Arrington v. Yarbrough

• Decision Date: 31 December 1853
• Citation: 54 N.C. 72,1 Jones 72
• Court: North Carolina Supreme Court
• Parties: NICHOLAS W. ARRINGTON ADM'R OF FREDERICK BATTLE v. JAMES S. YARBROUGH AND OTHERS.

1 Jones Eq. 72

54 N.C. 72

NICHOLAS W. ARRINGTON ADM'R OF FREDERICK BATTLE

v.JAMES S. YARBROUGH AND OTHERS.

Supreme Court of North Carolina.

December Term, 1853.

A wife who survives her husband, is entitled to her equitable choses in action, that have not been reduced to possession by her husband, although he may have assigned them by deed BONA FIDE, and for value.

(REVEL v. REVEL, 2 Dev. and Bat. Eq. Rep. 272; HARDIEE v. COTTON, 1 Ired. Eq. Rep. 61; POINDEXTER v. BLACKBURN, Ibid. 286; McBRYDE v. CHOATE, 2 Ired. Eq. Rep. 610; ROGERS v. BUMPASS, 4 Ired. Eq. 385; WEEKS v. WEEKS, 5 Ired. Eq. Rep. 111; MARDREE v. MARDREE, 9 Ired. Rep. 298; ALLEN v. ALLEN, 6 Ired. Eq. Rep. 239; BRYAN v. BRYAN, 1 Dev. Eq. 47, cited and commented on.)

CAUSE removed from the Court of Equity, of Franklin County, at Fall Term, 1853. The bill was filed by the plaintiff, as the administrator of Frederick Battle, alleging that certain questions were raised between his widow and her children and others claiming under them, that made it unsafe for him to distribute the estate. He alleges particularly, that the distributive share to which his daughter Mary Ann would be entitled, was claimed by James S. Yarbrough, by virtue of an assignment of her late husband, Thomas E. Yarbrough, who had given him notice of his claim, and warned him not to pay the same to Mary Ann, but demanded the same for himself. The bill also alleges that Thomas E. Yarbrough, and his wife Mary Ann, had been advanced in certain slaves mentioned in the bill, in the lifetime of the intestate, and he prays the advice of the Court, and asks that the several parties may state their titles and interplead with each other, and litigate their opposing claims to the end that justice may be done to each, and the plaintiff saved harmless in distributing the estate of his intestate, and that an account may be taken of his administration.

James S. Yarbrough, and William H. Battle, administrator of Thomas E. Yarbrough, Mary Ann Yarbrough, widow of Thomas E. Yarbrough, Temperance Battle, the widow of Frederick Battle, and the rest of the children of Frederick Battle, were made parties defendant. Subsequently to the commencement of the suit, Mary Ann Yarbrough intermarried with James C. Green, who was made a party defendant with his wife.

The answer of James S. Yarbrough states specifically and at large the nature and consideration of the assignment made to him by Thomas E. Yarbrough, and insists that it was bona fide, and for value.

Mary Ann Yarbrough (now Green) admits the negroes put into possession of her former husband, Thomas E. Yarbrough, to have been advancements, and submits that the estate of her father shall be allowed for the same, out of her share; also, that she and her husband were further advanced in cash, horses, cattle and other articles of personal property, of which she states the value. She denies the equity of the claim set up by James S. Yarbrough, and says that it was either given as security for a very small sum, or was obtained by fraud and imposition, from her husband, or to act as a power of attorney; and as to that, not reduced to possession by her husband, in his lifetime, she claims the same by survivorship, notwithstanding the assignment of her husband, the said Thomas E.

The answer of W. H. Battle, the administrator of Thomas E. Yarbrough, claims the unrealized part of Mary Ann's distributive share of her father's estate, in his representative character, and insists that the assignment thereof was intended as a mere authority to enable him to settle with the administrator of the father-in-law. He alleges that the negroes put in the possession of Thomas E. Yarbrough and his wife, though intended at first as advancements, were subsequently divested of that character, by being conveyed by deed to the children of Thomas and Mary Yarbrough, (which deed is filed,) and he insists that the distribution shall therefore take place, with such part subducted from the mass of Frederick Battle's estate.

The answer of Mrs. Temperance Battle, the widow of Frederick, explains this part of the transaction, and alleges it as intended to cover the property from the creditors of Thomas, and done at his instance, and that of his wife Mary Ann, and insists that these negroes shall be treated as advancements, and accounted as part of their distributive share.

There was replication and commission, and much proof taken in the cause; but, as the view taken of the case renders the consideration of it unnecessary, it is for that reason omitted.

Moore, for plaintiff .

Miller, Lanier and Winston, for defendants .

BATTLE. J.

