A wife having separated herself from her husband, for ill
treatment by him, applied to the County Court of Prince George,
Maryland, for alimony, which was allowed to her
pendente
lite. The husband gave the wife a female negro slave and some
other property in discharge of the alimony. She removed to
Washington, hired out the slave, and afterwards, in consideration
of a sum of money and for other considerations, she manumitted by
deed the slave and her two infant children, the eldest not three
years old. Sometime after the agreement between the husband and
wife, a final separation took place between them by a verbal
agreement, each to retain "the property each had, and to be quits
forever," and the wife relinquished all further claim for alimony.
After the death of the wife, the husband claimed the female and her
children as his slave.
Held that they were free by virtue
of the deed of manumission executed by the wife.
This is a case where a transfer of property must be considered
as having been made for a valuable consideration. It was given in
lieu of alimony, decreed by a court of competent jurisdiction
pendente lite, and passed the property as fully to the
wife, as if the husband had conveyed it to a third person for a
valuable consideration. In regard to that property, the wife is to
be considered as a
feme sole, and her right to dispose of
it followed as a matter of course. Construction of the Act of
Assembly of Maryland of 1796, 2 Maxey's Laws 360, relative to the
manumission of slaves.
The terms of the Maryland act and the policy of it were meant to
prevent the manumission of slaves who, from infancy, age, or
decrepitude would become burdensome to the community at the time
the deed of manumission should take effect, and to such as were
over the age after which manumission is prohibited. But the slave
manumitted must either be positively in the latter predicament or
be so decrepit, if under the age of forty-five, and if neither one
nor the other and being in infancy, it must stand so unrelated to
any other free person, colored or white, that it can have no claim,
natural or artificial, to support from anyone, and must therefore
be a charge upon the charity of the community or a charge upon its
poor laws. It would be an unreasonable restraint upon the
privileges of manumission as it is granted in this act if it were
interpreted to exclude the manumission of mother and an infant
child, the former being of healthy constitution and able to
maintain it, as of other children who, in the natural progress of
human life would be able in a few years to maintain themselves by
labor and who would find in their adolescence persons who would
gladly maintain them for the services they could render.
Agreements between husband and wife during coverture for the
transfer from him of property directly to the latter are
undoubtedly void at law. Equity examines with great caution before
it will confirm them. But it does sustain them when a clear and
satisfactory case is made out that the property is to be applied to
the separate use of the wife, where the consideration of the
transfer is a separate interest of the wife, yielded up by her for
the husband's benefit or of their family, or which has been
appropriated by him to his uses, where the husband is in a
Page 35 U. S. 584
situation to make a gift of property to the wife and distinctly
separates it from the mass of his property for her use. Either case
equity will sustain though no trustee has been interposed to hold
for the wife's use.
On 4 August, 1834, the defendant in error presented to the
circuit court a petition stating that she and her two infant
children were entitled to their freedom and that she and they were
unjustly held as his slaves by Joseph Wallingsford, the plaintiff
in error. Joseph Wallingsford appeared to the subpoena issued on
the petition and put in a plea denying the claims of the
petitioner. The case was tried by a jury at the circuit court held
in March, 1835, and a verdict was found for the petitioner under
the charge of the court, from which the plaintiff in error took
three bills of exceptions and prosecuted from the judgment of the
court this writ of error.
On the trial of the cause in the court below, the petitioner
produced a regular deed of manumission, duly recorded, executed by
Rachel Wallingsford, the wife of the plaintiff in error, dated 8
September, 1826, by which, and for divers good causes and
considerations, and in consideration of the sum of $150 paid to
her, she released the petitioner and her children from slavery, the
petitioner being at that time nineteen years old and her two female
children of the respective ages of three years and five months.
The petitioner also proved that Rachel Wallingsford resided in
the City of Washington, for many years as a
feme sole
previous to the date of the deed, that she had a suit for alimony
depending in Maryland against Joseph Wallingsford, he residing in
that state, and that the court ordered her husband to pay her $120
per year as alimony
pendente lite; that sometime after
that allowance had been made to her, her husband gave the
petitioner to her, then about twelve years old, and some other
property in discharge of the order of alimony, his wife agreeing
not to prosecute the claim any further; that after the petitioner
was so given to Mrs. Wallingsford, she lived with her or was hired
out in Washington until the date of the deed of manumission; that
on the death of Mrs. Wallingsford, the plaintiff in error claimed
her and her children as his slaves.
