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By the Court.

Lumpkin, J.

delivering the opinion.

There are cross bills of exceptions filed in these cases. By the 9th clause of Thomas E. Beall’s will, the testator says: “I reserve the tract of land situate, lying and being, in the county of Columbia, on the waters of Sweet Water Creek, adj.oiuing lands belonging to the trustees of the Methodist Episcopal Camp Ground, it being the tract of land that I purchased from Morgan, and formerly owned by Mathew W. Standford, containing one hundred acres more or less, for the use and support of Nancy Goings, a free person of color, it being the place whereon she now resides, during her natural life, and after her death, the same to revert back to my estate; and that said tract of land shall not be liable for the debts or contracts of said Nancy Goings.”

“Item 10th, I reserve the tract of land, situate, lying and being in Columbia county, on the north side of the Wrightsboro road, on the waters ofBigRiokee Creek, containing one *440hundred and eighty acres, be the same more or less, adjoining lands of Benjamin Upton, Lamar and others, it being the tract of land that I purchased of Valentine Watson, for the use of James A. Watson during his natural life, or so much thereof as he can cultivate for a support, it being the place whereon said Watson now resides, and at his death, the same to revert back to my estate; but said land shall not be liable for the debts or contracts of said James A. Watson.”

The Court upon demurrer to the bill filed in this case was asked to decide, that the devise in the 9th item of the will was void, because Nancy Goings, being a free person of color, was incapable of taking under this devise. And that the 10th clause was void, because of the indefiniteness and uncertainty of its terms. On the contrary, the Court held that these bequests were valid; and this constitutes the alleged error in this bill of exceptions.

Was the Court right ?

It might be plausibly contended that the title to* the tract of land, did not pass to Nancy Goings, under the 9th clause of the will, there being no words of gift, grant or alienation. The operative words are, “I reserve for the use of Nancy Goings” &c. Reserve the tract of land from what? From sale by his executors as afterwards directed in regard to his lands generally in the 23d item of his will; Nancy Goings was to have the use and occupation; but the title to remain in the executors, and the provision, that the life interest thus given should not be subject to her debts, harmonizes with this idea.

But suppose it be a life interest bequeathed to this free person of color, is she not competent to take and hold it, under the laws of this State? I once thought otherwise, but subsequent examination has shaken my confidence in the ¡correctness of that opinion.

By the 8th section of the Act of 1818 (Cobb 993) free persons of color were not permitted to purchase or acquire any veal or personal estate. But by the 3d section of the Act of *4411819, (Cobb 995) this section of the Act of 1818 is repealed, so far as it respects real estate, except in the cities of Savannah, Augusta and Darien. What is the necessary implication? Why, that free persons of color in Georgia, except in the three cities designated, may acquire real estate. And this inference is confirmed by the Act of 22d January, 1852, {Phamplet p. 101,) regulating the sale of real estate “ belonging to free persons of color.”

While, therefore, I exceedingly doubt the policy of allowing free negroes to acquire and hold real estate, and that too without limitation as to quantity, still the correction of the evil, if it be one, is with the Legislature and not with the Courts.

We do not see any insuperable difficulty, as it regards the tenth item of the will. It was intended by the testator to give James A. Watson, we apprehend, a life estate in the whole tractof land, to be used and occupied by him, for the purpose of cultivation ; and for nothing else. He could not lease or otherwise dispose of it.

Can the 25th and 26th items of the testator’s will be executed ? The circuit Judge held, that these clauses were invalid; because the subject matter and objects of the testator’s bounty were not clearly ascertainable: And further,that the charity therein created was not legal, wise and beneficent.

This decision is assigned as error by the other side, and constitutes the second bill of exceptions.

After much reflection on this case, and with a sincere wish to fulfil the intentions of the testator, which are highly commendable, we fear it will be difficult if not impossible to execute this will.

Who are the poor orphan children of Columbia county designated as the beneficiaries, of the testator’s bounty ? And how are they to be ascertained ? The poor children of a county or congregation or school are not susceptible of ascertainment; and when such terms are used in wills, as designation persona?, they have always been determined to be insufficient *442and the devise or bequest intended to be created by them, to be void for uncertainty. (Powell on devises, 419 ; Com. Dig. 412; Bac. Ab. 159; Dashiell and others against the Attorney General and others 5, Harr. and John. 392, and the au thorities there cited.)

And this difficulty cannot be remedied by the doctrine of Cy. Pres, in our State; nor by the statute of Elizabeth; nor by the inherent powers of a Court of Chancery, 14 Ves. 342 ; 2 Iredell 255 ; 4, Dana 357; Adam’s Eq. title Master. And an Act of the Legislature to cure the defect would be void as against the heir at law, in whom the title to the property vests.

There are other serious, if not insurmountable obstacles in this case, what amount of education is to be bestowed upoa these poor orphan children? If no more than the law now supplies, the fund is not needed. In case the fund will not furnish adequate means for giving the mere rudiments of an education to all of this class, how is it to be apportioned? What was the wish of the testator upon these and numerous other points, which naturally suggest themselves ? We are left to conjecture. A Court of' Chancery, or even the Legislature undertaking to frame a scheme, might be wide of the mark contemplated by Mr. Beall, and this is the danger, in all these cases.

The cases show that a devise is void, which gives a latitude of discretion to the trustees. Who then shall supply a plan for the application of this fund ? Many might be able and willing to do so. But would that be the will of the testator? And it is that, and that alone, that we are called upon to carry out. Whattwo minds would agree, touching the dispensation of this charity ? For myself I am constrained to say, that so far as my knowledge extends, the .poor school system has proved a failure in this State. Common schools may succeed, experience will show. Any system, which stops short of feeding and clothing the destitute children obtaining an educa*443tion, will accomplish nothing. The Girard charity is based upon this truth; and herein consists its wisdom.

While therefore I am delighted to see the manifestation made by Mr. Beall in the right direction, and for which his memory deserves to be consecrated in the hearts of the benevolent, I regret that his humane purpose, should miscarry, for want of being more specific. I sincerely trust that our men of wealth, who are encumbered with large estates, with no immediate objects of their bounty upon whom to cast their wealth, will, while imitating his noble and praiseworthy ex-amble as to its ends and aims, take more precaution as to the mode and manner of effectuating their designs. While the North is studded all over with institutions to alleviate the sufferings and promote the welfare of our race, endowed by munificence of private persons, our people heap up riches and die and know not who shall gather them, whether a wise man or a fool.

Judgment affirmed.

McDonald, J.

dissenting.

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