<p>Before Johnston. Oh. at Abbeville, ' July Sittings, 1847.</p> <p>Johnston, Oh. Thomas Finley departed this life the 3d of Dec., 1831, in Abbeville District, where he had long resided, leaving a widow, Jane, but no lawful issue. He left a natural son, Reuben Finley, whom he had begotlen in his youth, in Virginia, by one Catherine Kinder, and who, at the death of his said father, resided in Overton county, Tennessee, where he was married and had a family of children, and where he followed the trade of a wheelwright.</p> <p>Thomas Finley left, in full force, at his death, a last will and testament, executed by him the day of , 1823, in the following words :</p> <p>“ 1. I give and bequeath to my dearly beloved wife Jane Finley, the following part of my estate, namely: negroes Finder, Tom, Jude. William, Caroline, Milly and Rose, and all my beds and bed-clothes, with my mahogany table, cupboard and cupboard-furniture, and kitchen furniture — to her and her heirs and assigns forever. That she may have a comfortable support and maintenance, I give her the tract of land on which I now live, containing 250 acres, situate on Sawney’s creek, in the District and State aforesaid; together with all my other negroes and property of every kind, whatsoever, that I may die possessed of, for her use during her natural life. And I hereby declare the bequest and provision hereby and herein-before made to my said wife, Jane, if accepted, is to be taken and received by her in bar and in lieu of dower in my estate.</p> <p>“ 2. After the death of my said wife, Jane, and after payment of the several legacies hereinafter mentioned, I give and bequeath to Reuben Finley, of the State of Tennessee, wheelwright, whose mother’s maiden name was Catherine Kinder, the aforesaid tract of land, together with all the ne-groes, and all the property belonging to my estate, of what kind soever, real and personal, at the death of my said wife, Jane, to him and his heirs forever, on the following condition, viz: that he emancipate all the female children of my two negro women, Nancy and Jinny, or cause them to be sent to the State of Indiana or Ohio, where the laws of the State will liberate them. The said female children are to. be set free as they respectively arrive at the age of 25 years, and all their children with them, should they have any ; as it is my wish and desire to put a stop to the slavery of the race'of negroes belonging to me in future. I also request that said Reuben Finley have marble head-stones put at the head of my and my wife Jane’s graves, with our names,” &c., “ respectively engraven on them: also, to enclose our graves with a stone wall,” .&c.</p> <p>3 and 4 The testator then bequeaths a negro boy, Franklin, and a negro girl, Peggy, to hisneice, Ann Finley; Franklin absolutely, but to be well treated and not sold or bartered out of her family ; and Peggy with her children to be emancipated, or sent to Indiana or Ohio for emancipation, at the age of 25.</p> <p>He also bequeaths a negro boy, Robert, to Thomas Finley Mitchell,, absolutely.</p> <p>Lastly he appoints the defendant, Alexander Hunter, together with one John Clarke, (now deceased,) executors. Ifumter alone qualified and acted under the appohatment.</p> <p>All the property of the testator passed into the possession of his widow, who lived on the premises.</p> <p>On the 9th of August, 1837, Reuben Finley, the testator’s natural son, died at his residence in Tennessee, in the life time of the testator’s widow; and, of course, without having obtained possession of his legacies. He died intestate, leaving a widow and children, (all parties, as plaintiffs or defendants, to this suit;) one of which children, the plaintiff, Thomas AL Finley, has obtained letters of administration, both in this State and in the State of said intestate’s domicil.</p> <p>On the 29th of Nov., 1845, Jane, the widow of the testator, Thomas Finley, died, leaving a will, of which the defendant, Hunter, the executor of her husband, is also executor.</p> <p>The bill is filed by Thomas M. Finley, the administrator of .the said Reuben Fin,ey, and by two other of the children of the said Reuben, against, their co-distributees, and against Hunter-, the executor of Thomas and Jane Finley, respectively. From the fact that the next of kin of Thomas Finley were represented by counsel at the hearing, I infer that they are, also, defendants to this suit; but the copy of the bill furnished me being abbreviated at the conclusion, instead of being a full copy,* leaves me uncertain upon this point. I sjiay treaj; the case as jf weie parties.</p> <p>The bill prays that twelve slaves (named in the bill,) alleged to have been in the possession of the widow, (Jane Finley,) at her death, and claimed as belonging, under the will of Thomas Finley, in .remainder, to the estate of Reuben, may be delivered up, to!be pardoned or sold, and the proceeds partitioned among the distributees of the said Reuben. That the lands devised in\ said will be partitioned among the same parties. That the defendant, Hunter, account to them for the hire of said slaves and the rent of said land, alleged to have been received by him after the death of Jane, the widow. And that he give an account, generally, of his administration, See.</p> <p>At the hearing it was proved conclusively, by the depositions of several witnesses, examined by commission, that Reuben Finley, the intestate of the plaintiff, Thomas M. Finley, was a putative child of Thomas Finley, and was the person referred to in his will: and that the parties presenting themselves as his representative and distributees, were really such. This evidence was given to satisfy the defendant, Hunter, who in his answer required the proof to be made.