Samuel S. Sibley, Appellant, vs. Maria, A Woman of Color, Appellee
Florida Supreme Court Reporter
January Term, 1849
Editor's Note: W.O refers to William Oliphant, who devised the will. W. H. refers to William Hollingsworth, executor of the will.
W.O., of South Carolina, devised the greater part of his real and personal estate to W.H. upon the condition that a certain slave and her four children, as his property and under his protection shall be allowed all the privileges of free persons in the State of South Carolina consistently with good order and a proper subordination, and shall be allowed out of the property devised to W. H., two hundred and fifty dollars each, to be paid them at such times and in such quantities as, in his judgment, will be most proper;-- otherwise, they are to be taken 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 W. H. should refuse or neglect to comply with the conditions herein expressed, or should die without an heir, then, in either of these cases all interest, rights and emoluments left by the will to W. H., to go to J. H.
Held, first---That W. H. takes the estate devised to him, subject to certain conditions subsequent, which, unless be performed, a limitation over to J. H. is created, and is termed a conditional limitation.
Second.---The testator by such a will, manifest unequivocally his intention that the slaves shall be free, and this is shown by the declaration that they shall enjoy all the privileges of free person, &c., if they remain in the State---as well as by the wish expressed, that if they do not remain, they be taken to the State of Ohio.
Third---A solemn trusts is clearly created by the terms of the will involving the freedom of slaves, and the greater part of testator's estate is devised, subject to and conditioned upon the trust.
Fourth.---That portion of the will which provides that the slaves shall have the privileges of free persons is void, because it is a condition inconsistent with the gift, and incompatible with the relation of master and slave.
Fifth.---Such privileges would also be inconsistent with the laws and policy of South Carolina, where the will was made. This portion of the will could not, therefore, have been carried out.
Sixth.---The intention of the testator being to give the slaves their freedom could have been carried out by taking them beyond the limits of the State---there being at the time of the probate of the will no law to prevent it in South Carolina.
Seventh.---The taking of the slaves to Ohio, was regarded by the testator as a dernier means of giving them their freedom. No rational intendment other than that of freedom can be made or inferred from the direction to remove them to Ohio, and to pay them money when there.
Eighth.---In the absence of any proof to the contrary, the presumption, is that the devisee, executed and performed the trust reposed in him, the general rule being, 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 intended that be has duly performed it unless the contrary be shown.
Ninth.---The will not having pointed out within what time the condition was to be performed, the laws presumes that it must be done within a reasonable time.
Tenth.---If not performed within a reasonable time, then the ulterior legatee might claim the estate for conditions broken---subject, however, in his hands, to the same condition.
The establishment of the right of the mother to freedom by the courts of Florida, does not infringe upon the policy of this State, owing to our statute in relation to the manumission of slaves, the presumption being that she was free when she came here.
This was an action of trespass, instituted by the appellee in the Circuit Court of Leon county, at the spring term, 1847, for the purpose of establishing, her right to freedom under the will of William Oliphant, made in South Carolina in 1837, and admitted to probate in that State in 1828.
Opinion by Justice Hawkins:
...The sustaining of this suite would not have the effect, as contended for by counsel for appellant, of infringing upon the policy of our own State, owing to our statue in relation to the manumission of slaves. If Maria had ben 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.