The court permitted the deed of manumission to be read in
evidence to the jury by the counsel for the petitioner, expressly
leaving it to the jury to say or find from the evidence whether the
title of the said Rachel to the said negro Sarah Ann, at the time
of the
Page 35 U. S. 585
execution of the said deed, was absolute, or only for the life
of the said Rachel, and the court instructed the jury that that
question was open for their consideration upon all the evidence in
the cause.
The defendant in the circuit court excepted to the admission of
the deed of manumission in evidence and to the instructions given
to the jury
The defendant, by his counsel, prayed the court to instruct the
jury that if they should believe from the evidence aforesaid
(
viz., the evidence stated in the first bill of
exceptions) that Mrs. Wallingsford held the petitioners by virtue
of an agreement made between her and her husband, without the
intervention of a trustee; that said agreement is null and void,
and could give no power to Mrs. Wallingsford to manumit the slaves
held by virtue of such an agreement. The court refused to give this
instruction, and the defendant excepted to the refusal.
The defendant prayed the court to instruct the jury that if they
should believe from the evidence that an agreement was made between
the defendant and Mrs. Wallingsford by which she was to have the
petitioners in lieu of being supported by him as his wife, yet if
there was no covenant on the part of a trustee or someone capable
of contracting with the husband that he should not be liable to the
maintenance of his wife, the same is null. The court refused to
give this instruction, and the defendant excepted.
The defendant prayed for the court to instruct the jury that if
they should believe from the evidence that an agreement existed
between him and Mrs. Wallingsford that he should transfer the
petitioner to her on condition that she should relinquish all claim
to alimony against him, that then, should the jury believe from the
evidence that she did not comply with this condition and that she
did prefer against him a subsequent claim for alimony, that then
the agreement cannot be enforced against the defendant, nor can he
be deprived of any of his rights by virtue of the said agreement.
The court refused to give this instruction, and the defendant
excepted.
The defendant then prayed the court to instruct the jury that if
they should believe from the evidence aforesaid that the
petitioners or any of them, at the time of the execution of the
deed of manumission aforesaid, were not able by their labor to
procure for themselves sufficient food or raiment, with other
necessary requisites of life, then the said deed of manumission as
to them or such of them was inoperative, which instruction the
court gave, and also on the
Page 35 U. S. 586
prayer of the counsel for the petitioners, further instructed
the jury that if they should believe from the said evidence that
the negroes above-mentioned were of healthy constitutions and sound
in mind and body, and that their mother was capable by labor to
procure to them sufficient food and raiment, with other requisite
necessaries of life, and did maintain them, then such children are
not under the incapacity intended by the Maryland law.
The defendant excepted to the last instruction.
Page 35 U. S. 588
MR. JUSTICE WAYNE delivered the opinion of the Court.
This was a petition in the court below by the appellees for
freedom, complaining that they were unjustly held and claimed by
the
Page 35 U. S. 589
appellant as his slaves. The petitioner gave in evidence a deed
of manumission for herself and two children from one Rachel
Wallingsford. Her third child was born after she was
manumitted.
It appears that Rachel Wallingsford resided in Washington
several years previous to the date of the deed of manumission,
living apart from her husband, the appellant; that she had a suit
pending against him in Maryland, where he resided, for alimony, and
had been allowed by the order of the court $120 per annum
pendente lite. Sometime after this allowance had been
made, her husband gave her the petitioner, Sarah Ann and some other
property in discharge of her alimony; that after this agreement
between them, the said Rachel continued to live in Washington until
her death, having kept Sarah Ann in her service until the deed of
manumission was executed. After the death of Mrs. Wallingsford, the
appellant claimed Sarah Ann and her children as his slaves. All of
the children were born after Sarah Ann was given up by the
appellant to Mrs. Wallingsford. The appellant proved at the time
the deed of manumission was made that Rachel Wallingsford was his
lawful wife. It also appears by a petition filed by the appellant
in the County Court of Prince George County, Maryland to get the
interlocutory order for alimony suspended, and which is in evidence
in the cause, that the appellant and his wife, having had repeated
disagreements, as she alleged on account of her husband's habitual
incontinency with a woman in their own house, Mrs. Wallingsford
left her habitation and refused to live with him. The charge of
incontinency is denied by the husband, but he admits, after his
wife's departure and upon her refusing to comply with his
solicitations to return and live with him, that by an express
agreement between them, he gave to her the woman Sarah Ann and
other property, with two notes of hand, one for $120 and the other
for $200, in all amounting to $900, which was the amount the wife
brought with her when they were married, and of which the appellee
Sarah Ann was a part. This was to be received by the wife in full
of all further claim for support, and the husband was to be
discharged from the payment of alimony decreed by the court.
