county of Washington in the District of Columbia. The defendants in error instituted a suit in the circuit court to recover their freedom, alleging that they were entitled to it under the last will and testament of their late mistress, Frances Edelin deceased, in the state of Maryland. The plaintiff in error claimed the petitioners as his slaves, having purchased them of the sole acting executor of the deceased, at a sale made by the order and authority of the orphan's court of Prince George's county, in Maryland; and, by the consent of all parties to the suit, the executor was admitted to defend the same in the court below. It was proved in the circuit court, that the slaves were sold by the executor, with all the other personal estate of the deceased, by authority of the aforesaid orphan's court, as assets in the hands of the executor, to pay the debts of the deceased; there not being assets enough to pay the same without the sale of said slaves, and without recourse to the real estate. It was contended that the sale was a good one, and that the slaves were not entitled to their freedom. The following facts in the case were agreed, and submitted to the court, with the other evidence in the case, and making a part of the record now before this court. It is agreed in this case–– 1. That the petitioners are the same named in the will of Frances Edelin deceased, to whom she gave their freedom after her death, as appears by the said will, a copy whereof is hereto annexed. 2. That Edelin, the defendant, was the executor of the last will and testament of said deceased, and, as such, sold, in the year 1833, said petitioners to the other defendant, Fenwick. 3. That the sale of the petitioners was made in Prince George's county aforesaid, where the deceased lived at the time of her death, and where the petitioners were; and that, from the time of deceased's death to the time of their sale, they were permitted by the executor to go at large as free, and that after the purchase made by Fenwick he brought them to the District of Columbia, where the present suit was instituted, and that after the institution of the said suit, Fenwick transferred his claim to the petitioners to the defendant Edelin, who repaid him his money, and appears to defend the suit. 4. That the deceased left real estate to an amount in value more than sufficient to pay her debts without the sale of the negroes emancipated by the will, as will appear by her will referred to, and made a part of this agreement; but not personal estate sufficient. 5. That the original copy of all the proceedings had in the orphan's court of Prince George's county, relative to the settlement of the deceased's estate, by her executors or administrators, may be filed as part of this case. The will of Frances Edelin, the proceedings in the orphan's court of Prince George's county, and all the material facts in the case, are fully stated in the opinion of this court, delivered by Mr Justice Wayne. Upon a hearing in the circuit court, judgment was given in favour of the petitioners in that court, now defendants in error, and from that judgment a writ of error was sued out to this court. The case was argued by Mr Brent, for the plaintiff in error; and by Mr Key, for the defendants. Mr Brent stated, that the only questions for the court to decide, are, whether the defendants in error are entitled to their freedom or not, under the circumstances of the case; and whether the plaintiff in error (the executor) has, or had not, the right to sell them, as assets to pay the debts of the testator. After reading the petition, the answer, and the agreement as to the facts in the case, and the will of Frances Edelin, he referred to the proceedings in the orphan's court of Prince George's county; which showed that the personal estate of the testator was insufficient to pay the debts of the deceased; and that under these circumstances, the orphan's court ordered the sale of the negroes, and they were sold. Prior to the year 1796, there could not be, under the laws of Maryland, a manumission of slaves by will. This act was, in 1796, repealed, under certain limitations; and among them, that no such manumission is available if done in prejudice to creditors. The first ground for the reversal of the judgment of the circuit court, is, that this manumission was in prejudice of creditors. The fact of the insufficiency of the personal estate, exclusive of those negroes, is established by the proceedings of the orphan's court, and the accounts of the executor. Creditors are not bound to resort to the real estate for the satisfaction of their claims, when personal estate can be found. Cited: 1 P. Wms 294, note; 2 P. Wms 664; 1 Rob. on Wills 67; Kelty's Laws of Maryland, act of 1798, ch. 101, subdiv. 