Woodland v. Wallis

Eccleston, J., delivered the opinion of this court. We understand this suit, by agreement of counsel, has been instituted for the purpose of having a decision upon the question, whether, under the will of John Mason, the plaintiffs have any right to a share or portion of negroes George and Jervis. There is no controversy in regard to Elizabeth, as she died in the lifetime of Mary M. Mason. The portion of the will which relates to the subject is as follows: “I give and bequeath to my daughter Mary Matilda Mason, all and singular, the property, real and personal, that I now possess, to her and her heirs, forever, except my negro man Thomas and my negro woman Ann, who it is my will that Thomas should serve four years and Ann seven years after my death; also the children, Elizabeth, George and Jervis, should each of them be free when they arrive at the age of thirty years, if my daughter should die without heir, but if not, then the said children to serve for life.

But if my daughter should die without heir, it is my will that the children of Hugh Wallis and Martha B. Wallis, and the children of Philip B. Travilla and Ann P. Travilla, should have my real and personal estate, with the above exceptions, equally divided between them and their heirs, forever.” Let us first ascertain the proper construction of the bequest of freedom to the three negro children, as that, in our opinion, will have an important bearing upon the subsequent provision in the will. The testator directs that they shall be free at thirty years of age, if his daughter should die without heir, but if not, they shall serve for life. Is this a gift of freedom upon a contingency so indefinite or remote as to render it invalid, even if the contemplated contingency did happen within h life or lives in being, at the date of the bequest? ¹⁶⁵ We think not. As freedom is a personal privilege which can only be enjoyed by the person to whom it is given, a contingency upon which it is to depend must, necessarily occur within a life in being, when the party intended to be manumitted by the will is in esse at the date of the will, as in the present instance.

In Biscoe vs. Biscoe, 6 G. & J., 237 , where this subject is treated of by Ch. J. Buchanan with his usual ability, it appears that when a devise or bequest is made to take effect after a dying without issue, or without heirs, &c., subject to no other restriction, the limitation is void. But the judge says: “We have also seen that in relation to executory bequests of personal estates, these words may be restricted to mean a dying without issue living at the death of the party, by any clause or circumstance in the will, that can indicate or imply such intention in the testator, and that in order to support the limitation over if they can, courts generally incline to lay hold on any expression or circumstance in the will that seems to afford a ground for such a construction.” That was a case in which a bequest of a negro man was made to J. M. Biscoe, and in case he “should die without lawful heir of his body,” then the negro was given to T. H. Biscoe, the plaintiff. As the subject of the bequest would cease with the life of the man bequeathed, for that reason the court construed the dying without lawful heir to mean a definite, and not an indefinite, failure of issue.

On page 242, the judge remarks: “If the limitation had been in terms, if John McKay Biscoe should die without issue in the lifetime of this negro man, could a doubt be entertained that it would have been good, on the ground of its being made to depend on a contingency to happen within the compass of a life in being, the life of the man himself; and is not the inference, that such was the meaning of the testatrix, as irresistible as if it had