Walker v. Walker

• Decision Date: 30 June 1858
• Parties: William W. Walker, et al., plaintiffs in error. vs. Moses Walker, et al., ex'ors, &c., defendants in error. Moses Walker, et al., ex'ors, &c., plaintiffs in error. vs. William W. Walker, et al., defendants in error.
• Court: Georgia Supreme Court

25 Ga. 420

William W. Walker, et al., plaintiffs in error. vs. Moses Walker, et al., ex'ors, &c., defendants in error. Moses Walker, et al., ex'ors, &c., plaintiffs in error. vs. William W. Walker, et al., defendants in error.

Supreme Court of the State of Georgia

JUNE TERM, 1858.

Caveat, from Burke county. Decided by Judge Holt, April Term, 1858.

Ordered, by consent of counsel, that these two cases be consolidated and argued together.

Francis J. Walker departed this life in 1856, having made his last will and testament as follows:

In the name of God amen: I, Francis J. Walker, of the county of Burke and State of Georgia, being of feeble health, but of sound and disposing mind and memory, do make and publish this my last will and testament, revoking all others:

Imprimis. I desire all my just debts and funeral expenses to be paid.

Item. I direct my executors hereinafter named, or their successors in the administration of my estate, to send to thecolony of Liberia, in Africa, at the expense of my estate, the following named slaves, belonging to me, viz.: Louisa (mulatto) and her children, Green, William and Elizabeth; Louisa (light negro) and her children, Cathrine and Augustus, Sue and her son Harry; and Cecilia and her daughter Emily.

Item. 1 authorize my executors, in their discretion, to send to Liberia aforesaid, any and all my slaves not above named, which authority I expect them to exercise or not, as they may or may not ascertain the balance of my estate to be sufficient for the provision hereinafter made for the children above named.

Item. 1 authorize my executors, without any order from any Court, to sell at public or private sale, for cash or on credit, in their discretion, any and all my property, real and personal, and any and all of my slaves, except those specially named above, which they may think it best to sell, in order to carry out my wishes in this will expressed.

Item. I direct my executors or their successors in administration, to invest the entire proceeds of my estate, after the payment of my debts and the expenses herein before provided for, in such manner as they may deem most advantageous; and to transfer the whole of it to the American Colonization Society, to be held by them in trust for the maintenance and support of the children named in the second clause above, to wit: Green, William, Elizabeth, Catherine, Augustus, Harry and Emily, and their descendants.

Finally. I appoint my brother Moses Walker and my friend Edward B. Gresham, executors of this my last will and testament.

In witness whereof 1 have hereunto set my hand and seal this sixteenth day of May, eighteen hundred and fifty-six.

Signed, sealed, published and declared by Francis J. Walker as his last will and testament.

F. J. WALKER, [seal.]

In presence of W. J. Jones, Sam'l B. Clark, E. T. Murphy.

This will was admitted to proof in solemn form, and the executors qualified.

William Walker gave notice to the executors that at the March Term, 1857, of the Court of Ordinary, they would be required to prove the will in solemn form, and at the said term the said William W. Walker entered his caveat against the proof of the said will on the following grounds:

(The 1st, 2d, 3d and 4th grounds having been withdrawn, are omitted.)

5th. For that also, the paper presented, as the will of the said Francis J. Walker, is not the will of the deceased, and is not as such entitled to probate.

1st. Because it is in violation of the statutes against the manumission of slaves; in that in and by said pretended will the said Francis J. Walker, both directly and indirectly, attempts to confer freedom on slaves.

2d. Because in and by said pretended will, the said Francis J. Walker attempts to invest the executors named with an illegal, discretionary authority, by which they might confer freedom on slaves.

3d. Because in and by said pretended will, the said Francis J. Walker, contrary to law and the policy of the law, attempted to give to the executors named a discretion and authority in the management of his estate above and uncontrollable by any legal authority.

4th. Because that in and by said pretended will, the said Francis J. Walker attempted to create a trust in a foreign corporation for the benefit of slaves.

