interest requires that relief should be given, and it is given to the public through the party. 1 Story’s Equity, 297. Constructive frauds, says Judge Story, are so denominated on account of their being contrary to some general public policy, or fixed artificial policy of the law. By being contrary to public policy we are to understand, that in the sense of the law they are injurious to or subversive of the public interest, by attempting to do indirectly, what the law has prohibited directly. 1 Story’s Equity, 262, sec. 260. Newland on Contracts, chap. 33, page 469. By the seventy-fifth section of the Revised Code, p. 385, it is declared that it shall not be lawful for any person, being the owner of slaves, to emancipate them by last will and testament or otherwise, unless it is proven to the satisfaction of the general assembly, that such slave or slaves, hath done and performed some meritorious act for the benefit of the owner, or some distinguished service for the benefit of the state; and without the sanction of the legislature, the act of emancipation is void. Such is the policy of the laws of this state, evidenced by the above recited act, and furnishes conclusive evidence to the court, not only of the law, but of the public policy of the state. An instrument of emancipation must conform to the laws of the country where the emancipator was domiciled, or it is void; and such is the principle settled in 1 Randolph, 23-4; Story’s Conflict of Laws, 215-16-17-18-19; and in the case in 6 Randolph, shows, that an attempt to emancipate contrary to the laws in force at the time, is void, although a trust was created to support it, as in the present case. No state is under any obligation to give effect to any acts of parties, which contravene its own policy and laws. 2 Story’s Eq. 429. Story’s Conflict of Laws, sec. 98, page 106, says, that no state will suffer its own citizens to evade the operation of its own fundamental policy or laws, or to commit frauds in violation of them. As the testatrix, Mrs. Reed, could not by the laws of this state, free her slaves in Mississippi, she attempted to do it indirectly, by devising them in trust or confidence to her executors, to transport to Africa for the purpose of colonizing them there, which being in fraud of the policy and laws of the state, were void devises, and the slaves and plantation descend to the heirs.
    Personal property is undoubtedly subject to that law, in point of distribution, which governs the owner, that is, to the law of the country in which the owners is domiciled: real property, to the “ lex loci rei silts,” 2 Kent, 344; 2 Bos. & Pul. 229; 3 Yes. 198; 5 do. 750; 3 Cranch, 319; 1 Binney, 336; 3 Johnson’s Ch. Rep. 210; 1 Mason, 408; 4 Greenleaf, 134. Otherwise to allow the testator, says Kent, to interfere with the established rules of jaw, would be to permit every man to make a law for himself, and thus disturb the metes and bounds of property, 4 Kent, 520.
    The object of the devise to the executors, being in confidence that they would transport the slaves to Africa to be colonized as free persons, to avoid the laws and policy of this state, and sell and dispose of the plantation for their benefit, is void, and the executors cannot transport them to Africa in derogation of the rights of the heirs, which have become vested, and thereby contravene the whole policy of the state, 2 Story’s Equity, 429 ; 3 Peters, 497, 498. Thus where a legacy was" given in England, in trust for certain nunneries in foreign countries, it was held void, 4 Yes. 434, (note); and in like manner, when a pecuniary legacy was given for such purposes as the superior of a foreign convent should judge expedient, it was held void, 6 Vesey, 567. The bequests in both cases being for Roman Catholic establishments, which was against the policy and laws of England.
    That a deed, says C. J. Boyle, or other instrument, purporting on its face to do an act that is prohibited by law, cannot be valid, nor constitute a medium through which a right can be decreed, is a proposition too evident to admit of controversy. The end being interdicted, the means for its accomplishment must be considered illegal and void, 2 Bibb, 58. It is evident that the executors themselves cannot take the property, because it was devised to them in confidence, that they would carry out the design of the testatrix, by freeing and colonizing the slaves in Africa, and dispose the real estate to defray the expense of transportation, and provide for them two years in Liberia. The executors therefore must receive it upon that condition or they cannot receive it upon any. To attempt to hold it individually, would be a fraud upon the law, a fraud upon the testatrix, a fraud upon the heirs, a fraud upon the slaves themselves, and violate every known principle of law; and it is believed that they never intended it.
    In the case of Strickland v. Aldridge, Lord Eldon fully sustains this principle, 9 Yesey, 519. Also in the case of Muckleston v Brown, 6 Yesey, 53; and in Corbyn v. French, 4 Vesey, 419, Lord Eldon maintained the same doctrine. Judge Story, in his Equity, 3 vol. 437, says, that if the testator means to create a trust, and the trust is not effectually created or fails, the next of kin must take. On the other hand, if the party selected to make the distribution is to take it, it must be upon the ground that the testator did not intend to create a trust, but to leave it entirely to the discretion of the party to apply the fund or not. The latter position, says Judge Story, is repugnant to the very purposes of the bequest, and therefore the interpretation is, that it is the case of a frustrated and void trust, 3 Story’s Equity, 438; 1 Turn. & Russ. 360, 370. But nothing, I apprehend, is more familiar than the doctrine in relation to contracts: and it is laid down that he who takes by devise takes by purchase. If the executors intended to claim the property devised to them in confidence, individually as their own, they ought .to have disabused the confidence of the testatrix by letting her know that they would not execute the trust. It is an ancient and well settled principle, that whenever suppressio veri, or suggestio falsi occur, they afford sufficient ground to set aside any conveyance or release, 13 Peters, 36. The same principle is also expressed with sententious brevity by Judge Story, in 1 Story’s Equity, 301-3. Hence it follows, that at the death of the testatrix, her negroes and land were undevised to any devisee who could legally take: and it is equally clear that they were slaves by the laws of the state at the death of Mrs. Reed, and being not otherwise legally disposed of, vested immediately in the next of kin. 4 Wheaton, 28, and Rev. Code, p. 41, 42, § 50 and 52, are conclusive on this subject.
    Nothing is thought to be more incorrect, both in theory and in practice, than the idea that the devises in the present case are directed to be executed in a foreign country, and as regards the laws and policy of this state, extra territorium: consequently that they can be legally executed. The principle is well settled, that when the object of a devise is to be executed in a foreign country, it must not be against the public policy of the laws of the state where it is sought to be enforced, or the courts will declare it void, 2 Story’s Equity, 429. 6 Yesey, 567, De Phemines v. De Bour-eval, 5 Russ. 292, 297. The persons who are named to execute the devises in the present case, reside in this state, and there is no person or persons named in the foreign country to execute them.
    #d. The devises of the plantation and slaves in secret trust or corifidence to the executors, was for the benefit of the slaves themselves, being indirectly a devise of their freedom, and the plantation in trust for them. That slaves cannot take either by devise, descent, or purchase, has been settled by the High Court of Errors and Appeals of this state, in the case of Thomas Hinds v. Henry Brazeale et al. 2 Howard, 836 :■ and John W. Vick v. John PI. McDaniel, 3 Howard, 337; and such is the weight of authority in the other states, 3 Amer. Dig. 479. A devise for the maintenance of slaves, is void.
    In the case of Bynum v. Boswich, 4 Desauss. 260, the court decided, that a bequest of slaves to a trustee, with directions to liberate them, was void, being in opposition to the provisions of an act of South Carolina, which forbids emancipation in any other way than by deed executed in the life time of the master, a certain time before his death and in a particular form. And in Cunningham v. Cunningham, 1 Taylor, 209, the court decided that a devise for the maintenance of slaves was void, 3 Amer. Dig. 480; and in Haywood ». M’Craven, 2 Car. Law Repository, 557, 3 Amer. Dig. 538, where the testator bequeathed to his executors, after the death of his sister, his slaves in trust to have them set free: and also devised to his executors real and personal estate for the use of his slaves. It was held void by the court as being contrary to the policy of the law, and that wherever the intention was to create a trust that could not be disposed of, the property reverted to the heirs at law or next of kin: and that a devise of land, to be rented out for the maintenance of slaves, was void, also, 3 Amer. Dig. 479. In the case of Moses v. Denigree, 6 Randolph, 561, and 3 Amer. Dig. 499, it was decided that a deed of emancipation executed in 1781, (at which time emancipation was not permitted except in certain cases) although it directed the emancipation to commence when the slaves should come of age in 1796, was absolutely void, notwithstanding the law had been so changed in the mean time as to admit of emancipation. If the slaves had been manumitted conditionally to have their freedom when the laws would permit, it seems it would have been good: and such is the case in 2 Call. 319, cited by the ap-pellees. No authority can be found to authorize a slave to take by devise, descent, or purchase, or to be a cestui que trust.
    
