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.
Per curiam.
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