#### * LYDIA CAMPBELL vs. JAMES STREET.

Where a testator, residing in Virginia where the law .allowed masterá to' liberate their slaves by deed or will, bequeathed as follows: “ My will and desire is, that my negro woman P. shall have her freedom immediately; and that all the rest of my black people shall serve until my youngest child shall be of the age of twenty one years, for the use of raising my children and young negroes. After my youngest child is of age, my will is, that all my negroes shall be free:” It was held that the child of one of the negro women mentioned in the will, born after the death of the testator, but before his youngest child came of age, was entitled to freedom after the latter event.

This was an action of trespass vi et armis for false imprisonment — Pleas—the general issue — and specially that the plaintiff was the defendant's §laye. Upon the trial at Person, on the Fall circuit of 1837, before his honor Judge Saunders, the plaintiff produced the will oí John Campbell, late of Nansemond county, Yiginia; in which the testator bequeathed as follows: “ My will and desire is, that my negro woman Pender should have her freedom immediately, and her emancipation recorded. My will and desire is, that all the rest of my black people should serve until my youngest child should be of the age of twenty-one, for the use of raising my children and young negroes. After my youngest child be of age, nqy will is that all my negrpes should have their freedom and liberty.” The plaintiff tbeii shewed that among the slaves mentioned in said will, was her mother, by name Bina, and that she, the plaintiff, was born after the testator’s death, but before his youngest child, John Campbell, attained the age of twenty-one years, which last event was in the year 1815 or 1816; that from that time until 1833, she had passed as a free womaq. in Virginia; that she was then taken by the said John. Campbell, Junior, and sold to James L. Overby, a co-partner in negro trading with the defendant. She then shewed that the defendant had held and controlled her as a slave ever since she was brought to Person county by the said Overby. The plaintiff also pro-*110a statute of the State of Virginia, enacted in the year 1782, allowing masters to liberate their slaves by deed or will, The counsel for the defendant insisted, that as the plain-wag ^orri after testator’s death, and before his youngest child became of age, she was a slave. The case xvas submitted to the jury to find the facts, the construction of the will being reserved by the court. A verdict -was returned for the plaintiff, and the court being of opinion with the plaintiff, rendered judgment upon, the verdict, from which the defendant appealed.

Graham for the plaitiff.

J T. Morehead for the defendant.

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This case was decided several terms ago, but by some inadvertency, was overlooked by the Reporters. '

Gaston, Judge.

The intention of the testator to extend the emancipation directed by his will to such of his negroes as should come into being before his youngest child should arrive at age, admits, we think, of no doubt. After directing that his negro woman Pender should have her liberty immediately, he proceeds thus: “ my will and desire is, that all the rest of my black people should serve until my youngest child should be of the age of twenty-one, for the use of raising my children and young negroes — after my youngest child should be of age, my will is, that all my negroes should have their freedom and liberty. To ascertain his intention, it is not unimportant to consider that the declared motive for deferring emancipation, is the need of the services of the negroes as a fund for temporary purposes, and it is reasonable to infer, that he desired the emancipation to be as extensive and complete as was consistent with this necessity. But the language of the will is sufficiently explicit. The direction that “ all the rest of my black people shall serve until my youngest child shall arrive at twenty-one,” certainly applies not only to those in being at his death, but such of their increase as should be bom after his death, and before the child’s arrival at age. As these became capable of labour, they were to form a part of the stock to be thus employed; and no doubt can be entertained of the duty of the executors under this clause, to appropriate that labour to the purposes directed. These are <( for the use of raising my children and *111young negroes.” As little doubt can be entertained that the young negroes born after the testator’s death were here contemplated. These, in truth, were the most expensive,, and most required the aid of this fund. If these then were embraced within the words “ my black people” in the first part of the sentence, and also within the words “my young negroes” in the subsequent part of it referred to, they were certainly comprehended within the words “ all my negroes,” in the last part of the sentence.

The intention of the testator to emancipate being clear, the next enquiry is, whether he had authority to emancipate them. This, we think, must depend on his power over the original stock of which they are the increase. Wherever there is a capacity to dispose of any thing, unless there be some special restriction, there is a capacity to make the same disposition of its accruing profits. There is a difference, we understand, in the laws of the different States of this Union, upon the question what becomes of the increase of slaves under a limitation whereby a temporary ownership or use is granted to one, and the future and absolute dominion given over to another. With us, and as we believe in Virginia, and in most of the slave holding States, the increase are appurtenant to the stock, and go over with it to the remainderman — in others, they are regarded as profits, which, without a disposition to the contrary, belong to the temporary owner or usufructuary. But the laws of all permit a limitation to be made, which shall carry them, with the original stock, to the ultimate proprietor.

The law of Virginia allows emancipation by will; and it is conceded that the emancipation directed in this will, with respect to the original stock, is sanctioned- by that law — either as an immediate emancipation with a condition of a short temporary service, or as an emancipation to take effect after that temporary service. If it be the former, the claim of the plaintiff to freedom is necessarily complete. But if it be the latter, then she claims freedom, not as her birth-right, but as a gift, from her owner. She was in law his property, as an incident to, and fruit of, the property which he held *112in her mother — and he, by law, had a right to emancipate her with her mother-

We have examined with attention all the Yirginia decisjong which have been referred to on both sides in the argument; ' but do not feel ourselves competent to remove the discrepancies between them, if such there be; or to deduce from them the full law on this subject. Of this, however, we are fully persuaded that, according to all of them, in a case where there is a plain declaration that the issue, as well as the original stock, shall be set free, it is as effectual to emancipate the increase, as to emancipate the parents. We see no error in the judgment rendered below. It must therefore be affirmed.

Per Curiam. Judgment affirmed.