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both and thereupon, the estate, thus limited and declared in her favor, became and was absolutely vested in her, for and during her natural life. But it is said this estate, thus expressly devised to complainant Maria for life, was neverthe-, less subject to be defeated by the death of the child; as thereby the object and purposes of the devise fails or is accomplish ed. And as the child died in November, 1821, about one year and three months after her father, the estate thereupon was defeated, and, by another clause in the will, passed to the defendants, J. Keys, J. B. Enness and W. Barr as executors, and residuary legatees. And this is argued by defendant's counsel not on the ground that the testator has expressed any such intention or wish in the will, but for the reason above sug. gested, that the purpose of the devise in favor of complainant Maria was ac. complished when the child died: in other words, that the purpose and object of the devise was the maintainance and education of said child. Although this is expressed to be one purpose, yet it is believed that the primary object and chief purpose was the maintenance and support of the mother, during her life, thereby to enable her to do her duty to her child or children. This was expected of her, and that of course she would raise and educate such and so many as her late husband left with her. It is true, according to the authorities cited by defendant's counsel, and upon principle, that property given by will for certain purposes, results when those purposes are accomplished; or that nothing more is subject than those purposes require." But the application of the rule in this case is not so readily perceived. The testator has been explicit, and has directed, in the very next clause, that the remainder in fee, upon the decease of said Maria, shall go to said child or children and their heirs. Indeed, taking the two clauses together, he has so said expressly, and thus has left his intention unembarrassed, and not perplexed with any doubts whatever in rela tion to this matter. But there is another defence. Defendant sets up an agrce. ment made, as he says, on the death of said child, between him, Enness and Keys, the other executors, named in the will, of the one part, and complainant (of the other part meaning) in substance, that the annuity mentioned in the will of $200, should be paid her while unmarried, and the $1,000 in lieu on her marriage, as a satisfaction of all claim on her part under the will. It is not said that the above agreement was in writing, nor is it stated to be a purchase by them or a sale by her of her life estate in said farm. But we understand defendant that it was an agreement to give her precisely what she was entitled to under the will, according to the construction he and they and she gave to the will at the time. They made a verbal agreement to give her what was her own, by the construc. tion they put upon the will. Defendant says he did not advise her, as to the construction of the will, but left her to act for hers if, and by the advice of her other friends. Her brother advised her. Defendant states unsubstantial and unsatisfactory apologies and excuses for not performing this agreement on their part. They were men dealing with a weeping widow, who, a little more than a year before, had lost her husband, and just then her only child! But the a. greement is denied by her, and is not proved. And unsuitable as the time was, yet, in this respect, if it were otherwise, and the agreement stated was proved, it would be no defence against the right now claimed; because the right was not considered as existing and was not therefore the subject matter of the agreement.

The afflicted widow did not know, or imagine she was parting with an estate for her life, producing an income, if properly managed, of two or three hundred dollars a year, and likely to increase in value. It was not the understan. dae of the parties, as we learn from defendant's answer; but their understanding was, that she was cutided only to the annuity and the composition there. (valor mrriage. It was that they wore a king some efforts to secure and py to her, but have failed almost, if not altogether to do that, even according to his own slowing. If the life estate had been distinctly the subject matter of the agreement, it could not be set up in this instance, without overstepping the statute of frauds. Such part performance is the foot and ground of the agree ment, (supposing it to have been for the life estate) as would take it out of the operation of the statute, is not stated and evidenced by proof. And besides now, after so long delay, and the rise of property, it would be unreasonable to en force any such agreement. The evidence is not favorable to this defence: so far from showing that Mrs. Bigelow considered, or understood she was parting with the estate in controversy, it strongly countenances the contrary belief. Her convers uions given ia evidence, were about her rights under the will, not a' sat any agreement she had i de to part with any of them. So far as the deposdios relate conversations of the husband, John Bigelow, they are idle, as having no bearing upon the defence set up in the answer. They, however, prov-nothing of importance in this case; and if they did, would be obnoxious to the objection, that they prove, if any thing, a verbal conversation concerning the sale of real estate.

Decree for complainants.

TOM, A COLORED BOY, r. DESHA, ET AL.

Where a s'ave is purchased under a promise to emancipatelim, such promise may be enforced un equity, against the purchaser, and those claiming under min.

This was an injunction to restrain the defendants from interfering with the personal liberty of the complainant; and was reserved for decision by the su preme court in Hamilton county.

