Wake County NcArchives Court.....Pride, V. Pulliam 1825
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 25, 2009, 4:31 pm

Source: Nc Reports Vol 11, 1897
Written: 1825

December Term, 1825

PRIDE, executor of Jones, v. PULLIAM 

From Wake.

A testator by will directed his slaves to be liberated whenever the laws of 
the state would tolerate it, and that until that time, the slaves should be 
divided among his wife and children according to the statutes of distribution; 
eight years after the probate of the will, and after the slaves had been 
delivered over to the wife and children in a course of distribution, the 
executor filed a petition to emancipate one of the slaves, and set forth 
meritorious services. Held, that as the testator had not given it in trust to 
the executor to see to the emancipation of the slaves at any indefinite period 
of time, and as they had been delivered over to the wife and children by the 
executor, the trust ceased in the executor, and he had no authority under the 
will to file the petition; and the facts all appearing on the face of the 
petition, it was dismissed.

At February Term, 1815, of Wake County Court, the last will and testament of 
Nathaniel Jones was ad-(50)mitted to probate, and Edward Pride, who was named 
therein as executor, qualified as such. The will contained these words, viz:

First, my will is, that all my negroes, male and female, who has arrived to 
the age of twenty-four years, and their increase as fast as they shall arrive 
to the said age of twenty-four years, be emancipated or liberated, whenever 
the law or laws of said state will admit, or tolerate it.

And I do most solemnly enjoin it as an injunction on my executors hereinafter 
named, and all my representatives, not to sell, give, swap, or convey any of 
the negroes or their increase, in or out of the said state, as I may die 
seised or possessed of; and farther my will is, that until the said state 
shall pass a law or laws, for tolerating emancipation or liberation, that all 
my negroes that I may die seised or possessed of, may be divided among my wife 
and children, agreeably to the laws for the distribution of intestate's 
estates, and notice being had to what has already been given to my children, 
of which I have kept a just account, for which see a small memorandum book.

11—7

The conclusion of the paper was as follows, viz:

I suppose it will be asked my reasons for emancipating my negro slaves when 
the laws of the state will admit or tolerate it; which realms are as follows, 
to wit:

Reason the first. Agreeably to the rights of man, every human being, be his or 
her colour what it may, is entitled to freedom, when he, she or they arrive to 
mature years.

Reason the Second. My conscience, the great criterion, condemns me for keeping 
them in slavery.

Reason the third. The golden rule directs us to do unto every human creature 
as we would wish to be done unto; and sure I am, that there is not one of us 
would agree to be kept in slavery during a long life.

Reason the fourth and last. I wish to die with a clear conscience, that I may 
not die ashamed to appear before my master in a future world. These are the 
reasons for emancipating my slaves; and I wish every human creature seriously 
to deliberate on my reasons. And so farewell to this terrestrial world.

By a petition to the Superior Court of Wake, filed January 11th, 1823, the 
executor, setting forth therein the will, stated, that among the slaves of the 
testator at the time he died, was a black man named Allen, now of the age of 
twenty-eight years, whose conduct from his childhood had always been sober, 
honest, industrious and exem-(51)plary, in every respect as a faithful and 
trusty slave, and that his services had been meritorious and useful, and that 
accordingly he stood high in the favor and confidence of his late master; that 
by the intermarriage of the defendant with Amelia, one of the coheirs and 
legatees of the testator, the defendant became possessed of the said slave 
Allen, and detained him in slavery, claiming to be his owner and master; and 
that, the defendant, had sold or was about to sell said Allen to a dealer in 
slaves.

That the petitioner was ready to furnish satisfactory evidence of the good 
moral character and meritorious services of Allen; and that Allen was prepared 
to give such security as is required in cases of emancipation by our law; and 
the executor, therefore, prayed of the Court, that Allen might be emancipated 
and set free from bondage, pursuant to the will of his late master.