7 chap. This act declares what shall be assets for the payment of debts; among which are negroes. In a case in 1 Harris and Gill's Reports, the testator charges his land with the payment of debts, rather than that his negroes shall be sold, and deprived of their freedom, which is given to them. In this case, the question as to the construction of the act of 1796, was waived. Mr Key, contra. The testator died in 1825, and, by her will, she charges her whole estate with the payment of her debts, both real and personal, and gave freedom to the defendants in error. The executor assented to the bequest of freedom; they were at liberty for eight years; when, under an order of the orphan's court, to which they were not parties, and of the proceedings of which court they had no notice or knowledge, they were taken and sold. Over such a case, that court had no authority or jurisdiction. The court could not manumit. It will be found, on an examination of the proceedings of the orphan's court, that, in July 1833, the balance due the executor was 591 dollars, and the court did not specifically order the negroes sold. The order was general, to sell all the personal estate, and not to sell any particular part of it. This is shown, by the acts agreed. By the 24th chapter of the law of Maryland of 1729, negroes are not to be sold as long as there are other goods. In this case, the only debts are to the executor himself for overpayments by him in his administration of the estate; and he is the residuary legatee. All the legatees, on a deficiency of other assets, must contribute. 2 Vern. 708; 2 Mad. Ch. 109, 107; 2 Ves. Jun. 415, 420. Where it may be collected from a will, that any particular legacy should be paid, and exempted from contribution, in the event of a deficiency to pay debts, it shall be done. In the case of a bequest of freedom, there must, from its very nature, be such an intention. How could the negroes be made to contribute? The whole of the bequest is defeated, and its purpose destroyed, if the executor has a lien on the freedom of the negroes for contribution. Freedom cannot be parted, it cannot be enjoyed, nor does it exist unless it is entire. Any restraint upon it, which puts in the power of another a right to sell a part of it, destroys it altogether. No inference can be drawn from the bequest of freedom, but that it was entire and unincumbered. It was fully, completely and irrevocably bestowed; when it was given at all. Nor does the law warrant the claim which is made by the counsel for the plaintiff in error; that because there is a deficiency of personal estate, when the real estate is also charged with the debts of the testator, personal estate, specially bequeathed, shall be taken from a legatee and sold, leaving the real estate free and unmolested. It is also contended, that the executor, having consented to the freedom of the defendants in error, cannot afterwards withdraw this consent, and subject them to slavery. Once free, always free. By no law or proceeding, existing or authorized in any state of the United States, can they again be made slaves. Where a legacy has been assented to, or paid by an executor, it cannot be recovered back. This principle applies to the case before the court, as the freedom of the defendants was assented to by the executor. Cited, in support of the discharge of the legacy from reclamation: 1 Vern. 94; 2 Ventr. 358; 2 Chan. Cases 145; 1 Chitty's Dig. 630. Mr Brent, in reply, insisted, that real estate can be resorted to in no other case, but where there is a deficiency of personal estate; and even in such a case, by the law of Maryland, an application to make the real estate liable must be made to the chancellor. The testatrix does not charge her whole estate with her debts. This is not the true interpretation of the will. When debts are charged by a testator on an estate, that portion of it which, according to law, is first held liable to debts, is understood to be so charged in the first place. This is a just and legal execution of the will. In Roberts on Wills 175, it is laid down, that real estate will not be ordered for sale to save a charity. Cited also, 1 P. Wms 294. It is denied that the executor could give the negroes their freedom, to the prejudice of creditors. Their rights could not be affected by any act of the executor. Nor did he give them their freedom; he barely allowed them to go at large.
The opinion of the court was delivered by: Mr Justice Wayne delivered the opinion of the Court.
The object of this writ of error is to reverse a judgment of the circuit court of the District of Columbia, for alleged error in having adjudged the defendants in error (coloured persons) to be free and discharged of and from the service of the plaintiff in error.
The judgment of the court was rendered upon a statement of facts entered into at the trial term of the cause, signed by the counsel of the parties.
It is necessary, however, to set out the facts in the case more in detail, as they appear by the record of the proceedings in the cause.
Eliza Chapman and Robert Champman, infants and coloured persons, by their mother and next friend, claiming to be free by the laws of the land, allege that they are illegally detained and confined in custody, by one Robert Fenwick, who sets up some pretended claim or title to them, as his slaves for life. They pray that a subpoena may issue to the marshal of the District of Columbia, commanding him to summon the said Robert Fenwick to be and appear before the judges of the circuit court of the District of Columbia for the county of Washington, to answer the allegation of the petitioners in the premises. The subpoena was issued; and on the day of the return of it, the defendant appeared by his attorney, and in his plea denied that the petitioners were entitled to their freedom, as alleged; and put himself upon the country.
