Freeman v. Lide

• Decision Date: 20 November 1918
• Docket Number: 426.
• Citation: 97 S.E. 402,176 N.C. 434
• Parties: FREEMAN ET AL. v. LIDE ET AL.
• Court: North Carolina Supreme Court

97 S.E. 402

176 N.C. 434

FREEMAN ET AL. v. LIDE ET AL.

No. 426.

Supreme Court of North Carolina

November 20, 1918

Appeal from Superior Court, Richmond County; Adams, Judge.

Action by Mary Freeman and others against J. W. Lide, executor, and others. From judgment sustaining demurrer to the complaint plaintiffs appeal. No error.

On June 17, 1868, Mrs. Harriet H. Strong executed and delivered her deed to John H. Williamson, husband of Phebe Williamson conveying the undivided one-half of all the property, real personal, and mixed, which belonged to the grantor as heir at law, devisee, and distributee of Henry W. Harrington, except the annuity settled upon the grantor by the will of Henry W Harrington. The trusts declared in the deed are thus stated:

"But in trust, nevertheless, that the said party of the second part will take, receive, and hold the same for the sole and separate use of the said Phebe Williamson, her heirs and assigns, forever."

The above is the only declaration of trust found in the deed, and the only language of the deed describing the duties of the trustee, or imposing any duties upon him; that is, that he shall "take, receive, and hold." Mrs. Williamson, as stated in the deed, was the object of Mrs. Strong's affection and bounty. Mrs. Williamson died in November, 1910, leaving a last will and testament, and by it devised all her estate, particularly naming the trust estate, to her husband, Dr. John H. Williamson. All the children of Dr. and Mrs. Williamson had predeceased their mother and father. The will was duly admitted to probate. Under it Dr. Williamson took possession in his own name of the estate of his wife, and at his death left a will disposing of it. His will was duly admitted to probate; and under it, and acting by order of the court, the land has been sold, and purchased by various and sundry persons. The plaintiffs are the collateral kin and heirs at law of Mrs. Williamson. The defendants demurred to the complaint, which set out in detail the facts, and his honor, Judge Adams, sustained the demurrer and plaintiffs appealed.

Lorenzo Medlin and H. S. Boggan, both of Rockingham, and Stack & Parker, of Monroe, for appellants.

F. W. Bynum, of Rockingham, and J. S. Manning, of Raleigh, for appellees.

WALKER J. (after stating the facts as above).

The question presented is: Did the property conveyed by the deed of Mrs. Strong, of date June 17, 1868, pass under the will of Mrs. Williamson to her husband, Dr. John H. Williamson?

The deed of Mrs. Strong was executed after the adoption of the Constitution of 1868, which took effect for purposes of domestic policy, and so far as the question in this case is concerned, in April, 1868, and not when Congress approved it. This was held in the following cases: Pemberton v. McRae, 75 N.C. 497; Lash v. Thomas, 86 N.C. 313; Gheen v. Summey, 80 N.C. 188; Commissioners v. Call, 123 N. C., at page 321, 31 S.E. 481, 44 L. R. A. 252. See, also, State v. Cantwell, 142 N.C. 604, 55 S.E. 820, 8 L. R. A. (N. S.) 498, 9 Ann. Cas. 141, and Reade v. Durham, 173 N.C. 668, 92 S.E. 712. The question, therefore, must be determined in view of the constitutional provision contained in article 10, § 6, which reads as follows:

"The real and personal property of any female in this state acquired before marriage, and all property, real and personal, to which she may, after marriage, become in any manner entitled, shall be and remain the sole and separate estate and property of such female, and shall not be liable for any debts, obligations or engagements of her husband, and may be devised and bequeathed, and, with the written assent of her husband, conveyed by her as if she were unmarried."

We need not consider what were the rights of a married woman at common law, or whether she could, before the adoption of the Constitution of 1868, devise or bequeath her property, real or personal, as, whatever the law may then have been, it is perfectly clear that under article 10, § 6, of the Constitution, she has such a right by its express language, and this right has since been confirmed by statute (Acts 1871-72, c. 193, § 31; Battle's Rev. c. 69, § 31; Code, § 2138; Revisal, § 3112); the statute and the Code giving the power to will property "subject to the husband's right of curtesy," and the Revisal giving it absolutely. We need not consider whether, by the Constitution, she has the absolute right to devise and bequeath her property, unaffected by the restriction of the statutes, as to the husband's curtesy, for here by her will she devised the property in dispute to her husband, and, instead of getting a life estate as tenant by the curtesy, he acquired the fee. Acts 1871-72, c. 193, § 31, provided that a married woman should have the power to devise and bequeath her property as if she were a feme sole. Tiddy v. Graves, 126 N.C. 620, 36 S.E. 127. Revisal, § 3140, provides that a person may by will dispose of--

"all real and personal estate, which he shall be entitled to at the time of his death, and which, if not so devised, bequeathed, or disposed of, would descend or devolve upon his heirs at law, or upon his executor or administrator."

