Jack, etc., Trustee of v. Vass, Exr. of Philip E.: Chancery Cause, Halifax County (Part 2 of 2)
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given to invest in property remained undisposed of and belonged to the next of kin or distributees, in virtue of a resulting trust. See Morice v Bishop of Dunham 9 Ver: 329 10 Ves: 522 James v Allen 3 Merin: 17 OMary v Butler 2 Tarn: 260 Vezey v James 1 Tim: & Wev: 17 d Fowler vs Garlicke 1 Rus:&. M. 232. cited in 2 Lomax on exors: page 4. But in this case throwing out of view as not entitled to the least consideration upon the question in hand, because clearly illegal and void, the abortive attempt to impose limitations upon the estate or provision made for settlement in North Carolina in the form of restraints upon the power of alienation or on the creation of a perpetuity and taking into consideration the fact that both the beneficiaries and the provision or property intended for them were certain and definite and the failure of execution proceeded solely from an impediment interposed by the laws of North Carolina, without any the least fault delinquency or demerit on the part of the intended beneficiaries I cannot see how the interposition of a trust, if one was created or interposed by the will can take the case out of the reason or principles of the class of cases just cited. The only substantial difference I can perceive in the two classes of cases is that in the first where there is a direct bequest of money or properly for a specified purpose and it becomes impossible to carry out that purpose the necessary consequence is to give the legatee the money or property to be applied or enjoyed in such other manner as he can and may choose whilst in this case which I presume was assimilated to the second class of cases the question may arise whether the legatees should take the equivalent of the provision given them by the will, in money, or the will should be executed upon the express principle so as to approximate as nearly as practicable the manner of appropriation and mode of enjoyment which it prescribes. My own opinion is that if the doctrine of cy pres be not a principle of our system of jurisprudence applicable to the same extent here as in England and if even as a distinct and independent principle not technically applicable at all. I see no reason why we should not borrow analogies from it in carrying out or approximating as near as practicable the will of a testator in such a case as this, or that, at least upon principles of public policy as well as out of a humane regard to the legatees themselves why we should not before giving them the legacy, put them to their election, whether they will leave the Commonwealth and go to some one of the United States where laws permit their immigration or to the Colony or Commonwealth of Liberia, for it ought not to be considered by the Court a supposable case that they would elect to remain in Virginia in Defiance of its penal laws and expose themselves to the consequences of a forfeiture of freedom, and with it any legacy they might might have received, and thereby defeat the plain and manifest intent of the testator in both emancipating and providing for them, but if they or any of them should elect to remain and take the hazard they should be denied participation in the fund set apart as a provision for them and those only who elect to remove should take the whole. If they elect to remove to some of the States the fund should be employed or applied as near as may be according to the provisions of the will for their use and benefit, and if they elect, Liberia, paid over, after defraying all necessary expenses including extra cost of suit in county and circuit Court or Court of appeals, and those of removal to the place of embarkation to the proper officer of the Colonization Society for their use and benefit upon their removal thither or embarkation for that Country. I am of opinion that the legacy carries interest from and after the expiration of one year from the death of the testator and that the sum to be secured against Vass's executor, the appellee is $2000 with interest from that date, and that no account is necessary the exor having confessed assets in his answer and that of this sum $1700 with its interest when paid to the plaintiff Young. The trustee or agent appointed by the will to apply disburse and invest for the benefit of the emancipated Slaves must be so applied and the residue of $300 with so much of its interest as may be deemed proper belongs to and is to be retained by said Young for his compensation in consideration of his services in the premises as provided in the will. I am further of opinion that in the consideration of the peculiar provisions of the will it being most apparent that it was the manifest intention of the testator to provide for them as a class, by the appropriation of a sum to be invested for their joint benefit and enjoyment and in a manner which made the use and enjoyment necessarily joint and inseparable, which had it been practicable (and so it would have been but for the prohibitory laws of N. Carolina) would have rendered the death of Sam whether before or after the testators, no cause for diminishing the amount or joint investment or application of the whole for the benefit of the survivors, and although he survived the testator and thereby as a general rule acquired a vested and transmissible interest, his death ought not to diminish the fund or provision given by our decision to the legatees in lieu of that rendered impracticable of execution by the Statute of N. Carolina, but that the survivors who elect to leave the State, should take the whole in the same way as if he had died in the lifetime of testator or in the same way as if the provision had been capable of execution in North Carolina because by so holding we are carrying out the manifest intention of the testator. Under this decision his children if any he have and capable