On hearing the petition, his honor Judge Donnell was of opinion, that a 
license could not be granted to emancipate upon the facts disclosed by the 
petition itself, and therefore ordered it to be dismissed; whereupon the 
petitioner appealed.

Seawell, against the petition.—This is a petition on the part of Pride, as 
executor of Nathaniel Jones, to liberate a certain slave who belonged to the 
testator. The will is proven in 1815, February Term of Wake County Court, at 
which time the executor qualifies. These facts appear in the case: in 1823, 
January the 11th, it appears that the executor files his petition, after a 
lapse of eight years. The law respecting executors and administrators requires 
them after two years to deliver over the estate. The executor in his petition 
states, that this slave is claimed by Pulliam "in virtue of his intermarriage 
with Amelia, one of the coheirs and legatees of said testator." The will is 
set out at length in the petition; by which it appears that until the state 
shall pass a law or laws tolerating emanci-(52) pation, the slaves are to be 
divided amongst wife and children agreeably to the laws of distribution. And 
it appears also from the record, that Pulliam has been summoned to answer the 
petition. What is the legal inference from all the facts? The law in the first 
place presumes that the executor did his duty, because he takes an oath; if it 
does so, then it is to be under stood prima facie that at the expiration of 
two years the executor delivered over the slaves to the legatees; but if the 
law will not do it in two years, will it not in eight? or if the law unaided 
by circumstances will not in eight, are there not such circumstances here as 
put it out of dispute? The petition itself charges as a gravamen, though it 
may rely upon the will, and the peculiar merit of the slave as the gist that 
the slave is claimed by Pulliam in virtue of his intermarriage, and charges 
that he is about to sell him to a southern speculator. If the slave had never 
been delivered over, the legatee could not sell. And a citation is issued at 
the instance of the executor against Pulliam to answer the petition. The 
bequest of the slaves is general to the wife and children, to be divded 
amongst them. Pulliam, therefore, in virtue of his intermarriage, could not 
acquire title to Allen without a division. It therefore does seem to me, that 
this Court is obliged to perceive from the petitioner's own case, that he had 
no interest or title in the slave. With regard to the devise to be liberated, 
I will hardy mention Haywood and Craven's executors, and several other cases 
in this Court. Callier Hill's executors is one of them, where the authority of 
the former case has been established. No ground, therefore, can be formed from 
or upon the will. The will, indeed, does not contemplate anything done under 
the existing laws, but only when laws shall be passed, and provides for the 
interim. The ground, then, must be formed upon the act of 1777. That act 
contemplates the owner liberating his own slaves, when the liberator is to 
bear the loss; the office of the Court is not to liberate, but only to allow 
or grant (53) license to the owner. The Court is interposed to prevent 
liberation, except in cases of meritorious service. These services the Court 
is to judge of; but the emancipation is the act of the owner. Can it be 
supposed that it ever was contemplated to vest a naked trustee, an executor 
who gives no security, with power to liberate the whole estate of his 
testator, though he might admit merit in Court, or prove it to the 
satisfaction of the justices or judges? No; there is wanting one ingredient, 
in the estimation of the legislature, that the humane and benevolent man 
should exercise these kind feelings at his own exponse; that he should be the 
loser; and then there would be little danger of any mischief from 
emancipation. Let me suppose a case, for the purpose of proving how, under 
such a construction, the basest purposes could be effected. Suppose the 
testator in this instance had been entirely free from debt, and had on hand a 
large capital in money and bonds; that the executor never interfered with the 
slaves, but had them divided immediately; that after two years expired, the 
legatees pressed him to account with and pay over to them the monies he had 
been using to his own purpose ever since his qualification; that he put them 
off with promises and partial payments for seven years: when being about to 
remove himself to a distant country, without acquitting himself of his solemn 
undertaking, they are compelled, in justice to their own rights, to commence 
an action, and then the executor, urged by the appeals of humanity in the 
testator's will, and his own sympathies for the sufferings of his fellow man, 
though he had turned a deaf ear to them, or had not been conscious of their 
force, for eight years, should under that pretence come forward and liberate 
the whole estate? Such a case would certainly be considered outrageous in the 
extreme, and yet, admit the fact of the suit by the legatees, and of the 
removal of the executor, and the fair inferences of this case, as appears by 
the record, will warrant us in pronouncing it such a one.

