
    Coleman & Ux’r vs Dickenson
    
      In Canc.
    
   Ja’s Alderson & Ann his wife by Deed dated 10 July 1712 reciting that Ann at her Marr. was pos’sed of 3 Slaves And that by the Law they were real Estate barg & sold the Slaves to one Hunter for 60 years if the said Ja’s & the Negro’s sho’d so long live In trust And to the use of the said Ja’s & Ann for their lives & to the use of the Surv’r if the Negro’s sho’d so long live With this proviso that if Ann sho’d die before Ja’s it sho’d be lawful for her by Will to dispose of the Negro’s after his death And with this further proviso that if the Negro’s had any Increase during the term that they sho’d be taken care of till they were fit to be removed from their parents

The husband died first The wife who had made a Will before his death republished it afterw — ds And by this Will she has taken upon her to dispose not only of the 3 Negro’s mentioned in the Deed but also their Increase to the Pit. Eliza.

The Q. is whether as the husband died first the wife had power by this Deed or otherwise to dispose of the Negro’s or their Increase

When this Deed was made it was the gen’l Opinion that a Womans Slaves did not vest in her husband by the marr. This was the construction of the Act of 1705 by which Slaves were first made a real Estate It will [112] however be allowed that this was a mistaken Opinion & a wrong Construction of the Act. The Explanatory Act of 1727. having declared that “ where any “ Slaves have been or shall be conveied given or bequeathed “ or have or shall descend to any feme covert the absolute “ property is thereby vested in the husband”

After repeating these words I may venter to take it for granted that the Slaves of Ann Alderson vested in her husband by the marriage And it will scarce be pretended I presume that the husband’s mistake as to his right which appears in the recital of the Deed did at all lessen or destroy that right

From these premises these two conclusions follow 1. That the Wife can have no pretence of right but what she can derive from the Gift or disposition of her husband And 2. that as the husband had the absolute property in these Slaves So much of that property in them & their Increase as was not disposed of by the Deed now before us remained in the husband And upon his Death must go to his Representatives

The business then is to see how far the property of these Slaves or their Increase is disposed of by this Deed

It is scarce worth observing that this Deed is to be considered merely as the Act of the husband It is well known a feme Covert cannot make a Deed in any Case Except where she is impowered by some particular Law or Agreem’t so to do But as the wife here had really no Interest in the thing conveied her joining or not joining in the Deed cannot differ the Case

The Deed then I conceive ought to be considered thus A husband conveys his Slaves to Trustees for 60 Years if he sho’d. so long live To the Use of himself & his wife & the Surv’r for life With power to the wife if she died first to dispose by Will after his death I say nothing here of the second proviso which regards the Increase That I shall consider by & by

What is there more in this Deed than a limitation to the husband & wife for life with a power to the wife to dispose upon the contingency of her dying in her husbands life time

If this contingency never happened Can she have a right to dispose by virtue of this power Certainly no and that is truly all the question in the Case

There is surely some difference betw. an absolute power & a limited one or a power that is to arise upon some future contingency If a man give his Ex’ors a power to raise a sum of money out of his Estate in case he leaves a Dau’ter This power cannot be executed if he leaves no Dau’ter because it is to arise upon that Contingency & not otherwise So here the power given to the wife is not a power of disposing at all Events but only upon the contingency of her dying in her husbands life time

The words of the Deed are not only plain to this purpose but it was apparently the intention of the Parties for under the mistaken notion they were that the Slaves did not vest in the husband they [113] concluded that if the wife su vived she would by Law have a power to dispose And therefore there could be no necessity to provide for that but only that she might dispose during the coverture if she died first.

Thus neither from the words of the Deed nor the intention of the parties is there the least ground to infer that an absolute power of disposing was designed to the wife but only a power upon a contingency which not happening She had no power of disposing by virtue of this Deed And if she had none by the Deed she had none at all As I hope I have demonstrated

Let us consider a little further the nature of this Deed. It is a Conv. to a Trustee for 60 years if the husband so long lived. This Trust & term then were to continue no longer than the life of the husband And so upon his death they both expired & determined And consequently the power which was to be executed during the Term must cease and be void Neither the Trust nor the Term nor the power given to the wife from the frame & nature of this Deed could ■ possibly subsist after the husbands death

As to the mistaken notion of the parties with respect to the right to those Negroes As that mistake could not alter or destroy the husbands right So neither can it be any Argum’t to give this Deed a different construction or operation from what it would have had if the husband had known it perhaps if he had he never would have executed this Deed at all

If therefore we regard the operation of this Deed in point of Law Or if we regard the intention of the parties in making It is plain the wife had no power of disposing but.upon the contingency of her dying in her husbands lifetime And therefore her disposition to the Pit. is void

Equity will often supply a defective excon of power But I never read or heard that a Court of Equity would create new or different powers from those created by the P’ties Or extend or enlarge them beyond what the words of the Deed or the intention of the P’ties would carry them Yet this is what must be contended for to support the Wife’s disposition in this Case The power created by the Deed is upon a certain contingency which never happened And yet they will have it that the wife may dispose by virtue of that power. What is this but setting up a different power in the wife from that given her by the Deed As to the Increase of the three Slaves mentioned in the Deed we have been speaking of which are the other six Slaves claimed by the Pit. under the Will of Ann Alderson I really can’t even conjecture what may be sayed in support of the Pits, title to them

The Bill (whether designedly or not I can’t tell) does not mention those six Slaves as the Increase of the three tho’ I daresay they will be [114] granted to be such but only sets forth that Ann Alderson devised the three Slaves in the Deed & six others without shewing her title to them This is one of the Causes of Demurrer that it is not suggested she had any right to the Increase or to dispose of them

I have already observed And I hope it will be granted that so much of the property of the three Slaves & their Increase as is not disposed of by the Deed remained in the husband the whole property vesting in him by the marriage

Now it is plain from the whole tenor of the Deed as well as a particular provision it that the Increase were never intended to be within the Trust thereby created The term is limited for 60 years if Jas. Alderson & the 3 Negros sho’d so long live So that if the three Negroes had died the whole Trust had determined

The proviso which gives the wife a power of disposing upon the contingency mentioned takes notice only of the 3 Slaves without saying anything of the Increase All which is sufficient to shew that they were never intended to be comprized within the Trust at all

But there is a second proviso which puts the matter beyond all doubt By this there is an express provision concerning the Increase that they shall be allowed to remain with their Parents till they were fit to be removed

So that whatever the determination may be with respect to the wife’s right of disposing the 3 Negro’s I conceive the matter as to the Increase will admit of no doubt or question

On the other side it was urged that the limitation of the Trust being to the use of the husband & wife for life & to the use of the Surv’r that the wife surviving was well intitled to the Slaves mentioned in the Deed And that the property of the Increase must follow that of the Parents

And so it was decreed by the Court  