Before the trial of the issue, by consent of all parties, one Richard J. Edelin was admitted as a party defendant: he being the executor of the last well and testament of Frances Edelin, deceased, late of Prince George's county, Maryland; and having, as such, sold the petitioners to the defendant Robert Fenwick, as the executor contends, in virtue of an order of the orphan's court of Prince George's county, to sell all the personal estate of Frances Edelin. This order was made upon the petition of the executor, dated 16th July 1833; in which he states that Frances Edelin, by her will, had directed that certain negroes should be free at her death; and that he had discovered there were not assets enough, independent of those negroes, to discharge the debts of the testatrix.
The executor had included the negroes manumitted by the will in an inventory and appraisement of the personal estate of the testatrix, returned by him to the orphan's court on the 17th of January 1826. The will is dated the 2d day of November 1825. The testatrix died before the 8th day of December of the same year; and immediately after her death, the defendant, Richard J. Edelin, took upon himself the burthen and execution of her will.
The testatrix begins her will in the following words: 'In the name of God, amen. I, Frances Edelin, of Prince George's county, in the state of Maryland being of sound and disposing mind, memory and understanding, do make and publish this, my last will and testament, in manner and form following. First, and principally, I commit my soul to the mercies of my dear Redeemer and Lord Jesus Christ, and my body to the earth, to be decently buried; and after my debts and funeral charges are paid, I devise and bequeath as follows.' Then follow sundry devises and specific legacies; and so much of the will relating to the freedom of the defendants in error, and to the other persons manumitted by the will, is in these words: 'Item, I give and bequeath to my nephew Richard James Edelin, the small house and lot now occupied by Robert Frazer, which I give to him, his heirs and assigns for ever, with this proviso, that the negroes which are hereinafter mentioned to be free to live in the back room of said house.' 'Item, negro woman Letty, her daughter Kitty, a mulatto, with her three children, to wit, Eliza, Robert and Kitty Jane, with their future increase, and an old woman named Lucy, I do hereby declare them free at and after my death, and they shall have the right to live in and occupy the back room in the house and lot I give and bequeath to my nephew Richard James Edelin. To the two old negro women, I give them and bequeath 10 dollars a year to each of them as long as they live; and 10 dollars a year, during two years after my death, exclusive of the year in which I die, to mulatto Kitty. Item, my three nephews, John Aloysius, Richard James and Walter Alexander Edelin, for and in consideration of the bequests I have made them, shall pay every year to negro woman Lucy and to negro woman Letty, 10 dollars for every year the said negro woman may live, as mentioned in the aforegoing item; and my nephew John B. Edelin, for and in consideration of the bequests I have left him, shall pay, during the two years above mentioned, to mulatto Kitty, 10 dollars for each year.'
The law of Maryland permitting the manumission of slaves by will, is in these words; act of 1796, ch. 67, sec. 13; 'that from and after the passage of this act, it shall and may be lawful for every person or persons, capable in law to make a valid will and testament, to grant freedom to and effect the manumission of, any slave or slaves, belonging to such person or persons, by his, her or their last will and testament; and such manumission of any slave or slaves, may be made to take effect at the death of the testator or testators, or at such other periods as may be limited in such last will and testament, provided always, that no manumission hereafter to be made by last will and testament, shall be effectual to give freedom to any slave or slaves, if the same shall be in prejudice of creditors, nor unless the said slave or slaves shall be under the age of forty-five years and able to work and gain a sufficient maintenance and livelihood at the time the freedom given shall commence.'
The agreement or statement of facts entered into between the counsel of the parties, at the trial term of the cause, and upon which the judgment of the court was given, is as follows.
1. That the petitioners are the same named in the will of Frances Edelin, deceased; to whom she gave their freedom, after her death, as appears by said will, a copy whereof is hereto annexed.
2. That Edelin, the defendant, was the executor of the last will and testament of said deceased, and, as such, sold, in the year 1833, said petitioners to the other defendant Fenwick.
3. That the sale of the petitioners was made in Prince George's county aforesaid, where the deceased lived at the time of her death, and where the petitioners were; and that, from the time of deceased's death to the time of their sale, they were permitted by the executor to go at large as free; and that after the purchase, made by Fenwick, he brought them to the District of Columbia, where the present suit was instituted; and that, after the institution of the said suit, Fenwick transferred his claim to the petitioners to the defendant Edelin, who repaid him his money, and appears to defend the suit.
4. That the deceased left real estate to an amount in value more than sufficient to pay her debts, without the sale of the negroes emancipated by the will, as will appear by her will referred to, and made a part ...