
    *Taylor v. Cullins.
    April Term, 1855,
    Richmond.
    (Absent Alden, P.)
    1. Case Approved. — The principle of the case of Maria v. Surbauoh, 2 Rand. 228, recognized and enforced.
    2. Wills — Emancipation of Slaves — Increase—Case at Bar, — Testator gives all his estate to his two daughters for life, or until they marry; and directs • that his slaves whom he names, shall he free on the happening of either event; and he gives them ■ all the property which should then remain. One of the slaves has a child, and dies during the life of the daughters. The child is not freed by the will, but is embraced in the bequest to the slaves; And by the act of March 15th, 1832, Sup. Rev. Code 246, the bequest of the child' to the emancipated slaves is void.
    
    John Cullins, late of the county .of. Powhatan, died in 1833, leaving a will which was duly admitted to probat. In the third clause of his will he says, “I give to my daughters Henley Cullins and Polly Cullins all my estate, both real and personal, provided they never marry. If my daughter Henley should die before my daughter Polly, it is my desire that Polly should have the whole of my property; or if my daughter Polly should die before my daughter Henley, it is my desire that my daughter Henley shall have the whole of the property. And it is my desire, that at the death of my daughters Henley and Polly, that the following slaves shall be set free; Nancy, Jane, Sally, Judith and America. And whatever property there may be left at the death- of my daughters Henley *and Polly, it is my wish and desire that it may be equally divided between the above named slaves.”
    
      The testator then provides that if one of his said daughters marries, the other shall have the property; and if both marry, that the said slaves shall be set free: And he gives them the property upon this event as upon the death of the daughters.
    Neither of the daughters married, and Henley survived Polly.
    In 1846 Henley Cullins, in consideration of a debt which she owed to Creed Taylor, and that he would pay all other debts which she owed, and would furnish her a home, and support her comfortably for her life, conveyed to him all her property. Taylor states in his answer that this contract had been made some time previous to 1846, when the deed was executed.
    In the lifetime of Henley Cullins, Nancy, one of the slaves mentioned in the will of John Cullins, died, leaving a child named Martha: and all of the slaves seem to have gone into the possession of Taylor.
    In 1850 the surviving slaves mentioned in the will of John Cullins, filed a bill in the Circuit court of Powhatan against Taylor and John C. Stratton, administrator de bonis non with the will annexed of John Cullins deceased, setting out the will, the death of Henley Cullins, and of Nancy, and that Martha was in the possession of Taylor who was about to sell her; and claiming that she was a part of John Cul-lins’ estate which was bequeathed to them; and asking for an injunction to restrain the sale, and that she and the other property of John Cullins, after payment of his debts, might be delivered to them.
    Taylor answered, insisting upon his title to the slave under the conveyance from Henley Cullins, and that the administrator of John Cullins had assented to the bequest.
    Stratton answered, denying that he had assented to *the bequest in favor of the daughters of John Cullins; and saying that the estate of John Cullins was indebted to him in the sum of forty dollars, and owed another small debt.
    When the cause came on to be heard, the court held, that Henley and Polly Cullins took but a life estate in the slaves and other property of John Cullins, except such as was consumed in the use: That the slaves emancipated by the will were free on the death of Henley Cullins, but that their children born after John Cullins’ death and during the lifetime of Henley Cullins, were slaves, and a part of John Cullins’ estate; which by the terms of the will were given in remainder to the emancipated slaves. And Taylor was decreed to deliver Martha and any other of the children of the emancipated slaves born since the death of John Cullins, and before the death of Henley Cullins, to Stratton the administrator, who was directed to hold them subject to the future order of the court. Prom this decree Taylor applied to this court for an appeal, which was allowed.
    Patton, for the appellant,
    insisted :
    1st. That the slave Martha was not emancipated by the will of John Cullins. That the slaves emancipated were named, and there was not a word indicating an intention that the children born during the life estate should be free. That the case of Maria v. Surbaugh, 2 Rand. 228, had been repeatedly recognized and reaffirmed by this court. And the distinction between this case and the cases which would be relied on, on the other side, is, that in these last cases there was some expression in the will which included the slaves born during the existence of the particular estate in the gift of freedom.
    2d. That the whole estate except the slaves emancipated, having been given absolutely to the daughters, *and the increase of the slaves born during the lives of the daughters being included in that gift, the contingent limitation in favor of the emancipated slaves, being only of such property as should be left at the death of the surviving daughter, such limitation was repugnant to the estate given to the daughters, and void for uncertainty. And he cited Riddick v. Cohoon, 4 Rand. 547; Rightfoot v. Gill, 1 Bro. Par. Cas. 250; Curtis v. Rippon, 5 Madd. R. 434; Kidney v. Cousmaker, 1 Ves. jr. R. 436, 445; Shermer v. Shermer’s ex’ors, 1 Wash. 266; Goodwin v. Taylor, 4 Call 305; Burwell’s ex’ors v. Anderson, 3 Reigh 348; Melson v. Cooper, 4 Reigh 408; Ross v. Ross, 1 Jac. & Walk. 154; Cuthbert v. Furrier, 4 Cond. Png. Ch. R. 191.
    3d. That the plaintiffs were free negroes claiming under a will made in 1833; and were forbidden to hold slaves, except a wife, or husband or child. Supp. Rev. Code 246.
    Rhodes and Macfarland, for the appel-lees,
    endeavored to distinguish this case from that of Maria v. Surbaugh. In that case nothing was given by the will to the slave but her freedom; here they are made the legatees of the whole property after the termination of the life estate. They cited Rucy v. Cheminant, 2 Gratt. 36; Elder v. Elder, 4 Reigh 252; Anderson v. Anderson, 11 Reigh 616.
    They insisted further that under the act of assembly a free negro was entitled to hold as a slave his child, and that here Nancy the mother of Martha was one of the legatees, and she having died after the death of the testator, hers was a vested interest, and therefore passed to her administrator. They insisted further that the act did not intend to forbid a bequest to free negroes.
    