And further objecting to said will, the caveators by this amendment to their caveat, say:

1st. That by the fourth and fifth clauses of said will, the testator has sought to create an estate, in the American Colonization Society, as. trustees for the benefit of the cestui que trusts named, which is illegal and invalid, and contrary tothe laws of this State, in this: That he has sought to create an estate in the nature of an estate tail in perpetuity, for the benefit of said cestui que trusts, and therefore said clauses are void and of no effect.

2d. By said clauses he has sought to create an estate in trust, first in his executors, and then in the Colonization Society, for the benefit of persons who are incapable of taking, by reason that they are slaves, and therefore these clauses are void.

3d. These clauses are void, because he has sought to create an estate in the American Colonization Society, as a trustee, which the said Society is incapable of taking, by reason that they are not authorized by their charter to receive such an estate; a copy of which charter, or act of incorporation, by the Legislature of Maryland, being the only charter of said Company, is hereto annexed as a part of this caveat:

"An Act of the Legislature of Maryland, passed March 22d, 1837, entitled 'An Act to incorporate the American Colonisation Society.'

"Whereas, by an Act of the General Assembly of Maryland, entitled "An Act to incorporate the American Colonisation Society, " passed at December session, eighteen hundred and thirty-one, chapter one hundred and eighty-nine, the said Society was incorporated with certain powers: And whereas, it is represented to this General Assembly, that the rights and interests of said Society have been materially injured, and are likely to suffer further injury, by certain alleged omissions on the part of said Society, to give efficiency to said Act: Therefore,

"Section i. Be it enacted by the General Assembly of Maryland, That John C. Herbert, Daniel Murray, Joseph Kent, Ezekiel F. Chambers, Daniel Jenifer, George C. Washington, Virgil Maxcy, Zaccheus Collins Lee, Alexander Randall, Francis S. Key, Walter Jones, Ralph R. Gurley and William W. Seaton, of the Society called the American Society for Colonizing the free people of color of the United States, and their successors, together with such others elected and qualified, as the present or future Constitution, bylaws, ordinances or regulations of said Society, do or shall hereafter prescribe, shall be, and they are hereby created and declared to be a body politic and corporate, by the name, style and title of The American Colonization Society, and by that name shall have perpetual succession, and shall be able to sue and be sued, to plead and be impleaded, in any Court of law or Equity in this State, and may have and use a common seal, and the same may destroy, alter or renew at pleasure, and shall have power to purchase, have and enjoy, to them and their successors, in fee or otherwise, any lands, tenements, or hereditaments, by the gift, bargain, sale, devise, or other act of any person, or persons, body politic or corporate whatsoever; to take or receive any sum or sums of money, goods or chattels that shall be given, sold or bequeathed to them in any manner whatsoever; to occupy, use and enjoy, or sell, transfer or otherwise dispose of, according to the bylaws and ordinances regulating the same, now or hereafter to be prescribed, all such lands, tenements or hereditaments, money, goods or chattels as they shall determine to be most conducive to the colonizing, with their own consent; in Africa, of the free people of color residing in the United States, and for no other uses or purposes whatsoever; and as soon after the passage of this Act as may be convenient, to elect such officers as they or a majority of them present may deem proper, and to make and ordain such Constitition, by-laws, ordinances and regulations as may be necessary for the organization of the said Society; and to repeal, alter or amend the same; to prescribe the times of meeting, the qualifications and terms of membership, and to do all such other acts and deeds as they shall deem necessary for regulating and managing the concerns of the said body corporate; Provided, however, that the Constitution and laws of this State and ofthe United States, and this Act of Assembly be not violated thereby.

"Sec. 2. And be it enacted, That for the object aforesaid, all property, real, personal and mixed, whether in action or possession, and all rights, credits and demands, owned, held or claimed, before this Act, by the said Society, and all such property, rights, credits and demands, as, were it not for this Act, might hereafter be owned, held or claimed, by the said Society, shall vest and are hereby declared to vest in the said body corporate, and its successors, as fully and effectually as they have, or could have vested in the said society; and also that the said body corporate and its successors, are hereby declared to be as completely and effectually liable and responsible for all debts, demands and claims, due now or which would thereafter be due by the said Society, if this Act of incorporation had not been granted, as the said Society is now, or would hereafter be so...