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Robert Fenwick, Plaintiff in Error v. Eliza Chapman and Robert Chapman, by Kitty Chapman their Mother and Next Friend, Defendants in Error 461 (1835)

handle is hein.slavery/ussccases0113 and id is 1 raw text is: JANUARY TERM 1835. 461 ROBERT FENWICR, PLAINTIFF IN ERROR V ELIZA CHAPM1AN AND ROBERT CHAPMAN, BY KITTY CHAPMAN THEIR M1O- THER AND NEXT FRIEND, DEFENDANTS IN ERROR. By the statute of Maryland of 1796, ch. 67, s. 13, manumissions ofslaves, by will and testament, may be made to take effect at the death of the testator. The testator may devise or charge his real estate with the payment of debts, to make the manumission effective, and not in prejudice of creditors. The right to freedom may be tried at law, in a suit against the executors, at the instance of the manumitted slaves; and the executor may, in such suit, admit the existence of a sufficiency of real assets or real estate to pay the debts ofls testator. A judgment at law in favour of manumitted slaves, in a suit against an exec- utor, obtained on the admission by the executor of a sufficiency of assets, may be set aside in equity, if such admission was made without foundation in fact, or in fraud or mistake. In such a proceeding in equity, to which the executor, the manumitted slaves, and all persons interested have been made parties, there may be an entire review of the administration of the 'estate, of the conduct of the executor, and thatofthe creditors, in regard to the estate, and in respect to the vigilance of the executor in payiig, and of the creditors in the pursuit oftheir debts. The words in a will, after my debts and funeral charges are paid, I devise and bequeath as follows, amount to a charge upon the real estate for the payment of debts. When a testator manumits his slaves by will and testament, and it clearly appears to have been his intention that the manumission shall take place at all events, the manifest intention, without express words, to charge the real -estate, will charge the real estate for the payment of debts, if there be not personal assets enough without the manumitted slaves, to pay the debts of the testator. In such a case, the creditors of the testator must look to the real estate for the payment of debts which remain unpaid, after the personal estate, ex- clusive of the manumitted slaves, has been exhausted, and they may pursue their claims in equity, or according to tie statutes of Maryland subjecting real estate to the payment of debts. When an executor permits manumitted slaves to go at large and free, under a manumission to take effect at the death of the testator, he cannot recall such assent. Nor can it be revoked under an order of the orphan's court of Maryland, for the sale of all the personal estate of the testator; that court not having jurisdiction of the question of manumission. It being admitted that a testator left real estate to an amount in value more than sufficient to pay his debts, without the sale of slaves manumitted by his will, those persons are free, notwithstanding a deficiency of personal assets.

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