Adams v. Bass
| Decision Date | 31 May 1855 |
| Docket Number | No. 15.,15. |
| Citation | 18 Ga. 130 |
| Parties | David R. Adams, guardian, &c. plaintiff in error. vs. Nathan Bass, executor, &c. defendant in error. Nathan Bass, executor, &c. plaintiff in error. vs. Felix Laforce, et al. defendants in error. |
| Court | Georgia Supreme Court |
In Equity, in Putnam Superior Court. Tried before Judge Hardeman, March Term, 1865.
Robert Bledsoe died, leaving the following last will and testament, which was admitted to probate:
STATE OF GEORGIA,
PUtnam County.
In the name of God, Amen: I, Robert Bledsoe, knowing the uncertaincey of life, and being now of sound and disposing mind and memory, do make and publish this, my last will and testament, as follows:
Item 1st.—I do hereby ordain, and constitute, and appoint, the Honorable Wilson Lumpkin, William Turner and Nathan Bass, of Georgia, and Walter Bullock and Garnett Watts of Kentucky, executors to this, my last will and testament.
Item 2nd.—I will and desire, that at an early period after my death, my grave be wattled in with hewn rock and covered with a marble slab, and my birth, (March 81, 1783,) as well as my death, be inscribed thereon and enclosed with an iron railing.
Item 3d.—I will and desire, that there shall be a sufficiency of good, arable land purchased, either in the State of Indiana or Illinois, for all my negroes to locate upon and cultivate, with a sufficiency of land for timber and firewood included; to be done within a reasonable time after my death by my executors or any one or two of them, and to remove all of said negroes to said tract or settlement of land in the State of Indiana or Illinois as aforesaid; but would recommend for the title to said land to be made to my executors, for fear they might be defrauded out of the land, or squander it themselves.
Item 4. I will and desire, after the removal and location of said negroes west of the Ohio river, that they be furnished an outfit of farming utensils, including the wagons and teams used in their removal, as a part of said outfit; and furtherrequest, that there be also purchased for said negroes, the first year\'s provision for their subsistence after their removal.
Item 5.—I will and desire, that all my lands and landed property shall be sold on a credit of one and two years, titles to bo made on the payment of the last of the purchase money, besides good personal securities; and I further desire, that the stock of horses, mules, cattle, sheep, hogs, crop of corn, &c. the household and kitchen furniture, and farming utensils, to be sold on a credit of twelve months, for notes with approved securities. I also desire, if there be a growing crop of cotton, for it to be completed for market, or a crop of cotton already on hand, ginned and packed, that said cotton shall be sold in Savannah or elsewhere, at private sale for cash, or even any other of the property of said estate which is designed to be sold, may be disposed of at private sale, provided a full and fair price or prices shall be obtained, either for cash in hand or on time, with the like securities mentioned above.
Item 6.—I will and desire, after the removal, location and outfit for my negroes shall have been completed in the State of Indiana or Illinois as aforesaid, that the balance or residue of the proceeds of my property shall be vested, by my executors, in stock of State Bank of Georgia, and whenever the dividends or profits of said bank stock shall be declared by said bank officers or their authority, that said dividends or profits shall be equally divided, year after year, between my nephews and nieces, the children of my late brothers, Richard Bledsoe, dec'd, and Jesse Bledsoe, dec'd, the former leaving three children, who I believe, reside in Missouri, and the latter, leaving two children, who reside in Georgia; my niece, Mary Frazer, daughter of the late Dr. Robert Frazer, is amply provided for if the property and money have not been wasted, and it being doubtful whether she is now in life from the last accounts of her bad health, I therefore leave her out of this bequest.
My object in wishing the investment to be made in bank stock, is that said nephews and nieces shall receive the profitsannually or semi-annually, according to the bank regulations; therefore, said legatees are not authorized, individually or collectively, to dispose of their interest in said bank stock; any manifestations directly or indirectly amounting to a demonstration of a disposition on the part of any one or more of said latter legatees to change the order or object of this, my last will, it shall work an entire forfeiture of said interest or interests in said estate, and thereby wholly change into a poor fund for the use and benefit of the poor people of the county of Putnam, so far as the interest or interests of said nephews and nieces designated in the bequest.