Badger, contra. — The prayer of the petition is op(54) posed here, and it was 
denied in the Court below, upon the ground that, though the slave had 
performed the meritorious services contemplated by the act of 1777, ch. 6, the 
law forbade the emancipation prayed for.

Suppose the application to have been made by the testator in his life, is 
there any doubt that the emancipation ought to have been allowed? If so, why 
cannot that emancipation be obtained by the executor? If the purpose be 
unlawful, the testator is as much restrained as the executor; if lawful, it 
requires some reasoning and authority to show that the same thing cannot be 
done by the executor upon the express direction of the testator. As a general 
proposition, "cujus est dare ejus est disponere" is certainly true; and what a 
man may lawfully do himself with his own, he may lawfully direct his executor 
to do. If there be any exception to this rule, which embraces the emancipation 
of a slave directed to be obtained by an executor in a case where confessedly 
the same thing might lawfully have been done by the testator, it is at least 
incumbent on the other side to show it. It has not been shown. I infer, then, 
that if the will had directed that this particular slave should be liberated, 
or that so many as had performed meritorious services should be emancipated, 
no legal objection could be raised.

But the direction of the will is general, that all his slaves be emancipated 
when a law shall allow it. Let us see, then, if the case is varied by the use 
of this phraseology. The emancipation of slaves is forbidden by the policy of 
the law, if it be morally wrong or expressly forbidden by statute. That it is 
not malum in se; that it would be, if not laudable, at least allowable in 
itself, is too clear to admit of doubt. The preamble of the act of 1777 shows 
this to have been the understanding of the legislature, and that previous to 
that law emancipation might be made by the owner. It is an act not to confer a 
privilege, but to restrict one already passed. How, then, is it re(55) 
stricted? for only so far as it is restricted is it unlawful. The provision 
is, that no slave shall be emancipated but for meritorious services; 
undeniably, then, for meritorious services he may be emancipated. If before 
the act the power of emancipation had not existed at all, this expression but 
for services would have amounted, upon every principle of construction, to a 
legislative grant of the power to emancipate in the case referred to by that 
expression; a fortiori, in a restraining law, the power remains in a case 
excepted out of the restraining provisions of that law.

But it is said he directs all to be emancipated, and as all cannot be, 
therefore none shall. That this conclusion is not warranted by any principle 
of reasoning, is evident. That, as all cannot, none shall, is an argument 
almost as absurd as if the proposition were inverted, as none can, therefore 
all shall. Suppose by law all slaves over twenty-one years could be 
emancipated, and those under could not; suppose a will emancipates all; surely 
it could not be successfully contended that as the will could operate nothing 
in favor of those under the age of twenty-one, therefore it should fail as to 
those over that age.

But it is said, farther, that the emancipation is directed to be made when a 
law shall be passed to allow it, and therefore it cannot operate though a law 
already in existence does allow it. And why not? The testator desired the 
emancipation of his slaves, of all and each of them; he supposed it could not 
be done by the laws in force, but as to one of the slaves it seems it can now 
be done; surely it is a strange construction to say that it shall not be done 
as to that one under the existing law, because the testator refers to a law to 
be passed for that purpose. The intent is clear; the law allows the intent to 
be executed in part, and why shall it not be executed? The testator wills it; 
the law allow it, but the defendant is unwilling, and therefore it cannot be 
done.

Suppose (as I have already done) that by law (56) slaves under twenty one 
could not be emancipated; those above that age might; then a will is made 
directing all slaves to be emancipated when a law should pass authorizing it; 
would it not shock common sense to contend that the slaves over twenty-one 
could not be emancipated under the existing law? For suppose a new law passed 
re-enacting the old in hoec verba, the new law would operate nothing. A 
statute declaring what the old law is, introduces no new law; and a statute re-
enacting a subsisting statute cannot be said to have any operation. It is the 
old law which continues in both instances after as well as before.

