54 N.C. 72 | N.C. | 1853
The bill was filed by the plaintiff, as the administrator of Frederick Battle, alleging that certain questions were raised between his widow and her children, and others claiming under them, that made it unsafe for him to distribute the estate. He alleges, particularly, that the distributive share to which his daughter Mary Ann would be entitled was claimed by James S. Yarbrough, by virtue of an assignment of her late husband, Thomas E. Yarbrough, who had given him notice of his claim, and warned him not to pay the same to Mary Ann, but demanded the same for himself. The bill also alleges that Thomas E. Yarbrough and his wife Mary Ann had been advanced in certain slaves mentioned in the bill, in the lifetime of the intestate, and he prays the advice of the Court, and asks that the several parties may state their titles and interplead with each other, and litigate their opposing claims to the end that justice may be done to each, and the plaintiff saved harmless in distributing the estate of his intestate, and that an account may be taken of his administration.
James S. Yarbrough, and William H. Battle, administrator of Thomas E. Yarbrough, Mary Ann Yarbrough, widow of Thomas E. Yarbrough, Temperance Battle, the widow of Frederick Battle, and the rest of the children of Frederick Battle, were made parties defendant. Subsequently to the commencement of the suit, Mary Ann Yarbrough intermarried with James C. Green, who was made a party defendant with his wife.
(74) The answer of James S. Yarbrough states specifically and at large the nature and consideration of the assignment made to him by Thomas E. Yarbrough, and insists that it was bona fide and for value.
Mary Ann Yarbrough (now Green) admits the negroes put into possession of her former husband, Thomas E. Yarbrough, to have been advancements, and submits that the estate of her father shall be allowed for the same out of her share; also, that she and her husband were further advanced in cash, horses, cattle and other articles of personal property, of which she states the value. She denies the equity of the claim set up by James S. Yarbrough, and says that it was either given as security for a very small sum, or was obtained by fraud and imposition, from her husband, or to act as a power of attorney; and as to that not reduced to possession by her husband in his lifetime, she claims the same by survivorship, notwithstanding the assignment of her husband, the said Thomas E.
The answer of W. H. Battle, the administrator of Thomas E. Yarbrough, claims the unrealized part of Mary Ann's distributive share of her father's estate, in his representative character, and insists that the assignment thereof was intended as a mere authority to enable him to *59 settle with the administrator of the father-in-law. He alleges that the negroes put in the possession of Thomas E. Yarbrough and his wife, though intended at first as advancements, were subsequently divested of that character by being conveyed by deed to the children of Thomas and Mary Yarbrough (which deed is filed), and he insists that the distribution shall therefore take place, with such part subducted from the mass of Frederick' Battle's estate.
The answer of Mrs. Temperance Battle, the widow of Frederick, explains this part of the transaction, and alleges it as intended to cover the property from the creditors of Thomas, and done at his instance and that of his wife Mary Ann, and insists that these (75) negroes shall be treated as advancements and accounted as part of their distributive share.
There was replication and commission, and much proof taken in the cause; but as the view taken of the case renders the consideration of it unnecessary, it is for that reason omitted.
It is now a well established principle of Equity that if a married woman become entitled during her coverture to a legacy, or to a distributive share of an intestate's estate, and her husband die without having reduced it into possession, or done anything equivalent thereto, the wife will be entitled to it, and may recover it to her own use. Garforthv. Bradley, 2 Ves., Sr., 675; Carr v. Taylor, 10 Ves., Jr., 578;Schuyler v. Hayle, 5 John's Ch., 196; Revel v. Revel,
A very important question arises: whether that assignment, supposing it to be bona fide and for a valuable consideration, did have that effect. We have considered the subject with much attention, and with an anxious desire to come to a correct conclusion upon it, and an examination of all the cases to which we have access has satisfied us that in England it is now settled, upon principle and authority, that a husband cannot assign, even for value, a greater interest in his wife's equitable choses in action than he has himself; that is, the right to reduce them into possession during the husband's life, subject to the contingency of their surviving to her, should the assignee not have done so in the lifetime of the husband. We are aware that an impression has prevailed in this State that a different rule has been established here. We are aware, further, that the impression alluded to has apparently the sanction of several dicta of our Judges; but as neither the industry of the counsel for the assignee nor our own researches have enabled us to find a single adjudicated case in opposition to the English rule, we feel ourselves not only at liberty but bound to adopt it as being more just and better supported by principle than the one for which the (77) counsel contends.