The bill, which was filed in the court of common pleas, January 17th, 1829, in the name of Tom, by his next friend, Orange Witt, charged, that Kate Daily, the mother of Tom, and sister of the defendant, Thomas Daily, was formerly a slave of Miss Baker, of Mason county, Kentucky, who intermarried with one Alexander Edwards. That Edwards died in 1823, and at a public sale, made by Lis administrator, on the 8th of December of that year, Kate, being then pricement enscint with the complainant Tom, was sold to the defendant, Daily, brother of Kate, for the sum of one hundred and sixty one dollars. At this sale, Daily made public proclamation, that his sole object in purchasing Kate was, to liberate her from slavery, and requested the bystanders to aid him in his benevolent purpose, by permitting him to purchase her without competition. In consequence of this public declaration, Daily purchased Kate without oppo

sition, and immediately thereafter, pronounced her a free woman, and on the 12th of January, 1824, duly emancipated her by deed. Soon after the sale, Kate removed to the plantation of James Dummitt, of Mason county, Kentucky, where she has ever since resided and where the complainant, Tom, was born, soon after the purchase and verbal emancipation of his mother, Kate, by the defendant, Daily. Tom always lived with his mother, until she placed him, a short time since, under the protection of his next friend, Orange Witt, in Cincinnati.

Some time in April, 1928, the defendant, Daily, purchased a slave of the defendant, Joseph Desha, and to secure a part of the purchase money, gave Desha a bill of sale of the complainant. This bill of sale was to be void, if the purchase money should be paid by the 7th of October, 1829. At the time this bill of sale was made, complainant was living with his mother, and he was not delivered to Desha. A short time before this bill was filed, Desha threatened to seize the complainant and reduce him to slavery, but his mother, hearing of these threats, sent him to Cincinnati, under the protection of Witt. Desha then made application to the mayor of Cincinnati, who issued his warrant, by virtue of which, the complainant has been taken into custody. The bill charges, that Desha, when he took the bill of sale, knew that Daily never had possession of the complainant, and also knew that his mother Kate, on, and before the birth of complainant, was equitably emancipated, although no deed of emancipation had been actually executed.

Prayer, that the defendants be enjoined from further interfering with the person of the complainant, and to restore him to freedom, &c.

Desha answered and admitted the pedigree of the complainant, as set forth in the bill, and also the sale made by the administrator of Edwards, but denied all knowledge of the declarations made by Daily of his intention to emancipate Kate. He denied that Kate was emancipated until six months, or more, after complainant was born. He admits that Kate, shortly after she was purchased, moved to the farm of James Dummitt, and alleges that when he purchased complainant from Daily, he left complainant with Dummitt, where he was to remain until he called for him. He denies that he knew, when he purchased complainant, that Daily never had possession of complainant; but Daily at that time informed him, that he never intended to emancipate complainant. After defendant had bought the complainant, he agreed to let the complainant remain with Dummitt for a certain length of time, and that, if within that time, Daily paid him one hundred and twenty-dollars, the purchase was to be cancelled, and defendant was to restore the possession of complainant to Daily.

Daily also answered, admitting all the material allegations in the bill. He further stated that the complainant was not delivered to Governor Desha, at the time the bill of sale was executed, and that it was agreed between himself and Desha, that Kate should not be informed of the bill of sale upon Tom, and that Governor Desha requested Dainmitt to keep the matter a secret from Kate.

He neither denies, or admits the freedom of Tom but alleges that he will pay Desha the hundred and twenty dollars when it becomes due.

It was proved on the part of the complainant, that the sale of Kate was made, as set forth in the bill, and that she was declared free by Daily, the purchaser.

It was agreed between the parties, in writing, that Tom was born five months previous to the emancipation by deed, that neither Daily or Desha had ever had the possession of Tom, and that Daily verbally told Desha he delivered the boy into his possession.

Robert Blanchard and John Ronkin on the part of the defendant, testified, that, in May, 1829, they heard the defendant, Daily, say that the sale of Tom to Desha was fair and bona fide, and the delivery was intended to be a delivery in fact of the possession.

Simon Baker testified that he had heard Daily claim Tom as a slave, and once said he would give him to the daughter of witness.

