Samuel S. Sibley, Appellant, vs. Maria, a woman of color, Appellee, 2 Fla. 553

Opinion by Justice Hawkins ; This was an action of trespass brought by the appellee, Maria, a woman of color, against Sibley, who claims her as a slave. To sustain the action, the will of William Oliphant of Edgefield District, South Carolina, was introduced, the plaintiff claiming her freedom by virtue of a clause contained in it in the following words, to wit: “ Item 16th and lastly, I give and bequeath to my nephew, William C.

Hollingsworth, all the remaining part of my estate, both real and personal, including my interest in a house and lot in the city of Augusta, in the State of Georgia, after my lawful debts are paid out of it.

I give and bequeath to him a life time estate in my tract of land known by the name of my Turkey Creek place, and at his death that it shall descend to his legal heirs in fee simple; all the rest of my real estate I give and bequeath to him and'’his heirs forever, together with all my personal estate not otherwise disposed of, and under the following conditions, to wit: that my negro woman Maria, and her four children as his property and under his protection shall be allowed all the privileges of free persons, consistently with good order and a proper subordination, and shall he allowed out of the property demised to the said William H.

Hollingsworth, two hundred and fifty dollars each, to be paid to them at such times and in such quantities as in his judgment will be most proper, otherwise to take them to the State of Ohio, and the balance of the money over and above what will be expended in their passage to be paid to them there ; and in case the said William H. Hollingsworth should refuse or neglect to comply with the conditions herein expressed or should die without a legal heir, in either of these cases it is my will and desire that all the interests, rights and emoluments which the said William H.

Hollingsworth has, by virtue of this will, shall go to John H. Hollingsworth, and shall be his to all intents and purposes as though they had been originally demised to him, &c.” Giving the will what we deem a proper construction, it appears clearly to have been the intention of Oliphant, the testator, that Wm. H. Hollingsworth should take the Turkey Creek place free from all conditions, but that he was to take all the rest of his real and personal estate, not otherwise disposed of, subject to the conditions above set forth. In other words, William H.

Hollingsworth, the devisee, was to take the estate devised to him subject to certain conditions= subsequent, which unless he performed there was a limitation over tc > John H. Hollingsworth, creating what is termed a conditional limitation. By the terms of the will Maria acquired certain rights and, upon their acquisition, the law would have lent its aid to enforce them, if not against law, policy or morality. She was a beneficiary under the will, and was entitled to the benefits of its provisions, unless they contravened some statute of the State in which the will was made, or were void for some other cause.

The testator manifested unequivocally his intention as to the partial or total freedom of Maria, firstly, by the wish that she shall enjoy all the privileges of-free persons, consistently with good order and proper subordination, and a devise to her of two hundred and fifty dollars ; and, secondly, to be taken to Ohio and, after her expenses of transportation thither were paid out of this money, the remainder of the same to be paid to her there. — ■ Here, certainly, is created a solemn trust — a trust involving the freedom of a slave who, it is fair to suppose, had most favorably commended herself to the greatest kindness of her owner, and he, for the purpose of more effectually carrying out his benign and munificent intentions, devises the greater part of his estate, (which the witnesses tell us was a large one,) subject to and conditioned upon this trust.— There is no evidence to show that William H.

Hollingsworth actually took the estate so devised to him. Although a devisee is not bound, nolens volens, to accept of a devise, yet the law will presume an acceptance, if the devise or gift is of a beneficiary character ; its presumption being based upon that strong, impulsive principle of self-interest which so generally directs and governs the actions of men.— If, therefore, Hollingsworth took the estate, he took it upon the condition of the will and subject to the trust.

That portion of it in which it is provided that Maria shall have the privileges of free persons, we believe, in the language of the counsel for the appellant, is void, “because it is a condition inconsistent with the gift. Such a privilege is incompatible with the relation of master and slave, and with the rights, duties and reciprocal obligations resulting therefrom.” There are decisions going the other way, but in deciding this case we are governed by what we deem the laws and policy of Carolina.

In that State, the slave was not permitted to go as free and exercise all the rights and privileges of free persons of color, and if he did so he became liable to be seized as a derelict and sold. This being the case, the intention of the testator as to this clause could not be carried out, and the law of Carolina not permitting direct manumission, of course it could not be effected indirectly — the evasion of a statute being an infraction of it. There is some diversity in the decisions how far a devise of property to a slave will entitle such slave to his freedom by necessary implication. The case of Hale v.

Mullin, 5 Harr. & J., 590, and confirmed by the Supreme Court of the United States, 2 Peters, 670, goes to this extent, while the cases found in 2 Call, 319, 4 Dess., 266 and 1 Stewart, 320, assume the negative of this proposition. A decision of this question is not necessary, however, in this case, further than this — that if the manumission of Maria could have been legally effected by the laws of Carolina, the legacy to her of the money would at least have been good, so far as furnishing the means to carry the intent of the testator into execution.

We have spoken of it rather as a fact indicating this intention, and as a fund to enable the party taking under it to effectuate it. At the time of the probate of the will there seems to have been no law of South Carolina to prevent the carrying off slaves beyond the limits of the State and then to be liberated. The case of Fraser v. Fraser, 2 Hill Ch., 303, 35, sustains us in this view. The policy of the law against manumission'was to prevent an increase of free blacks in the State, and to guard against its deleterious effects.

It is contended that there is no direct gift of freedom after the arrival of Maria in Ohio. There was certainly a trust, no precise form or set of words being necessary to create one ; and taking the whole clause of the will together in relation to Maria, we think there can be but one construction of it, and that is, that the taking her to Ohio was regarded by the testator as a dernier means of giving her freedom.