Wallingsford having refused to pay the notes of hand, and the suit
for alimony being still pending, the parties again met, and a final
separation took place between them upon the footing that the wife
was to retain the woman Sarah Ann; that each was to retain besides
"the property each had, and to be quits forever." In consideration
of the husband's
Page 35 U. S. 590
having agreed to this, the wife agreed to yield her claim for
alimony granted by the interlocutory order of the court, and was to
discontinue her suit.
On the trial of the cause, the admission of the deed of
manumission as evidence was excepted to by the defendant, but the
court overruled the exception. The defendant also prayed the court
to instruct the jury, if they should believe, from the evidence,
that Mrs. Wallingsford held the petitioners by virtue of an
agreement between her and her husband, without the intervention of
a trustee, that the agreement was void, and could give to her no
power to manumit the slaves held under it; also if the jury shall
believe from the evidence that the agreement was made without a
covenant on the part of a trustee or some person capable of
contracting with the husband, that the same was null; also, if the
jury shall believe that the agreement was made on condition that
Mrs. Wallingsford should relinquish all claim to alimony and that
she did not comply with such condition and did prefer against him a
subsequent claim for alimony, that the agreement cannot be enforced
against the defendant; and lastly to instruct the jury if they
shall believe from the evidence that the petitioners or any of
them, at the time of the execution of the deed of manumission, were
not able by their labor to procure for themselves sufficient food
and raiment, with other necessaries of life, that then the said
deed was inoperative to them. The court gave the last instruction
to the jury, but refused to give the rest. And upon the prayer of
the petitioner, instructed the jury if they should believe from the
evidence that Sarah Ann Allen and her children were of healthy
constitutions and sound in mind and body, and that the mother was
capable by labor to procure them sufficient food and raiment, with
other necessaries of life, and did maintain them, then such
children are not under the incapacity intended by the law of
Maryland in the act providing for the manumission of slaves.
The section of the act of 1796, 2 Maxcy's Laws of Maryland 360,
is as follows:
"That where any person or persons possessed of any slave or
slaves within this state who are or shall be of healthy
constitutions and sound in mind and body, capable by labor to
procure to him or them sufficient food and raiment, with other
necessaries of life, and not exceeding forty-five years of age, and
such person or persons possessing such slave or slaves as
aforesaid, and being willing and desirous to set free or manumit
such slave or slaves, may, by writing under his, her, or their
hands and seals, evidenced by two
Page 35 U. S. 591
good and sufficient witnesses at least, grant to such slave or
slaves his, her, or their freedom, and that any deed or writing
whereby freedom shall be given or granted to any such slave which
shall be intended to take place in future shall be good to all
intents, constructions, and purposes whatsoever from the time that
such freedom or manumission is intended to commence by the said
deed or writing, so that such deed and writing be not in prejudice
of creditors, and that such slave, at the time such freedom or
manumission shall take place or commence, be not above the age
aforesaid, and be able to work and gain a sufficient livelihood and
maintenance, according to the true intent and meaning of this
act."
The act prescribes how such deeds shall be executed,
acknowledged, and recorded, and upon a compliance with what is
prescribed in those regards, a copy of the record, duly attested
under the seal, &c., "shall at all times hereafter be deemed,
to all intents and purposes, good evidence to prove such
freedom."
