#### Ellis and Others, v. Baker, Executor, &c.

January, 1822.

Marriage Contracts — Rights under* — Case at Bar.— Where a marriage contract reserves to the wife, a power to give certain slaves to whomsoever she shall appoint, she is not authorised to direct a sals or emancipation of the slaves.

The case was this: James Ellis and Esther his wife, formerly Esther Thompson, William Caffa and Nancy his wife, formerly Nancy Davis, David Sawyer and Rhoda his wife, formerly Rhoda Davis, and Catherine Davis, filed their bill in the county court of Prince Edward, against Andrew Baker executor and trustee of Catherine Baker deceased, setting forth the following facts: that in the year 1811, the said Catherine Baker owned a number of slaves mentioned by name, and being about to marry a certain Caleb Baker, articles of agreement were entered into between them, by which it was stipulated that the said Catherine should, after the intended marriage, receive and enjoy during the joint lives of them, the said Caleb and Catherine, the interest and occupation of the real and personal estate, which belonged to the said Catherine before her marriage with the said Caleb; and that the said Catherine should, at her death, or at any time before, dispose of it as she shall think proper, notwithstanding her coverture. It was further agreed, that if the said Catherine should happen to survive her intended *husband, she should not have any part of his real or personal estate: by the same articles, Andrew Baker was appointed trustee, with a provision that if the said Caleb should .die first, the property should be delivered up to the said Catherine: but, if Catherine should die first, the property should go, to whom she shall appoint, by any writing under her hand and seal, or by her last will &c., and in default of such appointment, then to go to her four nieces, who are the female complainants: That Catherine Bakey died in the lifetime of her husband Caleb Baker, and by her last will appointed and directed as follows: “After all my just debts are paid, I desire that my negro man Tom and Polly, and her children, be sold, but give them the liberty of choosing their master, and receive all the money that they are sold for, except a support for Rose and Arion, which is to come out of the sale of the above mentioned negroes to be sold:” that the said negroes Tom and Polly, and her children, are the subject of this suit: that the said Andrew Baker the trustee before mentioned, is also the executor of the said Catherine, and in that capacity continues to hold the said slaves, and is about to dispose of them by the authority derived from the last will of the said Catherine: that the devise to the said slaves is void, and the power of appointment was not duly exercised: that tlie title to the slaves has devolved - on the complainants under the marriage agreement: that the debts of the said Catherine are few, and that there are assets sufficient in the hands of the executor to pay them, without making sale of the said slaves: that the executor has refused to deliver up the said slaves for the purpose of being divided, under a pretence that the power of appointment was duly exercised. They, therefore, pray that the said Andrew Baker may be prohibited from selling the said slaves until this suit is decided, and compelled to surrender them, for the purpose of being divided among the complainants, &c.

*The several exhibits referred to in the bill, are filed in the record.

The answer of Andrew Baker admits the marriage contract, as set forth in the bill, and relies upon the will of Catherine Baker, which he is advised is executed in conformity with the power reserved to her by the said marriage agreement.

The county court dismissed the bill, and upon an appeal to the Superior Court of Chancery, the decree was affirmed.

A supersedeas was granted by a Judge of this court, and was argued by Leigh, for the appellants, and Gilmer, for the appellee.

*

See monographic *note*on “Husband and Wiie” appended to Cleland v. Watson, 10 Gratt 159.

JUDGE ROANE,

delivered the opinion of the court:

The marriage articles relied on in the bill, and by which Catherine Baker imposed a law upon herself, in relation to the property in question, only re-invested the absolute property of the slaves, in her, in the event of her surviving her husband. That event did not happen. If it had, she might thereafter, have emancipated the said slaves, at her will and pleasure. During the coverture, however, she was, by the articles, only to have the use of the *property,*with a power to appoint it to others: and the true question is, whether, in the event which has happened, of her dying before her husband, she had a right, under the articles, to sell or manumit the slaves. We think not. The power given her is, that in the event of her dying first, she may give the slaves “to whomsoever she shall appoint,” and in such part, or parts as she shall choose. These expressions certainly do not justify a sale or emancipation of the negroes. They, on the contrary, contemplate the continuance of the slaves as property, and only give her the privilege of naming the persons who. shall enjoy them: in default of which, it is declared that the present appellants shall succeed.

On these 'grounds, we are of opinion to reverse the decree, and remand the cause to be finally proceeded in, pursuant to the principles now declared.