Patrick McCutchen, of Tennessee, died in 1810, having previously
made his last will and testament, by which will, among other
things, he bequeathed to his, Wife Hannah, during her natural life,
all his slaves, and provided that they, naming them, should at the
death of his wife be liberated from slavery and be forever and
entirely set free, except those that were not of age or should not
have arrived at the age of twenty-one years at the death of his
wife, and those were to be subject to the control of his brother
and brother-in-law until they were of age, at which period they
were to be set free. As to Rose, one of the slaves, the testator
declared that she and her children, after the death of his wife,
should be liberated from slavery and forever and entirely set
free. Two of the slaves, Eliza and Cynthia, had children born
after the death of the testator and before the death of his wife.
Nothing was said in his will
as to the children of Eliza and Cynthia. After the decease of
the wife, the heirs of the testator claimed all the slaves and
their increase as liable to be distributed to and among the next of
kin of the testator, alleging that by the laws of Tennessee, slaves
cannot be set free by last will and testament or by
any direction therein. That if the law does authorize
emancipation, that they are still slaves until the period for
emancipation, and that the increase, born after the death of the
testator and before their mothers were actually set free were
slaves, and as such were liable to be distributed.
By the court: "The laws of Tennessee fully authorize the
emancipation of slaves in the manner provided by the last will and
testament of Patrick McCutchen."
As a general proposition, it would seem a little extraordinary
to contend, that the owner of property is not at liberty to
renounce his right to it either absolutely or in any modified
manner he may think proper. As between the owner and his slave, it
would require the most explicit prohibition by law to restrain this
right. Considerations of policy with respect to this species of
property may justify legislative regulation as to the guards and
checks under which such manumission shall take place, especially so
as to provide against the public's becoming chargeable for the
maintenance of slaves so manumitted.
It is admitted to be a settled rule in the State of Tennessee
that the issue of a female slave follows the condition of the
mother. If, therefore, Eliza and Cynthia were slaves when their
children were born, it will follow as matter of course that their
children are slaves also. If this was an open question, it might be
urged with some force that the condition of Eliza and Cynthia
during the life of the widow was not that of absolute slavery, but
was by the will converted into a modified servitude to end upon the
death of the widow or on their arrival at the age of twenty-one
years should she die before that time. If the mothers were not
absolute slaves, but held in the condition just mentioned, it would
seem to follow that their children would stand in the same
condition and be entitled to their
Page 33 U. S. 221
freedom on their arrival at twenty-one years of age. But the
course of decisions in the State of Tennessee and some other states
where slavery is tolerated goes very strongly if not conclusively
to establish the principle that females thus situated are
considered slaves; that it is only a conditional manumission, and
until the contingency happens upon which the freedom is to take
effect, they remain to all intents and purposes absolute slaves.
The Court does not mean to disturb this principle. The children of
Eliza and Cynthia must therefore be considered slaves.
In the circuit Court of West Tennessee, the appellants, James
McCutchen and others, citizens of Missouri, Kentucky, Ohio, and
Mississippi, complainants, filed a bill against James Marshall and
others, citizens of the State of Tennessee, defendants.
The bill states that sometime in the year 1812, one Patrick
McCutchen, at that time and for many years before a citizen of
Williamson County in the State of Tennessee, departed this life.
Previous to his death, the said Patrick McCutchen made and
published his last will and testament, which was, after his death,
proved before the Court of Pleas and Quarter Sessions of said
County of Williamson and established and admitted to record in said
county as his last will and testament. A copy of said last will and
testament was annexed to the bill. The whole of the persons
nominated in the will as executor and executrix qualified as such
and took upon themselves the burden of executing the same. Of the
said executors, Samuel McCutchen and Hannah McCutchen are dead,
leaving James Marshall the sole surviving executor of the will.
Patrick McCutchen, the testator, departed this life without issue,
and Hannah McCutchen, the widow of the said Patrick, although she
intermarried after the death of the said Patrick with one James
Price, also died without issue. By the provisions of the will, said
Hannah McCutchen, the widow of the said Patrick, only held under it
a life estate in such portion of the property of the said Patrick
as was therein devised and bequeathed to her, which estate has
consequently terminated by her death. The bill charges that they,
together with the defendants to this bill, except the defendant
James Marshall, are the legal heirs and distributees of the said
Patrick McCutchen, deceased.
