US SUPREME COURT DECISIONS

Patrick McCutchen, of Tennessee, died in 1810, having previously made his last will and testament, by which will, among other things, he bequeathed to his, Wife Hannah, during her natural life, all his slaves, and provided that they, naming them, should at the death of his wife be liberated from slavery and be forever and entirely set free, except those that were not of age or should not have arrived at the age of twenty-one years at the death of his wife, and those were to be subject to the control of his brother and brother-in-law until they were of age, at which period they were to be set free. As to Rose, one of the slaves, the testator declared that she and her children, after the death of his wife, should be liberated from slavery and forever and entirely set

free. Two of the slaves, Eliza and Cynthia, had children born after the death of the testator and before the death of his wife. Nothing was said in his will

as to the children of Eliza and Cynthia. After the decease of the wife, the heirs of the testator claimed all the slaves and their increase as liable to be distributed to and among the next of kin of the testator, alleging that by the laws of Tennessee, slaves cannot be set free by last will and testament or by

any direction therein. That if the law does authorize emancipation, that they are still slaves until the period for emancipation, and that the increase, born after the death of the testator and before their mothers were actually set free were slaves, and as such were liable to be distributed.

By the court: "The laws of Tennessee fully authorize the emancipation of slaves in the manner provided by the last will and testament of Patrick McCutchen."

As a general proposition, it would seem a little extraordinary to contend, that the owner of property is not at liberty to renounce his right to it either absolutely or in any modified manner he may think proper. As between the owner and his slave, it would require the most explicit prohibition by law to restrain this right. Considerations of policy with respect to this species of property may justify legislative regulation as to the guards and checks under which such manumission shall take place, especially so as to provide against the public's becoming chargeable for the maintenance of slaves so manumitted.

It is admitted to be a settled rule in the State of Tennessee that the issue of a female slave follows the condition of the mother. If, therefore, Eliza and Cynthia were slaves when their children were born, it will follow as matter of course that their children are slaves also. If this was an open question, it might be urged with some force that the condition of Eliza and Cynthia during the life of the widow was not that of absolute slavery, but was by the will converted into a modified servitude to end upon the death of the widow or on their arrival at the age of twenty-one years should she die before that time. If the mothers were not absolute slaves, but held in the condition just mentioned, it would seem to follow that their children would stand in the same condition and be entitled to their chanrobles.com-red

Page 33 U. S. 221

freedom on their arrival at twenty-one years of age. But the course of decisions in the State of Tennessee and some other states where slavery is tolerated goes very strongly if not conclusively to establish the principle that females thus situated are considered slaves; that it is only a conditional manumission, and until the contingency happens upon which the freedom is to take effect, they remain to all intents and purposes absolute slaves. The Court does not mean to disturb this principle. The children of Eliza and Cynthia must therefore be considered slaves.

In the circuit Court of West Tennessee, the appellants, James McCutchen and others, citizens of Missouri, Kentucky, Ohio, and Mississippi, complainants, filed a bill against James Marshall and others, citizens of the State of Tennessee, defendants.

The bill states that sometime in the year 1812, one Patrick McCutchen, at that time and for many years before a citizen of Williamson County in the State of Tennessee, departed this life. Previous to his death, the said Patrick McCutchen made and published his last will and testament, which was, after his death, proved before the Court of Pleas and Quarter Sessions of said County of Williamson and established and admitted to record in said county as his last will and testament. A copy of said last will and testament was annexed to the bill. The whole of the persons nominated in the will as executor and executrix qualified as such and took upon themselves the burden of executing the same. Of the said executors, Samuel McCutchen and Hannah McCutchen are dead, leaving James Marshall the sole surviving executor of the will. Patrick McCutchen, the testator, departed this life without issue, and Hannah McCutchen, the widow of the said Patrick, although she intermarried after the death of the said Patrick with one James Price, also died without issue. By the provisions of the will, said Hannah McCutchen, the widow of the said Patrick, only held under it a life estate in such portion of the property of the said Patrick as was therein devised and bequeathed to her, which estate has consequently terminated by her death. The bill charges that they, together with the defendants to this bill, except the defendant James Marshall, are the legal heirs and distributees of the said Patrick McCutchen, deceased.

