36 N.C. 452 | N.C. | 1841
Differences having arisen between Joseph Steel and his wife the friends of the parties interposed and effected a reconciliation in June, 1812; and they afterwards cohabited together until his death, intestate, in 1818. As a part of the arrangement Joseph Steel, "for and in consideration of an agreement heretofore entered into for the purposes hereinafter (453) mentioned, and of the sum of," etc., conveyed to David Mebane in fee a part of the tract of land on which he resided, including his dwelling house and farm houses and containing 150 acres, three slaves and other personal chattels therein mentioned, "upon trust, nevertheless, that said Mebane should hold the said land, slaves, etc., to the use of Nancy Steel, wife of the said Joseph, for and during her natural life, and after her death to the use of her children by the said Joseph; and the *368 said Mebane, in execution of the trusts hereby intended to be created, may lease out the lands and hire out the negroes aforesaid, and sell the household and kitchen furniture, stock of cattle, horses and sheep, or any part thereof, and place the money out at interest, or apply the same towards the maintenance of the said Nancy during her life; it being the object and intention of the said Joseph to settle in the hands of the said Mebane a decent maintenance and support for his wife Nancy over and above her claims to dower, and to secure an interest in the property aforesaid in remainder to the children of the said Joseph on the body of the said Nancy begotten." Upon the execution of the deed Mebane took possession of the estates and effects and hired them to Steel, the husband, for a year, and took his bond with surety for the hires and rents; and he so continued to do from year to year as long as Steel lived. Steel made no direct payment on the bonds, but at his death they were held by Mebane, the trustee; nor is any communication made to appear between any of those parties on the subject of such payment. The intestate left four infant children who are the present plaintiffs, and administration was taken of his estate by the same David Mebane and Mrs. Steel, his widow, who made sale of the personal property, not including any part of that conveyed to Mebane. At that sale Mrs. Steel purchased, among other things, a negro named Allen. In 1823 she was also appointed the guardian of all her children. In June, 1825, an account current of the estate was stated by the administrators upon which appeared a balance of $279.67 in favor of the estate and in the hands of Mebane, which balance he then paid (454) to Mrs. Steel as guardian, and took her receipt therefor. In that account the administrators were charged with the price of the negro Allen, as sold to Mrs. Steel, and were credited with the bonds before mentioned, which were given by Steel to Mebane for rents and hires as a disbursement.
The intestate's children have brought this bill against Mebane and Mrs. Steel, in which they elect to have the sale of the slave Allen declared void, and claim him and his hire; and they pray for an account of their father's personal estate, and insist that the deed to Mebane did not create a separate property in the wife, but only an ordinary trust for her, which vested in the husband; and also insist that the bonds for rents and hires ought not to be set up against their father even if the deed did create such separate estate, because, as they allege, their mother resided with her husband and was supported by him. The bill also charges various acts of neglect of duty in Mrs. Steel as guardian and the improper application of the funds of the wards, and *369 prays an account against her as guardian. Mrs. Steel by her answer states that she gave the full value of the slave Allen, and has always considered him as her property; but submits to surrender him if the court deem it proper; and after offering explanations of several of the charges in the bill she submits to account as prayed. But both of the defendants state that the deed by the husband was intended to settle the property to thesole and separate use of Mrs. Steel during her life, independent of all control of the husband; and insist on that construction. They also state that the bonds for rents and hires were taken for the use of the wife by the trustee in the discharge of what he supposed to be his duty, and that being outstanding at the death of the husband they were considered the property of the wife and delivered to her as such, and by her were used in paying for her purchases at the administrator's sale. The answers were replied to and the settlement and a copy of the administration account filed as exhibits, and the cause was set down for hearing and transferred to this Court without further evidence.
The cause must of course go before the master to take the guardian accounts, of which there has been no settlement. (455) So it must likewise in respect of the administration account, for the plaintiffs are not concluded by the acquittance given by their mother as their guardian for the balance appearing upon that account. In the first place the guardian was one of the personal representatives herself; and in the next place the plaintiffs have established at least one error in that account, namely, that arising out of the supposed sale of the negro Allen, for the delivery of whom and for his hires the defendant Mebane will be liable to the plaintiffs in case the other defendant, Mrs. Steel, should be unable to answer them. And in the third place it is probable the plaintiffs may establish other errors therein, and especially that their father's bonds for hires and rents ought not to be credited to the defendants.
But before sending the case to the master the parties have asked for such directions as will enable the master to know whether the property conveyed by Steel to Mebane is to be regarded as Steel's or his wife's; and we will proceed to consider that question, which is indeed the principal one in the case. As husband and wife are but one person in law no separate property can be held by the latter independent of the former and of his creditors, much less can those persons contract with and convey to each other. But it has long been settled in courts of equity that personal chattels may be so given to the wife as, in exclusion of the husband, to belong to her alone in the same manner as if she were single. This is effected generally by a *370
conveyance to a trustee for the sole and separate use of the wife. But it is not essential that the conveyance should be to a trustee, for if the intent be clear that the wife shall enjoy as a feme sole
the husband, who takes the legal interest by marital right, will be converted into a trustee for her. Bennet v. Davis, 2 P. Wms., 316; Parker v. Brooke, 9 Ves., 583. It is likewise established doctrine, at least in England, that husband and wife may make an immediate gift to each other. As an instance of a gift from the wife to the husband may be mentioned that for which the plaintiffs here contend, namely, when she authorizes or permits him to receive the profits of her separate estate and apply (456) them through a course of years to the support of their family. Powel v. Hawley, 2 Pr. Wms., 82; Milnes v.Bush, 2 Ves. Jr., 488. So gifts from the husband to the wife are supported in equity when they are clearly established. It is indeed difficult to establish them satisfactorily, as it is necessary to show a clear intent and an act done to divest the husband of an interest and vest it in the wife. Elliott v. Elliott,
PER CURIAM. Ordered accordingly. *374