David Steuart vs. Elijah Williams, 3 Md. 425

Le Grand, C. J., delivered the opinion of this court. This was a petition for freedom. The appellee, who was the petitioner below, claimed his freedom under the will of Mrs. Catharine Belt. By that instrument it is provided, that the children of her slave Esther, who was the mother of the petitioner, should he entitled to their freedom at the age of twenty-eight years; provided they should be sold by the legatee of the testator.

It appears from the evidence that the petitioner was sold to the appellant as a slave for life, and that he was upwards of twenty-eight years of age at the time of the filing of his petition. The case of Williams vs. Ash, 1 Howard, 1, establishes, that it is competent for a testator in Maryland, to manumit a slave on the happening of a contingency.

In that case, the testatrix bequeathed to her nephew certain slaves, with the following proviso in her will, “that he should not carry them out of the State of Maryland, or sell them to any one; in either of which events, I will and desire the said negroes shall be free for life.” It was held by the court that the bequest, under the restrictions imposed by the will, was not a restraint on alienation inconsistent with the right to the property bequeathed to the legatee; that it was a conditional limitation of freedom, and took effect the moment the negro was sold.

If, then, there were no other facts proved in the case before us than the will and ownership of Mrs. Belt, the age and sale of the petitioner, he would be clearly entitled to his freedom. But the appellant does not claim under the will of Mrs. Belt, but in opposition to it. It was proved by Thomas H. Belt, that long before the execution of the will of Mrs. Belt-, the mother was given and delivered to him, and that whilst she was held by him in slavery, the petitioner was born. To rebut this evidence and to impeach the witness, the will of Mrs.

Belt, the inventory of her personal estate and administration accounts were given in evidence. In admitting this evidence and, consequently, in granting the prayer founded on it, the court erred. There is nothing in the case to show, that the witness had any knowledge of the contents of the will at the time of its execution, nor is there any evidence from which it could be properly inferred, he authorised or sanctioned the correctness of the inventory of the personal estate of his mother, or of the accounts of the administrator.

If the evidence of the witness, Belt, was believed by the jury, the petitioner was not entitled to his freedom, and this evidence was not sought to be impeached in the mode pointed out by the law of evidence. His character for truth should have been assailed by evidence directly to that point, or. evidence should have been given of his acts or declarations inconsistent with his testimony at the trial. 1 Starkie’s Ev., 210. Nothing of this kind was attempted.

The petitioner relied entirely on the acts of a third party, without undertaking to show the witness, in any manner or degree, was either aware of or sanctioned them. It frequently happens, that evidence is introduced into a cause which is properly admissible at the time it is offered, but which, as the case progresses, proves to be of no legal efficacy. It was undoubtedly competent for the petitioner to lay the foundation of his claim to freedom, by offering in evidence the will of Mrs.. Belt; but this will could avail him nothing if the witness, Belt, was believed, because he claimed ■in opposition to Mrs.

Belt’s will. Had she executed a bill of sale of Esther, and had it been recorded, it is clear any subsequent declarations of her’s, whether by last will or otherwise, would have been incompetent to impeach his title. Now a gift of a negro, like, the gift of any other personal chattel, when accompanied by delivery, is just as effective as though it were evidenced by a bill of sale, and can only be impeached according to the known principles of the law of evidence; either by showing fraud, or the falsity of the witness who proves it. This has not been attempted. Had the administrator of Mrs.

Belt brought an action of trover against the defendant, and the witness proved the gift and delivery to him, and the sale by him to the defendant, as he has in this case, undoubtedly the title of the defendant could not have been defeated by the acts Or declarations of Mrs. Belt or of her administrator. But in addition to this, the prayer asked on- behalf of the petitioner was erroneous- for another reason: It asks the court “to instruct the jury, that if they should find the petitioner was the son of Esther, mentioned in the will of Mrs.

Belt, and was sold to the defendant, and was of the full age of twenty-eight years at the time of filing his petition, then-their verdict must be for the petitioner, unless they should also find the gift as testified to by the witness' Belt.” All the facts stated in the prayer might have been' found by the jury, and yet it would not, therefore, have followed that the petitioner was entitled to his freedom. The prayer was defective in this: — it took away from the jury the finding of the fact, whether Esther was the slave of Mrs. Belt. Unless she was the slave of Mrs.

Belt, nothing she could say in her will could give the issue freedom, and this was a fact to be found by the jury, and not to be pronounced by the court as a conclusion of law. Ellicott vs. Brown, 2 Md. Rep., 75, and the cases there referred to. Judgment reversed and procedendo awarded.-