Slaves could not occupy a status of qualified freedom, but a will which directed an executor to treat slaves "with humanity according to the position they [occupied] in society" created no obligation beyond what was expected of every master.

A will could bequeath freedom to slaves when they reached a certain age and provide that they remain in Alabama if the laws would then permit or leave the state if they would not.

Slaves had no power to enforce such a trust, but the court could if the executor would not.

Slaves could not receive a legacy to take effect upon the master’s death, but they could accept if it did not take effect until the time of their emancipation.

Facts of the Case

Albert G. Abercrombie’s will was signed and dated December 15, 1848, and admitted to probate in Montgomery County on February 20, 1849. Under this document, Abercrombie sold Nancy and her six children (Jack, Ellen, Nick, Bonaparte, Susan, and Louisa) to Robert J. Ware for $1.00. Abercrombie directed Ware to treat the slaves "with humanity according to the position they [occupied] in society" and not allow others to impose upon them. He further directed Ware to free the six children when they arrived at the proper age, by the laws of Alabama, if possible, so they could remain in the state. If not, he directed that they be sent to some free state or country. Abercrombie also ordered Ware to liquidate his entire estate for the benefit of Nancy and the six children.

The court decreed that the will was valid as it pertained to the children. Their mother, however, could not receive a portion of the estate because Abercrombie had not freed her under the will. Ware objected, arguing that Nancy should have been freed under the will, as it was obviously Abercrombie’s desire to do so. Abercrombie’s heirs objected, arguing that the emancipation of the children and the monetary bequest to them was invalid.

The Court’s Decision

Judge George Goldthwaite wrote the decision of the Alabama Supreme Court. He noted that the will would have been invalid if it placed the children in a state of qualified freedom until their full emancipation, but, in truth, the will placed no burden upon Ware which was not already the moral, if not the legal, duty of every master. Furthermore, Abercrombie had created a valid trust for Nancy’s children. If the executor was so faithless as to fail to implement its provisions, "the powers of the court of chancery" were sufficient to enforce it. If Abercrombie had attempted to give the children a monetary legacy prior to their emancipation, it would have been invalid, but this was not the case. Unfortunately, Abercrombie’s will failed to state that Nancy should be freed, although it did provide a monetary legacy for her. Under the circumstances, she could not be freed, even though this may have been Abercrombie’s intent. Consequently, she had no legal capacity to accept a monetary legacy.

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