§ 351. Sometimes the courts presume a deed of manumission when the owner permits the slave, for a number of years, to do acts inconsistent with a state of slavery. It is a question generally submitted to the jury, but upon which the courts, in different States, vary in their rulings. This presumption may, of course, be rebutted by proof of acts inconsistent with freedom."

1

§ 352. If the record shows that the Court has acted on a case not authorized by the statute, the judgment is of no effect. As in North Carolina, the petition was to emancipate the slave "when the owner thinks proper;" and the decree granted permission "on the owner's complying with the statutes;" it was held, that the proceeding was invalid.3

1 Burke v. Joe, 6 Gill & John. 136; Wells v. Lane, 9 John. 144; Miller v. Reigne, 2 Hill S. C. 592; State v. McDonald, Coxe, 332; Wilson v. Barnett, 8 Gill. & J. 159; State v. Hill, 2 Speers, 150; Stringer v. Burcham, 12 Ired. 41; Anderson v. Garrett, 9 Gill. 120; Henderson v. Jason, 9 Gill. 483.

2 Sampson v. Burguin, 3 Dev. & Bat. 28. Bryan v. Wadsworth, 1 Dev. & Bat. 384.

CHAPTER XX.

OF MANUMISSION BY WILL OR EXECUTOR'S CONTRACTS.

§ 353. WHAT has been said in reference to manumission by deed, applies with equal force to manumission by will, except in those States where such manumission is prohibited. The number of slaves thus set free has caused, in some of the States, a prohibition of manumission by will. In the absence of that, a testator may order his executor to do that which he himself could have done while in life. There are other questions, however, which arise peculiarly on manumission by will, to which we will now attend.

§ 354. The will must be executed with the same formalities as is necessary to pass title to slaves to other legatees; and if not executed in that manner, it cannot be aided or made effectual by a mere reference to it in some other conveyance. So, also, a nuncupative will cannot effect emancipation where

Mississippi, 9 S. & M. 247; Alabama, 14 Ala. 76. In Maryland, deeds of manumission made during the last illness, are void. 2 Har. & McH. 198.

2 Mullins v. Wall, 8 B. Monr. 445. This was a case of the fraudulent destruction of the will by the heirs.

it is insufficient to pass a bequest of slaves.' The assent of the executor is as necessary to a manumitting clause as to any other legacy, but this assent may be presumed from his acts.

3

§ 355. A will having no effect until the death of testator, a sale or gift of the negro, to whom freedom was bequeathed by the testator in his lifetime, is pro tanto a revocation of the will. But it takes effect immediately after death, and hence, a child born after the death of testator and before probate of the will, of a slave manumitted by the will, is free. And this is true, even if the manumission is conditional upon the slave's electing to go to Liberia.5

4

The mere expression of a desire, in a will, that a slave shall be free, does not amount to a manumission, if, from other provisions, it appears that the intention of testator was not to part with the dominion over such slave. Nor would a bequest of freedom, if the executor or heir shall be willing, according to the civil law, amount to manumission.'

6

§ 356. In construing a bequest of freedom, some of the courts have announced that the law favors liberty, and hence, the courts will incline in favor

1 Cooke v. Cooke, 3 Litt. 238; aliter, where it would pass a bequest of slaves, even though the statute requires manumission to be done by writing. Phoebe v. Boggers, 1 Grat. 129.

2 Nicholas v. Burruss, 4 Leigh, 289; Nancy v. Snell, 6 Dana, 148.

8 Matter of Nan Mitchell, 14 John. 324; Stewart v. Williams, 3 Md. 425. Black v. Meaux, 4 Dana, 188.

5 Graham v. Sam, 7 B. Monr. 403.

Rucker v. Gilbert, 3 Leigh, 8; Taylor v. The American Bible

Soc. 7 Ired. Eq. 201.

7 Dig. Lib. xxx, 1, 75.

2

of manumission,' while others have announced that the increase of a free colored population is against the policy of a slaveholding State, and hence the courts will incline against manumission. The true principle of hermeneutics is, that the Court should incline neither the one way or the other, but should inquire, first, what is the intention of testator? and, second, has he used sufficient words to carry out his intention? If, in either of these particulars, the bequest is insufficient, it must fail, unless in the latter case the facts make out such a case as, under the general rules of law, will authorize the Court to supply words, in which event, such words will be supplied.*

§ 357. We have seen heretofore that manumission cannot be effected to the prejudice of creditors. If the estate, therefore, is insolvent, the bequest fails, nor can the executor, by assenting to the legacy before the solvency of the estate is ascertained, deprive the creditors of their right to look to the slaves as assets. If there be a sufficiency of assets, and the executor still refuses to assent, the slaves cannot commence their petition for freedom,

"Quoties

Nancy v. Snell, 6 Dana, 149; 7 Serg. & R. 378; Cuffy v. Castillon, 5 Mart. 494. Such was the rule of the civil law. dubia libertatis interpretatio est." Dig. Lib. 1, 17, 20.

2 Charlotte v. Chouteau, 11 Miss. 193.

* See Monica v. Mitchell, 1 Md. Ch. Dec. 355; Robinson v. King, 6 Ga. 539; Lanham v. Meacham, 4 Strobh. Eq. 203; Cleland v. Waters, 16 Ga. 491.

4 Cleland v. Waters, 16 Ga. Rep. 496.

5 Cornish v. Wilson, 6 Gill. 299.

66 Gill. 299; Fenwick v. Chapman, 9 Peters, 461. It is good against him. Nancy v. Snell, 6 Dana, 155; 9 Peters, 461.

and rely upon these facts to show their right to their liberty, but must institute another proceeding, usually in Chancery, to compel the executor to assent,' in which case, the Court does not decree the liberty of the slaves, nor that the executor make deeds of manumission, but that he assent to the legacy. If the executor is an improper person to administer the assets, so as to secure the solvency of the estate, some of the courts have placed the assets in the hands of a commissioner for this purpose." If the executor should wrongfully sell a slave thus manumitted, where there is a sufficiency of assets to pay the debts, the sale would not be good, even to an innocent purchaser, against the claim of the negro to freedom. In fact, the will being of record, is notice to the purchaser."

§ 358. Is real estate assets for the payment of debts, so as to secure the bequest of manumission? In those States where real estate is made assets on the same footing with personalty, for the payment of debts, it should be exhausted before the manumitting clause should fail entirely." If, however, slaves are held as personalty, and the law of the State requires that species of property to be exhausted before the realty should be looked to as assets, upon principle, the right of the heir is

249.

Cornish v. Wilson, 6 Gill. 299; Peters v. Van Lear, 4 Gill.

26 Gill. 299; see also Anderson v. Garrett, 9 Gill. 120. 8 Graham v. Sam, 7 B. Monr. 403.

Nancy v. Snell, 6 Dana, 149, 151; Patty v. Colin et al. 1 Hen.

& Munf. 525; Boyce v. Nancy, 4 Dana, 238. 5 Thomas v. Wood, 1 Md. Ch. Dec. 296.