James Dummitt was present at the sale of Tom to Desha. The bill of sale was absolute, and was dated March or April, 1828. Daily delivered to Desha the possession of the boy, and at Daily's request he was permitted to remain with his mother. Desha requested witness to take charge of Tom until he should call for him. Witness kept the boy till he was carried to Cincin..ati by his mother. After the sale was made Desha agreed that if Daily would pay him 120 dollars in eighteen months, he would re-convey the boy Tom to Daily. This agreement was reduced to writing, but it formed no part of the original bill of sale.

Hannah Paine was present at the sale of Edward's property. It was gene. rally understood, by persons present, that the intention of Daily in purchasing Kate was to free her from slavery, and in consequence of this understanding Kate was sold for less than half value. After the sale, Daily declared that Kate was a free woman and must provide for herself. James Dummitt was at the sale and purchased four of Kate's children, and requested Kate to go and live with him and bring up the children, and he would build her a cabin and find her provis. ions. Kate complied, and Dummitt sent his wagon and took Kate and the chil dren home.

The Court below dissolved the injunction and dismissed the bill, and the com plainant appealed to this court.

By the COURT.

This is a contest between the complainant, a coloured boy, who asserts his freedom, and the defendant, Joseph Desha, of the state of Kentucky, who claims the complainant, as a fugitive slave, under the act of Congress of 1793. The only serious question between the parties seems to be, whether the acts and de. clarations of the defendant, Daily, before the birth of the complainant, constitute such an emancipation of the complainant's mother as a Court of Equity will

enforce.

It is a well settled rule that no man shall take advantage of his own wrong. The conduct of Daily at the administrator's sale was a fraud. By his declarations and promises he was enabled to purchase his sister at less than half value; and that, too, by imposing on the humanity of the by-standers. Will a Court of Equity now permit him to turn round and claim his sister and her offspring as slaves? Where a widow stands by and hears her deceased husband's estate proclaimed for sale, free from dower, at public vendue, and is silent, she shall be forever estopped to assert her right of dower. (2 Ohio Rep. 506.) Where

a grazier, driving a flock of sheep to London, was encouraged by an innkeeper to put his sheep into a pasture belonging to the inn; the landlord seeing the sheep, consents that they shall stay there one night, and then distrains them for rent. The plaintif was compelled to replevy, and at law the landlord had judgment; the plaintiff there filed his bill, and was relieved; upon the ground that the landlord should not take advantage of his own wrong. (2 Ves. 129.) This question, however, seems to be settled, and the controversy between these parties put at rest, by the Court of Appeals in Kentucky. (1 Bibb. 422.) In that case it appears that one Thompson purchased a slave, named Will, from Ruth Wilmot, and expressly stipulated that he would manumit and emancipate Will in seven years. Will served the term of seven years, and then instituted a suit at law to recover his freedom, but failed, because the agreement was held not to amount to an actual and formal emancipation under the laws of Kentucky.

Will then continued in the service of Thompson for several years, until Ruth Wilmot, in behalf of Will, filed a bill in chancery setting forth the above facts, and which were admitted by the answer. The circuit court decreed that Will should be emancipated, and that Thompson should pay to Wilmot, in trust for Will, 691 dollars 25 cents, the value of his services after the expiration of the seven years. From this decree Thompson appealed, and Bibb, Chief Justice, in delivering the opinion of the court, affirming the decree, uses this language: "That the answer of Thompson does not afford a colourable pretext for withholding a performance of his engagement, solemnly made, under circumstances interesting to humanity, and most obligatory upon a man of good conscience and unpolluted faith. The contract in itself was not forbidden by any political institution, but is in unison with the dictates of natural right, and was a most becom ing subject for a court of chancery to act upon specifically."

We surely may be permitted to apply these doctrines to a case, where a brother is seeking to reduce his sister and her offspring to slavery, in direct vio lation of his repcated and most solemn engagements.

The mother, then, in equity, which considers that as done which was agreed to be done, was virtually, if not actually and formally, free, at the time of the birth of the complainant. It necessarily follows that the complainant was free. Partus sequitur ventri. (Littell, 319.)

The complainant, therefore, being free born, is not the subject of property, and neither Daily or Desha, who claim under him, have any rights, as against the person of the complainant.

WATKINSON v. ROOT.

An agreement, after interest is due, to turn it into principal, is valid.

An action will lie to recover interest due, and in such action interest may be recovered upon the interest after it becomes due.

This was an action of assumpsit to recover a sum of money, as interest, upon a special contract; and was reserved from Medina county.

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