    It is a universal and undoubted maxim in law, that a legacy must vest and take effect at the death of the testator, or be void at that time and the right vest in another, 3 Peters, 497, Ambler 636, 640. In whom then did Mrs. Reed’s slaves vest at the time of her death, for if they did not legally vest elsewhere, they descend to the heirs at law. They could not vest in the executors individually in their own right, because they were devised to them in trust, and they must execute the trust or they descend to the heirs, 2 Story’s Equity, 427. They could not vest in the executors as trustees, because those for whose use they were devised, were, at the death of Mrs. Reed, and still are, slaves themselves, and a trust, for one in law incapable of taking is void, 2 Fonblanque, 326, 6 Vesey, 52, 64.
    These principles are incontrovertible, and settle the whole question involved in this case:
    1st. No person can deny that the one hundred and twenty-three negroes were slaves at the death of Mrs. Reed, and still remain so by the laws of this state.
    2d. No person can contend that they vested in the executors in fee: And
    3d. No person can contend that they vested in the executors as trustees for the slaves themselves, because slaves cannot be cestui que trust, nor take by devise. In whom then did they vest ? The conclusion is irresistible and the principle immutable, that such a devise, at the death of Mrs. Reed, was void, and that the slaves descend to the heirs.
    These principles, passed over by the chancellor sub silentio, are thought to destroy the whole basis and fabric of his opinion. He says in his opinion, in substance, that Mrs. Reed could while living, have sent her slaves to Africa, and that no one had a right to question it. He then draws the conclusion that whatever would have been a legal disposition of property by a person while living, would be equally lawful when disposed of by will. Such a conclusion is a non sequitur, and violates the best settled maxims of the law. The 75th section of the Revised Code, 385, has reference solely to the owner or owners of slaves while living, acting in propria persona, and not to the executors or trustees. With the owner dies the power to emancipate even for meritorious or distinguished services; and although Mrs. Reed might have sent her slaves to Africa while living, yet she did not do so, but died leaving them in the state and slaves by the laws of the state.
    The principle then that personal property in point of distribution, is governed by the law of the country where the owner was domiciled, is unquestioned: and the principle that a devise legally vests at the death of the testator, or is void and descends to the heirs, is also unquestioned, Mrs. Reed’s slaves, as before remarked, could not vest at her death in her executors, because they were devised to them in trust for the benefit of the slaves. Neither could they vest in them as trustees, because the cestui que trust were slaves, and could not take. How then does it follow, that the executors can do whatever Mrs. Reed might have done ? The law shows most clearly that the rights of property have been changed, and a different set of principles apply, and that the executors cannot do what Mrs. Reed could have done while living. This change of being, from the living to the dead, and consequent change of principles that attach, also destroy the other conclusions drawn by the chancellor in his opinion, to wit: That the legislature intended the prohibition to emancipate to extend only to cases in the state where the slaves were to remain, and that Mississippi has nothing to do with the emancipation of slaves elsewhere, and does not assume police jurisdiction beyond her own limits; that it was difficult to perceive how an act done in Liberia according to its laws, could violate the laws of this state. It is sufficient to answer all these conclusions, by a reference to the foregoing principles, and that the slaves are the slaves of a dead person; found in the state and subject to her laws, and that by those laws and the universal maxims of the common law, the rights of the heirs attach and become vested, whilst the negroes are still slaves, and within the state, and subject to her laws.
    And although it might have been difficult (as supposed by the chancellor) to perceive how an act done in Liberia according to its laws, could involve a violation of the laws of this state, yet, when the act is done in this state, the perception is clear. If the slaves of Mrs. Reed are entitled to their freedom, it is by virtue of her last will and testament, executed in the state, by one domiciled and subject to her laws. If the will is a valid instrument, it derives its validity from the laws of Mississippi. The right, therefore, to freedom, has become vested by the laws of the state, and Mrs. Reed has succeeded in freeing her slaves by last will and testament, in the state of Mississippi, according to the process of reasoning adopted by the chancellor, notwithstanding the law says, that no person shall, by last will and testament, emancipate, &c. Can such things be ? Can pure water thus be drawn from an impure fountain ? The germs of freedom, according to such superficial reasoning, have been sown in Mississippi and nurtured by her policy and laws. If the slaves have not been legally emancipated by the last will and testament of Mrs. Reed, under the laws of the state, they constitute property, and not having been devised to the executors in their own right, must descend to the heirs.
    You cannot, according to the well settled maxims of law, do indirectly what the law has prohibited directly; and the law certainly has directly prohibited emancipation by last will and testament, except for meritorious or distinguished services, to be approved and sanctioned by the legislature.
    But again, it is conceived that the chancellor fias mistaken the rule of law in saying, that the right to dispose of property by will, is as broad and comprehensive as the right of disposition while living; and that whatever would be a legal disposition of a person’s property while living, would be equally lawful when when disposed of by last will and testament. A few examples will illustrate this error. For instance, a man may convey, bona fide, all his personal property, while living, without any provision for his wife. Yet if he does it by last will and testament, it is void so far as the dower of the wife is concerned. Again he may convey, bona fide, while living, all his estate without providing for his creditors; yet if he does it by will, it is void so far as it regards the rights of creditors. In fine, it is thought that there is no analogy between the two powers of disposition. Again it is said, both by the chancellor and by the counsel for the appellees, that the law prohibiting emancipation, applies only to cases where the freedom is to take place in the state, and not to cases where it is directed to take place in another country, and that in such case it violates neither the laws nor the policy of the state. If the freedom of slaves, owned and domiciled in Mississippi, takes place by virtue of a will executed in the state, and the laws of the state prohibit emancipation' by will, it would be strange indeed if it did not violate those laws, although the freedom was to be enjoyed in another country: and still more strange would be the anomaly, if it did not violate her policy.
    The principle here laid down by the chancellor, and by the counsel for the appellees, if true, would destroy the law as a science, which is said to be the perfection of human reason. But alas! how imperfect must be the code of human reason, if an act prohibited by law, can be committed with impunity by a citizen amenable to the law; and the validity of the act prohibited by law, be upheld by the violated law itself. For the validity of the devises must unquestionably, and beyond all doubt, be tested by the laws of Mississippi, and within the state where they have full force and operation, and that too, without regard to other countries, or the laws of other countries, with which the courts of this state have nothing to do.
    Slaves constitute a portion of the vested wealth and taxable property, of the state. Without them her lands are worthless. Would it not therefore be contrary to the policy of the state, to part with this vested wealth, this source of revenue, with that which alone renders her soil valuable.
    Again, would.it not be productive of mischief, and would it not be spreading a .dangerous influence among the slave .population of the country, for the slaves of - the whole plantations to acquire their freedom, take leave of the country and make their departure, proclaiming liberty for themselves-and their posterity? Would this no*t render the other slaves of the country dissatisfied, refractory, and rebellious ? Would it not lead to insubordination and insurrection ? And if so, would it not be contrary to the policy of the law ? So certain as the heavens afford indications of the coming storm, so certain will scenes of .blood be the concomitants of such testamentary dispositions in this state. And yet it is said that the colony of Liberia is an object worthy of all philanthropic encouragement. Wha,t! that germ whence spring the elements of discord and dissatisfaction among the slaves of the country— that nucleus that fosters insubordination and leads to insurrection —that institution from which reverend agents, thrust themselves among the slave population of the country, and proclaim the advantages and blessings of Liberia: for it is charged in the bill, that some such persons visited Mrs. Reed. Such a colony may indeed be an object worthy of all commendation and.encouragement to some persons, but it can never be so, to the peaceable citizens of a slave holding state. ' ■
    Slavery, as it exists in. this country, did not'exist at common' law, and therefore the right to emancipate at common law has no application. . • .
    3. That, the devises being void, the heirs take, . says Kent, not-Avithstanding the testator may have clearly declared his intention to disinherit them. 4 Kent, 610. The estate in such case must descend to the heirs, if it be not legally vested elsewhere. Cowper’s Rep. 657. ’7 Chwen, 187. 2 Wendell, 1. 6 Cowen, 292. The Revised Code, p. 40, sec. 50 and 52, however, is thought tó be conclusive on this subject. Whenever the intention is to create a trust which cannot be-disposed of, the property reverts to the heirs .at law or next, of-kin.- 3 Amer. Dig. ,538.
    4. That it is competent to prove said secret trust or devises in confidence, as charged in the bill, by parol or other extrinsic evidence, is a proposition too clear to admit of doubt. But it cannot be denied nor disguised, that the letter marked exhibit D., constitutes the will of the testatrix; in other words, that it is a paper signed by the testatrix at the same time of executing the will and delivered to the executors, declaring the trust; and we are bound to look upon the letter as the, genuine will, which requires no further proof. One proposition may be received as a standing rule, that any thing in writing decisively marking the intention to create a trust, will be effectual without a formal declaration, either as a virtual declaration to satisfy the statute, or as the implication of a trust upon grounds of equitable construction to put the case within the exception; to which we may add that although the principal instrument be without either expression or implication of a trust, yet a precedent, subsequent, or accompanying instrument, may make the trust manifest, though itself no formal declaration. Roberts on Fraud, 95. Barnell v. Joy, 16 Mass. 231. Roberts on Fraud, 101. In the case of Primmer v. Bayne, 7 Ve-sey, 518, Lord Eldon says, that the sum and substance of all the authorities, is, that all parol declarations, whether made before, at, or after the making of the will, were alike admissible to rebut the presumptions, though they are not all alike weighty and efficacious; whether they consist of conversations with people who have nothing to do with the question, of declarations provoked by impertinent inquires, or in whatever form the}'' may arise, they are all evidence, though entitled to very different credit and weight, according to the times and circumstahces. Roberts on Fraud, 71-2. A voluntary acknowledgment of trust will dispense with the written proof, and equity has compelled the acknowledgment of a trust by parol, though the statute of fraud was relied on. Chancery Digest, 490. 1 McCord, 119. In chancery, parol or extrinsic evidence, is admissible to prove fraud or to correct mistakes. 1 Johnson Chan. Rep. 594. 1 Day, 139. 1 Bay, 247. 3 Hen. &Mun. 144,288. 2 Johnson Chan. Rep. 274,585. When fraud is alledged in the bill, and the evidence goes to establish it, the statute of frauds is very properly put out of the question, since the object of the evidence is not to contradict the instrument, but to raise an equity dehors the instrument, in contravention of a purpose, which no law or statute will be suffered to assist or protect. Roberts on Frauds, 80. 1 Atkyns, 447. Any declaration in writing made by the grantee or assignee of property, at any time after the conveyance, is competent proof that the property is held in trust; and letters or other papers, however informal, are sufficient to constitute such declaration. 4 Amer. Dig. 291. 16 Mass. 221. The objection that a trust cannot legally exist without a declaration in writing, signed by the party who holds the legal estate, does not apply to secret trusts and confidences, enacted for the purpose of defeating or delaying creditors, which may always be proved by parol, and when so proved, render wholly inoperative the formal transactions which have been adopted for such purposes by the parties. 4 American Digest, 549, 551. 12 Mass. 26. Walker’s Rep. 197. 3 Amer. Chan. Dig. 402.
    By a short review of the principal authorities cited by the appel-lees, it will be found that they have little or no bearing on the case under consideration. The case of McCutchen et al. v. Marshall et al., referred to in 8 Peters, 220, is thought to have no relation whatever to the case before the court. By the act of North Carolina of 1777, ch. 6, sec. 2, which was in force in Tennessee, no negro could be set free except for meritorious services, to- be adjudged of and allowed by the court. The act of Tennessee of 1801, ch. 27, sec. 1, modified the former laws and allowed the owner of slaves to petition the county court in all cases, setting forth the intention and motive for such emancipation, without any restriction as to meritorious services. 8 Peters, 238. The act of 1829, ch. 29, makes it the duty of an executor or administrator, with the will annexed, when a testator had by his will directed slaves to be set free, to petition the county court accordingly; and if the executor or administrator failed or refused to do so, the slaves are authorized to file a bill for their freedom in chancery. 8 Peters, 240. The county court was authorized to allow the emancipation: full jurisdiction was given to the court: the court allowed the emancipation; and, say the court, the laws of Tennessee fully authorize the emancipation of slaves in the manner provided by the will of Patrick McCutchen.
    If the laws of Tennessee sanctioned the mode, who had a right to complain ? Our statute prohibits emancipation except for dis-iinguished or meritorious services, and reserves the right of judging of such services to the legislature only.
    The case of Fisher v. Dobbs> 6 Yerger, 119, is múch relied on by the appellees, as feeing in point, because the court refused to emancipate without requiring bond and security that' the emancipated slaves should not only be sent out,of the state, but out of the United States^ to wit: to Africa.
    The act of Tennessee of 1831, c. 52, required slaves upon being emancipated, to be removed' beyond, the limits of the state: and the court in their decision went further, and required them to be sent out of the United, States, to wit: to Africa. It would be difficult to perceive upon what principle this Tennessee case could apply to the one under consideration. 'The acts of the legislature of that state, authorized the court, on petition, to emancipate without restriction, and leaves the question to the discretion of the court. There is no analogy between the statutes of Tennessee and Mississippi. Our statute prohibits emancipation under all circumstances, except for distinguished or meritorious services, and reserves the right of judging of the service to the legislature.
    The case of Blackman & Hadley v. Negro Phil, 7 Yerger, 452, is another barren decision under the Tennessee statute, and it would be hard to perceive what bearing it could have upon the present case. Phil had been sold by Hadley, and conveyed by bill of sale and delivered to Latimon, in Tennessee, who after-wards took him to Illinois, and there, being. the owner of Phil, emancipated him. Phil afterwards returned to Tennessee, and long afterwards, and after the death of Hadley, his former owner, Hadley’s representatives seized on Phil as a slave, and the court decided that by the deed of emancipation in Illinois, Phil acquired his freedom. -
    The case referred to in I Bibb, 422, is another- reference in which we are unable to perceive the bearing. It was on a special contract for freedom according to the laws of Kentucky, proved, say the court, beyond a doubt: and the court, said, «the contract in itself was not forbidden by any political institution, but was in unison with the dictates of natural fights.” 1 Bibb, 424.
    The case of Pleasants v. Pleasants, cited by the appellees in 2 Call, 319 and 357, and in the Law of Slavery, 314, in like manner has little or no perceivable bearing on the question before the court. It was a devise by the testator, of his slaves to his son,, on condition that he allowed them to be free at the age of thirty years, if the laws of the land would admit of it: and the court held that the limitations were good, in the event of such a law being passed, while the slaves remained in the family. The case is reviewed in 6 Randolph, 561, where the court say, that in the case of Pleasants v. Pleasants, the court carried the law far enough, although it violated no statute: and that a deed of emancipation of slaves executed in 1781, declaring the slaves free when they should arrive at full age, which would be in 1796, was void by the act of 1723, notwithstanding that previous to 1796, the law had been changed so as to admit of emancipation. Law of Slavery, 311.
    The will in case of McCall, say the court, merely directed that the slaves should have their freedom whenever the laws would permit it, and created a trust to support the devise. How very different to the present case ? and consequently no authority.
    The case of Rush’s representatives v. White and wife, 3 Monroe, 104, is another reference to an authority by the appellees which settles no point involved in the present case. It was the case of a slave having gone to reside in the North Western Territory, now state of Ohio, with the consent of the owner. By the laws of Kentucky, and an act of 1800, slaves may be emancipated by an instrument in writing not under seal, made by a master eighteen years of age, without any restriction whatever.
    The case of Hunter v. Pulche'r, 1 Lee, 172, cited by the appel-lees, was tried in Virginia, under the laws of Maryland, which enacts, that it shall not be lawful to bring a slave into the state, either for sale or residence : and that a slave brought in contrary to the act shall be free, 5 Randolph, 131. It appeared in evidence, that the master took his slave from Virginia to Maryland, and resided there with him for twelve years, and then returned to Virginia, when the court adjudged him to be free under the laws of Maryland. Law of Slavery, 329.
    Of such like character, are all the authorities referred to by the appellees, not one of which is thought to have any bearing on the case under consideration.
    