But the plaintiffs contend: (1) That the words in the declaration of the trust, "to the sole and separate use of the said Phebe Williamson, her heirs and assigns," creates an active trust in the trustee and prevents the statute from executing the use; (2) that, the deed being silent as to the method of disposition, Mrs. Williamson was powerless to devise or convey the property.

These contentions of the plaintiffs are rested upon the decision of this court in Kirby v. Boyette, 118 N.C. 244, 24 S.E. 18, wherein it was held that the words "for the sole and separate use," or equivalent language, qualifying the estate of a trustee for a married woman, must be construed as manifesting the intent on the part of the grantor to limit her right of alienation to the mode and manner expressly provided in the instrument by which the estate is created, and that the words "sole and separate use" create an active trust not executed by the statute.

The defendants reply that, in Perkins v. Brinkley, 133 N.C. 154, 45 S.E. 541, the court said:

"Prior to the adoption of the Constitution of 1868, the conveyance of land to a trustee for the benefit of a married woman created an active trust, for that the courts inferred it to be the intention of the maker of the deed to secure to her through the medium of a trustee a separate estate, and it fell under that class of uses which were not executed by the statute, as if 'an estate be given to trustees upon a trust for a married woman for her sole and separate use, and her receipts alone to be sufficient discharge; or if a trust deed to permit and suffer a feme covert to receive the rents to her separate use, the legal estate will vest in the trustee and the statute will not execute it in the cestui que trust. In all these cases the court will give this construction to the gift, if possible, for if the statute should execute the estate in the married woman, certain rights would arise to the husband which might defeat the intention of the donor.' As by the Constitution of 1868 (article x, § 6) 'the real and personal property of any female in this state acquired before marriage, and all property, real and personal, to which she may after marriage become in any manner entitled, shall be and remain the sole and separate estate and property of such female, and shall not be liable for any debts, obligations or engagements of her husband,' etc., the wife is secured in the enjoyment of her real and personal estate, and all rents, profits and incomes accruing therefrom. It would seem that the reason which existed for construing a declaration of trust for a married woman created prior to the adoption of our Constitution, as an active trust, has ceased. Such seems to have been the view of this court, as expressed in McKenzie v. Sumner, 114 N.C. 425 ."

After reviewing the cases of Kirby v. Boyette, supra, and Hardy v. Holly, 84 N.C. 661, the court proceeded:

"We do not think it improper to say that in the conflict between McKenzie v. Sumner, and other cases referred to in the very learned brief of the plaintiff's counsel in Kirby v. Boyette, and the doctrine as laid down in Hardy v. Holly and Kirby v. Boyette, we are of the opinion that the principle announced in McKenzie v. Sumner is more in consonance with the reason of the thing and the status of the wife in respect to her property under the provisions of our present Constitution. It is difficult to see how the mere declaration of trust in favor of a married woman, there being no duties imposed upon the trustee, or any ulterior limitation of the estate to be preserved, should prevent the operation of the statute."

It will be noted that the deeds construed in Kirby v. Boyette, supra Hardy v. Holly, supra, and other cases following those, were executed before the Constitution of 1868, while the deed in Perkins v. Brinkley was executed after the Constitution. So in Cameron v. Hicks, 141 N.C. 21, 53 S.E. 728, 7 L. R. A. (N. S.) 407, while the deed was executed after the Constitution of 1868, there were contingent remainders to be preserved and powers to be executed, which prevented the statute from executing the use. The phraseology of article 10, § 6, and the use of the words "sole and separate estate," would clearly indicate that the court in Perkins v. Brinkley, supra, correctly construed that section of the Constitution, and would also indicate that the framers of the Constitution did not intend that a married woman should be denied the power and the right of disposition of her property vesting in her by deed or devise, and which, by the use of the words...