</p> <p>In addition to this, the only evidence offered at the hearing was that of Alexander Scott; who testified that Jane, the widow of the. testator, had the possession of all his estate, during her widowhood, and used it as her own. He heard her say that Reuben was once in this State “ and had the fa-vorance of her husband,” and that “ from his resemblance to the latter, she thought she would have known him.” That she was willing to give him up the negroes, if he would give up'the land. That he lived in Tennessee, and was the illegitimate son of old Finley.</p> <p>I could have desired to know from' the papers before me whether the slaves claimed by this bill are not, some of them at least, those (or the descendants of those) given to the widow Jane, absolutely, by the first section of the first clause of old Finley’s will. If so, it deserves to be more seriously considered than it was at the hearing, (for it appears the point was not made,) whether the second clause,' bequeathing to Reuben in remainder, by a just construction, applies to them. If it necessarily takes in all the slaves covered by the first section of the first clause, it must prevail over it, and will recall the absolute gift made to Jane; for being a latter clause of a will, it repeals any prior clause, to the extent of any conflict there may be between them.</p> <p>t shall not raise the question; which the better knowledge of the counsel in relation to the component parts of the estate may have satisfied them was not necessarily involved in the case. But I may be permitted to remark, that it is not so clear to my mind, that the testator did not, by the terms employed by him, “all the negroes,” &c. “belonging to my estate” “ at the death of my wife,” intend to refer, exclusively, to the property covered by the second section of the first clause, which he had thereby set apart or given to his wife “ for her use ;” and in order to secure her beyond all reasonable doubt “a comfortable support and maintainence” “during her natural lifeand which property he may have considered as reverting and again “ belonging to his estate” “ at the death of his wife.” That he was mistaken in the latter opinion, as a legal proposition, is a circumstance that might not, necessarily, shut out the interpretation I am suggesting: the enquiry being, not what is the precise legal effect of the second section, aforesaid, but to what body of property did the testator intend to refer, as the subject of the second clause.</p> <p>It certainly is difficult to believe that he intended to revoke the absolute gift which he had taken unusual pains, by the employment of formal words, to create in the first section. Nothing but an invincible necessity should lead us to adopt such a construction of his will; and I am not sure that effect may not legally be given to the whole will, without resorting to it.</p> <p>But I do not feel at liberty to raise this question of myself.</p> <p>Another question was very properly omitted in the discussion of the case: — whether the legacies to Reuben, the natural son, were not avoided by the Act of 1795, so far as they exceeded one-fourth of the clear value of the testator’s estate. As long ago as the case of Owens v. Oioens, it was determined, upon the construction of that Statute, that it was not competent for collaterals, but only for the wife and children of the donor, to avoid the gift in such cases. The wife of old Finley in the case before us, did not avail herself of her personal privilege; but on the contrary, according to the testimony of Scott, recognized the bastard’s right.</p> <p>The executor and next of kin took their stand upon the Statute of 1841.</p> <p>The 1st section of this Statute provides “ that any bequest, deed of trust, or conveyance, intended to take effect after the death of the owner, whereby the removal of any slave or slaves without the limits of this State, with a view to the emancipation of such slave or slaves, shall be utterly void, and of no effect, to the extent of such provision ; and every such slave, so bequeathed, or otherwise settled or conveyed. shall become assets in the hands of any executor or administrator, and be subject to the payment of debts, or to distribution amongst the distributees, or next of kin, or to es-cheat, as though n& such will' or other- conveyance had been made?</p> <p>There are no other provisions of this Statute directly applicable to the case before us, nor insisted on in argument; though there are others showing, in a very clear manner, how very strong was the repugnance of the legislature to emancipation, in any form, or under any device, secret or open - and to the conferring upon slaves any rights or privileges, whatever,. inconsistent with the status-of strict bondage.</p> <p>It is; argued that the Statute will be violated here, if the representative of Reuben Finley be allowed to recover the slaves, claimed by him under old' Finley’s will which expressly provides for the emancipation of portions of them either in this State or beyond its limits. But if we confine ourselves. to -the impediment created by the Statute, — without mingling other objections with the one we are now considering, — it presents no obstacle to the recovery of any of the slaves* except those specifically directed to be set free. The will operates as to all the rest; and is only nullified by the Statute “■to, the extent of such provision? — evidently meaning, so far as the property directed to be emancipated is involved : and 1 apprehend that slaves not. directed to be set free, as well as any other species of property, may be as validly given in other parts of the will,- or even in the emancipating clause, as if they were conveyed’ by a separate and distinct instrument, altogether free from imputafion.