defendant Neilson account for the hire of the negroes while they were in his possession, and that his co-defendant, N. G. W. Walker, account for the hire since that time. It is further ordered and decreed that the defendant, David Foreman (the trustee), be perpetually enjoined from enforcing the judgment in trover against the defendant Joseph Neilson.

JOHNSTON and CALDWELL, chancellors, concurred.

Decree reformed.

LIEN OF EXECUTION DOES NOT ATTACH TO PROPERTY HELD BY HUSBAND AS WIFE'S TRUSTEE: Jackson v. McAliley, 40 Am. Dec. 620, and note referring to other cases in this series.

CAVEAT EMPTOR IS RULE IN EXECUTION SALES: Henderson v. Overton, 24 Am. Dec. 492, note 498; McGhee v. Ellis, Id. 131, note; Murphy v. Higginbottom, 27 Id. 395.

WILSON ET AL. V. BAILER ET AL.

[3 STROBHART'S EQUITY, 258.]

SEPARATE ESTATE IN MARRIED WOMAN IS NOT CREATED BY THESE WORDS in a bequest: "I give and bequeath to C. B.

all my property,

by her to be freely enjoyed, to every intent and purpose, as her own in every respect."

BILL filed by the children of Catharine Bailer, claiming that under the will of Isabella Curtis the said Catharine Bailer took a sole and separate estate in certain negroes. The will was as follows: "I give and bequeath to Catharine Bailer, daughter of Thomas Curtis, all my negroes and property which I am possessed of or may have, to be by her freely enjoyed, to every intent and purpose, as her own in every respect." Catharine Bailer died, and her husband retained possession of the slaves, claiming that his marital rights attached to them, and further pleaded the statute of limitations, and also claimed under the will of Thomas Curtis, dated 1794, and which contained this clause: "I give and bequeath to Isabella Curtis, my wife, whom I likewise constitute, make, and ordain the sole executrix of this my last will and testament, all my negroes and property which I am possessed of or may have, by her to be freely enjoyed, to every intent and purpose, as her own in every respect whatsoever, during her life-time, and at her decease to have the full disposal of it, as she shall think proper, to the heirs of my body, and in no other wise whatsoever; otherwise, this will to be void and of no effect." The bill was dismissed, on the ground that the claim was barred by the statute of limitations. The com-.

plainants appealed to the court of appeals, which decided that the statute did not bar the claim; but being in doubt as to the other plea, the case was remitted to the court of errors, to determine the following question: "Whether, by the words of the will of Isabella Curtis, a separate estate was created in Catharine Bailer."

Hutson and Bellinger, for the complainants.

Glover, for the defendants.

By Court, DUNKIN, Chancellor. In approaching the decision of the question submitted to the court of errors, it is well to bear in mind what has been often said by English judges, and as often repeated by our own, viz.: that a separate interest in a married woman is in derogation of the husband's common-law right; that it is the creature of the court of chancery; and that unless the intention to exclude the husband is clearly expressed, or arises by necessary implication, the marital right is maintained. In this, all the authorities concur. In one of our own cases it is thus stated: "By the common law, the personal estate of the wife, reduced to possession, becomes the absolute estate of the husband." "To create a sole and separate estate in the wife, free from the control of the husband, requires that there should be a clear and distinct expression of the intention of the grantor to create such an estate, such a departure from the rule; equivocal expressions are not sufficient." And again: "The expression of such intent should be plain, explicit, and unequivocal, else there will be a continual conflict, from the desire to raise up implications of an intention to give a sole and separate estate to the wife from slight expressions, leading to unceasing litigation." Hence the absolute terms in which the property is given to the wife, or the aptitude of her enjoyment, have never been deemed sufficient to create a separate interest in derogation of the common-law right. The implication is, however, necessary when the estate is declared to be for the sole and separate use of the wife, although the words "independently of her husband," or "without the control of her husband," are not superadded. So, if the wife is authorized to give a receipt, or to do any other act which, as a feme covert, she would not ordinarily do. Here is a necessary implication that her separate existence was recognized, and that, in this matter, she was to act and be treated as a feme sole. But, beyond this, it is vain to attempt to reconcile the conflicting decisions. It is necessary to analyze the language in every case, in

order to ascertain whether it was intended to exclude the marital right. In the will before us, the terms "to be freely enjoyed to every intent and purpose," may very well indicate no more than the amplitude of the estate, and words of a similar character occur, not unfrequently, without any more definite purpose.

