Pearce v. Van Lear

Tuck, J., delivered the opinion of this court. The mother of these petitioners, with other negroes of Mrs. Van Lear, filed their bill in equity claiming freedom under her will, and prayed that deeds of manumission might be executed by the appellee, as her executor. The Court of Appeals decided that they were entitled to relief, and remanded the cause, in order that deeds of manumission might be executed according to the will. See 4 Gill, 249 .

A decree was subsequently passed by Washington county court, as a court of equity, directing deeds to be executed to all the complainants, from which the present defendant in error appealed; and at December term 1850, that decree was reversed as to negroes Isaac and Sophia, who were three and five years old at the death of Mrs. Van Lear; and affirmed as to the other parties, including Margaret, the mother of the present petitioners, who received her deed of manumission ⁸⁸ on the 1st April 1851. The appellants insist, that their mother was free as of the time of her mistress’ death, and that they, having been born in the years 1841 and 1844, respectively, are entitled to their freedom as issue of a free mother. No opinion was filed on the last appeal, nor does the decree assign any reason for the reversal as to Isaac and Sophia. The counsel for the appellants contends, that the fact that a distinction was made between them and the other complainants in that cause, demonstrates that the court considered that the deeds, when executed, would, by relation, confer freedom from the death of the testatrix; and that Isaac and Sophia were excluded because, by reason of their tender years, they were incapable of receiving freedom at that time; and several cases have been referred to for the purpose of showing that, according to the principles governing the execution of powers and trusts, the will before us must be so interpreted.

We deem it unnecessary to express an opinion upon these authorities, as we think that the Court of Appeals, when the case of Peters, et al., vs. Van Lear was last before them, virtually decided the point on which the right of these petitioners to their freedom must be determined. The will of Mrs. Van Lear was open to the construction contended for by the appellants’ counsel, yet the case was not free from difficulty, according to the authorities cited on the present appeal. We are informed, (2 Sugden on Powers, 26,) that the doctrine of relation, applied to the execution of powers, so as to vest title as of the time of the creation of the power, was overruled by Lord Hardwicke, in the case of Marlborough vs. Godolphin, 2 Vesey, 78. It is true that in that case, it was said that where a person takes property under the execution of a power, it is held under the authority of that power, but not from the time of the creation of the power.

But that was a case in which the rights of third persons had sprung up between the creation .and the execution of the power, and the lord chancellor evidently places his decree on that ground. ⁸⁹ We are not informed that it had been so decided before. It would seem, however, from Mr. Sugden’s observation, that the contrary opinion had been maintained at the bar, if not affirmed by the courts in cases where the very point was presented. It was laid down, as law, in Menvill's case, 13 Coke, 19, “that sometimes, by construction of law, a thing shall relate, ab initio, to some intent, and to some intent not, to advance a right, as between the same parties, but not to advance a wrong, or to defeat collateral lawful acts, especially where strangers to the power are interested.” This is recognised as the general principle in most of the cases, and in 2 Vesey it is not denied. Indeed the same learned chancellor, in 2 Atkyns, 568, Cook vs. Duckenfield, had said, “to A and such uses as he shall appoint, was good before the statute of uses and wills; for when A shall appoint the cestui que use, he is in by the feolTes, from the beginning, and not by the appointer.” Chancellor Kent, in 20 Johns., 537 , Jackson vs. Davenport, which was also a case where intervening acts affecting strangers had occurred, recognised the doctrine laid down in 2 Vesey, as applicable to the case then before him; but he expressly declares, that he does not intend to deny the general doctrine that an estate takes effect at the execution of the power, as if created by the original deed, for Which he refers to Litt., sec. 169.

Coke Litt.,