It is now a well established principle of Equity, that if a married woman become entitled during her coverture to a legacy, or to a distributive share of an intestate's estate, and her husband die without having reduced it into possession, or done anything equivalent thereto, the wife will be entitled to it, and may recover it to her own use. GARFORTH v. BRADLEY, 2 Ves. Sen. 675; CARR v. TAYLOR, 10 Ves. Jun. 578; SCHUYLER v. HAYLE, 5 John's Ch. Rep. 196; REVEL v. REVEL, 2 Dev. and Bat. Rep. 272; HARDIE v. COTTON, 1 Ired. Eq. Rep. 61; POINDEXTER v. BLACKBURN, Ib. 286; McBRYDE v. CHOATE, 2 Ired. Eq. 610; ROGERS v. BUMPASS, 4 Ired. Eq. 385; WEEKS v. WEEKS, 5 Ired. Eq. 111; MARDREE v. MARDREE, 9 Ired. Rep. 295. Should the legacy or distributive share not be paid, or delivered over to the purchaser by the executor, or administrator, he cannot recover it at law, either in his own own name, or in the names of himself and wife; but must proceed in the names of himself and wife by a bill in equity, or by a petition in a Court of Law, in the nature of a bill in equity, under the 5th section of the 64th chapter of the Revised Statutes, entitled, “An act concerning filial portions, legacies and distributive shares of intestates' estates.” If the husband die, leaving his wife surviving after bill or petition filed, but before decree, the legacy or distributive share will survive to the wife. BOND v. SIMMONS, 3 Atk. Rep. 21; ADAMS v. LAVENDER, 1 Mc. and Y. 41. Such it seems would be the result if the husband died even after a decree, but before it was put in execution. NANNY v. MARTIN, I Eq. Ca. Ab. 68; MCAULAY v. PHILIPS, 4 Ves. Jr. 15. Notwithstanding the opinion of Lord Thurlow to the contrary. HEYGATE v. ANNESLEY, 3 Bro. Ch. Ca. 362. These authorities clearly show, that upon the death of Thomas E. Yarbrough, the first husband of the defendant, Mrs. Green, her distributive share in the estate of her deceased father, Frederick Battle, survived to her, unless her right to it was defeated by the assignment, under which the defendant James S. Yarbrough claims it.

A very important question arises, whether that assignment, supposing it to be bona fide and for a valuable consideration, did have that effect. We have considered the subject with much attention, and with an anxious desire to come to a correct conclusion upon it, and an examination of all the cases to which we have access has satisfied us, that in England it is now settled, upon principle and authority, that a husband cannot assign, even for value, a greater interest in his wife's equitable choses in action, than he has himself; that is, the right to reduce them into possession during the husband's life, subject to the contingency of their surviving to her, should the assignee not have done so in the lifetime of the husband. We are aware that an impression has prevailed in this State, that a different rule has been established here. We are aware, further, that the impression alluded to has apparently the sanction of several dicta of our Judges; but, as neither the industry of the counsel for the assignee, nor our own researches, have enabled us to find a single adjudicated case in opposition to the English rule, we feel ourselves not only at liberty but bound to adopt it, as being more just and better supported by principle than the one for which the counsel contends.

In England, the nature and extent of the interest of the husband in his wife's equitable choses in action, and of his power of disposing of them, have for a long time occupied the attention of the Court of Chancery. At first, the subject did not seem to have been well understood even by the ablest equity Judges, and hence we find among the earlier, and even among some of the later cases, conflicting dicta, as well as opposing decisions. We do not deem it necessary to review the cases in detail, because it has been so recently and ably done by Mr. BELL, in his work on the law of the property of husband and wife, book 3, ch. 2, sec. 3, (67 Law. Lib'y, p. 62). The doctrine now established is well summed up by Mr. ADAMS, in his Doctrine of Equity, page 142: “It has been contended that a husband's assignment of his wife's choses in action should exclude the wife's right by survivorship, on the ground that such an assignment implies a contract to reduce the chose into possession, and is equivalent in equity to such a reduction. This proposition was first overruled in respect to bankruptcy, and it was decided, that whatever might be the right of purchasers for value, the assignees in bankruptcy were entitled to no such equity. It was next overruled as to all assignments, although, for valuable consideration, if the chose were reversionary, and therefore incapable of present possession, leaving the question still open whether, if it were capable of immediate possession, or became so during the coverture, the wife should be excluded. The principle is now extended to all cases, and it is held that, although the husband's contract for value may, as between himself and the assignee, be equivalent to a reduction into possession, yet, against the wife, who is no party to the contract, it cannot have that effect.” For these positions, the author refers to several late cases which we find, so far as we have the books at hand to examine them, to be...