Suppose in England a will directs trustees to convey all the testator's 
estate, real and personal, to A in tail male, with "remainder in tail to B, 
remainder to the right heirs of the testator whenever a law should be passed 
authorizing such a limitation." By the existing law the limitation is lawful 
as to the real estate, shall not the trustee convey the real estate 
accordingly? or shall it be said the testator did not wish this limitation 
under an old law, but would have it under a new one alone; and consequently 
the direction shall fail altogether, and the heir at law shall take.

But what, in such case, would be said of the personal estate? The law does not 
authorize such limitation. Nothing can be limited upon an event so uncertain 
as the enactment of a law hereafter, which may never pass or may not in 
centuries; and the whole shall vest in A, because by law the limitation to A, 
in tail of personality, gives him the whole.

And this I take to be the amount of the adjudged cases of Craven's executors 
and of Hill's executors, and the other cases decided in this state.

The Courts have held that where the next of kin claims the slaves from the 
executor, he cannot resist that claim by showing a direction to emancipate, 
which by law can not now be carried into effect. And that as the exe-(57) 
cutor takes no beneficial interest, he shall not retain the property to his 
own use, but shall hold for the next of kin; and the contingency of a law 
being passed is too remote and indefinite. In all those cases it was not 
pretended even that such services had been performed as rendered the bequest 
lawful as to any one of the slaves; but it was conceded that the trust was 
unlawful, and could not be executed, and the Court was called upon in the case 
of Craven's executors to permit the property to remain in the possession of 
naked trustees, or to apply it to some charitable purpose; both which they 
refused. And in the case of Craven's will some of the slaves had been 
emancipated for meritorious services, and it was not pretended that the 
proceeding was not valid. But the only question was, whether, as to those 
slaves whose emancipation was clearly prohibited, by law, the executors should 
retain the possession against the next of kin, where the trust for which they 
had the possession could not be carried into execution, because forbidden by 
the subsisting law of the land.

How this case can have any relation to the one before the Court; I profess 
myself unable to perceive. For if the emancipation of a slave for meritorious 
services be forbidden by the policy of the law, it involves this absurdity, 
that a thing is contrary to the policy of the law which is allowed by the 
express provisions of the same law. It may be the opinion of a Judge, as an 
individual, that the emancipation of a slave even for meritorious services is 
bad policy; but judicially his opinion must be, that what is expressly allowed 
by a statute cannot be against the policy of the law.

But it is farther objected, that the law authorizes emancipation for services 
by the owner only, and the executor is not the owner. The act of 1777 does not 
mention owner as to emancipation, but suppose it did, and it is strictly to be 
confined to owner, and executor is not (58) owner within the statute. The 
provision is prohibitory. It does not grant, it restrains. And upon the 
construction contended for it restrains the owner only, and not the executor; 
which leads to a conclusion directly opposite to that drawn from it by the 
counsel on the other side; a conclusion absurd, I admit, but irresistible if 
the reasoning on the other side be allowed. But the act is silent as to the 
persons who are forbidden or allowed to emancipate. And, therefore, if the 
testator may himself do it, he may authorize his executor; and if the testator 
cannot himself, neither can his executor by his direction. The executor has 
the legal estate, and if the trust be not unlawful he is owner to execute that 
trust.

But it is said the act of assembly authorizes the County Court to grant a 
license only, and the emancipation must be the act of the petitioner, and so 
an executor may obtain a license, and then retain the slave to his own use. If 
it were so, the consequence would not follow; for if the executor, after 
getting license, do not emancipate, the Court will compel him to surrender the 
slave to the next of kin, and will never allow him to retain beneficially 
himself. But in this case, if the negro (as is said) be in possession of the 
defendant, he can never be divested of that possession but by a complete 
emancipation.

