
    THOMAS D. BENNEHAN’S EX’OR. vs. JOHN W. NORWOOD, EX’OR & AL.
    Where a testator, who died before the passage of the Act of 1830 (Rev. Slat. Ch. 111, Sec. 59,) bequeathed certain slaves to A. andB. in trust that they should enjoy the produce of their own labor: Held, that this bequest was void, and the said A. and B. being the residuary legatees, that the absolute property in the slaves passed to them.
    
      Held, further, that the'Act of 3830 did not affect the construction of thi3 devise, the testator having died before the passage of that Act.
    The cases of Haywood v. Craven’s Ex’rs, 2 Car. Law Rep. 557, Wright and Scales v. Lowe’s Ex’r, 2 Mur. 354, Turner v. Whithead, 2 Hawks 621, Huckaby v. Jones, 2 Hawks 120, While v. Green, 1 Ired. Eq. 49, cited and approved.
    Cause removed from the Court of Equity of Orange County, at the Spring Term, 1846, by consent of parties.
    The facts of this case are not controverted, and are as follows: Dr. Umstead, formerly of Orange County, died in the year 1829. having made his last will and testament. In it, he gives to his friends. Catlett Campbell and Thomas . D. Bennehan,the plaintiff’s testator, who are also appointed his executors, “ a negro slave Dicey, and her two children, Emeline and Harriett, in special trust and confidence, and to, and for the purposes hex’einafter mentioned, that is to say, that my said friends, so soon after my decease, as they shall deem it expedient, shall take the necessary legal steps, to have said slave Dicey and her two children manumitted and liberated, and, in the mean time, until such manumission shall be effected, it is my will and desire, that the labour of such slaves, and the profits, and proceeds thereof, shall enure to the use and benefit of the aforesaid slaves only, and to the benefit of no other person whatever. And in further trust and Confidence, that in case the said trustees should fail in effecting the manumission of said slaves, from any cause, then, and in that case, the labour of said slaves, and the profits thereof, shall continue to enure to the only proper use and benefit of said slaves and their issue, so long as they, of any.of them, shall live.” After making se.veral other devises, and bequests, the testator devises as follows : “ I devise and bequeath to Catlett Campbell, and Thomas D. Bennehan, their heirs, and assigns for ever, all the rest and residue of my estates, both real and personal.” This will was duly proved, and the executors accepted the trust: And at September Term 1829, of Orange Superior Court, filed their petition for the emancipation of the slaves, and procured a decree to that effect, as to Dicey, the mother, but the Court refused to emancipate the children, Erneline and Harriett. Catlett Campbell died in 1845, having made his last will and testament, in which, after stating the trust reposed in him and Mr. Bennehan, he devises as follows : “ I do most earnestly entreat Mr. Bennehan (if in his power) to perform the trust thus confided to us, by our mutual friend ; and I give to my executors full power, to release any interest which I may have in said negroes, or their increase, present and future, to Mr. Bennehan, to enable him to accomplish this purpose, if such release is necessary, or to sell, or convey them to any other person or persons, for a nominal price, for the purpose of effecting their freedom, as I do not desire that they should ever be considered any part of my estate.” The defendant, Mr. Norwood, alone qualified as executor of Mr. Campbell’s will, and took into his possession, all the negroes held by his testator, under the will of Dr. Umstead. The other defendant, being a creditor of Mr. Campbell,-sued his executor, obtained a judgment, and had his execution levied on the interest of Mr. Campbell in these negroes. It is alleged, that the estate of Mr. Campbell is unable to' pay this judgment, without subjecting bis interest in the slaves to the execution.
    The bill charges, that the trust, created by the will of Dr. Umstead, was such an one, as was not contrary to the laws of the State, and, if invalid at the death of the testator, was good by the Act of 1S30 and *31, regulating the proceedings, to procure the emancipation of slaves, and that by the death of Mix Campbell, the trust survivedtothe plaintiff’s testator, whose executor is now ready and willing to carry it into execution. But if the Court should be of opinion, that the trust, attempted to be created, is void, and that under the residuary clause, Mr. Campbell had any individual property in said slaves, then, that a partition may be decreed between the plaintiff and the estate of Mr. Campbell, to enable the former to perform his duty, in emancipating those of the slaves which may be allotted to him. and prays an injunction to stay the sale in the mean time.
    
