Walker et al. vs. Walker, ex'ors.

While it may be true, then, that the Colonization Society could not claim the bequest, under the trust, for any other purposes connected with the object so accurately defined in their charter, still, the bequest itself will not of course fail It is clear, from the will, that the money given for the support and maintenance of the testator's negroes, was not to take effect until they were made free, by being colonized in Liberia. And then, according to all the past adjudications of this Court, they would be capable of taking. Crawford and others vs. Vance and others, 4 Ga. Rep. 446; Cooper vs. Blakey, 10 Ga. Rep. 263.

In the latter case cited, this Court held, that when a testator, by his will, directed one of his slaves to be removed to a State, in which the law would allow his manumission, and there set free; and also bequeathed the sum of two thousand dollars to said slave, to be invested by a trustee, to be appointed for that purpose for the benefit of such slave, when liberated as directed by said will, the bequest was good. That is this case.

As to the best mode of executing this trust, it will become a matter for the discretion of the Chancellor below. We would suggest the following: 1st. That the executors be appointed trustees in lieu of the Colonization Society, provided they be entirely reliable, and are willing to undertake the office. 2d. That they be instructed to invest the fund in State or municipal corporation bonds, and apply the interest annually, or so much thereof as may be necessary, to the support of the legatees in Liberia during their minority; and to invest the surplus of unused income, (if any,) as an addition to the corpus of the estate. 3d. As each male cestui que trust arrives at age, let his share be given off to him, and consequently, his interest in the trust cease, except in the event of some one of the children dying in minority, when his distributive share of the portion of such deceased minor, shall be given off to him. So upon the coming of

Beall vs. Drane et al., ex'ors.

age of any female cestui que trust, or her marriage, let the same thing be done.

This plan seems to us to have the merit of distinctness, simplicity, and finality of the trust, within a reasonable time.

If it is thought better to order the executors to to pay it over at once to the legatees, on their arrival in Liberia, or to authorize them to do it then, or at any future period, at their discretion, it would be lawful to do so. But knowing the thriftless habits of these people, and entertaining as we do, serious apprehensions as to their future, we would greatly prefer the scheme which we have proposed, provided the executors can be induced to embark in it.

Judgment reversed.

MCDONALD J. concurring.

BENNING J. dissenting.

I think this will void under the Acts of 1801 and 1818. My reasons for this opinion, are to be found fully stated in Sanders vs. Ward, (Atlanta, Mar. 1858,) and in Adams vs. Bass, 18 Ga. 147. To repeat them here is therefore unnecessary.

ALEX'R R. BEALL, plaintiff in error, vs. STEPHEN DRANE, et al., ex'ors, &c., defendants in error.

STEPHEN DRANE, et al., ex'ors, &c., plaintiffs in error, vs. ALEX'R R. BEALL, defendant in error.

[1.] A free person of color is capable, by the laws of Georgia, of acquiring and holding real estate, except in the cities of Savannah, Augusta and Darien.

Beall vs. Drane et al., ex'ors.

[2] A bequest in these words: "I reserve the tract of land, &c., for the use of J. A. W., during his natural life, or so much thereof as he can cultivate for his support, and at his death the same to revert back to my estate; but said land shall not be liable for the debts or contracts of the said J. A. W.," is not void for uncertainty. [3] The 25th item of the will of Thomas E. Beall was in these words: "It is my will and desire that after my estate shall have been settled up, and all bequests paid out agreeable to the provisions of this my will, the balance of the money or cash remaining in the hands of my executors, shall be invested in an education fund, for the purpose of educating poor orphan children, citizens of the county of Columbia, and if the fund should not be akserted, then the overplus to be applied to the education of the poor children of the county of Columbia."

Held, That the bequest was void, on account of the uncertainty as to the persons who were to take under it.

The poor children of a county, or congregation, or school, are not susceptible of agcertainment.

Demurrer, from Columbia county.

HOLT, March Term, 1857.

Decided by Judge

Ordered, by consent of counsel, that the above cases be consolidated and argued together.

This case came up before the Court at the January Term, 1857, the proceedings on which argument, the facts of the case, and the will of the testator, will be found fully reported in 21 Georgia Reports, 21.