</p> <p>This objection, therefore, gpes only to, a part of the plaintiff’s right.</p> <p>Then, the objection is varied; but presented in such a form, that though-it is, indeed, a different objection, it still depends for its validity upon the same Statute of 1841.</p> <p>It is argued that the whole of the- property given to Reuben is given together, and is coupled with a condition, the non-performance of which forfeits the whole ;■ that this condition is the emancipation of portions of the slaves : and that the Act of 1841 frustrates the performance of the condition, and thereby defeats the legatee’s right to any part of his legacy, extending even to the devise of the land.</p> <p>Now, if the duty imposed upon Reuben Finley by the witl, and which the will denominated a condition, be indeed a condition in law, it is very mateiial to inquire whether it be a condition precedent or subsequent. Conditions precedent are such as are, from the nature of the case,, or by express requirement, to be performed before the right to which they are annexed can attach or vest. Until they are performed the right does not vest. Conditions subsequent, are such as are to be performed after the right vests or attaches in law: and the general rule is that the right which has already vested, is terminated or divested by a failure to perform them.</p> <p>A failure to perform, a precedent condition stands upon a different ground in some respects from a similar failure in pect to a condition subsequent. As the right cannot vest until the precedent condition is performed, it is deferred until it is actually performed; and no excuse that the perform-anee was originally or has become impossible or forbidden by law, nor any other reason whatever for the non-pcrformance of the condition, can entitle the party to, the dependant right, so long as he has not fulfilled the condition. But it is different with respect to conditions subsequent. If the performance of them becomes illegal or impossible, after the correlative right has vested, the right is not thereby divested.</p> <p>Then, was the condition required by Thomas Finley’s will, a condition precedent or subsequent ? Was it a condition to be performed before the right to the property could vest, or after it had vested?</p> <p>A good many cases were quoted for the purpose of showing the peculiar characteristics of these different kinds of conditions. The definitions of elementary writers were referred to and insisted upon. But the distinction between these two classes of conditions does not depend so much upon the form of expression employed to create them, as upon the nature of the act to be done, and the relation in which the agent stands to the other party to the contract, and to the subject matter of the contract. The things given here are slaves ; the act to be done by the recipient, is the emancipating of them. The donor does not, himself, emancipate. He gives the property to another, and requires him to do it.—</p> <p>What is emancipation? It is the relinquishment, by the owner of slaves, of his right of property in them. And can it be disputed that Reuben Finley could legally perform the act required of him only after the legal title had vested in him ? Besides, a portion of the slaves were to be held by him, for his own benefit, until they arrived at 25 years of age; and he was not required to set them free until they arrived at that age. Could the emancipation of these be a prerequisite to his title to them? Did the testator, while expressly giving him a right to their services for the period indicated by the will, intend to require that he should relinquish in advance the only title by which he could exact those services ?</p> <p>Before we proceed further, in this connexion, it is proper to observe that the remainder given to Reuben is what the law denominates a vested, in contradistinction from a contingent, remainder. Upon the death of the testator, the right of Jane, the life tenant, vested in her; and eo instanti the right to the remainder vested in Reuben. Lt was not to spring up, in future, upon any contingency; but arose upon the testator’s death, and abided from that time in Reuben, and in no other person ; his enjoyment of the property only awaiting the death of the life tenant, whose possession in the mean time was his possession, as against all third persons, and who held in trust for him.</p> <p>When the executor of Thomas Finley assented to the legacy of the life estate, this was an assent to the remainder. The assent passed the legal title; which was thenceforward vested, in the proportions of life estate and remainder, in the parties respectively entitled to them under the will. Up to the time of the executor’s assent, these were equitable interests, but thenceforward they became and were legal interests or titles to the property.</p> <p>We are now prepared to examine how far the Act of 1841 can control the right thus vested in Reuben Finley.</p> <p>It will be remembered that the will was executed in 182°, and came to operate in 1831. At that time, as appears by the case of Frasier v. Frasier, (by which I am bound, however much I doubt its correctness,) such bequests as were made in this will were lawful and would be carried into execution by the decree of the Court.</p> <p>Upon the back of this the executor assented; and it was not until 1841, ten years after the legal title was vested in the remainderman, that the Legislature declared such wills void, and forbade the executor to carry them into effect.