      The question before the court is by no means a novel one in this state. In the case of Brazeale v. Hinds, 2 Howard, 836, the court decided that “ no owner can emancipate his slave but by a. deed or will properly attested or acknowledged in court, and proof to the legislature that such slave had performed some meritorious act for the benefit of the master, or some distinguished service for the state; and that the deed or will could [have no validity until ratified by a special act of the legislature. It is believed that this law and policy are too essentially important to the interests of our citizens to permit them to be evaded.”
    To the foregoing opinion, delivered by the Chief Justice, he further adds: “.John Monroe, being a slave, cannot take the property as a devisee, and I apprehend it is equally clear it cannot be held in trust for him.” 4 Des. Rep. 266. Thus we find the rule broadly laid down by the Chief Justice, which covers the whole ground involved in the case before the court. View it as you may, turn it as you will, twist it as you please, still in principle it covers the sole and only question before the court. That opinion was a just exposition of the laws and policy of the state, and must stand the test of scrutiny, and of time; a beacon pointing to a just interpretation of the laws and policy of the state, on the subject of domestic slavery.
    The case of Vick’s executors, v. McDaniel, 3 Howard, 337, was in point. In that case the testator, by his will, directed the executors to transport his slaves to the states of Ohio or Indiana, (a country, foreign as regards this state,) there to reside free from slavery: which will appear by a reference to the bill and original papers; and the court adjudged the devise contrary to the law and policy of the state.
    The question principally mooted in the case was, whether the slaves should belong to the residuary devisee, or descend to the heirs at law. Justice Trotter in delivering the opinion of the court, uses the following emphatic language: “ It is evident that the testator did not intend that the slaves in question should belong, either to the heirs, or to the residuary devisees. He intended that they should be emancipated. That intention is defeated by the operation of our fundamental law, and the settled policy of the state. See 3 Howard, 341. This decision again covers the whole ground involved in the cases under consideration. If a devise of slaves to be transported to the state of Ohio, (foreign to this) for the purpose of effecting their emancipation, is defeated by the operation of our fundamental law, and the settled policy of the state, why is a devise of slaves to be transported to Liberia, for the. purpose of effecting their emancipation, not also defeated by the law and policy of the state? And if not so defeated, then what is the distance in miles and furlongs, to which slaves may be transported, and which will, or will not, be so defeated ? The truth is, that distance has nothing to do with the question, and the principle is the same, whether they be transported to the opposite bank of the Ohio river, or to the coast of. Africa.
    These decisions in principle, certainly do settle the question before the court, and furnish an exposition of the laws and policy of the state, upon which there can be no two opinions; and from which it is conceived that even the appellate court is not at liberty to depart. 1 vol Story’s Constitutional Law, '350.
    There- was also another decision in chancery, in point, and submitted to without an appeal, in which the counsel on both sides must have considered the doctrine as settled, to wit: the case of the heirs of D. W. Brazeale v. D. W. Brazeale’s executors, being a bill filed for the same decree that we now ask, and which was granted. Brazeale, by his will, devised all his slaves in trust to his executors, with directions to transport them to Africa, and colonize them in Liberia. The court of chancery decided that such a devise was against the laws and policy of this state, and void, and that the slaves descend to the heirs. That decree was made by one of the oldest judicial officers in the state, after taking it under advisement and after mature deliberation: a man who settled in the country under the territorial government: who has digested the laws of the territory: filled the office of legislator, circuit court judge, chief justice of the supreme court, and chancellor of the state: familiar with the legislation of the country, and the policy of the law and state. He decided that a devise of slaves to executors, with directions to colonize them in Liberia, was against the laws and policy of the state and void.
    The present supreme court have decided as much; and the whole state with some exceptions, is interested in a similar decision; a decision that will maintain and uphold the law and policy of the state. Our future prosperity as a sovereign people, depends upon it. It has been an attempt to commit a pious fraud on our laws and policy by one who owed them obedience, and to substitute foreign principles in lieu of them, on the subject of domestic slavery. Let the decree of the present chancellor be affirmed, and very soon another, and yet another attempt upon our policy and laws will be made.
    Holt, on the same side.
    Prentiss, for appellees.
    Two prominent points are presented by the record, to which all the others are collateral:
    1. Is the provision of the will directing the transportation to Africa of such of testator’s slaves as should choose to go, illegal, and will the court interfere to prevent its execution ?
    
