Opinion
June Term, 1822.
A bequest of slaves to certain persons "to be their lawful property, and for them to keep or dispose of as they shall judge most for the glory of God and good of said slaves." where it could fairly be collected from other parts of the will that the testator did not mean by the bequest any personal benefit to the legatees, was held to constitute them trustees for the purpose of emancipation, and as such purpose is illegal, it was Held, that the legatees took the property in trust for those who were entitled under the statute of distribution.
It appeared from the bill that Collier Hill died in 1799, leaving a last will and testament, containing the following clause, viz.: "I give and bequeath all my slaves to four men, namely, Hill Jones of the County of Warren and State of North Carolina, to Edmund Jones of the county of Halifax and State aforesaid, to Stith Parham, merchant of the county of Sussex and State of Virginia, and to Richard Graves of the Methodist Church in the last mentioned State, to be their lawful property, and for them to keep or dispose of as they shall judge most for the glory of God and good of said slaves; but in case either of those men should be dead or deceased before they get the said negroes in possession, it is my will and desire, and I do in that case will and bequeath the said slaves to those of them who may survive or live to get the said negroes into possession." and appointed Hill Jones and Edmund Jones executors, of whom, as the bill stated, the former alone qualified. The bill, in which the next of kin of Collier Hill were the complainants, then set forth that the possession of the negroes was in the defendants, and they were claimed by the complaints on the ground that a trust in the negroes resulted for their benefit as next of kin. To this bill there was a demurrer, and the cause was removed into this Court by affidavit. (121)
The question depends upon the meaning and construction of Collier Hill's will. He died, leaving a mother, three brothers and two sisters, and by his will bequeathed all his slaves to four persons, whom he names, and one of whom he describes as a member of the Methodist Church; "to be their lawful property, and for them to keep or dispose of as they shall judge most for the glory of God and good of said slaves." These words show that the benefit of the slaves was to be consulted by the legatees, and not their own personal emolument. That this formed no part of the motive to the bequest is further shown by the words, "but in case either of them should be dead or deceased before they get the said negroes in possession, it is my will and desire, and I do in that case will and bequeath the said slaves to those who may survive or live to get the said negroes in possession."
Giving the slaves to such of them as survived or got them into possession, shows clearly that he intended only an authority to them, for if a beneficial interest were intended, why not allow it to devolve upon the representatives of those who should die before getting the slaves into possession.
From the peculiar language of the will, I infer that the legatees named were trustees only, and that the purpose of the trust was to effect an emancipation of the slaves. This has been held to be an illegal trust, and the persons appointed to execute it hold the property in trust for those who are entitled under the statute of distributions.
PER CURIAM. Demurrer overruled. Cited: Stevens v. Ely, 16 N.C. 495; Redmond v. Coffin, 17 N.C. 441; Sorrey v. Bright, 21 N.C. 114; Thompson v. Newlin, 38 N.C. 340; Bennehan v. Norwood, 40 N.C. 108; Lemmond v. Peoples, 41 N.C. 139, 140; Grimes v. Hoyt, 55 N.C. 274.
(122)