25 Tenn. 127 | Tenn. | 1845
delivered the opinion of the court.
It was agreed between Mrs. Dorsey and Brown, by articles dated the 7th of February, 1827, that the land conveyed to her by her late husband, should remain, be and continue her property, and subject to her control and disposition; and also, all the negroes devised to her by her late husband, and then in her possession, (naming them,) and their future increase, “to be and remain the property of' the said Elizabeth, and subject to her control and disposal forever.”
This contract was signed by Elizabeth Dorsey and William Brown; after which, they were married. Mrs. Brown died the 17th of January, 1842, leaving her husband surviving; and he died the 6th of May, 1844., The question is whether Brown, by virtue of his marital right, became owner of these slaves. By marriage, the sole and absolute property of the wife’s chattels vests in the husband; and if there be a marriage contract, whereby this right is abridged, it is taken away, only to the extent stipulated in the settlement. When the settlement makes no disposition of the property, in the' event of the wife’s death, and provides only for her dominion over it during coverture, the right of the husband, as survivor, is a fixed and stable right, over which the court has no control, and of which he cannot be divested.” Stewart vs. Stewart, 7 J. Ch. Rep. 246. The question then is, whether the marital right of survivorship is excluded by the contract under consideration. The language of the contract is, that the negroes, and their future increase, are “to be and remain the property of the said Elizabeth, and subject to her control and disposal forever.” It is admitted in the argument, that, but for the word “forever,” the marital right would be excluded only during coveture. But can this word make any difference in the meaning of the instrument? The words,