The other terms used, "as her own in every respect," have been repeatedly the subject of judicial consideration. The cases are collected by Mr. Justice Story, sections 1382, 1383, and the conclusion at which he arrives is that, although the words "for her own use and at her own disposal," create a separate estate, as in the case of Prichard v. Ames, 1 Turn. & R. 222, where the decision of the court is rested on the latter words as giving a jus disponendi which does not otherwise belong to a feme covert -yet, says he, on the other hand, a gift or bequest to a married woman for her own use and benefit,' or 'to be paid into her proper hands, for her own proper use and benefit,' have been held not to amount to a sufficient expression of an intention to exclude the marital rights of the husband, for although the money is to be paid into her own hands, or to her own use, yet there is nothing in that inconsistent with its being subject to his marital rights." In a note he remarks, that this is the doctrine expressly maintained in the authorities, and that, although there are antecedent dicta or opinions the other way, they seem to have proceeded on a misapprehension of the case of Johnes v. Lockhart, which has now been correctly reported in Mr. Belt's note to 3 Bro. C. C. 383. The case of Graham v. Graham, 3 Hill (S. C.), 145, goes further in sustaining the marital rights than is, perhaps, warranted by any previous decision. The gift was to Rebecca Cooper, the wife of George Cooper, "to her, and at her disposal at her death." After a full examination, the court say: "We are, therefore, of opinion that the provisions of the will in question do not create a sole and separate estate in Mrs. Cooper (afterwards Mrs. Graham), disposable by her, whilst a married woman, in derogation of the marital rights." It has been sometimes said, that some of the concurring judges may have thought the words sufficient to create a separate estate during the existing coverture with Cooper, but that it did not extend to the second marriage. No such distinction is intimated in the decision; and it may be added that, so far as able argument and high authority may amount to a final adjudication, it is now settled that a gift to the sole and separate use of a woman, married or unmarried, is good against

an after-taken husband. But in the case before us, there are no cuch words as in Graham v. Graham-no words vesting in the married woman an express right of disposition; and we are of opinion, upon authority, that the marital right attachedand such is the response of the court of errors to the question submitted.

But this cause was heard in the court of chancery. The will of Thomas Curtis, from which the title of the testatrix, Isabella Curtis, was derived, constituted part of the pleadings in the cause, according to the proper construction of which will, the defendant also insisted on his right, independent of the bequest from Isabella Curtis. Thomas Curtis, in 1794, bequeaths to his widow his property, "by her to be freely enjoyed to every intent and purpose, as her own in every respect whatsoever, during her life," etc. It can hardly be contended that this exhibits an unequivocal intention to exclude the marital right of any future husband his widow might take, or that he contemplated such an event; or that it is anything more than rather a tautologous expression of the amplitude of the gift. For many purposes a person is presumed to have knowledge of the instrument through which he derives title. But the identity of the language adopted by Mrs. Curtis in her own will, with that which her husband had used in the gift to herself, would not only add a strong presumption that she was at least familiar with the instrument, but goes very far to show that the language was used not with reference to the marital rights, or with any purpose of excluding them, but because this form of donation had received the sanction and authority of her own honored husband.

RICHARDSON, O'NEALL, EVANS, WARDLAW, and FROST, JJ., and DARGAN, chancellor, concurred.

The court of appeals in equity then made the following order: Per JOHNSTON, Chancellor. The court of errors baving responded to the question submitted by this court, that the marital right of John Bailer attached on the property bequeathed by Isabella Curtis; it is ordered and decreed that the appeal be dismissed.

Appeal dismissed.

WORDS CREATING SEPARATE ESTATE IN WIFE: See Smith v. Wells, 39 Am. Dec. 772, and note thereto, where the subject is discussed at length; Beaufort, Adm'r, v. Collier, 44 Id. 321, and note 324.

CASES

IN THE

SUPREME COURT

OF

TENNESSEE.

BOMAR V. MAXWELL.

[9 HUMPHREYS, 620.]

PROPRIETORS OF STAGE-COACHES CARRYING PASSENGERS WITH THEIR BAGGAGE are responsible in all respects as common carriers so far as regards the baggage.

BAGGAGE INCLUDES SUCH ARTICLES OF NECESSITY OR PERSONAL CONVENIENCE as are usually carried by passengers for their personal use; it does not include medicines, handcuffs, a watch, etc., nor money, except just sufficient to pay traveling expenses.

CASE. The opinion states the case.

M. Brown, for the plaintiff in error.

A. Miller, for the defendant in error.

By Court, MCKINNEY, J. This is an action on the case, brought by the defendant in error against the plaintiff in error, as the proprietor of a stage-coach, to recover damages for the loss of a trunk and its contents, the property of the former, who was a passenger in said coach, alleged to have been lost or stolen therefrom during the passage from Bolivar to Nashville, for which distance the defendant in error, who was on a journey, had taken a seat in said coach.

It appears from the proof in the record, that said trunk, when delivered to the driver at Bolivar, contained, in addition to wearing apparel, one hundred and nineteen dollars in silver; a ten-dollar bank note; twenty-five or thirty-five dollars in gold coin; a silver watch, worth about thirty-five dollars; also, medicines, handcuffs, locks, etc., worth about twenty dollars.