HARRIET V. SWAN. VoL. I s • HARRIET AND OTHERS [•495 V. SWAN & DIXON. Where the law prescribes a certain form and manner for manumission, no other manner or mode can be adopted or pursued by which it can be lawfully effected ; and so a deed of emancipation in this State is inoperative unless it be proved
JAN. TERM, 1857. HARRIET V. SWAN. or acknowledged in court as pre scribed 1 y the stat -plexion, about six months old, should ute. The possession by an administrator of the estate be free at the death , of my wife, Char-of the intestate, continued for a long time after the lotte Barden, and manumitted from a period limited by law for closing the estate and state of slavery,but that they should redistributing the property, does not, by the mere main her slaves during her life. Now, lapse of time, change the original character of the possession, and make it adverse against those enti-be it known, that I, Gilbert Barden, for tled to distribution, or create any right or title in divers good reason and considerations the administrator under the statute of limitations. me thereunto moving, have and do Appeal from the Chancery Court of Pu-hereby give unto the above named ne-laski County. gro slaves, each and respectively, after TTON. the death of my said wife, Charlotte HTJLBERT F. FAIRCHILD, Barden (if they so long live), their en-Chancellor. tire freedom, provided they continue Fowler, for the appellants. faithfully and obediently to serve my Watkins & Gallagher, said wife, Charlotte Barden, as dutiful for the ap-pellees. slaves to her during her life ; and after her death upon condition of their be-499*1 *SCOTT, J. This is an appeal ing her faithful servants, I then manu-on the part of certain slaves, claiming mit and discharge them from slavery, the right to freedom, who were allowed and give unto them and each of to interplead by guardian in a pro-them, after that event, their entire ceeding in the chancery court of Pu-freedom, if they so long live. laski county, wherein the appellees *Given under my hand and [*500 sought, as heirs and distributees of Gil-seal, this 16th day of June, in the year bert Barden, deceased, to recover from of our Lord 1838. the executor of Charlotte Barden, de-his ceased, and others, the entire estate of GILBERT X BARDEN. the former, in which was included the mark. appellants. Upon the hearing, the chancellor found the issues, upon the Signed, sealed and delivered in pres-question of freedom, against the ap-ence of us, pellants, and rendered a final decree JOHN TAYLOR, accordingly, that being a portion of his her nal decree upon the whole case, which CHARLOTTE X BARDEN. was rendered in favor of the com-mark. plainants below, the appellees here. Witness to Charlotte Barden's signa The appellants' claim to freedom is ture. JOHN H. REED. based vpon the following copied instru-STATE OF ARKANSAS, 1 ments, to-wit : COUNTY OF PULASKI. f "Be it rememberad, that I, Gilbert I, Lemuel R. Lincoln, clerk of the Barden, of the county of Pulaski, in circuit court and ex-officio recorder of the State of Arkansas, having the in-the county aforesaid, do hereby certify tention that my slaves, to-wit : one that the annexed and foregoing instru-man named Isaac, of a black complex-ment of writing was filed for recurd in ion, about forty-six years old, and Har-my office on the 7th day of January, riet, a woman of black complexion, A. D. 1839, and the same is now duly about twenty years old, and her two recorded in book X, pages 239, etc. children, a girl named Mary Ann, of In testimony whereof, I have here-yellow complexion, about five years unto set my hand and affixed old, and David, a boy of yellow corn-the seal of my office, at Little
HARRIET V. SWAN, VOL. 18 Rock. on the 21st day of Janu- Signed, sealed and delivered in pres-[L. a.] ary, in the year of our L.,rd, ence of us, one thousand eight hundred and JOHN TAYLOR, thirty-nine, and the independ-her ence of the United States the CHARLOTTE X BARDEN. sixty-third year. mark. LEMUEL R. LINCOLN, Witness to Charlotte Barden's signa-Clerk and Ex-officio Recorder. ture, "Be it remembered that whereas, I, JoHN H. REED." Gilbert Barden, of the county of Pu- This instrument was also officially laski, and State of Arkansas, have this certified in the same terms as that first day executed my deed for the manu- above was copied, and both of them mission of my negro woman slave, were proven, by the deposition of Al-named Harriet, and her two children, bert Pike, to be in the handwriting of Mary Ann and David, after the death John Taylor, who practiced law in Ark-of my wife, Charlotte Barden, upon kansas, and resided in Little Rock in condition of their remaining during the year 1838, and in that or the next her life her faithful slaves and servants: year went to Texas, where he was at the Now, I, Gilbert Barden, hereby de- time of making the deposition, if not clare that I have given and hereby do dead. That, when here, he was Bar-give to the said Harriet, when we shall den's attorney. That Reed was dead, obtain her freedom under said deed, and that his