      2. Upon the failure of such a disposition, is the residuary bequest to the Colonization Society, in trust for the establishment of a seminary of learning in Liberia, illegal, and will the court interfere to prevent and prohibit the execution of such a trust ?
    These two questions, it is believed, involve the whole controversy. We will proceed to examine them in the order in which they arise:
    First, then, is the provision for the transportation of testator’s slaves to Africa, and their maintainance there in freedom, in contravention of the laws of Mississippi ? It is averred by appellants, in their bill, to be in violation of an express statute, as well as in contravention of the cherished policy of the state on the subject of domestic slavery — that the slaves when sent to Africa will be free — that the will, therefore, is, in effect, a will for manumission, and, by consequence, an evasion of and fraud upon the law.
    We will first examine whether the disposition made of his slaves by the testator would be good, provided no law of the state prohibited the same.
    The disposition of property by last will and testament has its origin in the earliest period of history. It has ever been a cherished principle of the common law to carry into effect those intentions in relation to the disposition of property, « which a man wills to be performed after his death.” This dominion over "property after death, is indulged until it comes in collision with great principles of public policy. It may be safely laid down as an incontrovertible proposition that a person may, unless prohibited by law, direct in his will any disposition of his property, after his death, which he could have legally made during his life-time.
    Our own statute on the subject of last wills and testaments gives this power in the broadest terms. Vide Rev. Code, p. 32, sec. 14. It cannot for a moment be contended, that without an express law prohibiting it, (and even such a law would be unconstitutional,) any person would not have the right to carry or send any portion of his personal property out of the state of Mississippi — to Africa or elsewhere — provided the rights of third persons were not infringed thereby. The owner could either take it himself, or employ an agent as trustee, to effectuate his intention, and would have an undoubted right to appropriate the proceeds of other property to the accomplishment of the object.
    
