John Anderson vs. Negro Julia Ann Baily, 8 G. & J. 32

Aucheu, Judge, delivered the opinion of the court. The case of Hamilton and Cragg, 6 Har. and Johns. 16, is decisive of this cause. This court there determined, that the provisions of the act of 1796, ch. 67, sec. 13, applied to the will then .under consideration, and that the petitioner in that case was not entitled to freedom.

Rachel Turner, made her will in 1801, containing the following clause, “ I give and bequeath to my loving sister, Sarah Turner, five negroes by name, Frank, Joe, Tille, Mill, and Linn, to possess and enjoy during her natural life, Jhem and their increase, and my will is, that after my sister’s death, the above named negroes be free.” The petitioner was the son of'Mill, and was born after the death of Rachel Turner, and at the death of the legatee for life, he was about two years of age.

The court in delivering their opinion say, that the issue of the negroes named, one of whom was the petitioner, though unborn at the time of the will, were equally objects of the testatrix’s benevolence, with .the negroes themselves, and were entitled to their freedom, if they were in a predicament to receive it. They then proceed to adjudge, that he was not entitled to freedom under the act of 1796, because he was not when his freedom was to commence, able to work, and gain a sufficient maintenance.

It thus appears, that although the testator intended to give freedom to the issue, yet that such freedom was entirely de-pendant upon the “ issue’s” ability to gain a sufficient maintenance. So in this case the intention is express, to liberate the issue at its birth, but the intention cannot be legally perfected, for at the moment of time, when the freedom is to operate, the petitioner was incompetent to take it; that is, she . was unable to gain a sufficient maintenance.

It certainly can make no difference, that by the deed, the issue is to be free at its birth, at two years old, on a contingency; if when the contingency happens the issue is not able to work and gain a maintenance; because in each case, there is a legal incapacity for freedom.

That in the two latter cases the issue was born a slave, according to the intention of the manumittor, and that in the former at its birth, so far as intention would affectuale any thing, he was free, could not furnish the basis for a different adjudication in the two cases; because the law of 1796, applies at the moment of birth, so that the intention cannot be carried into effect against the statutory disability.

If the statement had concluded with submitting the facts of this case to the judgment of the court, we should have adjudged the petitioner to be a slave; but it submits nothing to the court, and we shall award a procedendo. JUDGMENT REVERSED AND PROCEDENDO AWARDED.