#### JOHN SIMPSON vs. NATHAN KING & AL.

A testatrix bequeathed as follows, “My girl Maria, after my death, I do not leave her as a bond slave to any person, I wish her to live among my children, or otherwise if she sees proper. I leave J. S. to act as trustee for said girl.'v Also, “l will and bequeath twenty-five dollars to Maria.’1 Held, that,under this will, J. S. took the legal title to the girl Maria.

Appeal from the Superior Court of Law of Caswell County, at the Fall Term 1S50, his Honor Judge Manlv presiding.

This was an action of detinue for the slaves Maria, &c., tried upon the plea of non detinet.

In the last will and testament of Letitia Foster, who died and whose will was admitted to probate in 1837, appears the following clause, to-wit: “My girl Maria, after my death, I do not leave her as a bond slave to any person, I wish her to live among my children or otherwise, if she sees proper. Heave John Simpson to act as trustee for said girl.” And in another clause she says, ‘i will and bequeath twenty-five dollars to Maria”. 'Under this will, the plaintiff claims the slaves in question.

It appeared in evidence, that, a short time after the death of Mrs. Foster in the same year, Nathan King, the executor and now one of the defendants, consented that *378the plaintiff might take the negro Maria, which he accordingly did, and she has since been under his control, up to within a short time before the institution of this suit, when the defendant, King, and the other defendant, one of the next of kin of the testatrix and interested in her estate, took possession of the slave, Maria, and the other slaves, who are the children of Maria, born since the death of the testatrix and since possession was given to the plaintiff; and the defendants, upon demand, have refused to surrender them to the plaintiff.

The point raised by the defendant’s counsel was, whether by the will and the facts of the case, any such estate was vested in the plaintiff, as would enable him to maintain this suit.

The Court was of opinion, that there was a manifest intent in the clause of the will in question to vest in the plaintiff a trust estate in the person of the woman, and this, connected with an assent by the executor, would operate to confer upon the plaintiff the legal estate, which was all that was necessary to support the action in this Court.

The jury, under the instructions of the Court, found a verdict for the plaintiff, and from the judgment thereon the defendant appealed.

Kerr and T. Ruffin, Jun., for the plaintiff.

Morehead, for the defendants.

PearsoN, J.

The declaration by the testatrix, that she does not leave the girl Maria, as a bond slave to any person ; the legacy to her of $25, which she could only take as a person, as distinguished from mere property, and the appointment of Simpson to act as trustee for her, treating her as a person, instead of appointing him a trustee of her, treating her as property, furnish strong ground for the position, that it was not the intention of *379the testatrix to bequeath the legal title of the girl, as property, to Simpson. As the girl was the property of the testatrix, upon her death, the legal title must belong to some one, and unless it was the intention to give it to Simpson, it remains with the executor ; and thus the assumed purpose of the testatrix would be defeated, because it would be impossible for Simpson to act as trustee for the girl, as a person, or as trustee of her as property, if the legal title remained with the executor.

He was made trustee for the one purpose or the other, and neither can be accomplished without giving him the legal title. We do not feel at liberty to adopt a construction, by which the appointment of Simpson as trus* tee would be rendered wholly nugatory, and the purpose of the testatrix be necessarily defeated ; not by reason of anything dehors, but by reason of an intrinsic defect in the will; and we therefore conclude, that the legal title is given to Simpson.

It is evident, that the testatrix supposed she had a right to confer on the girl the privilege oí acting as a free person, provided she appointed a trustee to act for her, by which she means, some person to act as her ostensible owner; but in whom the confidence or trust was reposed, that although he was in law the master, yet he would not treat her as a bond slave, but would allow her to live among the children of the testatrix, or else where, if she saw proper, as a privileged person. The trust is clearly unlawful, and the result of this suit can be a matter of but little consequence, for the residuary legatees, if there be any, if not, the next of kin, may in Equity have the trust declared void, and call for the legal title.

Pee Curiam. Judgment affirmed.