    Is there any thing in the character of slave property which excludes it from the operation of this rule? Does the fact that slaves sent to Africa would cease to be property and become free, as averred in complainant’s bill, limit the owner, and preclude him from making such disposition of them? We think not. The right of the master to manumit his slave is a natural attribute of the condition of slavery, subject, of course, to be limited and controlled, like all other rights, by the municipal regulations and policy of the country in which the institution exists. On this point see 8 Peters, 220. Cooper’s Justinian, 416. Judge Catron’s opinion, Law of Slavery, 301. 2 Call’s Rep. 319, 357.
    This right of manumission, when unrestrained by positive municipal regulations, has ever been held in all countries where slavery has obtained, as one of the most valuable and important powers of the master. In the ancient governments, where the condition of slavery was more absolute than it is with us, (the power of the master extended even to the life of the slave,) the right to manumit was as much claimed and as highly esteemed as the right to sell and destroy. In all the states of the Union, where this institution has prevailed, the master has ever been allowed, in the absence of statutory limitations, to manumit at pleasure, by will, deed, or otherwise. In the absence, then, of any statutory provision, we take it as a clear point, that Isaac Ross could, in his lifetime, have carried or sent his slaves to the coast of Africa, for the purpose of there freeing them, and could have appropriated the remainder of his estate, if he pleased, to their transportation and maintenance there. We think it is equally clear that he could, under such a state of facts, have legally directed by his will, the same thing to have been done.
    But we are met by the appellants with the position that this disposition of his slaves by Isaac Ross, however good it might have been at common law, is prohibited by an express statute, as well as by the cherished policy of the state. We will proceed to examine this position, for if it be correct, the provisions of the will referred to cannot stand. The appellants rely upon the seventy-fifth section of the act entitled “ An act to reduce into one the several acts concerning slaves, free negroes and mulattoes,” passed June 18, 1822. Rev. Code, 385. This section provides that “it shall not be lawful for any person or persons, being the owner or owners of slaves to emancipate them or any of them, unless by his or her last will and testament, or by any other instrument in writing, under his, her or their hand and seal, attested and proved in the manner required by law, by two credible witnesses, or the instrument of writing acknowledged by the party or parties, in the court of the county, or corporation where he, she, or they reside, and also prove to the satisfaction of the general assembly, that such slave or slaves have done and performed some nierito-rious act for the benefit of such owner or owners or some distinguished service for the benefit of this state, and the last will and testament or other instrument in writing as aforesaid, shall not have validity until the same shall be sanctioned by an act of the general assembly, nor until the owner or owners shall have complied with the conditions which may be specified in such act.”
    We contend that this section is a mere municipal regulation, aiming simply at the internal police of the state, and prohibiting emancipation only within its limits. We deny that the emancj-pation which results from a removal of slaves to a foreign country, is embraced within its letter or its spirit.
    In the earlier history of the slave-holding states, the power of manumission was but little restricted by legislative enactments. But it soon became apparent that the frequent exercise of this power was productive of a gieat evil, by the rapid increase which it caused in the free negro population. This kind of population was found by experience to be both oppressive and dangerous, constituting a heavy charge upon the public and a great nuisance to the community. It became, therefore, the necessary policy of these states to rid themselves of this evil, and as far as practicable, to prevent its further extension. In pursuance of this policy, they proceeded, by various legislative enactments, to diminish the rights and increase the responsibilities of free negroes : and, as a branch and parcel of this system, have, most, if not all of them, placed various restrictions, limitations and conditions upon the owner’s right of manumission, which had been the prolific source of the mischief. It may be safely asserted that every such limitation or restriction of the right of. manumission, was intended by the legislature only to relieve the state from the accumulation within its borders of an obnoxious free black population. All laws of this sort will be found to aim at this object alone; and to this extent, and no more, have they been enforced by the judicial tribunals.
    That we are correct in our view of the object of the laws limiting manumission, will be apparent from an examination of the statute books of the different states.
    All such limitations will be found incorporated with and forming a part of the police regulations of the several states, on the subject of slaves, free negroes and mulattoes, and not among the laws regulating the disposition of property. In many cases such limitations are preceded by a preamble, expressly reciting their object to be as we have contended. The law of Georgia upon this subject is a striking instance of this sort. How is it in our own state ? Where do we find the provision above quoted? Not under the head of “last wills and testaments;” not under the title of “conveyances,” nor connected with any law relating to the disposition of property. . It is found-in the seventy-fifth section of an act in which, are embraced all the police regulations of the state in relation to slaves, free negroes and mulattoes. The principle that statutes “inpari materia” are to be construed together, is peculiarly applicable to this act. Its different sections and provisions are to be construed together, for they are manifestly “in parv materia.” '
    The act contains eighty-six sections, all of which (unless the one under consideration be an exception,) are devoted to the police and municipal regulation of slaves, free negroes, and mulattoes. It seems to us clear that the 75th section had the same, and no other object in view. There are provisions in the section itself, which show that it referred only to manumission within the state.
    
    First, it refers to the qualification of the slave to be emancipated. He must •“ have done and performed some meritorious act for the benefit of his owner or owners, or some distinguished service for the benefit of the state.”'- Such slaves as could exhibit these meritorious claims were considered' as exceptions from the general rule, that free negroes are vicious and dangerous, and were, therefore, left to the discretion of the legislature. This shews that the prohibition arose out of the character of the population produced by manumission. It -ought not to be construed as extending beyond the object aimed at. Again — the section goes on to provide that “ such last will and testament, or other instrument in writing as aforesaid, shall not have validity until the same shall be sanctioned by an act of the General Assembly, nor until the owner or owners shall have complied with thecon-diiions which may be specified in such act.”
    
    The legislature could have no object in annexing conditions to emancipation out of the state. This provision manifestly contemplated only emancipation in the state, and was intended to provide for the requisition from the owner, of boncfcqr other security for the good behavior of the slave after emancipation, or that he should leave the state, or such - other condition as would protect the state from the. mischief aimed at by the previous portion of the section.
    To illustrate our view of the nature and extent of this limitation of the right of manumission, let us turn to another law which is acknowledged to be a mere police regulation. It was enacted by the last legislature, that no person should thereafter sell liquor in less quantity than a gallon. Now all will acknowledge that this law prohibits such sale, within the state only; and that it would not be a violation thereof to take the prohibited article into a foreign country, and there to sell the same in quantities less than a gallon. Now would it be a violation of the “gallon law,” to devise a quantity of liquor in trust to be taken out of the state to a foreign country, for the same purpose. The principle is the same in both cases. The construction should be as if the section read, “no owner shall emancipate in the state of Mississippi, except,” &c. or “ no person shall sell in the state of Mississippi in less quantities,” &c.
    Our view of the matter is fortified by the decision of the High Court of Errors and Appeals in the case of Hinds et al. v. Bra-zeale et al. % Howard’s Reports, 837. The court here consider the 75th section above recited, as a police regulation intended to prevent the increase of free negroes in the state, and upon this point the decision turns. The deed in that case provided for taking the slave to Ohio, and there emancipating him for the express purpose of bringing him back into this state, here to reside as a free negro. The court did not decide that it was illegal to take a slave to Ohio for the purpose of emancipation there; but that the illegality arose from' the provision for bringing back the slave into the state as a free negro, in fraud of the law, thereby producing the very evil which the law aimed to prevent. So far as this decision goes, it fortifies our view of the object and policy of the law. If that view be correct, then the provision in Isaac Ross’s will directing the transportation of his slaves to Africa, is in violation neither of its letter nor its spirit.
    Sending slaves to a foreign country is not a violation of the letter of the law. If the slaves become free in such foreign country by operation of its laws, such emancipation is not the act of the owner. It is not in violation of the spirit or policy of the law.
    The spirit and policy of the law aim at a restriction of emancipation, merely for the purpose of preventing the mischief of a free negro population. Sending a slave to Africa, there to remain free, affects not this policy of the state of Mississippi. It is wholly immaterial to her whether a slave taken to Africa becomes free, or continues in the servile state. Her laws and policy on this subject look not beyond her own limits.
    The cases are numerous in which the courts have decided that the statutory limitations upon the right of emancipation are merely police regulations, and do not vitiate or affect emancipation resulting from the operation of the laws of a foreign country — even where slaves are taken to such foreign country for the express purpose of avoiding such limitations.
    In Tennessee the authorities are full and satisfactory on this subject. Vide 6 Yerger, 119 — 7 do. ^52. These cases, especially the latter, cover the whole ground we have occupied, and establish every position for which we contend.
    In Kentucky, the same principle has been frequently recognized —1 Bibb, 423. 3 Munroe, 104. In Virginia it has been decided, that a will, made at a time when the law prohibited emancipation, and which provided for the emancipation of the slaves of the testator, whenever a law should be passed, authorizing manumission, was not void; and that upon the passage, many years after testator’s death, of a general law, authorizing manumission, such will took effect, and could be legally executed. 2 Call’s R. 319,357.
    This case is strong in support of our views. The general principle is also contained in 1. Leigh’s R. 172. In Lousiana, the doctrine for which we contend is recognized fully, 8 Louisiana R. 475. 11 do. 499. 14 do. 410.
    The appellants may be safely challenged to produce a single case in which it has been decided, that it is illegal to send a slave to a foreign country, there to remain free. Such is the provision of Isaac Ross’s will. It directs not only the transportation of his slaves to Africa, but their maintenance there; precluding thereby any conclusion that said slaves, when freed, are to be brought back to Mississippi.
    All the cases cited on the other side, are cases in which the attempt was made to clothe slaves with the attributes of freedom, within a state, where emancipation was prohibited or limited by express law. They are all based upon the same reason, advanced in the case from Howard, viz: that the emancipation attempted, being intended to take effect ultimately within the state, was in fraud of the law, producing the very evil which it was the object of the law to prohibit.
    But wo go further, and say that sending slaves out of this state, so far from being against, is in- perfect accordance with its declared fundamental policy. The old constitution and laws place many restrictions upon the introduction of slaves into the state. Our new constitution has prohibited entirely their introduction as merchandise, see Constitution, article Slaves, section 2. This fundamental policy has been acknowledged and carried out by the legislature, who in the act of May, 1837, entitled an act, &c. have guarded it with heajy penalties. The constitution and laws of Mississippi have both declared the policy of the state to be opposed to the importation of slaves. Had it been her policy to prohibit exportation also, her intentions would have been indicated in the same manner. So important a subject would not have been pretermitted.
    The policy of the state is to be gathered from its constitution and laws, not from popular prejudice, or transient public opinion. Public opinion must be expressed in the shape of settled law, before the courts will notice it as a rule of decision. Whatever then may be the public prejudice against this disposition of slave property, it can have no influence, because it is entitled to no consideration. It is not the province of the courts to make public policy, but simply to declare it as it exists. Wo will not pursue this point further. If our views are correct then, the provision of Isaac Ross’ will directing the transportation of his slaves to Africa, is not illegal, and the court will not interfere to prevent its execution.
    We come now to the second point of the argument, which involves the capacity of the Colonization Society to act as trustee, and also the legality of the residuary trusts.
    It is contended that the Colonization Society have no capacity to execute the trusts of the will •, the act of incorporation having limited their powers, to the colonization on the coast of Africa, of free persons of color residing in the United States.
    