In England the nature and extent of the interest of the husband in his wife's equitable choses in action, and of his power of disposing of them, have for a long time occupied the attention of the Court of Chancery. At first the subject did not seem to have been well understood even by the ablest equity Judges, and hence we find among the earlier and even among some of the later cases conflicting dicta, as well as opposing decisions. We do not deem it necessary to review the cases in detail, because it has been so recently and ably done in 3 Bell, Husband and Wife, ch. 2, sec. 3 (67 Law Lib., 62). The doctrine now established is well summed up in Adams Eq., 142: "It has been contended that a husband's assignment of his wife's choses in action should exclude the wife's right by survivorship, on the ground that such an assignment implies a contract to reduce the chose into possession, and is equivalent in equity to such a reduction. This proposition was first overruled in respect to bankruptcy, and it was decided that, whatever might be the right of purchasers for value, the assignees in bankruptcy were entitled to no such equity. It was next overruled *61 as to all assignments, although for valuable consideration, if the chose were reversionary and therefore incapable of present possession, leaving the question still open whether, if it were capable of immediate possession, or became so during the coverture, the wife should be excluded. The principle is now extended to all cases, and it is held that, although the husband's contract for value may, as between himself and the assignee, be equivalent to a reduction into possession, yet, against the wife, who is no party to the contract, it cannot have that effect." For these positions the author refers to several late cases which we find, so far as we have the books at hand to examine them, to be apposite to the purpose for which they are cited. It is worthy of remark, too, that no cases to the contrary are referred to by the editors (78) (Messrs. Ludlow and Collins) of the second American edition. Indeed, the learned editors have not subjoined any note to the page upon which these propositions are found.
We come now to the examination of cases which are supposed to have established a contrary doctrine in this State. The first in the order of time is Knight v. Leak,
From this review of the cases to which our attention was called by the counsel, and some others which we met with ourselves, it manifestly appears that there is not one in which it has been adjudicated that the husband's assignee, for value of his wife's equitable choses, can claim them against the surviving wife. Some of the expressions used by the Court which we have quoted may seem to imply that such was the opinion of the Judge who decided them; but even as dicta, they may well be regarded as enunciations of a general rule, without its being deemed necessary to advert to the exception to or modification of it. The cases mainly relied upon by the counsel to establish the position for which he contended were Knight v. Leak,
There are one or two other very recent cases which may seem to militate against the English principles to which we have referred, but which certainly are not adjudications against it, and may, we think, be shown to be consistent with it. In Allen v. Allen,
Let us ponder for a moment and enquire whether there is any fixed principle of equity which must of necessity operate so harshly against the right of the wife in such cases. In deciding Honner v. Martin, ubisupra, Lord Lyndhurst threw out a dictum that equity considered the assignment of the husband as amounting to an agreement that he would reduce the property into possession; it likewise considered what the party agreed to do as being actually done, and therefore, when the husband had the power of reducing the property into possession, his assignment of the chose in action would be regarded as a reduction of it into possession. Principles of equity are, or ought to be, founded upon the most refined and exact principles of justice; they ought to be as near as human frailty will permit the very elements of justice itself. Now, we cannot see any justice in the principle that, while the husband cannot himself acquire the wife's equitable choses in action without reducing them into possession, he may be a mere agreement in favor (83) of an assignee for value produce such a result. We cannot see the justice, refined or otherwise, of the Court of Equity not only assisting a purchaser to aid the husband in depriving his wife of her rights, but actually resorting to a sort of magic to do it at once, instantaneously, by a mere agreement to which the wife is no party. We are therefore not surprised to find that such a doctrine could not commend itself to the enlightened mind of Vice-Chancellor Shadwick inEllison v. Elwin, 13 Sim., 309; of Vice-Chancellor Bruce, in Ashby v.Ashby, 1 C. M., 553, and of the judges in the other cases referred to by Mr. Adams. Our conclusion is that the wife's right to her distributive share of an intestate's estate survives to her, if not reduced into possession by the husband or his assignee for value in his lifetime. It must therefore be declared in this case that neither the defendant Yarbrough nor the defendant Battle, as the administrators of Thomas E. Yarbrough, deceased, are entitled to the distributive share of the defendant, Mrs. Green, in her father's estate.
The only question which remains to be considered is: whether the *65 slaves which were put into the possession of the first husband of Mrs. Green by her father are under the circumstances stated in the pleadings to be charged against her as advancements. From the difficulty which might otherwise have attended this question we are relieved by her fair and candid answer. She admits that they were intended by her father as advancements to her, and she submits that they may be charged against her by the administrator of her father in the distribution of his estate. The plaintiff is entitled to a decree to have an account taken of his administration of his intestate's estate, under the direction of the Court, and that he may settle, with the parties entitled to distributive shares in the same, upon the principles above set forth. The costs of the plaintiff will be paid out of the estate of the intestate. (84) The other parties will pay their own costs.
Decree accordingly.
Cited: Brandon v. Medley, post, 316; Bryan v. Spruill,