39 N.C. 236 | N.C. | 1846
Lead Opinion
The bill states that Solomon Marsh, the father of the complainant, gave by deed certain negroes to the plaintiff and her children, which is in the following words: "Know all men by these presents, that I, Solomon Marsh, for and in consideration of the natural love and good will which I have and bear towards my daughter, Eunice Ashcraft, have given and granted, and by these presents do freely give and grant unto the said Eunice Ashcraft and her children, a negro girl ten years old, *184 by the name of Clarissa, and her increase; but the said gift to extend to no other person." At the time this gift was made, Eunice was the wife of James Ashcraft and had two children who were boys, both of whom are since dead. James Ashcraft, the husband, being largely indebted, judgments were had against him and under the executions issuing thereon, the negro Clarissa and her children were by the sheriff levied on and sold as the property of the defendant Ashcraft, and the defendant Little became the purchaser. The bill claims, that under the deed of Solomon Marsh, the plaintiff, who is the Eunice Ashcraft mentioned in the deed, was entitled to the sole use and benefit of one-third of the negro Clarissa and her children, or to one-third of their value, and prays that they either may be divided and one-third allotted to her or to some person for her sole use, or sold, and one-third of the value so allotted; and that the defendant Little may be decreed to account with her for one-third of the hires of said negroes since they have been in his possession.
The defendants have filed a demurrer, and assigned for reason, that it appears, by the plaintiff's own showing, that she has not any separate estate in the negroes mentioned in the bill. Upon argument, the demurrer was sustained and the bill dismissed with costs.
We concur with his Honor, in his opinion. The plaintiff contends, that, under the expression used in the deed, "but the said gift to extend to no other person," she has in one-third part of the negroes a sole property, separate and distinct from her husband, and over which he has no control, and which is not subject to his debts or encumbrances. Do these words, taken in connection with those which immediately precede them, give her such property? It is admitted, that no technical words or particular from of expression is required, to convey to a married woman property to the exclusion of her husband, but that any words are sufficient, which leave no doubt that such was the intention of the devisor or settlor. It is the intention of the donor, which is to govern, but this intention of excluding the husband must not be left to inference, but must be clearly and unequivocally declared. If the intention be clear, the Court will execute it, though it may not be expressed in technical language. Lewin on Trusts, p. 150, and the authorities there referred to. The governing principle *185
is, that the husband is not to be deprived of what the law gives him by the jus mariti, by inference. In the case of Heathmanv. Hall,
The decree of the Court below must be affirmed, the demurrer sustained, and the bill dismissed with costs.
Addendum
On 15 December, 1822, Solomon Marsh made the deed in question, and delivered it to James (242) Marsh, to be kept for the benefit of the plaintiff and her two sons, as the bill alleges. The deed recites, that for the natural love and good will that the donor had for his married daughter (the plaintiff), he, "by these presents, do freely give and grant to the said Eunice Ashcraft and her children, a negro girl ten years old, by the name of Clarissa, and her increase; but the said gift to extend to no otherperson." Clarissa has now several children. The bill is filed by the plaintiff, against her husband and Alexander Little and others, who claim the slaves under a judgment and execution against her husband, to have one-third of them secured to her sole and separate use. The defendants have demurred. The demurrer was sustained in the Court of Equity for Anson County, and the bill was decreed to be dismissed. The plaintiff then appealed.
Any person may make a gift to the wife of another man, and shut out the husband's interference, by clearly expressing such an intention in the instrument creating the gift. Lewin on Trusts, 148. But whether a trustee is appointed or not, the *188
intention of the testator or settlor, of excluding the husband, must not be left to inference, but must be clearly and unequivocally declared. For, as the husband is bound to maintain his wife, and bears the burthen of her encumbrances, he has, primafacie, a right to her property. But provided the meaning be certain, the court of equity will execute the intention, though the settlor may not have expressed himself in technical language, Lewin, 148, 150 (marg. page) and 2 Story Eq., 909, 910, where all the authorities are collected and remarked on. If Marsh had said thus in his deed of gift, "but the said gift is not to extend to my daughter's husband," or "she is to have it independent of her husband," it would then have been clear that the husband was intended to be excluded, and the property would go to the separate use of the wife. Wagstaff v. Smith, 9 Ves., 520. Simons v. Howard, 1 Keen, 7. So if the (243) gift had been to Eunice Ashcraft and her children, "independent of any other person," it would have been a separate estate to the wife of her share. Margetts v. Margetts, 10; Cond. Eng. C., 158. This case is, in my opinion, very much in point. It was as follows: John Eustace, by his will, gave all the rest and residue of his estate and effects unto Louisa Margetts (a married woman) and Ann Margetts, her daughter, to be equally divided between them, share and share alike, for their own use and benefit,"independent of another person." The vice-chancellor said, that the words, "independent of any other person" meant, "independent of all mankind," and therefore included the husband, and the wife had a separate estate. This case was well considered, I presume, as the reporter informs us, that Mr. Barber and Mr. Parker were counsel in the cause. It seems to me that the words, "independent of any other person," are in meaning, the same as the words, "and to extend to no other person." If, therefore, the first set of words, when applied to Mrs. Margetts (a married woman) and her daughter, gave the feme covert a separate estate in the legacy (as we see they did), it is plain and clear, that the latter set of words ("and to extend to no other person") must also exclude the husband; and give the negroes to Mrs. Ashcraft and her two sons then born. The case reported is a gift to Mrs. Margetts and her daughter Ann Margetts; the case before us is a gift to Mrs. Ashcraft and her two sons. I ask, where is the difference? Rudisell v. Watson,
PER CURIAM. Decree below affirmed, the demurrer sustained and the bill dismissed with costs.
Cited: Baron v. Holt,