The said Patrick also left as his distributees and heirs at law
the defendant James McCutchen, a brother of said Patrick, and
Page 33 U. S. 222
Alexander and William Buchanan, children of a deceased sister of
said Patrick, but who resides without the jurisdiction of the
court, and are therefore not made parties to the bill.
The will of the said Patrick McCutchen, after giving certain
legacies to his relatives, devises
"to his wife Hannah, during her natural life, the tract of land
on which the testator lived, together with all the residue of his
personal property, of every kind, including the slaves which shall
remain after the payment of his debts, and the legacies afterwards,
to be used as she may think proper, the slaves, nevertheless, to be
subject to the arrangement to be made in a subsequent article of
the testament."
The sixth article of the will is in these terms.
"It is my will and desire that my negro man slave named Jack,
aged about twenty-four years; also my negro may slave named Ben,
aged about nineteen years; also my negro woman slave named Rose,
aged about twenty-six years, together with what children she may
hereafter have, if any, before the death of my wife Hannah; also my
negro girl slave named Eliza, aged about eleven years; also my
negro girl slave named Cynthia, aged about seven years; also my
negro boy slave named Thomas, aged about four years; also my negro
girl slave named Harriet, aged about two years; also my negro girl
slave named Maria, aged about two months; the four last mentioned
slaves being the children of the above mentioned Rose, shall all
and each, at the time of the death of my beloved wife Hannah, to
whom they are given during her natural life, as mentioned in the
third article, be liberated from slavery and forever and entirely
set free, provided those who are not now of age or shall not have
arrived at the age of twenty-one years at the happening of the
death of my beloved wife Hannah shall be subject to the following
disposition,
viz., Eliza shall be at the control and under
the direction of my brother Samuel McCutchen until her arrival at
the age of twenty-one years, and then be set free; Cynthia, Ben,
Thomas, Harriet, and Maria shall be at the control and under the
direction of James Marshall, my wife's brother, until they shall
each, respectively, arrive at the age of twenty-one years, at which
time or times they are to be each respectively liberated and
forever set free. "
Page 33 U. S. 223
The bill charges that the slaves mentioned in the will and owned
by the testator, with their increase, are liable to be distributed
to the complainants and the defendants, Marshall excepted, as his
legal representatives, but that James Marshall refuses to
distribute them or any of them, and denies that they are any part
of the estate by him to be distributed, alleging that by the terms
of the will they are to be set free at the times specified in the
will. That the said James Marshall did present a petition to the
County Court of Williamson County, praying the court to set free a
certain number of the said slaves, to-wit, Jack, Ben, Thomas,
Eliza, and Cynthia, and the court, supposing it had power to do so,
granted the prayer of the petition and declared them free, which
proceedings the bill charges were
coram non judice and
void, as the court had no power to set the said negroes free unless
the testator had, in his lifetime, presented a petition for the
purpose.
The bill further charges they are advised that by the laws of
the State of Tennessee slaves cannot be set free by last will and
testament or by any directions therein, and that consequently all
the said slaves, with their increase, are liable to be distributed
among the legal representatives of the testator. That if the law
authorized a testator to direct his slaves to be set free by a
given period or at their arriving at a particular age, yet they are
still slaves until that period arrives, and that all their
increase, born after the death of the testator but before they were
actually set free, are slaves, and as such are liable to
distribution.
The bill prays for an account of the hire of the slaves and for
their distribution, and for an injunction, &c.
The defendant, James Marshall, executor of the last will and
testament of Patrick McCutchen, demurred to the bill, and the
circuit court sustained the demurrer, and ordered the bill to be
dismissed.
The complainants appealed to this Court.
Page 33 U. S. 236
MR. JUSTICE THOMPSON delivered the opinion of the Court.