    The language of the clause of the charter of the Colonization Society alluded to and relied on, after providing that the society might take by donation, &c. is this: «And dispose of according “to by-laws and ordinances regulating the same, now, or hereafter “to be prescribed, all such lands, tenements, or hereditaments, “ money, goods, or chattels, as they shall determine most condu- “ cive to the colonizing with their own consent, on the coast of “ Africa, the free people of color residing in the United States, and “ for no other purpose, whatsoever.”
    It is conceived this delegation of powers, relates solely to the objects and purposes for which the society may buy and sell real estate and other property, and is not a limitation of their general powers. The object of the legislature seems to have been to prevent the society from trading for general purposes or any purposes other than those connected with the Colonization of free persons of color in Africa. The general powers of the society are not defined by the charter, but probably could be collected from the articles of association existing prior to the passage of the act of incorporation; but admitting the society have not capacity under their charter to colonize slaves on the coast of Africa, is there any sound reason why they may not be constituted trustees to convey slaves to Africa, where they by operation of law become free, and there colonize them under the same auspices with those who were free before they left. We apprehend the power to execute a trust may be exercised by a corporation without any express grant, and although it may not be in the nature of the powers granted. In executing the trust they act in the place of the party creating the trust, and the capacities of the grantor-and devisor of the trust are carried to the trustee, by the instrument conferring the trust.
    At common law it is admitted a corporation cannot be seised to an use, but equity will enforce the execution of a trust. See 2 Bacon’s Abridgment, 263. Gilbert on Uses and Trusts, s. 170.
    It was once questioned whether a corporation could be appointed executor, because it could not take an oath, but it is now settled it can; and may appoint a syndic to take out letters, and take the oath. 6 Petersdorf’s Abridgement, 629-30. Toller on Executors, 30, 31.
    It has been decided that a corporation may be a trustee, and that when the demise to a corporate body (in trust) was void by the statute of mortmain, the court would decree its execution by the heir. Sanders on Uses and Trusts, 236. 1 Vesey, Sen. 467-S.
    
