
    Walter B. Weathersey et al. vs. Hatton C. Weathersby, Executor of Lewis Weathersby, deceased.
    The following clause in the will of Lewis Weathersby, to wit: “ I give and bequeath to my son Ludovick, my servants Tom and Lucy, and their children, Matilda, Sylvester, Andrew, and Dicey, in trust and under the following conditions, viz : I do hereby enjoin it upon my said son to make the said slaves as comfortable in life as possible ; that he furnish them and their children with a house separate from others; that he provide a horse, farming utensils, and a small tract of land for their use ; that he sell their crops,' furnish them with a milch cow, and two hundred pounds of sugar, and one hundred pounds of coffee yearly; and that in consideration of these things, he require of them reasonable service; and should Tom and Lucy at any time be able to raise a sum of money ■ sufficient to compensate said Ludovick, say three hundred dollars for each of their daughters, Matilda and Dicey, then he shall give up said Matilda and Dicey to said Tom and Lucy, to serve and comfort them in their old age: ” it was held to be void, so far as it purported to impose a condition upon the unqualified bequest to Ludovick ; the condition was an attempt to secure freedom to the slaves, or part of them, and was therefore illegal; but the devise was valid, and the property passed absolutely to Ludovick.
    In error to the probate court of Amite county; Hon. John Walker, judge.
    Walter B. Weathersby and others, of the heirs of Lewis Weathersby, deceased, filed their petition to compel Hatton C. Weathersby, surviving executor of the will of Lewis, to distribute among them six sevenths of the value of the slaves, Tom and Lucy, and their children, Matilda, Sylvester, Andrew, and Dicey, who were alleged to have been the property of the testator, but in the possession of, and claimed by, the administrator of Ludovick Weathersby, who had died since the testator, and who claimed the slaves under an alleged void bequest, which is set out in the opinion. The probate court, on demurrer, dismissed their petition, and they appealed.
    
      
      Potter, for appellants.
    1. Under the provisions of this will, the slaves referred to are entitled to property; there is a bequest to them, and in such cases slaves are, by necessary implication, entitled to their freedom. Le Grand v. Darnall, 2 Pet. 670; Hall v. Mullin, 5 Har. & John. 190; Burke v. Joe, 6 Gill & John. 142.
    2. The whole intent of the will, regarding these slaves, is repugnant to our code, to the policy of our laws; the slaves are to own stock, raise crops for themselves, and act and do as if free, and it is enjoined on the pretended legatee, as a trust, that he permit such things to be done; all which are prohibited by our law.
    3. If these trusts are illegal, as being in fact an emancipation or repugnant to our policy, they render the bequest void. Such was the ground of the whole discussion, by court and counsel, in Ross v. Vertner, 5 How. 305. See also 6 Rand. 563, 564; Bynum v. Bostick, 4 Dessau. 266. So a devise for maintenance' of slaves is void. Cunningham v. Cunningham,, 1 Taylor, 209; 3 Am. Dig.. 480; Haywood v. Craven, 2 Car.. Law Rep. 557; 3 Am. Dig. 538; Cunningham v. Cunningham, Cam. & Nor. 353.
    See the case of White v. White, 1 Dev. & Battle, Law Rep. 260, in which a-sale of slaves to trustees, with secret intent, that the slaves should enjoy the benefits of freedom whilst nominally held in'bondage, was declared void.
    
      James Carson, Jr., on same side.
    
      W. G. Thompson, for defendant in error,
    Made an elaborate' argument in support of the bequest, and of the right of Ludovick to the property, and cited Cary v. Bertie, 2 Tern. R. 337-339; 2 Black. Comm. 156; 4 Kent, 130; Co. Litt. 206 a, 2086; 1 P. Will. 189; 1 Bac. Abr. Tit. Cofid. “ R.” and “ L.; ” 2 lb. Tit. Cond. “ D.”; Co. Litt. 279 6.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a proceeding in the court of probates of Amite county, to test the validity of a clause in the will of Lewis Weathersby, deceased. .This clause is alleged to be an attempted evasion of the law prohibiting the emancipation of slaves, by last will and testament, and for that reason void.

The clause is as follows: “I give and bequeath to my son Ludovick, my servants Tom and Lucy, and their children, Matilda, Sylvester, Andrew, and Dicey, in trust and under the following conditions, viz.: I do hereby enjoin it upon my said son, to make the said slaves as comfortable in life as possible; that he furnish them and their children with a house separate from others; that he provide a horse, farming utensils, and a small tract of land for their use; that he sell their crops, furnish them with a milch cow, and two hundred pounds of sugar, and one hundred pounds of coffee, yearly; and that, in consideration of these things, he require of them reasonable service, and should Tom and Lucy at any time be able to raise a sum of money sufficient to compensate said Ludovick, say three hundred dollars for each of their daughters, Matilda and Dicey, then he shall give up said Matilda and Dicey to said Tom and Lucy, to serve and comfort them in their old age.”

The intention of the testator was very probably to secure freedom to these slaves, at least, to four of them. As that intent is prohibited by our statute, (Hutch. '539, § 11,) this provision of the will cannot take effect. It is void.

But the question next arises, as to the application of the principle in this case. If there had been a direct bequest of freedom to these slaves, it would have been entirely ineffectual, and they would have been subject to distribution, as if no will had been made.

The bequest here is of the slaves directly to one of the sons of the testator, and nothing can be urged against the validity of this disposition. The trust or condition, annexed for the benefit of the slaves, is what falls under the inhibition of the law. The consequence is, that the trust or condition is defeated, and the estate is absolute in the legatee. Conditions that are against, law, the law will always, and without regard to circumstances, defeat. 2 Co. Litt. 206 6, n. 99; 4 Kent, Comm. 130. The result of this doctrine is, that Ludovick Weathersby is invested with the absolute title to these slaves, discharged of all trust and condition.

The distinction between this case, and that of Lucas v. Lockhart et al., 10 S. & M. 466, cited in argument, is, that in the latter case, the trust was declared to be a legal one, here it is repugnant to a positive statute.

The slaves now form no part of the estate of the testator, because they passed by a valid bequest under his will. They are not subject to distribution, as prayed for by the petition. The order of the court below, dismissing the petition, is therefore affirmed.

A re-argument was applied for, but not granted.  