      
      See foot-note to Osborne v. Taylor, 12 Gratt. 117.
    
    
      
       The act says, “No free negro or mullato shall hereafter be capable of purchasing or otherwise acquiring permanent ownership, except by descent, to any slave, other than his or her husband, wife or children; and all contracts for any such purchase are hereby declared to be null and void.”
    
   DANIER, J.

It appears that the negro girl Maria, *the subject of this suit, was born after the death of the testator, and in the lifetime of Henley Cul-lins : And by the terms of the will the bequest of freedom to the slaves Nancy, Jane, Ann, Sally, Judith and America was to take effect only at the death or marriage of both of the testator’s daughters Henley and Polly, of whom Henley was the survivor.

Such a bequest, according to the decisions , of this court, confers no right of present freedom on the legatee. On the contrary, the well established doctrine is, that where a person by deed or will declares his slave to be free at any particular age, or on the termination of a particular estate, or after a given period of servitude, or on the event of any contingency, the condition or status of the slave remains unaltered until such age is attained, or estate is terminated, or period of servitude has expired, or event has happened: And that any child born during such temporary servitude of the mother, follows the condition of the latter at the time of its birth, and is a slave. Maria v. Surbaugh, 2 Rand. 228: Crawford v. Moses, 10 Leigh 277; Henry v. Bradford, 1 Rob. R. 53; Ellis v. Jenny, 2 Rob. R. 597.

The cases of Elder v. Elder, 4 Leigh 252, Erskine v. Henry, 9 Leigh 188, and Lucy v. Cheminant’s adm’r, 2 Gratt. 36, are not at all in conflict with these decisions. In each of these last mentioned cases the children born before their mother’s right to freedom accrued, were adjudged to be free, not because of the prospective gift or bequest of freedom to the mothers, but because of some clause, in the deed or will, construed by the court, as extending the gift or bequest of freedom to the children themselves. In other words, the children derived their title to freedom not by descent but by purchase, as donees or legatees under the same instrument which gave freedom to their mothers.

Martha having been born during the servitude of *her mother Nancy, was consequently born a slave. And there being no clause in the will which, by any fair construction, can be taken as intending a bequest of freedom to her, she remains a slave. And as all the property remaining at the death or marriage of the survivor of the two daughters of the testator, is given over to the freedwomen, it would have been necessary, in order to determine the title to Martha, to enquire into the nature and extent of the estate given to the two daughters, and the validity of the title which the appellant Taylor asserts under the deed from Henley Cullins of the 26th June 1846, were it not for the provisions of the act of assembly of the 15th March 1832. But by the third section of this act (see Sessions Acts 1831-2, page 21), it is declared that no free negro' or mulatto shall thereafter be capable of purchasing or otherwise acquiring permanent ownership, except by descent, to any slave, other than his or her husband, wife or children; and all contracts for any such purchase are thereby declared to be null and void.

Nancjr, the mother of Martha, was the only one of the legatees in remainder who (upon the supposition that the bequest was in other respects good) could, under the exception in the statute, have acquired any title to Martha by virtue of said bequest. As she died in the lifetime of Henley Cul-lins, it is obvious that the other freed-women have no legal concern about or interest in the title to Martha. None, as legatees in remainder, because of the provisions of the statute, and none by descent as next of kin to Nancy, inasmuch as she died before any right to freedom or property under the will accrued.

It seems to me, therefore, that there is manifest error in so much of the decree of the 12th of July 1853, as decrees Taylor to deliver to Stratton, administrator de bonis non with the will annexed of John Cullins, the slave Martha, and any other of the children *of the emancipated slaves born since the death of said John Cullins and before the death of Henley Cullins, which he may now hold: And that instead of so much of said decree, the Circuit court ought to have rendered a decree dissolving the injunction, and dismissing the bill as to Taylor, with costs to Taylor.

No one but Taylor has appealed; and it is therefore unnecessary to express any opinion as to the other portions of the decree, with which he has no concern.

The other judges concurred in the opinion of Daniel, J.

The decree was in conformity with the opinion.  