This case comes up by appeal from the decree of the Circuit
Court of the United States for the District of West Tennessee by
which the bill of the complainants was dismissed. The bill states
that Patrick McCutchen, a citizen of the State of Tennessee,
departed this life sometime in the year 1812, having shortly
before, in the same year, made his last will and testament, which,
after his death, had been duly proved and
Page 33 U. S. 237
recorded. By which will the testator among other things,
bequeathed to his wife Hannah, during her natural life, all his
slaves, and provided that they, specifying them by name, should, at
the death of his wife, be liberated from slavery and forever and
entirely set free, except those that were not of age or should not
have arrived at the age of twenty-one years at the death of his
wife.
And those were to be subject to the control and under the
direction of his brother and brother-in-law until they were of age,
at which period they were to be liberated. Samuel McCutchen, James
Marshall, and his wife Hannah, were made executors, and all
qualified. Patrick McCutchen died without issue. His widow had the
possession of the slaves during her life. And James Marshall is the
only surviving executor. The bill further states that the
complainants and the defendants, except James Marshall and two
others, who are not made parties because they reside out of the
jurisdiction of the court, are the distributees and next of kin to
the testator, and that the slaves and their increase are liable to
be distributed to and among the complainants and the other next of
kin, and that the executor, James Marshall, refuses to distribute
them because the will directs their emancipation. And that he has
actually presented a petition to the County Court of Williamson and
procured the emancipation of some of them. And the bill charges
that the county court had no power to emancipate upon the
application of an executor; that by the laws of Tennessee slaves
cannot be set free by last will and testament or by any directions
therein; that if the law does authorize emancipation, that they are
still slaves until the period for emancipation; and that the
increase born after the death of the testator and before their
mothers were actually set free are slaves, and as such liable to be
distributed. The bill then states the names of the several children
born after the death of the testator and prays an account of hire
and the distribution of all the slaves and their increase and an
injunction to prevent the executor from proceeding to establish the
freedom of the negroes or removing them beyond the jurisdiction of
the court, and also for general relief.
This statement of the allegations in the bill thus far is all
that is necessary for the purpose of raising the material questions
in the case,
viz., the right of the owner of slaves in
the
Page 33 U. S. 238
State of Tennessee to manumit such slaves by his last will and
testament. To this bill there is a demurrer by the executor
Marshall for want of parties and also because there is no equity in
the bill. The other defendants not having appeared, the bill is
taken for confessed by them and set for hearing
ex
parte.
The demurrer admits the facts stated in the bill, and the
question already mentioned is raised for the consideration of the
court.
As a general proposition, it would seem a little extraordinary
to contend that the owner of property is not at liberty to renounce
his right to it, either absolutely or in any modified manner he may
think proper. As between the owner and his slave, it would require
the most explicit prohibition by law to restrain this right.
Considerations of policy with respect to this species of property
may justify legislative regulation as to the guards and checks
under which such manumission shall take place, especially so as to
provide against the public's becoming chargeable for the
maintenance of slaves so manumitted. It becomes necessary,
therefore, to inquire what legislative provision has been made in
the State of Tennessee on this subject, and it will be found that
the legislature has been gradually relaxing the restrictions upon
the right of manumission. By the Act of North Carolina of 1777, ch.
6, sec. 2, which was in force in Tennessee, it is declared that no
negro or mulatto shall hereafter be set free except for meritorious
services, to be adjudged of and allowed by the county court. The
Act of Tennessee of 1801, ch. 27, sec. 1, modified the former law
and allowed the owners of slaves to petition the county court in
all cases, setting forth the intention and motive for such
emancipation without any restriction as to meritorious services.
And if the county court, upon examining the reasons set forth in
the petition, shall be of opinion that acceding to the same would
be consistent with the interest and policy of the state, they are
authorized to allow the manumission, under the provisions therein
prescribed, to guard against the slave so manumitted becoming a
public charge for maintenance.
This act does not in terms extend the right of application to
the county court for the manumission of slaves to anyone except the
owner of the slaves. And it is argued on the part
Page 33 U. S. 239
of the appellants that no such application can be made by
executors and that the declaration and direction in the will of
Patrick McCutchen in relation to the manumission of his slaves
amounts to no more than an expression of a wish on the part of the
testator that his slaves should be free, but did not amount to a
manumission or confer any authority on the executor to consummate
the manumission by application to the county court. And the power
of the county court to manumit on the application of the executor
is denied, and their proceedings in the present case alleged to be
entirely void.
