MONICA VS. MITCHELT.. 357

the legislature, which forbids persons in their situation from
remaining in the state, unless upon terms incompatible with
the unrestricted enjoyment of the devise, the latter must fail.

Looking to the 3d; 4th and 5th sections of the act of 1831,
chap. 281, it is manifest, that no slave manumitted since its
passage can remain in this state in a condition of freedom.
It is true, that the orphans courts may or may not grant
slaves so manumitted annual permits to remain, but the privilege
of doing so depends upon the discretion of the court, and if
withheld, they are liable to be expelled at any time.

The duly of the courts to give effect to devises, if it can be
done, is conceded, but the law qu<s nihilfrustra will confer no
privilege or right upon a party which he cannot enjoy, and for
that reason, will never cast the freehold upon an alien heir who
cannot keep it. 2 Kent's Com; 53.

Being satisfied from the terms of this devise, that it was the
intention of the testator to provide for these negroes a perma-
nent home, and not to confer upon them a title, of which they
could only get the benefit by selling, and as that intention must
yield to the legal policy of the state, as declared by the legisla-
ture, I should, if no other reason existed, feel bound to declare
the devise void.

But there is another reason. It appears that the personal
assets are insufficient to pay debts and the pecuniary legacies ;

and that, consequently, the latter receive dividends only. How
then is the house to be erected ? Not, certainly, by having re-
course to the real estate in the hands of the devisees, for they
are equally objects of the bounty of the testator; and there is
nothing in the will to show any such intention. Stevens vs.
Gregg, 10 Gill & Johnson, 143. The executor is charged
with the duty of erecting the house, which of course was to be
done out of the personal assets, and they being deficient, the
duty must necessarily remain unperformed, and as the two
acres of land were to adjoin the house, that portion of the de-
vise must fail also;, there being no house to adjoin.

A decree will be signed for the payment of the pecuniary