</p> <p>My opinion is, that the right of property was well vested in Reuben Finley before the enactment of the Statute, and that the Statute does not divest him of it: its only effect being to render illegal the condition of emancipating the slaves, which he was subsequently to perform ; and thus to create a valid excuse on his behalf for not performing it.</p> <p>But the case of Blackman v. Gordon is appealed to for the position that the Act of 1841 will be enforced retroactively, so as to control wills operating before its passage.</p> <p>It is true that the Statute is retrospective as well as prospective in its terms.</p> <p>Chancellor Kent says “ a Statute, when duly made, takes effect from its date, when no time is fixed : and this is now the settled rule.” “ A retro-active Statute would partake in its character of the mischiefs of an ex 'postfacto law, as to all cases of crimes and penalties : and in every other case, relating to contracts or property, it would be against every sound principle. It would come within the reach of the doctrine, that a Statute is not to have a retrospective effect; and which doctiine was very much discussed in the case of Dash v. Vankleek, and shown to be founded not only in English law, but on the principles of general jurisprudence.— A retrospective Statute, affecting and changing vested rights, is generally considered, in this country, as founded on unconstitutional principles, and, consequently, inoperative and void. But this doctrine is not-understood to apply to remedial Statutes ; which may be of a retrospective nature, provided they do not impair contracts, or disturb absolute vested rights,” &c.</p> <p>If in Blackman v. Gordon a retro-active operation was given to the Statute of 1841, it was, in no sense, to take from a citizen his vested rights. The slaves in that case had not been emancipated as directed by the will, but were still in the hands of the executor, who held them upon trust. The bill was by the next of kin, to prevent their emancipation. It was decided that it was unlawful, after the Statute, for the executor to emancipate ; and the trustee having no beneficiary interest in the slaves, to entitle him to hold them, was directed to deliver them up to the next of kin. Whose vested right was taken away by the decision? Npt that.of the executor, for he had no beneficial interest. Not that of the slaves. “ The law,” says Chancellor Harper, “ declares them to be mere chattels. They had no status m Court; and could not have come into Court to enforce the execution of the trust.”</p> <p>What the Court did in that case is far short of — very different from — what it is requested to do in this. In that case the will was still unexecuted, and its provisions remained merely directory. The Court said, the law has intervened to prevent the directions from being carried into effect. “ The act of emancipation,” says the Chancellor, “ was to be in future, and the Act of the Legislature has intervened to forbid that future action. How can it be regarded as retrospective, any more -than if the testator, himself, had expressed an intention of liberating his slaves, and before his execution of that intention, an Act of the Legislature had forbidden it? The executor only stands in the place of the testator.”</p> <p>No vested right was taken away by the decision ; and, in truth, no retro-active operation was given to the Statute.</p> <p>What we are requested to do here is to carry back the terms of the Statute to 1831, and take away a legal titled vested in Reuben Finley ten years before its passage ; upon no better ground than that a condition then incumbent upon him, and (according to solemn decisions) lawful for him at that time to perform, cannot now be fulfilled by him without the breach of a posterior law. T cannot do it.</p> <p>But, after all, I am of opinion that what has been called a condition, is to be regarded in this Court as a trust. The testator gives certain of the slaves to his son, out and out.— Others, he gives to him, in the confidence that he will emancipate them forthwith. A third class is given until they arrive at a certain age, at which time they and their issue are to be liberated. As to the first class, there is no trust. A beneficial interest, unaffected by any duty to be performed, was intended. The second class was given entirely upon trust, without any intent to confer a benefit oti the trustee.— the tiiird class, there was a compound intention: — to give a beneficial interest up to the time of emancipation, and to impose a trust or obligation to emancipate afterwards.</p> <p>Ever since Morrice y. The Bishop of Durham the rule has been that where no beneficial inteiest is intended, but a trust duty is attempted to be imposed, if the trust designed to be established, fails from any cause, the trustee shall not hold for his own benefit; but a trust results to the grantor or his next of kin.</p> <p>To apply this doctrine here, the representative and distri-butees of Reuben Finley are entitled to a decree for all the slaves not intended to be emancipated. They are not entitled to those forthwith, directed to be set free ; for the performance of that direction is now prohibited by Statute, and, as trust, results to the next of kin of the testator. They are entitled to the services of those directed to be- set free at the ages prescribed in the will, together with those of their children until that time; but they are not entitled to the services of either beyond that time, for the reason given in relation to the class just preceding.