
    JOHN COX, EXECUTOR OF MARY BISSELL vs. WILLIAM J. H. B. WILLIAMS & AL.
    A bequest of Slaves to the American Colonization Society is a valid bequest under the laws of this State.
    The cases of Haywood v. Craven, 2 No. Ca. Law Rep. 557, Cameron v. Commissioners of Raleigh, 1 Ired. Eq. 436, and Thompson v. Newlin, 3 Ired. Eq. 338, cited and approved.
    Cause removed from the Court of Equity of Chowan County.
    The case presented by the pleadings is this: Mary Bissell, by her will, made the following dispositions: “ i direct that my servant women, Molly and Maria, Maria’s two children, named Mary and John, arid three other children, Nancy, Priscilla and Lucy, all of whom are my property, be made over to the American Colonization Society, or to any individual authorised-by the American Colonization Society to receive them, on condition that said Society will engage to send them to either of its Colonies in Africa; and that the said Society may be at no expense in sending them as directed, I wish two vacant lots belonging to me in the town of Edenton, to be sold to defray their expenses, and certain other monies also to be appropriated to their use, as is hereafter directed.” In a subsequent clause, there is the following provision: “ If there should be any balance after the settlement of my estate, agreeably to the tenor of this will, I direct that-it be all paid over to the American Colonization Society, for the exclusive use of the servants to be sent by them to Africa.”
    The bill is filed by the executor, against the next of kin of the testatrix and the American Colonization Society, and states the plaintiff’s readiness to deliver the slaves, and pay over the residue of the estate to either the next of kin or the. Society, whichever may be entitled to the same, and prays the Court to put a construction on the will, and declare who is entitled to the slaves and fund: The Colonization Society having offered to accept the •.slaves and transport them, to one of their Colonies in Africa, there to be free persons, and also the pecuniary fund, in order to defray the expenses, and, as to any surplus thereof, in trust for the slaves themselves, when freed from the state of servitude ; and insisting on their right thereto, for those purposes : And the next of kin, on the other hand, insisting that the provision for emancipation is against law, and the gift to the Society for that purpose is void.
    The several defendants answered, and the cause was set for hearing on tire bill and answers, and transferred to this Court for hearing. The answer of the American Colonization Society states that the Society has been duly incorporated by two acts of the General Assembly of Maryland, with power and capacity to receive gifts and bequests of slaves for the purpose of transporting them, with their own consent, to Africa, where several colonies of free persons of colour have been established, under the auspices of the Society ; and also with power and capacity to take gifts or bequests of money and other things needful to defray the expenses of transportation and to provide for the comfort of the colonists in Africa. And the answer further states, that the Society has been duly organized and has accepted the charter. The answer also engages, if the bequests to the Society should be held good, to remove the slaves, with their own consent, as soon as practicable, from this State, to one of the said colonies in Africa, and thereby bestow on them emancipation. _
    No counsel for the plaintiff.
    
      A. Moore, for the next of kin.
    
      Iredell, for the American Colonization Society.
   Ruffin, C. J.

There can be no question, that a bequest of slaves for the purpose, or upon trust, to send them to another country, there to become and remain free, is valid. There is no ground, upon which-'the validity of such a bequest can be doubted. In the nature of things, the owner of a slave may renounce his ownership, and the slave will thereby be manumitted, and that natural right continues, until restrained 'by positive statutes. It was, indeed, early found in this State, as in most of the others, in which there is slavery, that the third class of free negroes was burdensome as a charge on the community, and,, from its general characteristics of idleness and dishonesty, a common nuisance. < Hence the legislative policy, with us, was opposed to emancipation, and restricted it to a particular mode and upon a special consideration — which was by license of the Court and for meritorious services. But that was purely a regulation of police, and for the promotion of the security and quiet of the people of this State. It sought only to guard against evils arising from free negroes residing here. Except for that purpose of policy, it was not intended to impose any restriction on the natural right of an owner to free his slaves. Emancipation was not prohibited for the sake merely of keeping persons in servitude in this State, and increasing the number of slaves, for the law never restrained* their exportation, either for the purpose of servitude abroad, or for that of emancipation there. On the contrary, all our legislative regulations had a reference exclusively to emancipation, within our limits, of slaves, who were intended to remain here. That was the ground of decision in the leading case of Haywood v. Craven, 2 No. Ca. Law Repos. 557, and all the subsequent cases ; in not one of which did the deed or will direct that the emancipation should take effect abroad. It never has been disputed, that the owner could send his slaves away and emancipate them, where it was lawful for free men to live. This State laid no claim at any time to hold them here for the sake of their perpetual bondage. So far from it, by a m'odern statute, 1830, c. 9, the policy is avowed of encouraging emancipation, upon the sole condition, that the people freed shall not disturb or be chargeable to us, but keep out of our borders. And in Cameron v. Commissioners of Raleigh, 1 Ired. Eq. 436, and in Thompson v. Newlin, 3 Ired. Eq. 338, the distinction is expressly-stated between a trust to remove slaves abroad, to be emancipated, and one to have them emancipated here or to hold them in a state of qualified servitude, nominally as the property of the trustee, but really for the benefit of Hie slaves themselves — holding the former trust lawful, but the latter unlawful. And the former case establishes, that money given for the removal of the slaves to Africa, and their preferment there, is a good charity, under the common law and our statute.

The trust in this case must therefore be declared valid; and the Colonization Society authorised to receive the slaves, and the surplus of the estate, (after paying the costs of this suit,) for the purpose of removing them to Africa, as directed in the will. This direction, however, is necessarily dependent on a fact, to be ascertained by an enquiry; which is, wdiether the negroes, .who are adults, are -willing to go to Africa or not. This fact must be ascertained, that it may be seen whether the Society has capacity to acquire the negroes, or remove them, which, according to the terms of the charter, depends on the consent of the negroes themselves. Indeed, we are not sure that it would be proper to send them abroad against their will, even if there were no such restriction in the charter of the Society — since, if a slave has capacity to accept emancipation, it would seem that he must have the power also of refusing it, when the offer of his owner is upon the condition of his leaving the country, and when he is not compelled by law. But, however that may be, the gift being here to a corporation, with an express limitation on its capacities, it must Be considered that the testatrix knew that, and the disposition be construed, as if the provision of the will- required their consent — at least, that of such of them as are 'of years- of discretion. For those who are under, say the age of fourteen — -their parents 'may elect. If any adult should refuse to go, those refusing must, of necessity, be sold, and the proceeds will go into the residue for the benefit of those who will go — according to the last clause of the will, which excludes thh next of kin altogether, unless all the slaves should refuse' to go.

If any of the children have no parents, or their parents should elect for them not to go, libdrty must be reserved to such children to make their election, when they shall arrive at the ago of fourteen. It appears, indeed, that the money remaining in the hands of the executor is partly the proceeds of the sale of one of the negroes, which was rendered necessary for the payments of debts. Of course, all those charities must depend, for their validity, on the power of the party who creates them, without doing injustice to creditors. Justice stands before generosity ; and the owner of a slave cannot defeat the rights of a creditor by manumitting the slave. The Colonization Society can therefore claim only the slaves which remain unsold, and can have, immediately, only such as may be willing to go.

Per Curiam.

Decree accordingly.  