Joseph Dail died intestate in January, 1847, leaving a (296) widow, Celia, an only daughter and child, then the wife of Wilson Mardree, and also leaving a number of slaves, stocks of various kinds, which were on two plantations in Perquimans, where he had resided and died. One tract of the land belonged to him (Dail) in fee, and the other belonged to his wife in fee. Administration of his estate was taken in May, 1847, by the son-in-law, Wilson Mardree. The intestate left cash and good bonds to the amount of nearly $1,000, which was more than sufficient to pay the debts, and came to the hands of the administrator Wilson. Upon the death of the intestate it was agreed between Mrs. Dail and Wilson Mardree that the latter should sell nothing as administrator, but that they would keep the slaves and other personal property on the two plantations and plant and make crops thereon for that year on their joint account, and divide the crops in proportion to their distributive shares in the property. On 9 August following, an instrument was drawn up by Wilson Mardree and executed by Mrs. Dail in the following words:
"Whereas, Wilson Mardree has taken out administration upon the estate of my late husband, Joseph Dail, of which the only distributees are myself and the said Wilson in the right of his wife Harriet, who is the daughter of the said Joseph; and whereas it was agreed between the said Wilson and myself to keep the personal estate together and to cultivate the lands during the present year: Therefore, know all men, that I, Celia Dail, do, for and in consideration of the premises, agree that the personal estate of the said Joseph shall be kept together and the crop that was planted at the death of the said Joseph, as well as that which was planted after his death, shall be cultivated for the benefit of the estate of the said Joseph; and that the proceeds of the crops, after paying expenses and charges, shall be divided between the said Mardree and myself, (297) according to our rights as distributees of the said Joseph Dail."
The plantations were managed by Wilson Mardree through the year 1847, until his death in the latter part of October. But he did not reside on either of the plantations; and Mrs. Dail lived on that on which her husband died. In November, 1847, John Mardree obtained letters of administration on the estate of Wilson Mardree and also became administrator de bonis non of the first intestate, Dail. He sold the crops of 1847 and the stock and paid all the debts, and has a surplus of cash in hand of about $1,500 after paying all the debts of Dail — being the proceeds of the stock and other chattels (except slaves) that had belonged to Dail, and of the said crops; and he has also in possession the slaves.
In September, 1848, Mrs. Dail and Mrs. Mardree, the widow of Wilson Mardree, filed their petition against John Mardree, as administrator debonis non of Joseph Dail, for an account and distribution of the estate. The defendant insisted in his answer that Mrs. Mardree owned no part of the slaves or other specific property left by her father, but that her slaves became vested in her late husband by force of his possession of the property and the use of it as his own. On the hearing the judge of the Superior Court was of that opinion and decreed accordingly, and Mrs. Mardree appealed.
The Court is of opinion that the decree was right and ought to be affirmed. A distributive share, accruing to a wife during the coverture, does not vest in
the husband, but will survive to the wife, unless reduced into possession by the husband. Revel v. Revel, 19 N.C. 272" court="N.C." date_filed="1837-06-05" href="https://app.midpage.ai/document/governor-ex-rel-revel-v-revel-3661370?utm_source=webapp" opinion_id="3661370">19 N.C. 272;Poindexter v. Blackburn, 36 N.C. 286" court="N.C." date_filed="1840-12-05" href="https://app.midpage.ai/document/poindexter-v--blackburn-3647351?utm_source=webapp" opinion_id="3647351">36 N.C. 286. When the administrator is some other person than the husband, it is generally not difficult to determine whether the husband has or has not possessed himself of the share, or the things of which it consists, so as to change the property by extinguishing the wife's right and vesting it in the husband; for, usually, the share consists of money which the husband received and for which he gives a receipt, or it consists of stock or specific things, which are divided and a share thereout allotted to the wife or the husband for her, and transferred or delivered to him. But we suppose it is not necessary there should be an actual division between the next of kin to enable the husband of one of them to take, and exclude the wife's right by survivorship. All that is requisite is that the share should be got out of the hands of the administrator, as such, and should be held, either in severalty or in common with others, as the husband's own. For, if, instead of a division of the property by the administrator and a delivery by him of the shares to the next of kin severally, it be agreed by the next of kin that they will take the property from the administrator undivided, and the administrator accordingly give it up to all them together, then clearly the next of kin hold the things absolutely as their own property, and the husband of the next of kin is then to be regarded as in possession of his wife's share for himself and as his own property. For it must be noted that no act of the wife is necessary to vest her property in her husband, nor can she in any manner prevent it. The act is the husband's own; and, though he must reduce the chose into possession, yet any act of dominion over it is sufficient which shows that the husband undertakes to use (305) or dispose of it as his own presently, whether the possession be several as to one share or jointly with some or all of the next of kin. When the title of the administrator becomes extinct, that of the next of kin is made absolute. But it is not, ordinarily, so easy to determine this question when the same person is the administrator and the husband of one of the next of kin. Where the wife is the sole next of kin, and the debts of the intestate are paid or assumed by the husband, and there is no reason why the husband should hold any longer as administrator, the presumption is very strong that he held as husband, and, consequently, for himself. But when there is another person besides the wife entitled to share in the estate, it would seem to require some unequivocal act on the part of the
husband, who is the administrator, to terminate the title in himself as administrator and in his wife as one of the next of kin, and vest it in himself as husband. Yet, clearly, there must be some way in which it may be done; and we think it is not difficult to settle the principle which will determine whether the husband has done an act which was meant by him, and in its nature is sufficient, to denote that he holds as husband, and thereby to terminate the title of administrator and merge his wife's right in his own. It is this, that he shall appear by some act to be exercising a dominion over the property, not according to his duty as administrator or in the discharge of functions of a representative character, but for his own benefit and as personally the owner. For, unless that be sufficient, we do not perceive how the right can ever be vested in the husband except by a suit to which the wife is a party. Therefore, whenever the husband and the other next of kin divide the property, or they take it undivided and apply it to uses having no reference to the office of administrator and contrary to its duties (306) but for the benefit of the persons who are next of kin or in their right, it seems manifest that the possession is that of all the persons who are next of kin, and not of that one who is administrator and in his representative capacity. If it be not so, what else could the husband do which would more completely vest the possession in him as husband? Now, the husband here and Mrs. Dail contracted respecting this property as owners, saying that they are "the only distributees," and as such entitled to dispose of the property for their own benefit; and therefore they agreed that the slaves, instead of being sold or hired in course of administration, should work on the land belonging to those parties respectively, and that the profits should be divided in certain proportions between them. The administrator did not merely finish the crops planted by his intestate, but the parties in their own right planted other crops and employed the slaves and stock in their culture. It is true, the article says that it should be for the benefit of the estate; but the meaning of that, it is obvious, was not to provide a fund for the purposes of the estate, as the payment of debts — since there were none not already provided for — but it was to prevent either of the parties from claiming a greater share of the produce than in proportion to his or her share of the estate under the statute of distributions. For, immediately after saying that it should be for the benefit of the estate, the article adds, "and the proceeds of the crops shall be divided between the said Mardree and myself, according to our rights as distributees."
It seems to us, therefore, that this was as unequivocal an election by the next of kin and the husband to hold in their personal rights as they could, under the circumstances, have evinced.
PER CURIAM. Decree affirmed with costs.
Cited: Arrington v. Yarborough, 54 N.C. 79; Brandon v. Medley, ib., 316; Ferrell v. Thompson, 107 N.C. 428.
(307)