The Am. Colonization Soc'y v. Gartrell

• Decision Date: 31 August 1857
• Citation: 23 Ga. 448
• Parties: The American Colonization Society, plaintiff in error. vs. Lucius J. Gartrell, adm'r, defendant in error.
• Court: Georgia Supreme Court

23 Ga. 448

The American Colonization Society, plaintiff in error. vs. Lucius J. Gartrell, adm'r, defendant in error.

Supreme Court of the State of Georgia

AUGUST TERM, 1857.

In Equity, in Fulton Superior Court. Decision on demurrer, by Judge Bull, at Chambers, 22d June, 1857.

This was a bill filed by the American Colonization Society, (incorporated by the Legislature of the State of Maryland,) against Lucius J. Gartrell, administrator with the will annexed, of Francis Gideon, deceased, late of the county of Fulton.

The bill states that said Francis, on the 25th day of May, 1853, made and published his last will and testament.

The bill further states that said testator departed this life on or about the day of, 1853, leaving said will in full force and unrevoked, and possessed of a large estate, both real and personal.

That on the 30th September, 1853, said will was proven and admitted to record, by the Court of Ordinary, and the executors therein nominated, Chase and Holbrooks, renounced and refused to qualify. Whereupon, Lucius J. Gartrell, of said county, the son-in-law of testator, and husband of the said Louisiana O. Gartrell, was appointed administrator with the will annexed, and gave bond, and took the oath required by law, to administer the estate according to said will, reserving and excepting the clauses emancipating the slaves, and giving them any portion of said estate.

The bond executed by said Gartrell, is conditioned to administer the estate according to law.

The bill further charges, that after his appointment and qualification as administrator aforesaid, said Gartrell possessed himself of the whole estate of the testator, consisting of lands, slaves, bank and railroad stocks, bonds, notes, and other evidences of debt, household and kitchen furniture, and divers other articles of property, all of the value of about seventy thousand dollars, and has ever since received the rents and profits thereof, and has paid the legacies given to testator's sister's children named Everett.

The bill further states, that since the death of the testator, Louisiana O. Gartrell has departed this life, whereby the one-third of the residuum of said estate, directed to be vested at interest for her during her life, has vested absolutely in complainant, as remainder-man, and that all the legacies given to complainant, in trust and for the use of said slaves, when they shall be delivered over to complainant, and sent to Liberia, are now due and payable, but the said Gartrell claims and holds them as his own, and denies that complainant has any right to said slaves, or to the legacies bequeathed to them or for their use. And complainant, by its agents and attorneys, have applied to said Gartrell, and requested him to deliver up said slaves to complainant, and to pay over the legacies aforesaid, which he refuses to do.

The bill prays that said Gartrell be decreed to deliver to complainant, the slaves mentioned in said will, with their increase since the date of said will, if any, and to account for and pay over to complainant, the legacies given for the use and benefit of said slaves, when they shall be sent to Africa, according to the directions and provisions of said will, &c.

Defendant demurred to this bill, on the following grounds, to wit:

1st. Because the Act to incorporate the American Colonization Society, under which the complainant is proceeding, does not confer the right to bring and maintain this action. 2d. Because, by the said Act, a body politic was created and declared, under the style of the American Colonization Society, and the bequests in the will, are to the "President and Directors, for the time being, of the American Colonization Society.

3d. Because said will is in contravention of the laws of the State of Georgia, on the subject of manumission, and that portion of the will attempting to free testator's slaves, and giving them legacies, is void.

4th. That, according to the statements of complainant's bill, defendant is expressly exempted from executing the clauses in said will, giving freedom and legacies to the slaves. The bill showing defendant to be acting under the authority of a Court having jurisdiction, he can not be an executor de son tort.

5th. Defendant denies the right of the complainant, as such corporation, to call upon and to require him to deliver up any of the slaves in said will mentioned, and their increase, or to come to any account with said complainant, touching any of the property of the deceased, mentioned in said supposed will.

6th. That there is no equity in said bill.

The argument in open Court was waived, and counsel submitted to the Chancellor written briefs, who, after consideration, at Chambers, pronouned his decree, sustaining the demurrer and dismissing the bill.

And to this decision counsel for complainant excepts.

Clark & Lamar; and E. A. Nesbit, for plaintiff in error.