      Ill the case in 1 Brown’s Chancery Reports, 81, it is said that although the devise be void at law, (on account of the statutes of mortmain) yet the trust is sufficiently created to fasten itself upon any estate the law may raise. This is the ground on which courts of equity have decreed, in cases where no trustee is named.
    It is a general rule in equity, that whenever a trust exists, and the party creating it has appointed no competent person to execute it, or the person appointed fails and refuses to act, equity will, in the first case, follow the legal estate and decree the person in whom the estate is vested to execute the trust, and in the latter case, will compel its execution. For it is a rule which admits of no exception, that a court of equity never wants a trustee.— Coke Lit. 290, b. Butler’s note (1); lb., 113, a. Butler’s note (1); 1 Story’s Equity, sec. 98, p. 114; 2 Story’s Equity, sec. 976, p. 240; 9 Cowen’s Rep. 437.
    Generally where the property has been bequeathed in trust, without the appointment of a trustee, if it is personal estate, the personal representative is deemed the trustee.; and if real estate, the heir is decreed the trustee and hound to its execution. 9 Peters R. 505; 1 Maddox Ch. P. 365; 2 Story’s Eq. 319-20-21.
    From these authorities, it would appear to be a matter of no importance whether the American Colonization Society have capacity to execute the trusts of the will in favor of the slaves or not, as, if it be admitted that the trust of the will requiring their colonization in Liberia is a valid trust, the court would compel the executors to execute it.
    But it is objected that the persons for whose benefit the trust is created have no civil capacity to invoke the aid of a court of equity, and consequently the court cannot interpose.
    The bill charges that the executors are about to execute the trusts of the will, and claims that the complainants are entitled to the estate by a resulting or implied trust, (the trusts in the will, by which the descent to them was cut off being void,) and prays a delivery of the estate to them as owners: now if the object and substance of the trusts of the will are not void, the complainants have no right to interfere, nor to complain, as they have no interest whatever in the estate.
    The will having required the real estate to be sold by the exe outers, a court -of equity will view it as money, and it must be treated as such.
    The trustees having commenced executing, or having declared their intention'to execute the trust, the court should not interpose to prevent them, unless the trust is unlawful; and although the trust may be of such a nature that the court could riot enforce its execution, yét those entrusted with its execution may carry it into effect; and the heir cannot claim a resulting trust until the trust declared has failed by a, refusal or neglect to execute it within a reasonable time. " - , -
    As, for instance, a devise to an executor in trust to sell, if in his discretion he shall deem it proper, and to vest the funds in any manner he thought best for the interest of the estate. Here the executor having a discretion, could not be compelled to execute the trust, yet clearly he might do so at pleasure; and a court of chancery would not interfere in behalf of the heir until the executor had refused 'to act, or such length of time had elapsed as raised a presumption he would not execute the trust.' -
    And it may be stated as a general rule that a trust which is not forbidden by law may be executed, although, on failure of execution, the condition on which the estate was granted was broken, and the heir might enter. And it may be executed although the ceslui que trust has no remedy to enforce performance. '4 Whea-ton Rep. 35. See Porter’s case, 1 Coke, 22, b..
    A trust is a condition at common law, and it is well settled, that although the performance of the condition cannot be enforced, the party whose estate depends upon its performance may do it to prevent a forfeiture of his estate. ,
    And a corporation may. accept an estate on condition foreign to the nature of its institutions, which it cannot be compelled to perform-; but if the performance of the condition be not unlawful, the corporatioh will be permitted to enforce them for the purpose of avoiding,a forfeiture of the estate. And in the case in 1 Yea--sey, sen. 467-8,' the .attempt on the part of a college to deal with an estate devised to them on certain conditions, in the same manner they dealt with their own, was prevented, and they compelled to perform the conditions as prescribed by the donor.
    But if the court should be of opinion the will is void so far as it requires the slaves to be colonized in Africa, the heirs are not entitled to the estate, because there is a residuary legatee. And as the whole estate is required to be turned into money, it must pass under the will as personal estate; and if the specific legacies are void, as being contrary to law, the whole fund falls into the residuum; and if that be well bequeathed, the residuary legatee will take, and not the heir. 3 Howard Rep. 337.
    By the will of Isaac Ross, the executors are required to sell the real estate, and such of the slaves as decline the privilege of going to Liberia: and the first residuary clause appropriates the whole fund thus raised to the payment of the expenses of transporting his slaves to Africa, and to their support and maintenance while there, under the direction of the American Colonization Society, as trustee for that purpose. But if his slaves elect not to go to Liberia, then they (except certain ones named) are to be sold, as the remainder of his estate, and the proceeds, as also the proceeds of all his other estate, to be paid over to the American Colonization Society, to be put out at interest, and the interest to be applied to the establishment of a seminary of learning in Liberia, and its support for one hundred years; after which the principal and interest to be given to such government as may exist at Liberia ; and if there be no government existing in Liberia, the remainder over to the state of Mississippi.
    It is objected that this residuary bequest is also void, because the American Colonization Society is incompetent to take, and to execute the trust created by the residuary bequest. We conceive we have sufficiently shown the capacity of the American Colonization Society to execute any trust which is not unlawful, or which a private person could execute. The main object of the Society is the colonization in Africa of free persons of color.
    The term Colonizing would seem to include every thing necessary to the populating, protecting and maintaining a new, and previously uninhabited territory. It would unquestionably include the necessary preparation for removing the colonists, such as ships, wagons, or other conveyances, and it cannot be justly contended that a government or society had done its duty to those who removed to a new colony, when they had placed them on the soil The history of the colonization of the territories which now constitute the United States shows, that it was considered necessary to provide for the support, maintenance and education of the colonists after they were settled. Learning and religion seem to have engrossed as much of their attention as the common necessaries of life. Learning appears to be an object of peculiar favor with our government and our people. Donations are frequently made by the legislatures to assist in extending its benefits to al[ classes of our people, except that class for whose benefit this bequest is intended ; and it is only denied to them as a matter of state policy, and cannot operate beyond the limits of the state.
    The endowments of colleges or seminaries of learning of any description has met with peculiar encouragement in England, without reference to the location; as their courts give all the aid within their power to foreign charities. 1 Brown, Chan. Rep. 571, 171, 144. 14 Vesey Rep. 537. 16 Vesey, 330. And the courts of the United States have recognized and acted upon the same principle. 3 Peters Rep. 501-2.
    The statutes against superstitious uses have been held not to apply to a devise of land for the maintenance of free schools. 2 Story’s Equity, 394-5. 1 Coke’s Rep. 22; (b.J 4 lb. 116; (b.) Coke Eliz. 288. 8 Coke’s Rep. 130.
    Under the statute of Elizabeth for regulation of charitable uses, which must be regarded as declaratory of the common law, and only intended to limit and control the operation of the statute of mortmain, the courts of England have gone great lengths to sustain a charitable devise notwithstanding the want of competency in the devisee to take; and even when there was no devisee in being; or when the devise was void in law for misnomer of the college; or when no particular object of the charity was designated; or when the object of the charity was against the policy of the law. In all these cases the courts declare that as charity is the principal object of the devise, they will not suffer the devisor’s bounty to be defeated, when the defects can be cured by the court, and full effect given to the main object of the devise. 1 Chan. Cases, 157, 267, 135. 2 Freeman Rep. 261. 7 Vesey, 36, 73-4, 490. 1 Vernon, 248. 2 Vernon, 266. 1 Merivail’s Rep. 55,100. 3 Brown’s Chan. Cases, 166, 492. 2 Vesey, jr. 380. 3 Peters’ Sup. Court R. 99. 15 Ves. 232. 2 Ch. Cases, 13. 3 Ves.jr. 714.
    
      In conclusion, we would add, that from the language of the act of incorporation, the American Colonization Society are authorized to take, by devise or otherwise, any land, tenements, &c. and dispose of, according to bye-laws, all such lands, &c. as they shall determine most conducive to the colonizing in Africa free people of color. From which it appears evident the American Colonization Society are the legal judges whether the bequest coupled with the specific trusts as it is, is conducive to the colonizing, with their own consent, on the coast of Afiica, the free people of color residing in the United States. If the Society have determined that the establishing a seminary of learning in the colony is conducive to the objects of the Society, it would be a considerable stretch of judicial discretion to decide such an institution not to be conducive to colonization, and to declare the devise void, because the object was improper.
    We cannot perceive the slightest illegality or impropriety in the residuary bequest to the Colonization Society, in trust for the establishment, at Liberia, of a seminary of learning. Although, then, the previous provisions of the will should be declared invalid, this must stand, unless it be decided that education is not conducive to the success and prosperity of a colony.
    
    Upon both points taken in this case, we think the court will not interfere to prevent the execution of the trusts.
    If the court comes to the same conclusion, then the demurrer below was well made, and the decree of the chancellor must he affirmed.
   Mr. Justice Teotteb.

delivered the opinion of the court.

In considering this case, I have not deemed it necessary or proper to follow the counsel into the wide field of discussion upon which some of them have entered, nor to examine the elementary questions which have been raised and very ably argued. The doctrines which have been insisted on, as the foundation in part of the title of the appellants, have formed the topics of fruitful controversy with philosophers and jurists, and are not yet settled in the judgment of mankind. Perhaps they never will be, so far at least, as to command a universal assent. In view of these considerations, it is quite unimportant that this court should express an opinion, and more especially so, since the question has been settled by the paramount authority of the legislative will; so that whether the title of the appellants as heirs at law of Isaac Ross their ancestor, to the property he possessed, be derived from the law of nature, or the positive constitutions of the society of which they are members, is quite immaterial to the present inquiry, since it is very evident they have the title by law, unless their right has been defeated by a valid and effectual disposition made by the deceased.

1 shall therefore proceed to consider the question presented by the record, whether the provisions in the last will and testament of Isaac Ross, for the disposition of the slaves claimed by appellants, are legal and valid, so as to defeat the title of the heirs.

The will directs the appellees, as the executors of the same, to transport to the coast of Africa, such of the slaves of the testator, as shall elect to go; there to be settled in Liberia and remain free. Is this trust raised in the will authorized by law, or is it repugnant to any provision of the laws of this country, so. that its execution may be rightfully restrained ? It is urged by the appellants, that it is a will for the emancipation of slaves, and as-such, is opposed to the law and established policy of this state. That there is a mode provided for the manumission of slaves in this country, and no other can be permitted: that slaves, in this state are property, and the subject of absolute dominion is an undeniable proposition, since they have been so constituted by direct legislative enactment. Hence it is equally evident that their owner may emancipate them or in any manner renounce his right upon the clear principle of having the power to dispose of his own property as he pleases. The ability to devise or bequeath all his property by last will and testament, is conferred, upon the owner in general terms by the law of this state. Rev. Code, page 32, sec. 14. It follows of necessity, therefore, that the trust raised in the will of Capt. Ross is legal, unless there is something in the character of slave property which excludes it from the control of this general dominion or power; and this I take to be the true and real ground of our inquiries. For unless the law has imposed modifications or limitations upon the power of disposition in regard to slaves, which do not exist in relation to other property, the present controversy must be considered as at an end. Considerations of policy might well justify legislative regulations as to the method of emancipation, as that it shall be done by deed or will sanctioned by the legislative authority in consideration of meritorious services to the master or distinguished services to the state, and under proper guarantees that they shall not become a public charge. And accordingly the legislature have prescribed limitations in substance such as the foregoing upon the right of emancipation. The act of 1822, embodies these rules, and declares the policy of the state in relation to slaves, free negroes, and mulattoes.