But the counsel on the other side has mistaken the state of the law. The act 
of 1796 (ch. 453), to amend the act of 1777, authorizes tho Court to complete 
the emancipation. And such has been the constant practice since. The Court 
determines on the services, and when they are allowed, the petitioner's prayer 
is granted, and upon his wish to liberate, a judgment is entered declaring the 
slave liberated and entitled to all the privileges of a free born negro. And 
an examination of tho act will show that its Object was two-fold. 1st, to 
declare, in positive tents, that no pretence should avail for emancipation, 
nothing but meritorious services: and 2d. to extend the power of the Court to 
enable them to complete the act of liberation, and leave nothing in the after 
discretion of the owner.

The supposition of the defendant's counsel, that the (59) petitioner may be 
influenced by bad motives, is certainly entitled to no weight if true, and is 
only now noticed from respect for the supposer, and not any respect for the 
supposition. If the testator wished the emancipation, the law allows it; the 
executor applies for it; if his motive be ill, let him be reprobated; but 
surely we are not to frustrate the declared and lawful wish of the testator in 
order to punish the executor. It is well if ill motives sometimes stimulate 
bad men to the performance of a sacred duty, and it is one of the highest 
attributes of Deity to bring good out of evil. But if character and motive are 
worthy of attention, what shall be said of a man who, taking a large property 
as a mere godsend against the wishes of the owner declared in his will, shall 
be disposed to frustrate those wishes in one particular in which the law 
allows them to be gratified? who sacrifices to a mean avarice every 
consideration of humanity and mercy, who regards neither the welfare of the 
living, nor the declared intention of the dead; who holds the former in 
slavery without right, and robs the latter of property 
11—8 
which he did not intend he should enjoy; whose bosom is inaccessible to the 
emotions of kindness; who remembers without regard the dying wishes of him on 
the fruits of whose industry he fattens, and makes at base advantage to 
himself by trampling on what the barbarous and the refined, the ancients and 
the moderns, have united in esteeming sacred; whoso callousness to moral 
considerations exceeds that of the robber on the highway, and can be likened 
only to that of him who robs a tenant of the grave.

But all this is beside the subject, and cannot have weight with the Court. It 
has been drawn from me by the attempt to exhibit the defendant as a 
meritorious and suffering man; himself all honor, his adversary all crime.

If the prohibition against emancipation be confined to the provisions of the 
statutes, the petitioner is cer-(60) tainly (I think) entitled to the prayer 
he has made. If we wander from those provisions, we have no guide or limit. 
The principles contended for on the other side would seem to make freedom, in 
itself an evil, and slavery a bounty of heaven; and if followed out by action 
with the enthusiasm with which they are supported by argument, must lead us to 
undertake a crusade with the laudable purpose of extirpating liberty among 
mankind, and establishing the happiness of servitude and the calmness of 
despotism in its stead.

Hall, Judge.—The testator, in the first clause of the will, directs his slaves 
to be liberated whenever the laws of the state will admit or tolerate it; he 
then enjoins it upon his executors, and all his representatives, not to sell, 
give, swap or convey any of the negroes or their increase in or out of the 
state; that until the state shall pass a law for tolerating emancipation, his 
negroes shall be divided amongst his wife and children, agreeably to the laws 
for the distribution of intestate's estates. The will was proved at February 
Term, 1815. This petition was filed at May Term, 1823, eight years afterwards, 
and after the slave for whose benefit it professes to be filed has been 
delivered over to the defendant in a course of distribution, as the testator 
in his will has directed.

The testator has not continued the trust in his executors to see the 
liberation of his slaves, at any indefinite period of time; when they were 
delivered over to his representatives by the assent of his executors, the 
trust would seem to cease in the latter, and attach to the former. If that is 
the case, the executors filed this petition without any authority from the 
will. For this reason I can see no objection to the decree of the Court below 
when they dismissed it, and I think that decree should be affirmed. The rest 
of the Court concurred.

Judgment affirmed.

Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826 
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897

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