We will consider together the exception taken to the
introduction of the deed of manumission as evidence, the last
instruction asked by the defendant, and that asked by the
petitioners, both of which were given to the jury by the court. The
deed was not objected to for any deficiency in its execution, or on
account of its not having been properly acknowledged and recorded.
The last was done as far as that part of the law can be complied
with in the District of Columbia. The deed was also acknowledged by
the person making it on the day it was executed before a justice of
the peace. It was then properly sent to the jury as evidence of the
fact of manumission, and what its validity might be to give freedom
was a question of law to be determined by the court. As to the
instructions asked by the defendant and the petitioners relative to
the petitioners' being comprehended within the incapacity of the
section of the act of Maryland just recited, both, we think, were
rightly given by the court. That of the defendant was very general,
and the court was not obliged by it to particularize to which of
the petitioners it was intended to be applied. It was therefore
correctly answered by a general instruction directing the jury to
inquire into the fact, at the same time stating what the law was if
the jury should find the fact as the counsel of the defendant
supposed it to be. That of the petitioners, being more specific,
was intended to obtain the court's interpretation of the act upon
the point put, and we think the answer of the court is in the true
spirit of the law.
We think the terms of the
Page 35 U. S. 592
act of Maryland and the policy intended by it were meant to
prevent the manumission of slaves who, from infancy, age, or
decrepitude, would become burdensome to the community at the time
the deed of manumission should take effect, and to such as were
over the age after which manumission is prohibited. But the slave
manumitted must either be positively in the latter predicament, or
be so decrepit, if under the age of forty-five, and if neither one
nor the other, and being in infancy, it must stand so unrelated to
any other free person colored or white that it can have no claim,
natural or artificial, to support from anyone, and must therefore
be at once a charge upon the charity of the community or a charge
upon its poor laws. It would be an unreasonable restraint upon the
privileges of manumission as it is granted in this act if it were
interpreted to exclude the manumission of mother and an infant
child, the former being of healthy constitution and able to
maintain it, as of other children who, in the natural progress of
human life would be able in a few years to maintain themselves by
labor and who would find in their adolescence persons who would
gladly maintain them for the services they could render. If this
construction of the act does not prevail, there can be no fixed age
in childhood when manumission can take effect, and the act would be
made to operate differently upon persons by no certain rule. The
legislature having laid down the age after which manumission shall
not be made, a strong presumption is raised that it did not mean to
exclude all infants absolutely from the benefits of the act, or it
would have said so in terms or have fixed an age when in childhood
manumission should be allowed. If the policy of the law is to
prevent slaves from being manumitted who would be burdensome to the
community, we cannot hesitate in believing that the object will be
accomplished by relying upon those natural affections of a mother
for her child, which have always been found strong enough to
cherish and sustain it, except in some unnatural instances, as when
the true nature of woman has been turned aside by some dreadful
superstition or extraordinary necessity.
We are aware that opinions have been expressed in the courts of
Maryland different from our conclusion in regard to the manumission
of children, but the point of a mother and infant manumitted at the
same time, and the mother being in any way able by her labor to
maintain her offspring, has not yet been decided against by the
courts of Maryland so far as we can gather from their
Page 35 U. S. 593
reports. These opinions too, having been expressed since the
cession of the District of Columbia to the United States, the
courts in the District are not to be controlled by them in the
interpretation of the act under review as they would be, and as
this Court would be, by the decisions of state courts upon state
statutes affecting local rights and interests.
The fourth instruction asked by the defendant, which the court
refused to give, is if the jury shall believe that the agreement
between Wallingsford and wife was that he should transfer the
petitioner to her on condition that she should relinquish all claim
to alimony against him, and that she did not comply with the
condition and did prefer against him a subsequent claim for
alimony, that then the said agreement cannot be enforced against
the defendant, nor can he be deprived of any of his rights by
virtue of said agreement. We think this instruction was rightly
refused, for though it is not denied that the suit for alimony had
not been discontinued and was pending when Mrs. Wallingsford died,
the legal consequence would not be that the agreement would be
avoided by its not having been observed in that particular. The
nonperformance of the agreement in that regard did not restore to
the defendant the ownership of property for which he had received a
valuable consideration by the relinquishment of his wife's alimony,
of which he had the full benefit during her life and continues to
enjoy in the greater means he is presumed to have from having been
relieved from the payment of the wife's alimony. But the
instruction was asked in face of the evidence, which establishes
the fact that the substantial parts of the agreement were complied
with, as the defendant had never been called upon for any part of
the alimony, after the agreement was made, until the death of Mrs.
