MARY, f. w. c. vs. MORRIS ET ALS., 7 La. 135

Mathews, J., delivered the opinion of the court. jn ^jg case5 the plaintiff claims her freedom under the will °f a certain John Marshall, of the state of Georgia. The answer denies the right of freedom claimed, and alleges that the testator could not, according to the laws of Georgia, manumit his slaves ; all owners of this kind of ProPerty being prohibited by the statutes of that state, under-severe penalties, from executing any act of manumission or other manner giving freedom to their slaves, without

an act lbe legislature authorising such freedom. Judgment was rendered in favor of the plaintiff in the court below, from - - « -, , i-i which the defendant appealed. The onty question which the cause presents, arises out of a conflict between the laws of the state where the testator resided before his death, and where his succession was opened by probate of the will, and the bequest of freedom in favor of certain slaves named in said will, amongst which was the ' ° plaintlÍT.

These laws are prohibitory, and had relation to the peace an¿ g00(j order of the community, for the government of whithihiy' wei'eysnacted. They inhibit absolutely all owners of slaves within the limits of the state, from doing any act &wiug.'lil?eTfy'•{& their slaves, and prohibit them from grant--fog freedom In ally manner whatsoever, except by application to Ih'e'-^é'g'Mettufe for that purpose. The law particularly applicable .to *he present case, was enacted in 1801. The will a'nd its probate bears date in 1809.

The fourth clause ¿bis will purports to give freedom to the plaintiff absolutely, after the expiration of five years from the death of the testator. This bequest was made in contravention of a prohibitory law; i£ was bi derogation of a law made in relation to the peace an(j good order of the community, and was, consequently, absolutely null and void m the state where the law was in force.

The plaintiff remained a slave so long as her owner pept }ler fo that state, and certainly could not ipso facto r ’ , . , r , become free by being removed to this, wherein slavery is also -, , tolerated. in a suit for the?dquestimh<is libe?a, ve\ and the plamtift being from her p?°Lsfonof the defendant, presumed to be a a slave, Are burden of proving freedom, de°n the The judgment of the court below, seems to be based on the ground of negligence in the testamentary executors, in not applying to the legislature of Georgia for leave to emancipate the slaves who were freed by the will of John Marshall.

This was not a duty imposed on them by express terms of the will, and even if it had been, it is by no means clear that their conduct could in any manner-affect the rights which vested in Mrs. Morris, the daughter of the testator, under his will; and by the laws of the state of Georgia, considering the donation of liberty by the testament as absolutely void. The evidence shows, that the defendant claims title as derived from her. The main question in the case is, in 1. ¿ i - i • 7.7 7 „ . f 7 7 relation to the plamtitt, libera vel non.

Being from color and actual possession of the defendant, presumed to be a slave, the burden of proving her freedom devolved on her; in , r , ° * which we are of opinion she has failed. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court rendered in this case^aga.mst both the defendant and his warrantors, be ajffSPpjfreuSfc and annulled; and it is further ordered, adjijgífWl |jp|t that the defendant be maintained and quiemcffífí his possep? sion of the plaintiff as a slave,-and her chili recover the costs of this suit in both courts.