It is very true that no evidence as to the laws of Ohio was adduced in the Court below; but what rational intendment, other than that of freedom can be made or adduced as to this required removal and the payment of money upon her arrival in that S.tate ?— Beside, the ordinance of 1787 embraced the territory now comprising the State of Ohio, and the decisions of the legal tribunals of that State show that its provisions were embraced in its Constitution.

Having shown that there was a clear intention of giving freedom to Maria and a trust resulting from the nature and very terms of the devise, the next question is whether that trust has been executed. The will was admitted to probate January 7th, 1828, upwards of eighteen years having elapsed between that time and the period of the commencement of this suit. The defendant in the Court below introduced no evidence to rebut any of the presumptions raised by or under the will, and we know nothing of the time of Maria’s arrival in our State, or the circumstances in which she came.

All that we know is, she was held in bondage as a slave at the time of action brought. In the absence of all evidence, therefore, to the contrary, we have a legal right to presume that the trust was executed, and perfectly coincide with the Judge who tried the case in the Court below, as to the principles laid down by him. We think, however, that inasmuch as William H. Hollingsworth was to take the estate by condition subsequent — in other words, the estate was obliged to vest in him ere he could perform the conditions — he, instead of the executor, was the person called upon to execute the trust.

But inasmuch as the verdict was in accordance with the justice of the case, and the defendant had the full benefit of all the exceptions raised by him to the plaintiff’s action in the shape of instructions asked of the Court, we are not disposed to disturb the finding of the jury, who evidently acted upon the principles as declared by the Court. The presumption we have spoken of is one of law, arising from the facts of the case. It is an inference drawn as to one fact from the existence of another fact, owing to a connection between them. 2 Starkie on Ev., 680.

In this case the presumption of law that the trust was executed is, however, but a prima facie inference or intendment, liable to be rebutted by proof to the contrary. In this case, as we have before remarked, no evidence was adduced by the defendant, showing any title whatever to Maria ; and we think, owing to the presumptions arising in the case, he was called upon to defend his claim by some affirmative evidence, instead of relying entirely upon what he deemed the weakness of the cause of his adversary.

In support of the views we have taken on this- subject we will cite a few authorities. “ The general rule is, that when a person is required to do a certain act, the omission of which would make him guilty of a-culpable neglect of duty, it. ought to be inferred that he has duly performed it, unless the contrary be shown.” 3 East., 192. 10 East., 216. Phil. Ev., 151. Woodward, Justice. Hartwell v. Root, 19 John. R., 347. So in the case of the Bank of the United States v.

Dandridge, 12 Wheat., 64, Judge Story remarks : “ By the general rules of evidence presumptions are continually made in cases of private persons, of acts even of the most solemn nature, when those acts are the result or necessary accompaniment of other circumstances. In aid of this salutary principle, the law itself, for the purpose of strengthening the infirmity of evidence and upholding transactions intimately connected with the public peace and the security of private property, indulges its own presumptions.

It presumes that every man, in his private and official character, does his ■duty, until the contrary is proved; it will presume that all things are rightly done, unless the circumstances of the case overturn this presumption, according to the maxim, omnia presumuntur rite, el solem-nitur esse acta, donee probetur in contrarium.” “ Fictions of law,” says Mr.

Justice Blackstone, “ although they may startle at first, will be found on consideration to be highly beneficial and useful.” They are invited, say the civilians, “ ad concili-andum equitatem, cum ratione et stabilitate juris,” and it is a well known maxim of the common law, that in “Jictione juris, semper subsistit equilas.” Best on Pre., 24. It is a general rule that, whenever trustees ought to convey to the beneficial owner, it should be left to the jury to presume that they have so conveyed, whenever such presumption can reasonably be made. 3 Sugden, V. & P., 25, 42, 43, tenth ed. Hill on Trustees, 255.

See also Greenleaf, 18, 53. 2 Starlde on Evidence, 680, 681, 2—75. While the law will presume in certain cases that all things are rite acta, it never presumes illegality. 12 Eng. Com. Law R., 371. As to the time within which the condition annexed to the estate devised was to be performed, there being no specific time pointed out for so doing, in such a case the law says that the condition must be performed within a reasonable time. Ross v. Tremain, 2 Metcalf, 495. 1 Jarman on Wills, 804.

If, therefore, the condition in relation to Maria had not been performed within this reasonable period, the ulterior legatee might have claimed the estate for condition broken, subject, however, to the same condition; for the will uses this language: that if William H. Hollingsworth should refuse to comply with its conditions, then it was the will and desire of the testator “ that all the interests, rights and emoluments which the said William H. Hollingsworth was to have by virtue of the will, should go to John H.

Hollingsworth, and should be his to all intents and purposes, as though they had been originally devised to him” In other words,- merely substituting John H. in lieu of William H. Hoi-lingsworth as the devisee of the estate bequeathed, with the conditions annexed to it. The sustaining of this suit would not have the effect, as contended for by counsel for appellant, of infringing upon the policy of our own State, owing to our statute in relation to the manumission of slaves.

If Maria had been proven to have been a slave ever since the death of Oliphant, the testator, and this suit had been primarily brought for the purpose of establishing'her freedom, then the question involving the policy and statutes of our State would have arisen ; but it cannot arise here, because the presumption is that she was free when she came here ; and if she came after the passage of the law of 1829, she only rendered herself amenable to that act and that of 1832, prohibiting the coming of free persons of color to our State. The judgment of the Court below is affirmed. Per curiam.