signature was genuine. upon the condition aforesaid, the fol- Another instrument of writing, lowing parcel of land, consisting signed and sealed by Charlotte Barden, of about twenty-nine acres, that and witnessed by J. H. Reed, Sidney is, the north portion of the Blackburn, and Asa G. Baker, was ad-fractional section thirty-five, on mitted in evideuce by agreement. This 5019 *which I now live, in township bore date the 19th of June, 1839, and one north, in range twelve west, divid- referring to the two foregoing instru-ing said fractional section by an east ments and the death of Gilbert Barden, and west line, so as to cut off forty declared, as was recited, that for the acres on tlfe south side thereof, situate, purpose of giving his intention lying and being in the said county of *effect with regard to the mann- [*502 Pulaski in said State. To have and to mission of the slaves, that they had hold the said northern portion of said been obedient and dutiful servants, and fractional section of land, containing that she desired that it should be taken about twenty-nine acres, more or less, that they had continued so up to the to her the said Harriet, after the event, time of her death, unless she should, be-and on the condition aforesaid, to her fore that time, demand a return of the and her heirs forever. And I, the said instrument of declaration from Asa G. Gilbert Barden, hereby, for myself, my Baker, into whose hands she executed heirs, executors, etc., to the said Har- it, with a view to place it, together with riet, etc., the said land above granted the original of the two instruments shall and will forever warrant and de- above copied, to be held by him subject fend. to her order. Given under my hand and seal, this The appellants also rely upon the 16th day of June, in the year 1838. last will and testament of Charlotte his Barden, deceased, which was made and GILBERT X BARDEN. published the 29th October, 1840, and mark. which was regularly probated and re-
JAN. TERM, 1857. HARRIET V. 8WAN. corded in the probate court of Pulaski tate other than such as she was entitled .county, in the year 1851, by which she to in her husband's estate on account bequeathed one-third of her estate, con-of her dower rights. sisting of lands, goods, chattels and The questions then, so far as these choses in action, to her niece, Rebecca appellants are concerned, are : Brookin, of Pike county, Georgia, and 1st. Were they entitlea to their two-thirds to the Methodist Episcopal freedom under the deeds executed by Church at Little Rock, for the benefit Gilbert Barden? of that body and the spread of the gos-2d. Were they entitled to it under pel. That the appellants, Isaac and Mrs. Barden's will. Harriet, should be emancipated and set The first question is distinctly set-free immediately after her death, and tled, against the appellants, in the case that Mary Ann, David Scott, Martha of Isaac H. Jackson v. Bob, decided at Jane, Lucinda and Isaac Henry, chil-the present term. When these deeds dren of Harriet, should be set free, as were executed, as now, there were but they should respectively arrive at the two ways by which a person owning age ot twenty-one years. That said slaves, could manumit them : 1st, by children of Harriet and other children last will and testament : 2d, by some of hers, that might be thereafter born, other instrument of writing under the and the children of the children, if any, grantor's hand and seal, attested and should be hired out until they should proved in the district (circuit) court by arrive at the age of twenty-one years, two witnesses, or acknowledged by the respectively, and that, after paying the party in the court of the district expense of raising said children, one-(county) where the grantor reAded. half of their heirs should be given to Sec. 20, P. 526, &eel AfeC. Dig. the trustees of said church, and the These deeds were never so proven or other half to the children. Bertrand acknowledged. was appointed executor, and in August, In the case of Givens & 1?eynold8 v. 1851, took upon himself the burden Mann, 6 Man! R. 201, upon a trial for thereof. emancipation, the plaintiffs offered in Upon the death of Gilbert Barden, evidence a deed of manumission re-his widow, Charlotte Barden, regularly corded in the district court, when by took the administration of his estate, the laws of Virginia, such a deed must returned an inventory of it, including be proven in the county or corporation the slaves in question, and made some court. The deed was rejected and the settlements from time to time with the court of appeals affirnied the decision. probate court, but her administration Besides the case of Bob, and the pre-was never closed up, and she was never vious case of Campbell et al. v. Camp-discharged therefrom. Nor was her bell et al. (13 Arlc. 509), decided in this dower ever set apart to her, nor was court, there are a large number of cases there any distribution of the estate. But cited in the brief of the counsel for the it remained in her hands intact, from appellees, which sustains the doctrine the time she took out administration unequivocally, broadly and distinctly, 503*] *until her death, and then it that where the law prescribes a certain passed to the hands of the executor of form and manner for manumission, no her last will and testament. Neither other manner or mode can be adopted she nor her husband ever had any chil-or pursued by which it can be lawfully dren, and the slaves of the estate did effected. not come to Barden by her. Nor does Under this state of the law, as ap-it appear that she had any interest or es-plicable to the case before us it be-
