Jane M. Marriott vs. Sam Badger, a Negro, 5 Md. 306

Eccleston, J., delivered the opinion of this court. The first, third and fourth bills of exceptions having been abandoned, we need not examine them, and our attention will be confined to the second. The prayer granted, and which is now the matter in controversy, is, “that if the jury find from the evidence that Hess, the mother of the petitioner, was the slave of John Hammond, and was bequeathed as such by the will of said John Hammond to his son Wm. Hammond, and after the death of said Wm. Hammond was received by William H.

Marriott, (his mother Sarah Marriott being dead,) as a part of her share of the estate of said John Hammond, so bequeathed to the said Wm. Hammond as aforesaid. And shall also find, that Hess was the person named in the will of Wm. Hammond as manumitted thereby, she being at the death of said Wm. Hammond under the age of forty-five, and able to work and gain a sufficient livelihood and maintenance, and that the petitioner was born after the said Hess would have been free under the will of said Wm. Hammond, and shall further find that the petitioner is held by the defendant under the will of said William H.

Marriott, and that the said William H. Marriott before the birth of the petitioner, received legacies of Wm. Hammond’s own property under the said will, then the defendant is estopped from disputing the validity of the manumission of said Hess, under the will of said Wm. Hammond.” In the argument, on both sides, it was conceded that Hess was the slave of John Hammond, who bequeathed her to his son Wm.

Hammond for life, and that after his decease, she together with other negroes passed under the will of John Hammond to his daughter Mary Marriott, and the children of his deceased daughters, Henrietta Brown and Sarah Marriott; between whom the negroes were divided, and Hess fell to the share of William H. Marriott, a son of Sarah Marriott. That after the division, and whilst Hess was held by William H. Marriott, the petitioner was born. That under the will of Wm. Hammond, a considerable sum of money, without specifying the amount, was received by William H. Marriott.

That at the time when, according to the will of Wm. Hammond, Hess would have been entitled to freedom, she was under forty-five years of age and able to maintain herself. And that the petitioner is held by the defendant under the will of William H. Marriott. Thus far the parties agree, in regard to the facts; but they differ as to whether William H. Marriott took, and held Hess, as administrator or executor of his mother, or as a distributee. The appellant insisting it was in the former character, and the appellee that it was in the latter.

Assuming the appellee to be right, still, in the view we take of the matter in controversy, he cannot succeed. In support of the prayer it is said, that William H.

Marriott having taken a legacy given to him by the will of his uncle, which will manumitted Hess, he could not hold the legacy aid at the same time claim the negro as a slave, although he might have a paramount title to her, either through bis mother, or in any other way, because the law will not permit him to take under the will and against il also, for if the will gives him a legacy, and likewise gives his property to another, the doctrine of election will compel him to choose which he will have, but he cannot take both.

If a testator bequeaths a legacy to A, and gives his property to B, should A actually elect to take the legacy, and surrenders his property in conformity with the will, no doubt B may hold it in opposition to any subsequent attempt on the p-ait of A to regain it. But in case A retains his own property, and takes Ihe legacy also, it cannot be said he has made an election. For having the privilege of taking either, the right of choosing is not exercised, whilst both are held and both are claimed.

He may, however, be compelled to make an election; but the party insisting upon it can only obtain relief in a court of equity, a court of law having no power to compel an election where none has been made. And when a decree in equity is passed, requiring an election to be made, if A determines to claim his own property, B will then receive compensation for his loss out of the legacy given to A. The proof in this case shows that neither Hess or her son (the petitioner,) was ever permitted to go free, but on the contrary were held as slaves by William H.

Marriott, to the time of his decease, and since then the petitioner has been so held by Mrs. Marriott. The negroes could not have been free under the doctrine of election, unless an election in point of fact was made. Receiving the legacy under his uncle’s will, and also holding the negroes as slaves, cannot prove that William II. Marriott ever did make an election, so as to confer freedom upon the negroes, for nothing short of an actual election could do that.

If this were (as it certainly is not) a proceeding in equity, to compel an election, it could avail nothing in behalf of the freedom claimed, unless the master should determine to take the legacy and let the negro go free.

If in such a case the choice should be to hold the negro as a slave, and the chancellor could then decree compensation to the negro out of the legacy, as might be done in favor of a freeman, had the negro been bequeathed to him instead of the testator having undertaken to give freedom to the slave, such compensation could confer no benefit whatever upon the negro, for the reason that the master would be entitled to the compensation, as the owner of the slave, and also of whatever belongs to or can be acquired by him or her.

It would be useless to enquire, whether choosing to hold the negro would forfeit the legacy, for the benefit of the distributees or next of kin of the testator, because let that question be settled either way it could not give freedom. That could only be given by an election to take the legacy instead of the negro. It seems however from the notes to Streatfield vs. Streatfield, in White's Equity Cases, 65 Law Lib., top-pag. 273, that where there is no condition annexed to a devise or bequest, compensation and not forfeiture is the principle on which equity enforces an election.

The prayer does not submit to the jury the enquiry, whether there was proof to satisfy them that William H. Marriott had elected to take the legacy in the place of Hess, or had made any,election on the subject. But bases the claim to freedom, simply upon the ground that William H. Marriott received a legacy under the will of his uncle; notwithstanding it appears that he continued all the while, to hold the woman as a slave. The prayer distinctly assumes, that by the receipt of the legacy, by William H.

Marriott, before the birth of the petitioner, “the defendant is estopped from disputing the validity of the manumission of said Hess, under the 'will of said Wm. Hammond.” Believing that receiving the legacy, and continuing to hold the negro in slavery without any testimony tending to show that an election was made, did not confer freedom, we think the court erred in granting the instruction. The principles applicable to cases of election, are fully and ably discussed in Dillon vs. Parker, 1 Swanst., 359, and Gretton vs. Haward, Ibid., 409. See also 2 Story's Equity, secs. 1075, 1077, 1080, and note 2 to 1080.

These authorities, we think, sustain the views expressed in this opinion. On page 380 of 1 Swanst. it is said: “Takingboth estates, enjoying that which was his own, and also that given to him by his son, how can it be said that he relinquishes one and elects to take the other?

Has he not rather elected to take both?” And on the same page, the Master of the Rolls considers that the court cannot declare a party has elected to take one piece of property and renounce the other, when the evidence of his intention to retain his own, is at least as strong as the evidence of intention to accept that which is given to him.

Hesays: “The utmost that can bé contended is, that he has no right to enjoy both; that he was bound, and that the daughters might have compelled him, to make an election.” The authorities cited from Pennsylvania, by the appellant, can have but little influence here, on such a question as this. There' théy have no separate chancery jurisdiction, but law and equity are blended, and the same court administers both, so blended. One of the cases cited, Cauffman vs. Cauffman, 17 Seargt. & Rawle, 28, shows the propriety of this remark.

Judge Duncan refers to a case mentioned in the noté in 1 Swanst., 397, where it appears that at a very early period, the chancery court of England enforced the doctriné of election against a widow claiming dower.

And in that connection he says: “Wherever chancery would restrain execution, our courts of common law would hold there should be no recovery, as this is the only way in which equity could be administered; for the conditional verdict and judgment, though frequently resorted to, to enforce equity, yet never have been applied to cases of election.” The prayer having been improperly granted, in our opinion, the judgment must be reversed. Judgment reversed and procedendo awarded.