Wallingsford. A failure upon the part of the wife to comply with
this part of the agreement gave to the husband a good ground in
equity to have the suit discontinued, but did not invalidate the
agreement.
The remaining exceptions to be considered are those relating to
the nullity of the agreement, because it was made without the
intervention of a trustee or someone capable of contracting with
the husband. The court refused to give such instructions.
The inability of the wife in this instance to contract or to
take any interest from her husband without the intervention of a
trustee was argued upon the restraints imposed upon women by the
common
Page 35 U. S. 594
law, during coverture. This is a case which cannot be so
considered. Neither the nature of the action by which the
petitioners sue to have their freedom established nor the agreement
between Wallingsford and his wife would permit this Court to take
so narrow a view of the case. Every feature of the agreement is an
appeal to have it tested by those principles of equity which have
been applied to maintain a separate interest in women acquired from
their husbands during coverture, whether the same were made by the
intervention of trustees or not,
when the transfer was fairly
made upon a meritorious or valuable consideration.
Agreements between husband and wife during coverture for the
transfer from him of property directly to the latter are
undoubtedly void at law. Equity examines with great caution before
it will confirm them. But it does sustain them when a clear and
satisfactory case is made out that the property is to be applied to
the separate use of the wife where the consideration of the
transfer is a separate interest of the wife yielded up by her for
the husband's benefit or of their family or which has been
appropriated by him to his uses; where the husband is in a
situation to make a gift of property to the wife and distinctly
separates it from the mass of his property for her use. Either case
equity will sustain though no trustee has been interposed to hold
for the wife's use.
In
Moore v. Freeman, Bunb. 205, it was determined that
articles of agreement between husband and wife are binding in
equity without the intervention of a trustee. Other cases may be
cited to the same purpose. In regard to grants from the husband to
the wife, an examination of the cases in the books will show, when
they have not been sustained in equity, it has been on account of
some feature in them impeaching their fairness and certainty, as
that they were not in the nature of a provision for the wife, or
when they interfered with the rights of a creditor, or when the
property given or granted had not been distinctly separated from
the mass of the husband's property. In
Scanning v. Hyle, 3
P.Wms. 334, Lord Talbot assumed the doctrine that
femes
covert could have a separate interest by their husband's
agreement. In the case of
Lady Arundel v. Phipps, 10 Ves.
146, 149, Lord Eldon held that a husband and wife after marriage
could contract, for a
bona fide and valuable
consideration, for a transfer of property from him to her. In
Sheppard v. Sheppard, 7 Johns.Ch. 57, it is said husband
and wife may contract for a
bona fide and valuable
consideration for a transfer of property from him to her.
Page 35 U. S. 595
In
Walles v. Hodge, 2 Swanst. 97, it is said husband
may convey to the wife a chattel. In the case of a gift from the
husband to the wife, it is held valid when the husband, by some
distinct act, divests himself of his property. As, for instance, in
the case of
Lucas v. Lucas, 1 Atk. 270, the Lord
Chancellor held that the transfer of �1,000 South Sea
annuities by the husband in the name of the wife was so decisive an
act as amounted to an agreement by the husband that the property
should become hers.
It is not necessary to review here the cases of gifts to the
wife by the husband which have been sustained in equity. They are
alluded to to show how far equity has gone in maintaining transfers
of property by the husband to the wife without the intervention of
a trustee and when there was no valuable consideration money from
the wife to the husband. But the case before us is one where a
transfer of property must be considered as having been made for a
valuable consideration. It was given in lieu of alimony, decreed by
a court of competent jurisdiction
pendente lite, and
passed the property as fully to the wife as if the husband had
conveyed it to a third person for a valuable consideration. In
regard to that property, Mrs. Wallingsford is to be considered as a
feme sole, and her right to dispose of it followed as a
matter of course.
Judgment of the circuit court affirmed.