Jas. Nicholson, j.i.c. ROBERT BLEDSOE, [l.s.]
Nathan Bass qualified as executor under this will. Subsequently, he filed a bill for direction, stating that the State of Indiana, prior to the death of General Bledsoe, and the State of Illinois, subsequent to his death, had passed laws prohibiting the introduction of negroes into either of those States; that it was impossible, therefore, to execute that portion of the will—and he submitted, whether, as to the negroes, the testator died intestate, or whether they pass under the residuary clause in the will? That one of the nephews of testator had died since the death of testator, leaving a widow and children—and he submitted, whether the trust continued, as to them? Upon these and all questions arising under the will he asked direction.
Upon the hearing the Court decided—1st. That the clause in reference to the negroes was not void under the Acts of, 1801 and 1818; and that it could be carried into effect bythe negroes being sent to some other State or Territory, west or north-west of the Ohio river.
To this decision Counsel for the residuary legatees excepted, and have assigned error thereon.
The Court decided, that if the negroes and the provision for them fell back into the estate, they would not pass under the residuary clause, but there would be an intestacy as to this property. To this decision the executor excepted.
The Court also decided, that as the dividends of the bank stock were given absolutely to the residuary legatees forever, that the corpus also passed to them immediately. To this decision the executor excepted.
Upon these exceptions the executor assigned error.
Adams; Diomitari; J. Wingfield and Cone, for legatees.
E. A. Nisbet, for the executor.
By the Court.—Lumpkin, J. delivering the opinion.
The testator has directed that there shall be a sufficiency of good, arable land purchased, either in the States of Indiana or Illinois, for all of his negroes to locate upon and cultivate, with a sufficiency of land for timber and firewood included; to be done within a reasonable time after his death, by his executors, or any one or two of them; and to remove all of said negroes to said tract or settlement of land in the aforesaid States. And recommends that the title to the land so bought be made to the executors, for fear the slaves should squander or be defrauded out of it.
He further directs, that after the removal and location of his negroes, that there be purchased for them an outfit of farming utensils, including the wagons and teams used in their removal as a part of said outfit. And lastly, he requests that a year's provision be supplied for the subsistence of the negroes, after their removal and settlement.
It appears that Indiana, by her Constitution and laws, and Illinois, by Statute, have prohibited, under severe pains and penalties, the introduction of negroes into either of those States—the former before and the latter subsequent to the death of the testator.
1. Can this bequest in the will, as to the negroes, be carried into execution? Of course it cannot be, according to the expressed wish of the testator. And that, alone, would seem to be, as it ought to be, conclusive of the case. But the Courts of Great Britain, and to some extent of this country, whether wisely or unwisely, reasonably or otherwise, have taken it upon themselves, under certain circumstances, to perform a most delicate and responsible office; that is, to make another will for the testator, where his declared intention necessarily fails. However revolting this doctrine may be to common sense or repugnant to our own sense of right, we are content to administer it, for the present at least, notwithstanding Lord Kenyon, Lord Eldon, Lord Denman and the ablest of the English and American Judges have reprobated it in the strongest language.
After carefully examining the Cypres doctrine, as established in the text books as well as the adjudicated cases, we are inclined to adopt the principle as stated by Sir James Wigram. He says the meaning of it is now sufficiently understood, " In order to preserve and effect something which the Court collects from the will, to have been the paramount object of the testator, it rejects something else which is regarded as merely a subordinate purpose, namely: the mode of carrying out that paramount intention." Vanderplanck vs. King, (3 Hare, 11, 12.)
Let us apply this rule of approximation to this testament. Can it be collected from the will, that the paramount object of the testator was to give freedom to his negroes, and that Indiana and Illinois were selected only as the mode of carrying out that paramount purpose? We may conjecture so, especially as to substitute some other State or Territory northwest of the Ohio would be but a slight alteration of thatwhich is directed, but which cannot be performed. But the testator has not said so, and...
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