Fourth Generation Inclusive

Thomas v. Palmer, 54 US 249 (1854).

Nathiniel P. Thomas of Caswell County, among other things, devised and bequeathed as follows:

“My mill tract of land, situate in Caswell county, containing eighty-five acres, on the waters of Pumpkin Creek, adjoining the lands of Carter Powell, and others, and the Crowder tract of land, containing about sixty-six acres, adjoining the same. I do hereby devise to my executor, to be sold on a liberal credit, and the proceeds of the said sale to be placed at interest, after investing a portion of the same in purchasing a suitable home for my mulatto woman, Lucy, and children, purchased of the trustees of Robert A. Crowder; the interest in the said two tracts to be appropriated towards their support, and until the amount of said sale becomes due, I direct my executor to appropriate a sufficient amount out of the proceeds of my estate generally, for their maintainance and support.

3rd. My mulatto woman, Lucy, as aforesaid, I do hereby devise and bequeath, to Nathaniel J. Palmer, together with her children, Mary Jane, James and Newton, and any other children that she may have, in trust and confidence, nevertheless, that he will provide for them a suitable home, as aforesaid, and for her support, and that of her children, until they are able to support themselves, out of the proceeds of the real estate aforesaid. And in the event of the death of the said Nathaniel J. Palmer, the said woman, and children are to be held by my friend, William Bryant, of Pittsylvania county, Virginia, as trustee aforesaid, and in the event of his death, they are to be held by such trustee as he may select, and the County Court of Caswell approve and appoint, it being understood that the said woman and children are not to be removed from the county of Caswell, without her free will and consent, and a copy of this will recorded in the clerk’s office of the county, to which she may remove.”

In a codicil to this will, Thomas provided: “In the event that the laws of North Carolina, or the policy of the same, as construed by the Supreme Court, shall present any obstacle to the fulfillment of the trust mentioned in the foregoing will in relation to my mulatto woman, Lucy, and her children, I do hereby authorise and direct my executor, to send them to such State, territory or country as she may select, and he may think best, and I do hereby charge my estate with a sum sufficient to provide for their removal to such State, territory, and country, and for their comfortable settlement there; it being my will and desire, that she shall not be continued in slavery.”

When Lucy was advised that North Carolina’s laws forbade her to remain in the State and obtain any of the advantages proposed in Thomas’ will or codicil, she moved with her children to Ohio.

In her suit, Lucy Thomas and her children alleged that they were able to get to Ohio, but had not been provided with a home or settlement as the will directed, and “that they are in want, and destitution, and that the children being small, the mother is unable to support herself and them, without the assistance of the fund provided in the will.” They argued that the codicil of the will validated the provision made for them in the will and that they are entitled to the proceeds of the sale of the two tracts of land, which amounts to some $1,500; to the expenses of their removal; and to a comfortable settlement out of the Thomas’ estate.

Palmer, the executor, objected to this construction, arguing that there is nothing in the codicil to validate the deficient and illegal devises in the body of the will, and the plaintiffs are not entitled to any thing but the expenses of their removal and a comfortable settlement in Ohio.  He asserted that he had already advanced funds to them to assist their move, and as soon as the condition of the estate allowed, would provide for their comfortable settlement.

The Supreme Court determined: “Emancipation is not forbidden by our laws; but a negro, who is set free, is required forthwith to leave the State; for it is against public policy to have the number of free negroes increased, or to allow negroes to remain among us in a qualified state of slavery. … It follows that the provision in the will by which Lucy and her children were to remain in this State under the care and protection of one, who was to act nominally as master, but was to provide a house for them to live in, and apply the interest of a certain fund for their support and maintenance, so as to let them have the control of their own time, is void. Fortunately for the complainants, the testator became aware of this in time to make provision by a codicil for their emancipation and removal to another country….”

The complainants insisted, in error, that the codicil had the further effect of making valid the provision that is made for them in the will, and that they were entitled to the provisions of both.  “In other words, that besides having the expenses of their removal and comfortable settlement in another country paid out of the estate of the testator, they are entitled to the fund produced by the sale of the two tracts of land. We do not think so.”

The provision made by the codicil was intended as a substitute for the provision made by the will in the event that the will could not be carried out. “The intention is clearly this: If the negroes can be kept in this State, they are to be provided for as directed by the will. If they cannot remain here and be so provided for; then, they are to be provided for as directed by the codicil. There is not the slightest intimation that the two modes of providing for them are in any degree, or to any extent, to be cumulative.”

In the 1860 census of Ward 6, Cleveland, Cuyahoga County, Ohio: Lucy Thomas, 35, nurse, daughter Mary J., 14, and Lucy B. Hill, 25.  The Thomases were born in North Carolina, and Hill in England.  No color designation was marked.