</p> <p>And it is referred to the Commissioner to ascot tain and report the slaves falling under these three classes, respectively, that the Court may be enabled to frame its decree according to the foregoing principles. In relation to the slaves directed to. be liberated, the Commissioner will in his report affix the time assigned by the will for their emancipation to their names respectively.</p> <p>I suppose there can be no objection to a sale of the slaves ;• and that the fund be distributed, by allotting to the distribu-tees of Reuben Finley, (or to his representative, for them,) the proceeds of those given by the will without a direction to emancipate; and to the next of kin of the testator the proceeds of those directed to be liberated forthwith : and that in-. terest on the proceeds of the others be allotted to the administrator or distributees of Reuben, up to the time prescribed for the emancipation, and that the capital or proceeds themselves, be thereupon paid over to testator’s next of kin.— Counsel, however, may suggest any other form of decree when the report conies in ; or before, if .they can agree.</p> <p>It is referred also to the Commissioner to state an account of the hire, according to the principles above announced : awarding it to the different parties according to their interest in the slaves during the time for which the hire accrued.</p> <p>It is decreed that the distributees of Reuben Finley are entitled to partition of the tract of land described in the will of Thomas Pfinley.</p> <p>If counsel agree they may obtain an order for sale or partion, upon proposing it: if they do not agree, let a writ issue for the partition of it</p> <p>The rent of said land is referred as a subject of account.</p> <p>There is a report with exceptions ; which report includes some things that I have here referred. It will answer no good purpose, but rather tend to confusion, to take it up separately, or in advance, and it is recommitted, with the exceptions.</p> <p>The account of Hunter’s administration, and the account against the estate of Jane Finley for property of Thomas’s estate, received by her but not forthcoming, or determined at her death, will, of course, be understood as included in the order of reference hereby made. But the Court does not wish to be understood as deciding upon the liabilities of the parties called to account. It has not the facts before it, and cannot learn them from the report; which is a report of results only.</p> <p>The distributees of Reuben Finley and the next of kin of Thomas Finley, respectively, to pay their own costs up to this stage of the proceedings: and those of Hunter and Thomas M. Finley, .as representatives of Jane and Thomas Finley and Reuben Finley respectively, to be allowed them out of the estates represented by them.</p> <p>The complainants appealed, and moved the Court of Appeals to modify the circuit decree of his Honor the Chancellor, on the grounds that his Honor held—</p> <p>1. That the bequest to Reuben Finley was coupled with a trust for the benefit of the testator’s next of kin, instead of being subject only to a condition subsequent, the performance of which was rendered illegal by Act of Assembly.</p> <p>2. Because no trust could result to the testator’s next of kin, as by the will Reuben Finley was the general and residuary legatee, as well as the devisee and legatee of particular portions of the testator’s estate.</p> <p>3. Because the females, if held in trust, should have been declared a fund subject to payment of testator’s debts as well as to distribution among his next of kin.</p> <p>4. Because his Honor should have declared all the property, veal and personal, embraced in the second clause of testator’s will, vested in the heirs and representative of Reuben Finley, free from condition or trust.</p> <p>The defendants next of kin of Thomas Finley, the testator., also appealed, on the following grounds:</p> <p>1. That the legacy to R. Finley, being in terms contingent and conditional, never vested, and that the next of kin of testator, at the death of the tenant for life, were entitled to the property real and personal.</p> <p>2. That the legacy to R. Finley, being upon a condition precedent and illegal, is void,</p> <p>3. That the emancipation of the female slaves, or their removal for emancipation, was a condition precedent, to be performed by Reuben Finley, before the vesting of the legacy, and the condition never having been performed the legacy never vested.</p> <p>4. That the legacy to R. Finley and his heirs, according to the terms of the will, could not vest till the death of the tenant for life, Jane Finley — and then, if not before, by force of the Statute of ’41 it became illegal and void.</p> <p>5. That as to the personalty, there was no assent by the executor to the legacy to R. Finley, and the real estate, till condition performed, descended .to the heirs at law of testator.</p> <p>6. That the female slaves directed to be emancipated, are not given or attemted to be given, by the will, to R. Finley, and that the other property, real and personal, is only intended to be given him, in the event that he liberate the said female slaves.</p> <p>7. If the legacy to R. Finley were vested, and the direction to emancipate, a condition, not precedent, but subsequent, still the legacy was subject to be, and has been, divested, by a failure to perform the condition.</p> <p>8. That the bequest as to the female slaves, directing their emancipation, was, at the time of making the will, and now is, illegal, and wholly void ; and that the next of kin of testator were entitled to said slaves, immediately upon the death of the tenant for life.</p>
