Caffey v. . Kelly

45 N.C. 48 | N.C. | 1852

James McNeeley died intestate in the early part of the year 1849, leaving surviving him, a widow, the feme defendant, since intermarried with the other defendant, and two children, the feme plaintiffs. His widow administered on his estate, and this bill is filed for a settlement of her accounts as administratrix. The principal questions raised by the pleadings, calling for a decree of this Court, and on which proofs were taken upon the plaintiffs' replication to the answer, were substantially the following. It appears, that at the time of the defendant Isabella's marriage with her intestate, she owned an undivided half of two slaves, (Sarah, aged about five years, and Thompson about five months), as a tenant — (49) in common with her brother, William Mitchell, which slaves they had acquired by gift from their father; and she and her then husband went to live with her mother, Mrs. Mitchell, in whose possession were the said slaves, as well also a quantity of furniture belonging to the defendant, Isabella. Whilst living with Mrs. Mitchell, it does not appear that the intestate ever exercised any positive acts of ownership over the said slaves, nor that he set up any claim to them by virtue of his marriage; but they were simply understood in the family to be the property of the said Isabella and William as tenants in common. Nor does it appear that he asserted any ownership or control over the furniture there, which was his wife's. The intestate died within about three months after his marriage — having, a short time before his death, removed to a house of his own; and on removing, he did not carry with him the said slaves, or either of them, nor the said furniture. The bill alleges that the defendant's intestate, by virtue of his marriage, and acts of ownership exercised by him over the said property, acquired title thereto; and prays that the defendants may be held to account for the same as part of his estate, which had not been done by them in their inventory and accounts rendered.

The answer denies that the intestate ever reduced said property into possession, or claimed or exercised control over the same, and insists upon the title of the defendant Isabella, by right of survivorship. Proofs were taken also upon the question of the defendants' liability to account for certain bonds made to the defendant, Isabella, before her said marriage with the intestate, but this point was yielded by the plaintiffs' counsel in this Court. There can be no doubt that the negro girl Sarah and the boy Thompson became the property of the defendant Isabella's intestate by his intermarriage with her. They were at the house of the said defendant's mother, with whom she lived at the time of her marriage, were not claimed adversely by her mother or any other person, and, therefore, (50) became the property of her husband jure marito, whether he ever took them home or not. Pettijohn v. Beasley,15 N.C. 512, and Stephens v. Doak, 37 N.C. 348, cited by the plaintiffs' counsel, show that the wife's being tenant in common with another person, of the said slaves, made no difference. The household furniture which the said Isabella had at her mother's, at the time of her said marriage, became also the property of her husband, for which she, as his administratrix, is bound to account as part of his estate. But the notes which she held, payable to herself, having never been collected by her husband, survived to her; and it is now admitted by the plaintiffs' counsel that she is not bound to account for them.

The plaintiffs are entitled to an account from the defendants, of the administration of the intestate by the defendant Isabella, for which a reference must be made to the Clerk, if the parties desire it.

PER CURIAM. Decreed accordingly.

Cited: Benbow v. Moore, 114 N.C. 273; Fowler v. McLaughlin, 131 N.C. 210.