The said Patrick also left as his distributees and heirs at law the defendant James McCutchen, a brother of said Patrick, and chanrobles.com-red

Page 33 U. S. 222

Alexander and William Buchanan, children of a deceased sister of said Patrick, but who resides without the jurisdiction of the court, and are therefore not made parties to the bill.

The will of the said Patrick McCutchen, after giving certain legacies to his relatives, devises

"to his wife Hannah, during her natural life, the tract of land on which the testator lived, together with all the residue of his personal property, of every kind, including the slaves which shall remain after the payment of his debts, and the legacies afterwards, to be used as she may think proper, the slaves, nevertheless, to be subject to the arrangement to be made in a subsequent article of the testament."

The sixth article of the will is in these terms.

"It is my will and desire that my negro man slave named Jack, aged about twenty-four years; also my negro may slave named Ben, aged about nineteen years; also my negro woman slave named Rose, aged about twenty-six years, together with what children she may hereafter have, if any, before the death of my wife Hannah; also my negro girl slave named Eliza, aged about eleven years; also my negro girl slave named Cynthia, aged about seven years; also my negro boy slave named Thomas, aged about four years; also my negro girl slave named Harriet, aged about two years; also my negro girl slave named Maria, aged about two months; the four last mentioned slaves being the children of the above mentioned Rose, shall all and each, at the time of the death of my beloved wife Hannah, to whom they are given during her natural life, as mentioned in the third article, be liberated from slavery and forever and entirely set free, provided those who are not now of age or shall not have arrived at the age of twenty-one years at the happening of the death of my beloved wife Hannah shall be subject to the following disposition, viz., Eliza shall be at the control and under the direction of my brother Samuel McCutchen until her arrival at the age of twenty-one years, and then be set free; Cynthia, Ben, Thomas, Harriet, and Maria shall be at the control and under the direction of James Marshall, my wife's brother, until they shall each, respectively, arrive at the age of twenty-one years, at which time or times they are to be each respectively liberated and forever set free. "

Page 33 U. S. 223

The bill charges that the slaves mentioned in the will and owned by the testator, with their increase, are liable to be distributed to the complainants and the defendants, Marshall excepted, as his legal representatives, but that James Marshall refuses to distribute them or any of them, and denies that they are any part of the estate by him to be distributed, alleging that by the terms of the will they are to be set free at the times specified in the will. That the said James Marshall did present a petition to the County Court of Williamson County, praying the court to set free a certain number of the said slaves, to-wit, Jack, Ben, Thomas, Eliza, and Cynthia, and the court, supposing it had power to do so, granted the prayer of the petition and declared them free, which proceedings the bill charges were coram non judice and void, as the court had no power to set the said negroes free unless the testator had, in his lifetime, presented a petition for the purpose.

The bill further charges they are advised that by the laws of the State of Tennessee slaves cannot be set free by last will and testament or by any directions therein, and that consequently all the said slaves, with their increase, are liable to be distributed among the legal representatives of the testator. That if the law authorized a testator to direct his slaves to be set free by a given period or at their arriving at a particular age, yet they are still slaves until that period arrives, and that all their increase, born after the death of the testator but before they were actually set free, are slaves, and as such are liable to distribution.

The bill prays for an account of the hire of the slaves and for their distribution, and for an injunction, &c.

The defendant, James Marshall, executor of the last will and testament of Patrick McCutchen, demurred to the bill, and the circuit court sustained the demurrer, and ordered the bill to be dismissed.

The complainants appealed to this Court. chanrobles.com-red

Page 33 U. S. 236