Ellis v. Baker ( 1822 )

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 (he 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, ure are of opinion to reverse the decree, and remand the cause to be finally proceeded in, pursuant to the principles now declared.