HARRIWr V. SWAN. VOL. 18 came necessary for us to look to law, yet the administrator or adminis-5041 the provision of the *deeds in tratrix was clearly entitled to the pos-question, and determine whether they, ses q lon of the same for the purpose of or either of ' them would be sufficient, administration; overruling on this if they had been properly proven or ac-point the previous cases of Hill's ad. v. knowledged ; and therefore we are not Mitchell, 5 Ark. 609,,and Morrill et al. v. to be understood as passing upon their Merofee's ad., Id. 629, and that that was sufficiency in that view. the true construction of the law pre-To sustain the appellants' claim un-vious to the passage of the act of 1846, der the will of Mrs : Barden, the statute expressly making slaves and land as-of limitation and lapse of time are insets in the hands of the administrator sisted upon as giving her title to them. or administratrix. But the difficulty in the way of that *In May, A.D. 1844, Mrs. Bar- [*505 theory is the want of the indispensable den made her last settlement with the prerequisite—adverse possession on probate court, showing in her hands a her part. Unquestionably they went balance belonging to the estate, which into her hands as administratrix, and balance was struck from an aggregate, she so treated them upon the rec-which included the appraised value of ords of the probate court. She died the appellants. She never, afterwards, in July, 1851, and this bill was filed in surrendered these effects to distribu-June, 1852, a few days less than one tees, or divided them between herself year after her death. That she was as dowress and sugh distributees, entitled to the possession of the slaves or made any effort to do so, so far as administratrix, is clear enough from as anything appears on this record; on several provisions of the law then in the contrary, she never closed the ad-force. Under the provisions of sec. 21 ministration in any way, or sought any (of Steel & McCampbell's Dig., p. 55) of discharge from it, as is expressly ad-the administration law then in force, mitted;and from everything that ap-executors or administrators were em-pears on the record, from the time of powered to sell all personal estate and that settlement (her will having been slaves, for the payment of debts and niade some four years previously) until legacies, when necessary, selling slaves the day of her death, the affairs of the last. Under sec. 24, p. 56, Id., they estate, and the possession of the slaves, were empowered under direction of the seem to have been, in all respects ma-court, to hire out slaves. Under sec-terial to the question we are consider-tion 47, page 69, Id., where no known ing, in the same conditi , m that it had heirs, or where legal heirs or legal rep-been from the death of her husband, resentatives did not appear within two up to the time of that settlement. years after publication of notice, they Under such circumstances, to allow were to sell all personal property and lapse of time to create in her right and slaves, whether necessary for payment title to the property, would be, in the of debts or not. And the administra-language of the chancellor, "to encour-tion law that was put in force in the age neglect and violation of law in the State, 20th March, 1839, was to the settlement of e8tates, and to reward same effect as to the administration on breaches of trust in the disposition of slaves as part of the personal estate of the property of estates. the deceased. And in Menifee's ad. v. In any view, under the circum-Menifee et al., 8 Ark. 46, et seg., this stances of this case, whether she is to court decided that although slaves and be made accountable as administratrix real estate descended to the heirs at or as tenant in common, she was a