This question came under the consideration of the Court of
appeals in the State of Tennessee in the case of
Hope v.
Johnson, decided in January, 1826. In that case, Beattie, by
his will, directed certain parts of his property to be sold and the
proceeds thereof to be laid out in lands in the Indiana Territory,
the right to which he vested in the negroes he then owned, naming
them. "Each and all of whom I give their entire freedom and the
settling of them on the above lands, under the direction of my
executor." The bill was filed by the next of kin and heir at law,
alleging that the direction with respect to the manumission of the
slaves and the purchase of the land was void. The court decided
that the devises and bequests in the bill were legal and valid, and
that thereby the executor had full power and authority to procure
the manumission of the slaves and to sell and dispose of the estate
for their use according to the directions in the will.
The court, in pronouncing its opinion, said
"That no particular mode of emancipation is specified either by
the act of 1777 or of 1801. As between the master and the slave,
the intent and volition of the master to emancipate may be made
known by any species of instrument that will completely evince it,
and then nothing more is wanted but the assent of the state,
expressed by its organ, the court, which may show its determination
by reporting on the petition and certifying the same and by causing
both the petition and the report to be filed among the records of
the court. The mind and desire of the owner may be as well
expressed by will as by deed or any other instrument, and when it
is made known by his will, the
Page 33 U. S. 240
duty of his executor is to use such legal means as may be
effectual for the completion of his purpose."
This is a judicial interpretation by the highest court in the
state of one of its own statutes, which has always been held by
this Court as conclusive, especially if such interpretation has not
been called in question in its own tribunals and no case has been
referred to tending in any measure to shake this decision. And
indeed it is very much strengthened, if not absolutely confirmed,
by the subsequent Act of 1829, ch. 29, by which it is made the duty
of an executor or administrator with the will annexed, where a
testator had, by his will, directed any slaves to be set free, to
petition the county court accordingly, and if the executor or
administrator shall fail or refuse to do so, the slaves are
authorized to file a bill for their freedom, under certain
regulations pointed out by the statute. Digest.Ten.Laws 327, where
all the laws are collected.
This act, having been passed since the death of the testator in
the case now before us and since the manumission by the County
Court of Williamson County (as is presumed, though that time does
not appear in the record), may not ratify and confirm the
manumissions in the present case. Yet, having been passed since the
decision in the case of
Hope v. Executor of Beattie, it
may well be considered a legislative sanction of the construction
which had been given by the court of appeals to the act of 1801. At
all events, the decision in the case of
Hope v. Executor of
Beattie must be considered as settling the construction of the
act of 1801 and authorizing the executor to petition the court for
the manumission of the slaves and justifying the proceedings of the
court thereupon.
This construction of the act of 1801 puts at rest the claims of
the appellants to all the slaves except the children of the females
which were born after the death of the testator and before the
death of his widow, to whom all his slaves were bequeathed during
her natural life. And this class includes the children of Eliza and
Cynthia only. For with respect to Rose and her children, the
testator declares that upon the death of his wife, they shall be
liberated from slavery and forever and entirely set free.
The question then arises how the children of Eliza and Cynthia,
born during the continuance of the life estate of the
Page 33 U. S. 241
widow, are to be considered. It is admitted to be a settled rule
in the State of Tennessee that the issue of a female slave follows
the condition of the mother. If, therefore, Eliza and Cynthia were
slaves when their children were born, it will follow as matter of
course that their children are slaves also. If this were an open
question, it might be urged with some force that the condition of
Eliza and Cynthia during the life of the widow was not that of
absolute slavery, but was by the will converted into a modified
servitude, to end upon the death of the widow or on their arrival
at the age of twenty-one years, should she die before that time. If
the mothers were not absolute slaves, but held in the condition
just mentioned, it would seem to follow that their children would
stand in the same condition and be entitled to their freedom on
their arrival at twenty-one years of age. But the course of
decisions in the State of Tennessee and some other states where
slavery is tolerated go very strongly, if not conclusively, to
establish the principle, that females thus situated are considered
slaves; that it is only a conditional manumission, and that, until
the contingency happens upon which the freedom is to take effect,
they remain to all intents and purposes absolute slaves. And we do
not mean to disturb that principle. Cook's Reports 131, 381; 2
Randolph 228; 1 Haywood 234. The children of Eliza and Cynthia must
therefore be considered slaves, and the question arises whether the
allegations in the bill are sufficient to call upon the executor to
account for their wages or to restrain him from taking any measures
to establish their freedom.
