#### ELISHA JONES vs. MILES B. ABERNATHY.

When slaves, by a will made by a testator in Sonth Carolina, were directed to be emancipated, and then the testator says “ all the balance of my estate to belong to C J.” Held, that C. J. could not claim these negroes at law under the residuary clause, even if the bequest for emancipation were void by the laws of South Carolina, because they did not pass by the words of the residuary clause, but only fell into the residue by the operation of the law, and C. J.’s title was only an equitable one.

Held, that this Court cannot presume, that the emancipation of slaves is-void by the laws or policy of South Carolina, but that this fact should ■ have been proved.

Appeal from the Superior Court of Law of Lincoln County, at the Spring Term 1850, his Honor Judge Dick presiding.

This is a special action on the case, tried ou not guilty pleaded. On the declaration and evidence the ease is as *281follows : William Barry, of Fairfied District, South Carolina, by his will, which was proved there in 1823, gave several slaves, his land, and all his other property to his wife Lucy during her life. The will then proceeds thus : after her death, my will is, that my negroes, Jub, Lid, Isaac, &e., be all emancipated, and continue under the care of Richard Harrison and John Pickett, as trustees. It is further my will, that all my lands adjoining where I now live, with all the stock and plantation tools thereon, do continue in the care and under the protection of said trustees, for the benefit and support of said Jub, Lid and their increase forever. It is further my will, that all the balance of my estate, after my wife’s death, belong to Cynthia Jones.” The testator appointed his wife executrix, and she qualified and died shortly before this suit was brought. During her life, the defendant had some of the slaves in his possession in this State, and then took and sold them beyond the limits of the State^ For doing so this action is bi ought, in order to recover damages, alleged to have arisen thereupon to Cynthia Jones, who is the intestate of the plaintiff.

The Court was of opinion the plaintiff could not recover, and, in submission thereto, he suffered a non-suit and ■appealed.

Avery, Landers and Thompson, for the plaintiff.

Alexander, J. G. Bynum and Craig, for the defendant.

Ruffin, C. J.

Without considering the question, whether a general residuary clause vests in the legatee the legal remainder in slaves, specifically given to another for life, upon the assent of the executor to the legacy for life, the Court holds this cáse to be against the plaintiff. For, supposing the affirmative to be true ordinarily, it is not so upon this will. The residue in the slaves is not expressly given in that clause ; but they are previously *282disposed of otherwise. If they form a part of the residue at all, they fall into it by operation of law merely, contrary to the wish and expectation of the testator, upon the ground, that the disposition of them, foremancipation, tailed by reason of its illegality. Now, that illegality is not established. It is possible, and, perhaps, probable, that it is deemed contrary to policy in South Carolina, to allow slaves to be emancipated and remain there, and the law of that State may not permit it. But, although we know that slavery is established in South Carolina, yet, without evidence, it cannot be judicially assumed here, that a bequest for emancipation is not valid there ; since a power in the owner to manumit is not so absolutely irncompatible with slavery, that they cannot co-exist under the same government; and, in fact, such a power, in some form or other, has been tolerated in most countries and in the States of this Union, in which that institution prevails. But, if that were otherwise, still the right of this residuary legatee would not be a legal, but an equitable one. For. it is plain, the testator meant, that either his personal representative, or the trustees nominated in the will, should perform the office of emancipating, or procuring the emancipation, of the slaves, if any further act were necessary to effect it; and to that end, the legal title must have been intended to revert to the personal representative, upon the death of the widow, or to vest in the trustees, with the land and other property, given "for the benefit” of the slaves. If the purpose of those gifts were illegal and could not be enforced nor executed, still the gifts themselves would not be avoided, but a trust would result to the residuary legatee, upon which there can be no action at law, but only a remedy in Equity.

Per Curiam. Judgment affirmed.