Irby v. Wilson

• Decision Date: 31 December 1836
• Citation: 1 Dev. 568,21 N.C. 568
• Parties: WILLIAM IRBY et al. v. WILLIAM J. WILSON et al.
• Court: North Carolina Supreme Court

1 Dev. & Bat.Eq. 568

21 N.C. 568

WILLIAM IRBY et al.

v.WILLIAM J. WILSON et al.

Supreme Court of North Carolina.

December Term, 1836.

Where a marriage was solemnized in South Carolina, between persons resident there, and the parties afterwards removed to, and acquired a domicil in Tennessee, from whence the wife removed to this state, it was held, that a decree dissolving the marriage, made by a Court in Tennessee, upon the petition of the husband, exhibited six years after the removal of the wife to this state, and without personal service upon her, was a nullity; and that a marriage contracted by the wife before the death of the husband, was void.

THE bill was filed on the 14th of May, 1831, by William Irby, Andrew B. Cox, and William Nolin, and stated that one Joshua Irby died intestate, in the year 1828, leaving a personal estate consisting of certain negro slaves, designated by name, moneys on hand, debts due on bonds, notes and accounts, and also specific articles of furniture, stock, and other things; and that the same came to the hands of William J. Wilson, who duly obtained letters of administration, and undertook the burden thereof: that the said intestate left no child him surviving, but left his father John Irby, and a widow Mary H. Irby, who were entitled to have the clear personal estate, after the payment of the intestate's debts, and the charges of administration, divided between them: that John Irby, by way of advancing the plaintiffs, who were his son and sons-in-law, on the 25th of April, 1831, assigned and conveyed to them all his share and interest in the said estate, and that they had applied to the said Wilson, and to Mary H. Irby, to come to an account thereof, and divide the same, and pay to the plaintiffs their just proportions; that they refused so to do, under the pretence, that the said negroes had been conveyed to trustees, upon a former marriage of the said Mary H. with one Alexander Jones, in trust for the sole and separate use of the said Mary H. whereby she was exclusively entitled to the same, and no interest vested in the said Joshua; whereas the bill charged, that by the provisions of the said deed, the said negroes were, upon the death of either the said Alexander or Mary H. without issue of the marriage, to vest in the survivor absolutely; and that the said Alexander Jones did die, without leaving or having any issue of the marriage, in the lifetime of both the said Mary H. and the said Joshua, and thereupon the said slaves became the property of the said Mary H. and vested in the said Joshua, by force of his marital rights. The bill further stated, that the said parties refused to account upon the further pretence, that the said Mary H. had intermarried with said Jones, and that he was living at the time of the intermarriage of the said Joshua with the said Mary H.; and that so the said marriage last aforesaid was illegal and null; and the property of the said Mary H. did not belong to the said Joshua, by virtue of the said intermarriage; whereas, the bill charged the truth to be, that although the said Alexander Jones and Mary H. might have intermarried as aforesaid, and the said Jones might have been, or was alive at the time of the said last intermarriage of the said Mary H. with the said Joshua, yet the same was a valid and legal marriage; because, before the same was had and solemnised, the said Alexander Jones and Mary H. his then wife, had been and were duly divorced from the bonds of matimony, by a proper and compenent tribunal in the state of Tennessee. The bill had the usual prayer for process, and for an account and distribution of the estate. The bill was afterwards amended by making John Irby a party defendant, in order to establish his assignment to the plaintiffs.

The answers of the defendants Wilson and Mary H., Irby admitted the death of the intestate Joshua, in 1828, and the administration of Wilson. Mary H. stated, that the negroes mentioned in the bill, except one named Cato, were the same and their increase, which were conveyed to trustees upon her first marriage with Jones, which took place in South Carolina; and, by force of the trust therein declared, she insisted, were held by the trustees to her sole use, as she survived the said Alexander Jones.