If the will in this case provided for the manumission of the slaves in this state, it would then unquestionably bo opposed to the principles of this 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. It is not then because the intention to manumit is expressed in a last will and testament, that it must be defeated, but it is because the policy of the state, which is declared in the act of assembly, is opposed to such intention in any form. No one can by his mere act, unsanctioned by the public authority, set his slave free in this country, either by will or deed. And hence what he cannot do himself, cannot be done by trustees. That which he cannot do by his own act whilst living, cannot be done by his executors when he is dead. No man can delegate to another a power which he does not himself possess. Capt. Ross could not in his lifetime by any instrument or act grant freedom to his slaves, as a boon to be enjoyed in this state. That would frustrate the policy of the statute, which is opposed to an augmentation of free negroes in the state; a result hazardous to the safety of the owners of slaves, and the security of the public peace. This I take to be the full scope and design of the statute. It may well be urged therefore, as it has been in every the most forcible and ingenious form of argument, that the appellees cannot be suffered to execute the trust expressed in the will, assuming it to be a trust for the emancipation of slaves generally. Rut the question presented in the record, is 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. It is true that the freedom and happiness of his slaves appears to have been the object, an object he had power to pursue by any means not incompatible with the laws of this state. The act of transporting them to Africa, there to remain free, does not seem to be an act of manumission within the meaning of the statute, or its spirit or policy. No question has been made of the power of the testator to carry his slaves to Africa in his lifetime. Nor indeed was it possible to have raised such question without a manifest absurdity. The power to have done so, resulted to the testator as the owner of the slaves from his acknowledged right of absolute dominion. Having this power himself, it was certainly competent for him to employ another to do the same thing, or to direct it to be done by his executors, who are trustees to carry his intentions into effect. But it has been urged that the trust in the will was raised from a studious design to evade the restrictions upon emancipation which the policy of the state has imposed, and was a fraud upon the law. And this is really the substantial gravamen of the whole of the able and learned arguments which have been offered to defeat the execution of the will. But this general charge of fraud is assumed merely as an inference of law, from the character of the trust set forth in the will, not based upon any facts urged in its support. But this-general way of imputing fraud to a transaction which is fair and legal upon its face, without reference to any extrinsic or collateral act, is not sufficient to defeat it. Nor was it upon this ground that the cases were decided, which have been relied on by the appellees in support of their title.

The case of Hinds et al. v. Brazeale et al. rvhich was decided at a former term of this court, 2 Howard, 837, proceeded upon a state of facts very different from that developed in the pleadings in the case at bar. In that case, Elisha Brazeale, the testator, left his residence in Mississippi, and carried the slaves in controversy with him to Ohio, and there executed a deed of manumisa sion, when he returned with them to his home in this state. His will, subsequently made, directed their manumission according to the deed before executed in Ohio, and assuming them to be free in virtue of the deed, devised all the property of the testator to them. The deed of emancipation was held void, because as a contract for freedom it was to be executed in Mississippi, whose laws and policy forbid it in the mode then attempted, and because the farcical excursion into Ohio by the testator, his immediate return into this state with the slaves to his former residence, and continuing there as a citizen up to the period of his death, with the other circumstances, demonstrated his intention to evade the laws of the state and commit a fraud upon their provisions. “ It is a settled and sound principle,” says the judge who delivered the opinion of the court, “ that no state will enforce a contract made by its citizens elsewhere in violation and fraud of its laws.” This is the general principle, and the rules of national comity are not to be enforced, or cease to be binding when the execution of the contract is forbidden by a great princijde of state policy. But how can the application of the doctrines of that case be invoked to restrain the execution of a trust for the bona fide transportation of slaves from Mississippi to Africa, there to remain free? That case went on the ground expressed by the court, that the deed of emancipation having been made in Ohio in pursuance of a scheme planned and executed to evade the rigor of the laws of this state, was to be treated as a deed made in this state and to be executed here, and therefore clearly void.

It will not be contended, however, that the testator had not a right to take the slaves to Ohio, and leave them there in the enjoyment of freedom, according to the constitution of that state. Placed thus beyond our limits, their freedom could not be the subject of animadversion by the municipal laws of Mississippi, whose rigorous police regulations on this subject, were designed for the security of slave owners in the state, against the dangers of too great air increase of free negroes, whose example and whose means too of sowing the seeds of mischief, of insubordination, perhaps of revolt, amongst the slaves in their neighborhood, was very justly to be apprehended and guarded. It is not the policy of Mississippi to augment her slave population. In her written constitution, she has spoken her will in unequivocal language, and the fiat there made of her future policy has been seconded by the sternest legislative sanctions.

As the case of Hinds v. Brazeale decided the deed of emancipation to be void, on the ground that it was to be considered as a deed made in Mississippi, so the case so much rélied'on by J¡he appellant of Haywood v. Cravens’ executors, 2 North Carolina Law Rep. 557, decides the trust created by the will in 'that case to be void under the statute of North Carolina, where the trust was to be executed. The will gave certain slaves to the-executors, in trust, to have them emancipated and set free by the laws of that state., But by the laws of North Carolina the executors had no such power, and as it was a bequest of emancipation to take effect under the laws of the state, it was properly enough held to be void. And the other cases will be found upon examination to relate to bequests of a similar character, or to contracts whose execution are forbidden by the laws of the state. 1 have not been able to procure all the cases cited by the counsel 'for the appellants, but feel-satisfied from the principles established in those which have been examined, that, the views above presented are not shaken in any of them. And more especially, since they are so fully sustained by the cases of McCutchen v. Marshall. 8 Peters, 285; 2 Call. Rep. 319, 357; 8 Louis. Rep. 475; 11 do. 499; 14 do. 410; 6 Yerger, 119; 7 do. 552.

Being thus clearly of opinion that the trust,created by the will of the testator is valid, it is not considered necessary to examine the other questions which have been raised on the argument. The decree of the Chancellor must be affirmed, with costs to the appellees.

Since the opinion in this case was delivered, I have met with the case of Frazier et al. v. Frazier’s executors, which was decided by the Court of Appeals in South Carolina, as late as the year 1835, and reported in 2 Hill’s Chancery Reports, 305. The identical question which was raised under Mrs. Reed’s will, arose in that; was fully discussed at the bar; and received the most careful examination of the court; who held the trust to be a valid one, which the executors might be,compelled to execute.

The bequest in the wilj of John Frazier, which gave rise to the controversy between the heirs and the executors, was, that the slaves of the 'testator should be hired ofit during the lifetime of his widow, and that after her death, the whole of them should be set free by his executors, &c. “ The interest of the money is to enable them with the assistance of government to go to St. Domingo to be colonized, or to any port that they with the government may choose.” Upon the death of the widow, the executors seized the negroes, with the view of carrying the will into effect. And a bill was then filed by the next of kin, claiming the ne-groes, &c.

The act of 1830, of that state, provides, that no slave shall be emancipated but by act of the legislature.” The court say, that although the provision is general, and might seem to prohibit emancipation out of as well as within the state by a citizen, yet such construction would be manifestly contrary to the spirit of the law. The evil was the increase of free negroes in the state by emancipation.” The removal of slaves belonging to citizens of the state, and their emancipation in parts beyond her territorial limits, was no injury to her.” «It will not be denied,” say the court, in continuation, “ that the owner might have removed his slaves from this state at any moment, and for any purpose he pleased.” And it is laid down as a general rule, to which there is no exception, unless by express statutory provision, “ that the owner of property may, by his will, direct his executors to dispose of it in any way which he could.” The importance of the case to the parties and to the country, the zeal with which the able counsel who argued it, resisted the conclusions of the court, as well as the agitation it has produced in the country, are the reasons which have induced me to adduce this superadded authority to support the judgment of the court.  