      Badger, Waddell and J. H, Bryan, for the plaintiff.
    
      Norwood and Iredell, for the defendants.
   Nash, J.

There can be no doubt, that the trust attempted to be created by the will of Dr. Umstead, was void. Such was the settled law of this State, at the time of the testator’s death. It was considered contrary, not only to the policy of the State, but to the statute law, to sustain such trusts. They have been uniformly held to be void, and the executors declared trustees, for the next of kin, or the residuary legatees. The leading case upon the subject, is Maywood v. Craven’s executors, % Car. Law Repository, 557. It has been followed, and the principle» upon which it was decided, been repeatedly recognised in .this Court, Wright & Scales v. Lowe’s Executors, 2 Mur. 354. Turner v. Whithead, 2 Hawks 621. Huckaby & Wife & others v. Jones & others, 2 Hawks 120, White v. Green & others, 1 Ired. Eq. 49. We do not therefore, consider it, at this clay, an open question. The trust, intended by the will, being void, the executors became trustees for those who are entitled. In this case, the next of kin cannot take the negroes, because there is a residuary clause, into which they fall, as not being disposed of by the will. Davie v. King, 2 Ired Eq. 204. Jones v. Perry, 3 Ired Eq. 200. The residuary legatees are the executors themselves ; they therefore, under the will, took the slaves Dicey and her children, absolutely and free from all trusts, and held them as tenants in common, each being entitled to an undivided moiety. The interest of Mr. Campbell was subject to his disposition, either by sale, or gift during his lifetime, or by his will, and by his will he does, in substance, give it to the plaintiff, for the purpose of effectuating the intention of his testator, Dr. Umstead. This bequest of Mr. Campbell, is a valid one, as made since the passage of the Act of 1831, and Mr. Bennehau held his own share, or moiety, discharged of the trust, and the moiety or share of Mr. Campbell, subject to the trust, as directed by his will, Mr. Campbell, however, could not so dispose of his interest in the slaves, as to freo them from the claims of his creditors. Upon his death, it became a part of the assets of his estate in the hands of his executors, and was liable to the execution of the other defendant, as well as to other creditors.

The Act of 1830 can have no effect, upon the devise, contained in Dr. Umstead’s will. Before its passage the legacy had vested in the residuary legatees, and it could not, nor was it so intended by the legislature, divest the interest so acquired. The legatees held the property as it passed to them, at the death of the testator.

The plaintiff is entitled to have partition of the slaves, according to the prayer of the bill, and he is entitled, under the will of Catlett Campbell, to have delivered to him, all of such slaves as may be set apart for, or allotted to his executor, as the share of Mr. Campbell, and which arc not needed to discharge the debts of his testator. There must be a reference to the master, to enquire the number, names, and value of all the slaves, and to make an equal division of them, as near as may be, in the first place, between the plaintiff, and the defendant Norwood, as executor of Campbell, and, from the importance of that division to the negroes, and their equal right to emancipation, as far as it can lawfully be effected, it is proper' the division should be made by lot. It must also be re* ferred to the master, to take an account of the estate of Catlett Campbell, that hath, or ought to have been, or may be received by the defendant, Mr. Norwood, as his executor, and of the administration thereof, and also of the debts of the said Campbell remaining unpaid, and of the charges of administration ; and the master will particularly report whether Mr. Norwood hath, or will have, assets of his testator, sufficient to discharge the judgment obtained by the other defendant, or any, or what part thereof, of to discharge the other debts of his testator, Campbell, if any, or some part thereof, and what part, exclusive of said Campbell’s share of the said slaves; and if he should find that any of the said debts, or charges will remain unpaid, after applying thereto all the assets of the testator, exclusive of his share of said negroes, the master must further enquire, what balance will remain due for the debts and charges aforesaid, whether it will require the whole of the said Campbell’s half of said slaves, or only a part thereof to be sold for the payment of such balance, and, if the latter, the master will designate, by lot, a sufficient number, to be sold for that purpose.

Per Curiam.

Decree accordingly.  