The bill charges that Pleasant and ten others, naming them, the
children of Cynthia and Eliza (or perhaps Rose), were all born
after the death of the said Patrick and before the time arrived
when, by the directions of the said will, they were to be set free,
and that they are (if no others) to be distributed among the
representatives of the said Patrick, and prays that the executor,
James Marshall, may be compelled to distribute said slaves among
the complainants and account for their hire in the proportions to
which they are entitled.
We think these allegations are too vague and uncertain to call
upon the executor to account in any manner for those children.
Page 33 U. S. 242
In the first place, it is left entirely uncertain which of the
persons named are the children of Eliza or Cynthia. They are
alleged to be the children of Eliza and Cynthia (or perhaps Rose)
-- that is, perhaps the children of Rose. Now if they or any of
them are the children of Rose, such children are expressly
manumitted by the will. In the next place, it is not alleged which
of them are the children of Eliza and which of Cynthia. And by the
will a special and different disposition is made of these two. The
testator directs that Eliza shall be at the control and under the
direction of his brother, Samuel McCutchen, until her arrival at
the age of twenty-one years, and then to be set free. And that
Cynthia shall be at the control and under the direction of James
Marshall until she arrives at the age of twenty-one years, when she
shall be liberated and forever set free.
The bill does not charge the appellee with having the possession
or control of these children, or that he has received any wages for
or on account of them. Nor under the various dispositions of these
slaves by the will of Patrick McCutchen will the law charge the
surviving executor with a breach of trust or neglect of duty in not
taking the charge and management of these children. If they are
slaves and the complainants have a right to them, they have an
adequate remedy at law to assist and enforce that right.
But it is contended on the part of the appellee that,
independent of all other considerations, the appellants have no
right to these slaves or any part of them -- for, by the codicil to
the will, Elizabeth Larkins is made sole residuary legatee of the
personal property which should remain at the death of the
testator's wife, and that slaves in Tennessee, being personal
property, the executor holds them in trust for the residuary
legatee, and not for the next of kin.
We do not, however, think this is the true construction of the
codicil. It professes to explain one of the articles in the will,
but not to make a different disposition of the property mentioned
in that article. The article referred to is the fifth, which in the
will reads thus:
"I will and bequeath to the said Patrick McCutchen, fourth son
of my brother, Samuel McCutchen, and to Elizabeth Larkins, daughter
of John Larkins by his first wife, Margaret, jointly and equally,
the land
Page 33 U. S. 243
on which I now live, with all its appurtenances, together with
all the residue of my personal property (slaves excepted) which
shall remain after payment of my just debts, &c., to take
effect at the death of my beloved wife,"
&c.
The codicil reads thus:
"Whereas some doubts may be entertained respecting the
construction of the fifth article, and as I find upon review of the
subject I have not expressed my meaning with sufficient
perspicuity, I declare this to be my will and meaning of the said
fifth article; Patrick McCutchen, named in that article, is to be
the joint legatee with Elizabeth Larkins of the land only, and
Elizabeth Larkins sole residuary legatee of the personal property
which shall remain at the death of my wife."
The personal property referred to in the codicil must mean the
same personal property mentioned in the fifth article; otherwise
the codicil would not be what it professes to be -- explanatory of
that article -- but would be a different disposition of the
property. The codicil must therefore be read with the same
exception of the slaves as is contained in the fifth article. And
that the testator did not intend to include any slaves in this
codicil is very evident, because by the will, at the death of his
wife, all his slaves were to be manumitted, so that there could be
no slaves to pass under the residuary clause in the will or the
codicil.
But upon the other grounds stated in this opinion, we think the
bill contains no equity which entitles the appellants to relief.
And the decree of the circuit court dismissing the bill is
accordingly
Affirmed.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
West Tennessee, and was argued by counsel, on consideration whereof
it is ordered, adjudged, and decreed by this Court that the decree
of the said circuit court in this cause be and the same is hereby
affirmed with costs.
