Kee v. Vasser

• Decision Date: 30 June 1843
• Citation: 40 Am.Dec. 442,37 N.C. 553,2 Ired.Eq. 553
• Parties: CHARLES R. KEE, EX'OR . v. JAMES VASSER AND WIFE.
• Court: North Carolina Supreme Court

2 Ired.Eq. 553

37 N.C. 553

40 Am.Dec. 442

CHARLES R. KEE, EX'OR .

v.JAMES VASSER AND WIFE.

Supreme Court of North Carolina.

June Term, 1843.

Where a husband permits his wife to have and make profit of certain articles of his property, either for her own use, or in consideration of her supplying the family with particular kinds of necessaries, or where he makes to her a yearly allowance for keeping his house, the profits in the one case and the savings in the other, will, in equity, be considered as the wife's own separate estate, although at law they belong to the husband.

Courts of Equity in modern times have held, that a wife cannot acquire separate property from her husband in her savings, except by a clear irrevocable gift, either to some person as a trustee, or by some clear and distinct act of his, by which he divests himself of the property. Where the husband acknowledged that the savings were the separate property of the wife-- where they kept separate accounts at the stores--where bonds for money loaned were taken in her name in the presence and with the consent of the husband--and where he had borrowed money from her himself; these facts satisfy the requirements of the modern decisions, and prove that she was entitled to the money as her separate estate.

This cause, at Spring Term, 1843, of Northampton Court of Equity was set for hearing, and ordered, by consent of parties, to be transmitted to the Supreme Court. The facts will be found in the opinion delivered in this court.

B. F. Moore for the plaintiff .

Bragg for the defendant .

DANIEL, J.

The plaintiff, in his bill, states that the defendant, Nancy, was the widow of his testator, John Croker.--That she, before and after the death of the said testator, got into her possession large sums of money and evidences of debt, belonging to the estate of his testator, to the amount of $1,000, or upwards: that the said Nancy has since intermarried with the other defendant, James Vasser, and that the said Vasser has got into his hands much, if not all, of said moneys, and now refuses to surrender the same, or in any manner to account with him for the same. The defendant, Nancy Vasser, in her answer states, that she has surrendered to the plaintiff, as the executor of John Croker, every thing of which she has had the possession or control, which in law or equity, as she is advised, he had any right or claim to. This defendant further states, that the testator gave her two notes against two merchants, one against one Southall for $18 or thereabouts, and the other against one Clark, for the purpose of discharging the separate account these men had against her in their stores: and that these were all the evidences of debt that this defendant ever had of the testator's: that she, being so advised, returned these notes to the plaintiff. This defendant sayeth, that before she married Croker, who was a man of a large estate, she was a poor widow with two children, by the name of Whitehead. That he, Croker, gave her, to her own sole and separate use and benefit, (to enable her to maintain the said two children,) what money she could make by the use of her needle, (she being a good tailoress,) the sale of fowls, eggs, butter, and vegetables from their garden: that Croker always recognised this money as belonging to her, and they two kept separate store accounts: that in the course of many years, (living between the...