Chase v. Plummer

Tuck, J., delivered the opinion of this court. We agree with the judge below, that Mrs. Wells took an absolute estate in the negroes bequeathed by the will of her brother, Jacob W. Brashears, unless the language in reference to their manumission can be construed as limiting that interest. The cases cited in his opinion establish this beyond any doubt. Whether the will created a trust by implication in favor of the negroes, which may be executed by compelling the appellee, or any person who might happen to have them in possession, to make deeds of manumission to them, is the main question in the cause, and although there are others which, in the view of the appellee’s counsel, entitle him to an affirmance of the decree, we think the construction of the will should not be overlooked, as well on the appellee’s account, who might be subjected to the imputation of holding in servitude persons entitled to freedom; as because the negroes themselves should understand that their claim has been solemnly considered and disallowed by the highest tribunal in the State.

It has-been frequently decided in England and in this country, that words of recommendation, desire, hope, and such like, will raise a trust to be executed by the person to whom they may be addressed. The cases on this branch of jurisprudence were brought before the Court of Appeals in Tolson vs. Tolson, 10 G. & J., 159 , where the doctrine was first recognized in Maiyland. But such expressions are not always imperative: they are deemed to be flexible in character, and must yield, if the imputed interpretation be against the rules of law, or so inconsistent with other provisions in the will that both cannot stand together, or if it appear from the whole will and the nature of the property, that the testator meant to depend on the justice and gratitude of the donee, ¹⁷⁷ '«r reposed in him a power to execute the supposed trust or not, at his discretion. In some cases where the strongest terms were employed, relief has been denied.

So that, while we find the doctrine well established, when courts come to apply ft, the question, whether it is to be recognized in the particular case, is always one of construction, depending upon the whole will. In the will before us, the language is as plain as in any of the cases to be found in the books — on this point there is no difficulty — yet, looking to the entire instrument, the property, the nature of the supposed trust, and the requirements of our laws in reference to manumission, We have come to the conclusion that such relief cannot be granted. The modes provided b3r law for liberating slaves, we must presume, were known to the testator, and no reason is suggested by the will why he left to his sister the execution of a purpose, supposing he intended the negroes to he free, which he did not accomplish himself. For causes satisfactory to him, and perhaps known to her, he did not provide for their freedom by direct bequest, but confided to his legatee a large discretion, both as to the time and manner of making the manumission.

It is manifest that he did not intend their freedom to take effect, at all events, on the death of his sister. She might have left issue, and in that contingency