400 HAR VARD LA W RE VIE W. enforce it. Is there anything illegal or obnoxious to the law in the nature of the provision — that is, in the fact that it is not for human beings, but for horses and dogs ? " The vice-chancellor answered this question in the negative, and added, " There is noth- ing, therefore, in my opinion, to make the provision for the testa- tor's horses and dogs void." 1 The learned reader will observe the care with which the distinction is drawn between trusts for a legal purpose and trusts for illegal purposes — the precise distinction which Lord Eldon seems to have overlooked in Morice v. Bishop of Durham. This distinction between an illegal trust and a valid, though merely honorary, trust is well brought out by some decisions in the Southern States before the war. A bequest upon trust to emancipate a slave in a slave State was void, it being against pub- lic policy to encourage the presence of free negroes in a slave- holding community. But a bequest upon trust to remove a slave into a free State and there emancipate him was not obnoxious to public policy, and although the slave could not compel the trustee to act in his behalf, still the courts acknowledged the right of a willing trustee to give the slave his freedom in a free State. 2 The reasoning of the courts is similar to that already quoted. Rice, C.J., for example, in Hooper v. Hooper 3 says : " The Court of Chancery will recognize the authority of the executor to ex- ecute the trust. . . . But the slave cannot enforce its exe- cution by suit. . . . The trust is one of that class which may be valid, and yet not capable of being enforced against the trustee by judicial tribunals." So in Cleland v. Waters, 4 per Starnes, J. : "At all events, if the executors do send him out of the country, no one can gainsay him. . . . Where there is 1 See to the same effect Mitford v. Reynolds, 16 Sim. 105; Fable v. Brown, 2 Hill, Ch. 378, 382; Skrine v. Walker, 3 Rich. Eq. 262, 269. 3 Hooper v. Hooper, 32 Ala. 669; Sibley v. Marian, 2 Fla. 553; Cleland v. Waters, 19 Ga. 35; Ross v. Vertner, 6 Miss. 305; Thompson v. Newlin, 6 Ired. 380, 8 Ired. 32; Frazier v. Frazier, 2 Hill, Ch. (S. C), 304; Henry v. Hogan, 4 Humph. 208; Purvis z. Shannon, 12 Tex. 140; Armstrong v. Jowell, 12 Tea. 58; Elder v. Elder, 4 Lehigh, 252. 8 32 Ala. 669, 673.
- 19 Ga. 35, 61.
