Maddox v. Negroes Price

Bartol, J., delivered the opinion of this court. The appellees claim their freedom under the folllowing clause of the will of Mrs. Turner: “Item. — I also give and bequeath to my nephew, James T. N. Maddox, the residue of my negroes in trust, which negroes he shall hire out from year to year, until my just debts are paid as well as certáin legacies discharged and paid, as hereinafter made by me; ,then he, the said J. T. N. Maddox, may, if he wish to do so, take such of my negroes as are willing to go to the State of Kentucky, or elsewhere, where they shall be manumitted; it being my wish and intention, to manumit all my negroes except Josias, when my just debts shall have been paid, and the bequests made in this will are discharged and paid; and if any of my negroes shall refuse to leave the State of Maryland — a condition of freedom required by our equitable laws — then he, the said J. T. N. Maddox, may sell such negro or negroes, allowing those sold the privilege of choosing masters, provided the persons chosen will give a fair price for them.” At the trial before the jury the following agreement was filed: “We agree that the negroes mentioned in the petition for freedom, are of the negroes of the late E. W. Turner, that Josias Price, one of the petitioners, is not the Josias excluded by the will, that the executor of E. W. Turner, DrThos. Maddox, called on said negroes after the debts and legacies were paid off, to go out of the State of Maryland;-they have refused and still do refuse to leave the State of Maryland, and that said debts and legacies are paid.”' The appellees’ counsel contends, that by the true construction of the will, the petitioners became entitled to their freedom, when the debts- and legacies were paid, notwithstanding they refused to leave the State; that going out of the State. ⁴¹⁷ was a condition subsequent to the bequest of freedom, and the failure to perform it, could not defeat the manumission under the will. In support of this view several cases have been cited, which, as we think this case is distinguishable from them, it is necessary for us to notice.

In Spencer vs. Negro Dennis, 8 Gill, 314 , the will set the negroes free at the age of thirty-eight years, “provided they leave the State of Maryland, (and do not return therein to reside,) in the course of thirty days after they arrive to the age of thirty-eight years, and should they return to reside in the State, the will, directed that they should be slaves to the testator’s heirs.” The petitioner having reached the age uf thirty'eight in 1845, went at large and acted as a free man till 1849; when he was taken by Spencer and claimed as a slave, he having remain • ed in the State. The court held that by the will, Dennis became free at the age of thirty-eight, and freedom having once vested could not be divested, and a state of slavery be again produced, by any condition prescribed by the testator. (See 8 Gill, 321 .) In that case the condition prescribed was declared to be a condition subsequent. The cases of Vansant vs. Roberts, 3 Md. Rep., 119 , and Negro William vs. Reynolds, 14 Md. Rep., 114, were decided in conformity with Spencer vs. Dennis.

In each of those cases, freedom was conferred by the will; and the condition annexed was to be performed after the right to freedom became vested; but in the case before us the petitioners are not manumitted by the will,