The answer of the said Mary H. further stated that some time after the said marriage, her said first husband and herself removed to the state of Tennessee, where they lived unhappily together, so much so, that she returned to her relations in North Carolina, and settled on a tract of land in Lincoln county, in this state. The answer proceeded: “this defendant has understood, that after she left Tennessee, and whilst an inhabitant of this state, her said husband instituted proceedings in Tennessee, to obtain a divorce, and that a decree to that effect was made by some Court in that state; but whether it was regular or not, she was ignorant. But she is advised, that she was disabled from entering into the contract of marriage, even if said decree was regular; and therefore, insisted that the said Jones being alive, her marriage with the said Irby was null and void; and none of the said negroes, nor any part of her property, ever vested in him.” And she claimed the stock on her said plantation at the death of Irby. As to the negro Cato, and a sulky, chaise and harness, and the sum of two hundred dollars, she stated that they were received by said Irby, in 1827, from certain friends of hers, to be held at their pleasure, for her sole and separate use; and as to a further sum of two hundred dollars, that he received that from another relation, also for her sole use; and that he put out both of the said sums on loan, and took a bond for the same in his own name, which came to the hands of Wilson the administrator; but that the same was not a part of Irby's estate; and justly belonged to her.

The answer of Wilson, the administrator, set forth an account of the estate in his hands. He admitted having received a bond of one Fullenwider, payable to his intestate, for four hundred and fourteen dollars, at six months after date, which was given for the sum of four hundred dollars loaned; and that such moneys had been received by his intestate, from the relations of his then supposed wife to and for her separate and sole use, and no interest was claimed therein by the intestate; but he admitted that the same was subject to her sole disposition and control. This defendant further said, that on said bond, the sum of three hundred and thirty-two dollars thirty-nine cents was due, when it came to his hands, which he had received, and submitted to pay to the person that might be found entitled. This defendant then set forth the slaves found by him, which had been in the possession of his intestate; also, other effects, which were claimed by the defendant Mary H. or by her trustees; and stated, that he did not sell or take into his possession the said slaves, because his intestate had never claimed them as his own, and the administrator supposed them not to belong to him: that he supposed all the other property, including articles to the value of two hundred and fifty eight dollars twenty-two cents, which were claimed in like manner by the said Mary H. and her trustees, upon an agreement with her, that if they were not really of the estate of his intestate, the proceeds should be paid to her. Whether the said slaves, and the several sums of three hundred and thirty-two dollars thirty-nine cents, and two hundred and fifty-eight dollars and twenty-two cents, were, or were not, of the proper goods of his intestate, or of the said Mary H., he prayed the Court to have litigated, for his protection, between her and the plaintiffs; and submitted that either might have the same in whom the right might be found. And for the nature of her claim, reference was made to her answer.

John Irby, the father, answered and insisted that the defendant, Mary H. was the lawful wife of his late son Joshua; and denied that the assignment by him to the plaintiffs was effectual, as it was obtained by fraud and misrepresentations.

The plaintiffs replied to the answers, and the parties proceeded to proofs.

The case was argued at length by

Winston, for the plaintiffs ;

And by D. F. Caldwell and Devereux, for the defendants .

RUFFIN, Chief Justice, after stating the pleadings as above, proceeded as follows:

For the purpose of obtaining the opinion of the Court upon the principal points in controversy, the counsel, upon the supposition of the validity of the assignment under which the plaintiffs claim, have brought the cause on for hearing. The principal question and indeed almost the only one upon the matter of law, is upon the validity of the supposed marriage between the intestate Joshua Irby, and the defendant Mary H., mentioned in the pleadings. In reference to that the Court finds upon the proofs, that Alexander Jones and the defendant Mary H., then Mary H. Smith, both being inhabitants of South Carolina, and having their permanent domicil in that state, duly intermarried in South Carolina, according to the laws of that state, in the year 1804: that no divorce from the bonds of matrimony has ever been granted, declared or pronounced by any judicial sentence or legislative enactment in South Carolina; and that by the laws of that state, the contract of marriage is indissoluble, except by death: that Alexander Jones removed himself and his said wife from South Carolina, in the year 1809, to the state of Tennessee, and there they became bona fide and permanently domicilled: that the said Alexander continued to have his domicil and inhabitancy in Tennessee up to the time of his death, which happened in the year 1827; but that the said Mary H. in the year 1810, separated from her said husband Alexander Jones, and removed to the County of Lincoln, in the state of North Carolina, and that her residence, inhabitancy and actual...