John Erskine; and Robt. Toombs, contra.

By the Court. —Lumpkin, J., delivering the opinion.

We concur in the clear and conclusive opinion of the able Judge who decided this case, namely: That the Colonization Society is incapable of taking or holding property for any purpose inonsistent with, and forbidden by, its charter.

It can receive it upon no other trust. That to attempt, in this or any other case, to claim it for any other purpose, would be a fraud upon the law, a fraud upon the donor, a fraud upon the heirs, and a fraud upon the slaves themselves.

By their constitution, the association is empowered to receive property by bequest or otherwise; and to use it or dispose of it at their discretion, "for the purpose of colonizing, with their own consent, in Africa, the free people of color residing in the United States, and for no other purpose whatsoever." Now, the will of Francis Gideon, under which the complainants sue, bequeaths to the Colonization Society, "for the purpose of sending them to Liberia, in Africa, all his slaves, to wit: &c." The negroes, then, are given as slaves, and not as free persons of color, to be sent, not with, but with or without their consent, to Liberia, in Africa. Indeed, the testator could only give them as slaves. For, had their status been changed by the will, from slavery to freedom, before the gift attached, the will itself would have been void by the statutes of 1801 and 1818. Cobb, 983, 989.

We repeat, then, that the unconditional right to them as slaves, could not be vested in the Society, under their Act of incorporation; neither could they take and hold them in trust, for a purpose not allowed by their charter; that is, to transport them, as slaves, to the colony in Africa, with or without their consent.

I need not cite cases to show that the powers of a corporation being limited, a trust beyond those powers can not be executed by the corporation. A fortiori, can not this be done when, by the express terms of the charter, the corporation is "forbidden to take or use property for any other purpose whatsoever, other than that specified in the Act of incorporation.

A person, like a State, may do whatever is not prohibited. A corporation, like the confederation of this Union, can do only what is expressly allowed by its charter. It is a lamentable fact, however, that while this is true in point of theory, both as it respects corporations and the Federal Government, in point of fact, the creature bound by strict compact has become more omnipotent than its sovereign author—restrained by no fetters but of its own making, 1 Ves. Sen. 534; 4 Wheaton, 636; 9 Wall\'s, 551; 6 Connecticut Reports, 304; Ang and Ames on corp., 60, 86, 139; 2 Kent\'s Com., 298, 299; 1 Kyd. on corp. 72; 4 Peters, 152; 2 Cranch, 127; 15 Johns. 358; 3 Barn. and Cress. 1; 3 Pick. 237; 1 Penn. R. 49; 12 Mass. 555; 1 Paige, ch. Rep. 214; 8 Johns. 422; 3 Baule, 170.

It is argued, that conceding that the trust is not strictly within the provisions of the charter, yet, that the Society may carry out the purpose of the testator, without transcending the limits of its powers. That it may take slaves out of the State, manumit, and then colonize them in Africa. That the will, by its own natural operation, ultimately constitutes these slaves a class that the Society is expressly permitted to colonize. That when these slaves are recovered and carried out of the State, the trust reposed in the Society is ipso facto executed to the extent of conferring freedom; and thus they become the free people of color contemplated by the charter. That the Court should only have considered the capacity of the trustee to receive property; whether he would abuse the trust, or would execute it, were questions for the State of Maryland, which granted this charter, and not for the Courts of Georgia. That neither the heir, nor any private person, could contest the right of a corporation to take the property, and execute the trust; but that this right belongs alone to the State, in its sovereign capacity.

These are, in the main, the propositions upon which the plaintiff in error relies for a reversal of the judgment rendered in the Court below.

The disposition in the will is a bequest of all the slaves of the testator to the Society, for the purpose of sending them to Africa. How do counsel arrive at the conclusion that so soon as these slaves cross the boundary of the State, they be-come ipso facto free, and therefore constitute the identical class contemplated by the charter of the Colonization Society? I am aware that it is the doctrine laid down in Wade et al. vs. American Colonisation Society, Smedes and Marshall\'s Reports, 697. It is one, however, to which we can not yield our assent.

That these negroes were slaves in this State, can not be questioned, talk as we may about their inchoate right to freedom. They were slaves before the will of Gideon was executed. They can not be anything else, here, afterwards. Any attempt made to change their condition here, by deed or will, would be nugatory. Being then,...