Kirkman v. The Bank of Greensboro

• Decision Date: 30 June 1877
• Citation: 77 N.C. 394
• Court: North Carolina Supreme Court
• Parties: JOHN W. KIRKMAN, Administrator, v. THE BANK OF GREENSBORO.

77 N.C. 394

JOHN W. KIRKMAN, Administrator,

v.THE BANK OF GREENSBORO.

Supreme Court of North Carolina.

June Term, 1877.

CIVIL ACTION tried at Spring Term, 1877, of GUILFORD Superior Court, before Cox, J.

The plaintiff, John W. Kirkman, married Nancy E. Clymer in 1858, who was a widow with two children--namely, Joseph Clymer and a daughter, who married Henry A. Wilson.

The said Nancy in 1872, was a distributee of a certain estate, and as such was entitled to the sum of $690. In the settlement of this matter in 1873, Messrs. Dillard & Gilmer, her attorneys, deposited said amount with the defendant Bank, and took a certificate of deposit which they turned over to her, and she held the same more than six months.

The said Nancy died intestate on the 12th of February, 1875, and the plaintiff was duly appointed her administrator. He then demanded of the defendant payment of the amount of the certificate. The other facts necessary to an understanding of the case are stated by Mr. Justice READE in delivering the opinion of this Court.

Upon issues submitted, and under the instructions of His Honor, the jury rendered a verdict for the defendant. Judgment. Appeal by plaintiff.

Messrs. Scott & Caldwell, for plaintiff .

Messrs. Scales & Scales, for defendant .

READE J.

Under the Constitution the real and personal property of the wife “shall remain and be her sole and separate estate, * * * and may be devised and bequeathed, and with the written assent of her husband, conveyed by her as if she were unmarried.” Const. Art. 10, § 6.

No power whatever is given to the husband, and no restriction upon the wife, except as to the “conveyance” of the property to take effect during her life, which requires the husband's assent in writing.

The statute which was intended to carry out the constitutional provision uses somewhat different language: “No woman during her coverture shall be capable of making any contract to affect her real or personal estate, without the written consent of her husband.” Bat. Rev. ch. 69, § 17.

It is not worth while to consider whether the Legislature could restrict or enlarge the rights of the wife or of the husband, as they are declared in the Constitution, because it is evident that the Constitution and statute are in harmony, and mean the same thing--to make the wife's property her own as if she were unmarried, without the power of sale, or charge, to operate during her life, without the husband's written consent.

Does the constitutional restriction against her “conveying” her property, or the statutory restriction against her “making any contract to affect it” without the written assent of the husband, operate to prevent her from acquiring, receiving, or reducing her property into possession without his written assent?--Can the husband, by withholding his written assent, prevent the wife from reducing her property into possession?--If I have her property, may I not deliver it up to her?--If I owe her a debt, may I not pay her?--Undoubtedly; else instead of making the wife's property her own, “sole and separate,” she would be completely at the mercy of her husband.

If she had not the right to receive her property in this case, then she never has received the $690 from anybody, from the administrator, from Messrs. Dillard & Gilmer, nor from the Bank. They all owe it to her now, and her administrator had his choice to sue any of them. But if she had the right to receive it from the administrator, from Messrs. Dillard & Gilmer, or the Bank, then she has received it, and her administrator cannot recover it.

Messrs. Dillard & Gilmer owed her $690 which they had collected for her of an administrator, and they for safety and...