The case came up under the following circumstances:

Alexander R. Beall, as next of kin to Thomas E. Beall, having obtained letters of administration upon the estate of the said Thomas E. Beall, filed his bill, and after stating the proceedings before referred to, as reported in 21 Georgia Rep. 21, set forth the following allegations and statements:

That the ninth clause of said will is illegal and void, and cannot be carried into effect, because it conveys a tract of land to a free person of color, who has not capacity to take and hold lands in our State, and because of uncertainty in the terms of said clause; that the tenth clause is void because of such uncertainty in its terms, and that the twentyfifth clause is void, because of uncertainty as to the subject of the bequest; and after probate is refused to the clauses of the will which have been declared void, the impossibility of

Beall vs. Drane et al., ex'ors.

arriving at or ascertaining the amount conveyed by said clause; a portion of the fund constituted by the sale of testator's property as directed by the will, out of which certain payments were directed to be made by the clauses which have been declared invalid, and out of which fund the residuary bequest in the said twenty-fifth clause contained, is directed to be taken, now resulting to your orator by reason of the invalidity of said clauses; and that portion being unascertained and unascertainable; and also, because of uncertainty as to the objects of the bequest; the same being to "poor orphans, citizens of Columbia county," and to "poor children of Columbia county," cannot be carried into effect as a portion of the last will and testament of Thomas E. Beall. And the twenty-sixth clause of said will is void because dependent upon the said twenty-fifth clause, and because of indefiniteness and obscurity in the directions given by said testator as to the method in which his intention in this connection was to be or could be carried into effect.

That as next of kin, he has obtained letters of administration upon the estate of the said Thomas E., not disposed of by last will and testament, a copy of which said letters are hereto annexed, and marked Exhibit E; and that as such administrator de bonis non, he is entitled to all of the estate of the said Thomas E., which he sought to convey by the clauses of said will that have been declared void, and to which probate has been refused, as well as to the property sought to be conveyed by the said ninth, tenth, twenty-fifth and twenty-sixth clauses of said will, as the same cannot be carried into effect, a part of which property only has been given up by said executors to your orator, to-wit: that disposed of by the twelfth, thirteenth and fifteenth clauses of said will; that as such administrator de bonis non, he is entitled to be paid a reasonable hire by said executors for the work and labor of said slaves from the death of the testator to the period when the same were by said executors given up to your orator, to-wit: on the day of in the

Beall vs. Drane et al., ex'ors.

year of our LORD eighteen hundred and fifty seven, which said hire amounts to the sum of five thousand dollars, or other large sum; that as such administrator he is also entitled to the stock, farming utensils and other articles, together with the crop of every description, which was on hand at the testator's death, and reserved for the purpose of "stocking" the plantation for the slaves, amounting in value to the sum of two thousand dollars, or other large sum, (the same being disposed of by one of the clauses of said will which has been declared void as aforesaid,) that he is entitled to have and receive from the executors the crop made on the plantation of the testator during the past summer and fall, to-wit; the summer and fall of the year eighteen hundred and fifty six, the same amounting to the sum of five thousand dollars, or other large sum; that he is also entitled to have and receive from said executors that which would be equivalent to the use, enjoyment and cultivation of said plantation, or the actual cultivation thereof by said slaves, for four years, the said use and cultivation of the same for the period aforesaid, having been, by one of the clauses which has been declared void as aforesaid, given to the said slaves, in all amounting to the other and further sum of five thousand dollars; that he is entitled to have and receive from the said executors the sum or sums of money which would have been necessary to remove and used as expenses in removing the said slaves to Liberia, or some free State or Territory, and which were directed to be taken out of his estate and used for this purpose by the testator in certain clauses of his will, which have been declared to be void, as aforesaid, the same amounting in all to the sum of three thousand dollars, or other large sum.

That by the said tenth clause of the said will, a reservation. of a tract of land for the use of one James A. Watson for life, was sought to be made by the same testator, that the said James A. is interested, therefore, in the decree which may be made by this honorable Court in deciding upon the valid

VOL. XXV.-28