J. TERM, 1857. HARRIET V. SWAN. trustee to preserve the estate for those have altered the property as much aa beneficially interested. So that it is the administrator's assent, and in pur-not necessary to decide in which of suance of which decree there was a di-these two attitudes to place her, vision made by commissioners, and the although from analogous doctrines, husband took possession of his wife's which seem to be established by highly part as allotted, yet it was held that respectable authority, it would seem that possession did not come up to the that the appellees would have the standard of possession as husband, be-right to hold her to account as admin-cause the report of the commissioners istratrix, and under some circum-had not been returned and acted upon stances this might be an important by the court. This, doubtless, was go-right, since there would be bond and ing a long way, and ought not to be security for the representative trust, held as law, but it serves to illustrate, and none for the trust as co-tenant in in a striking manner, the fallacy of a common. Thus, the cases of Wallace claim to change the character of a pos-v. Taliaferro, 2 Call R. 447—Id. 471, session once fixed—as was that of Mrs. and the cases 12 Vesey 497; 16 Vesey Barden's in this case—as • dministra-413; 5 John. R. 211, seem to establish trix, to that of mere dowress and joint the doctrine that where the husband is co-tenant with the proper distributees in possessi m of the property in the of her intestate's estate; much less to character of executor, or in right of his that of an adverse possession from the 5061 wife as 5executrix, this posses-mere sliding away of time, during sion alone is not sufficent to_alter the which no one may have interfered property and vest the estate in the with her, either to stimulate her to the chattels in himself as husband so abso-proper execution of her trust, or to the lutely that on his death they shall assertion of her claim to her dower not survive to the wife, but shall pass rights in severalty. to his representatives. And, also, that But, as we have said, that if another person was executor, and point need not be decided, be-the husband got possession of the prop-cause, in either event, she is ac-erty, that possession would not avail countable as trustee. And the rule him unless it was with the executor's is, that "if a trustee is in pos ses-assent. And the case in 6 Munf. R. 70, sion, and does not execute his decides that, where both characters are °trust, the possession of the P507 united, the law is the same, and that trustee is the possession of the cestui an election to take as devisee must be que trust; and if the only circumstance expressed or implied from sufficient is, that he does not perform his trust, circumstances, otherwise he would be his possession operates nothing as a considered and held as in possession bar because his possession is according as executor—possession as husband to his estate;" Per Ld. Redesdale in 2 seeming to be considered as indispen-Sch. & Lef. 606, cited in Angell on Lim. sably necessary to be shown. And this sec. 166; and in the same section the seems to have been carried to a greater latter says: "To exempt a trust from extent in the case of Gregory's admr. the bar of the statute of limitations, it v. Mark's admr., 1 Rand R. 355, where must first be a direct trust; second, it the husband, in right of his wife, had must be of a kind belonging exclusive-no right to specific slaves, but only to ly to the jurisdiction of a court of an undivided portion of certain slaves, equity, and then the question must and there had been a decree for a di-arise between trustee and cestui que vision, which one might suppose would trust." And in section 168 of Mr,
VoL. 18 Angell's work, it is said: "The most common.mode of creating direct trusts tiot cognizable - at law, is by the appointment and qualificatiion of executors and administrators, who are precluded from taking beneficially; and administrators, claiming merely as such, cannot, by virtue of lapse of time merely, set up title to the general residue. But being simply and technically trustees, there is no principle of equity which, upon that single consideration, can admit of their holding to the exclusion of the parties beneficially Interested." See also the cases cited on this point in the appellees' brief, among which are several eases decided in this court.' And if it had been shown that ‘Mrs. Barden had committed a breach of her trust beyond the mere non-execution of it, it could not avail the appellants, because mere acquiescence in a breach of trust will' not prejudice a person who was ignorant of his rights; and it lies upon the trustee, who rests his defense on the acquiescence of cestuis que trust in the breach of trust, to prove they had knowledge or notice of it. (Hill on trustees, p. 627, and other authorities cited by appellees.) We think there can be no doubt but that the law is against appellants upon the second and last ground, upon which they claim their freedom, as clearly as upon the first. We shall, therefore, affirm so much of the chancellor's decree as was ap— pealed from. Absent, Hon. Thomas B. Haply. Cited:-19-430-660; 21-17; 22-473; 23-369; 46-34. 1. The statute will not operate in favor of a trustee of an express trust. AndersonDuan, 19-650; Brinkley v. Will1s,22-1; frialliburton v.Fletcher, 22- 453; Curtis v. Daniel, 23-362. But it must be of an .express trust without an open denial and repudia--tion of it by the trustee. McGaughey v, Brown, 46-25. lf the trustee die the claim against him must be presented within the time impond for the presen-Intion of other claims. Purcelly v. Carter, 45-29E and cases cited.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.