Sunday, October 18, 2009

Thomas v. Palmer (1854)

Lucy Thomas and Others against Nathaniel J. Palmer
North Carolina Supreme Court
54 N.C. 249 (1954)

Emancipation, followed by immediate removal from the State, is not forbidden by our laws. But where it is provided in a will, that certain slaves shall have their own time, and may work or not, as they see proper, having the care and protection of a nominal master, and a fund for their support and maintainance, such a state of qualified slavery is regarded by the Court as unlawful, and the bequests void.

Cause removed from the Court of Equity of Caswell county, at the Spring Term, 1854.

Nathaniel P. Thomas, among other things, devised and bequeathed as follows:

"My mill tract of land, situate in Caswell county, containing eighty-five acres, on the waters of Pumpkin Creek, adjoining the lands of Carter Powell, and others, and the Crowder tract of land, containing about sixty-six acres, adjoining the same. I do hereby devise to my executor, to be sold on a liberal credit, and the proceeds of the said sale to be placed at interest, after investing a portion of the same in purchasing a suitable home for my mulatto woman, Lucy, and children, purchased of the trustees of Robert A. Crowder; the interest in the said two tracts to be appropriated towards their support, and until the amount of said sale becomes due, I direct my executor to appropriate a sufficient amount out of the proceeds of my estate generally, for their maintainance and support.

3rd. My mulatto woman, Lucy, as aforesaid, I do hereby devise and bequeath, to Nathaniel J. Palmer, together with her children, Mary Jane, James and Newton, and any other children that she may have, in trust and confidence, nevertheless, that he will provide for them a suitable home, as aforesaid, and for her support, and that of her children, until they are able to support themselves, out of the proceeds of the real estate aforesaid. And in the event of the death of the said Nathaniel J. Palmer, the said woman, and children are to be held by my friend, William Bryant, of Pittsylvania county, Virginia, as trustee aforesaid, and in the event of his death, they are to be held by such trustee as he may select, and the County Court of Caswell approve and appoint, it being understood that the said woman and children are not to be removed from the county of Caswell, without her free will and consent, and a copy of this will recorded in the clerk's office of the county, to which she may remove."

In a codicil to this will the testator provides as follows: "In the event that the laws of North Carolina, or the policy of the same, as construed by the Supreme Court, shall present any obstacle to the fulfillment of the trust mentioned in the foregoing will in relation to my mulatto woman, Lucy, and her children, I do hereby authorise and direct my executor, to send them to such State, territory or country as she may select, and he may think best, and I do hereby charge my estate with a sum sufficient to provide for their removal to such State, territory, and country, and for their comfortable settlement there; it being my will and desire, that she shall not be continued in slavery."

The woman Lucy, being advised that the policy of the laws of the State forbade her remaining in the State, and obtaining any of the advantages proposed in this will or codicil removed with her children to the State of Ohio, where they are now domiciled, and are, by the laws of that State, free persons.

The plaintiffs (the woman Lucy and her children) in their bill, allege that by their own exertions, and by the partial aid of Mr. Palmer, the executor, they were enabled to get to Ohio, but that they have not been provided with a home or settlement as the will directs, and that they are in want, and destitution, and that the children being small, the mother is unable to support herself and them, without the assistance of the fund provided in the will. They insist that the codicil of the will, above recited, made good and valid, the provision made for them in the will, and that they are entitled to the proceeds of the sale of the two tracts of land, which amounts to some $1,500; but besides this, they are entitled to the expenses of their removal, and to a comfortable settlement out of the estate of the testator. And accordingly such is the prayer of the bill as well as for general relief.

The answer of the executor, Palmer, objects to the construction insisted on by the plaintiffs, but says that he is advised, that there is nothing in the codicil to validate, and set up the deficient and illegal devises in the body of the will, so that the plaintiffs are not entitled to any thing but the expenses of their removal, and a comfortable settlement in the land to which they have gone; that he has already advanced funds to them to assist in removing them to Ohio, and that as soon as the condition of the estate will allow, he intends to provide for a comfortable settlement of them in Ohio. But he submits to the advice and direction of this Court in the premises.

The cause was set for hearing on bill, answer, and exhibit, and sent to this Court by consent.

Morehead for plaintiffs.

Norwood for defendants.

Thomas and others v. Palmer.

Pearson, J. Emancipation is not forbidden by our laws; but a negro, who is set free, is required forthwith to leave the State; for it is against public policy to have the number of free negroes increased, or to allow negroes to remain among us in a qualified state of slavery.

The latter is, if any thing, the worse evil of the two. Free negroes constitute a distinct class; and the poor creatures seldom prosper so well as to become objects of envy. Whereas, slaves, who have the care and protection of a master, have houses provided for them, and a fund set apart for their support and maintenance, so that they can have the control of their own time, and may work or not, as they see proper, necessarily become objects of envy to those who continue to look upon them as fellow slaves. So that nothing can be more calculated to make our slaves discontented; accordingly such a state of things is expressly forbidden by statute. It follows that the provision in the will by which Lucy and her children were to remain in this State under the care and protection of one, who was to act nominally as master, but was to provide a house for them to live in, and apply the interest of a certain fund for their support and maintenance, so as to let them have the control of their own time, is void. Fortunately for the complainants, the testator became aware of this in time to make provision by a codicil for their emancipation and removal to another country, and "for their comfortable settlement there."

The complainants insist, that the codicil has the further effect of making valid the provision that is made for them in the will, and that they are now entitled as well to the provision which the testator intended to make for them by the will, as that which he did make for them by the codicil. In other words, that besides having the expenses of their removal and comfortable settlement in another country paid out of the estate of the testator, they are entitled to the fund produced by the sale of the two tracts of land. We do not think so.

The provision made by the codicil is intended as a substitute for that made by the will — "in the event" that the latter cannot be carried into effect. The intention is clearly this: If the negroes can be kept in this State, they are to be provided for as directed by the will. If they cannot remain here and be so provided for, then, they are to be provided for as directed by the codicil. There is not the slightest intimation that the two modes of providing for them are in any degree, or to any extent, to be cumulative.

Decree accordingly.