Kirby v. Botette

• Decision Date: 10 March 1896
• Citation: 24 S.E. 18,118 N.C. 244
• Court: North Carolina Supreme Court
• Parties: KIRBY. v. BOTETTE et al.

24 S.E. 18

118 N.C. 244

KIRBY.

v.BOTETTE et al.

Supreme Court of North Carolina.

March 10, 1896.

Stake Decisis—Rule of Property—Wipe's Separate Estate—Trust for Married Woman—Power of Disposition.

1. The supreme court will not disturb a rule of property announced 15 years before, and then declared to be but an affirmance of the principal laid down over 20 years prior thereto, no matter what would be the view of such court were the matter before it res nova.

2. Where a woman acquires title to land before or after marriage, without any qualification of or restriction on her right of alienation, she can dispose of it during her lifetime only in the way pointed out in Const, art. 10, § 6.

3. The constitution imposes no limitation upon the right of a grantor or devisor to restrict or enlarge, by the terms of the instrument through which title passes, a woman's jus disponendi.

4. The words "for the separate and sole 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.

On petition for rehearing. Dismissed. For prior report, see 21 S. E. 697.

H. G. Connor and Pou & Pou, for appellants.

Shepherd & Busbee, for appellee.

AVERY, J. An examination of the brief filed by counsel for the appellant in Hardy v. Holly, 84 N. C. 661, will show that the argument in that case fully covered the ground upon which we are asked to review the decision of this court (116 N. C. 165, 21 S. E. 697), and, with it, to overrule a line of cases extending over 15 years. The exhaustive brief of the learned counsel who appeared in that case, and the questions raised by the appeal, invited and demanded at that juncture a review of the previous cases in which was discussed the doctrine of the respective rights and powers of married women and trustees, holding for their sole and separate use, in selling and disposing of separate property. The learned justice (Ruffin) who delivered the opinion started out in the discussion by stating the English doctrine that a married woman was regarded as a feme sole, as to any estate conveyed to her separate use, except in so far as she was restrained by a positive prohibition in the instrument creating the estate. After a cursory review of the previous cases in our Reports bearing upon the subject, the court said in Hardy v. Holly, supra: "When the question next arose, in Knox v. Jordan, 5 Jones, Eq. 175, the court, as then constituted, without division and without any sort of reservation, repudiated the doctrine of the English courts, and adopted that which prevails in most of the courts of the states; and whether this was wisely done, or not, that case has been too often approved, and doubtless too often acted upon, in matters intimately connected with the interest and comfort of families, to admit of its correctness being now called in question." The court then proceeded to crystallize the law as they understood it to have been declared in Knox v. Jordan. It is insisted that this statement of the rule established by previous decisions was a dictum, as well as a departure from the doctrine theretofore laid down by our own and other courts of this country. It may aid us in disposing of this contention to reproduce the rule which it is insisted was a dictum, followed by the language used in Knox v. Jordan, cited as authority to sustain it. In Hardy v. Holly the court said: "We must take it to be the settled law of this state, at least, that a married woman, as to her separate property, is to be deemed a feme sole only to the extent of the power expressly given her in the deed of settlement. Her power of disposition is not absolute, but limited to the mode and manner pointed out in the instrument, and when that is silent she is powerless." The same principle was stated by Manly, J., under the inspiration of a court constituted differently, 21 years before, as follows: "We prefer adhering as closely as may be, consistently with decided cases, to the rule that a separate estate for the support of a married woman does not confer any faculties upon her except those which are found in the deed of settlement, and that in all other respects she is a feme covert, and subject to the usual disabilities." Knox v. Jordan, supra. It is difficult to distinguish between a rule that a married woman, as to property limited to her sole and separate use, is a feme sole, except as to "faculties" or powers "found in the deed, " and the proposition that her power of disposition is not absolute, but limited to the mode and manner pointed to (instead of the powers found) in the instrument creating the trust, and "when that is silent she is powerless." If the rules are plainly expressive of the very same principle as the court in Hardy v. Holly held that they were, the lapse of 15 years since its reiteration would enhance the probability that it had been too often acted upon to be disturbed, if the subject had never been since discussed. But in Kemp v. Kemp, 85 N. C. 491, Justice Ruffin, again speaking for the court, said: "A married woman is to be deemed a feme sole, as to her separate estate, only to the extent of the power conferred upon her in the deed of settlement; and, if no power of disposition be given in that instrument, she is altogether without such power." In Mayo v. Farrar, 112 N. C. 66, 16 S. E. 910, the same rule was again substantially reiterated, and the court cited 2 Pom. Eq. Jur. § 1105, where the author classifies this court as one of those where the wife's power over the estate conveyed to a trustee for her separate use is made to depend solely upon the permissive provisions of the instrument creating such estate. Id. p. 1651, note 1. Again, in Monroe v. Trenholm (at the same term) 112 N. C. 640, 17 S. E. 439, the court laid down the rule that, where land was conveyed to a trustee for the sole and separate use of a married woman, she had "no power of disposition, except such as is clearly given in the instrument." With the explanation that the restriction would not continue, as a rule, when the married woman should become discovert, the opinion in the case last mentioned was affirmed on the rehearing. 114 N. C. 590, 19 S. E. 377. The doctrine of Hardy v. Holly was also approved in Broughton v. Lane, 113 N. C. 16, 18 S. E. 85. There was therefore a line of decisions sustaining the principle governing this case which extended over 35 years when it was first heard. If it were conceded that every opinion since Knox v. Jordan, supra, in so far as it incorporated this rule restricting the powers of married women, was a dictum, still that case would remain, with its plain and forcible announcement of the solution of a vexed question, which the court had, upon careful consideration, promulgated as the law. Can this court, consistently with its constitutional obligation to adhere to decisions which may have become a rule of property, alter or modify the principle upon which the people of the state have been invited to invest their money for so long a period? The proposition upon which the contention of the petition to rehear is based is unsound in law, and cannot be acted upon without grave danger to the rights acquired under a well-founded confidence in the stability of judicial decisions. The theory is that if a court, in the elucidation of the questions involved in any given controversy, finds it necessary to crystallize the law upon the subject into a clean-cut rule, which will prove a guide to the profession, such rule may be abrogated, after it has been acted on for over 30 years, because the case in hand might have been decided by stating the principle governing the particular case, instead of the broader one founded upon the reason of the thing, but decisive also of other cases as well as that at bar. To lend our sanction to such a view of the law would be to imperil the security of many principles upon which titles have been acquired under the advice of the most competent counsel. A due regard for vested rights necessarily constrains a court to reject such a theory, as little short of revolutionary. It is true that the court of appeals of New York is among the appellate tribunals of this country which have adopted the English doctrine. Counsel called attention to the fact that the case of Trustees v. Jaques, 3 Johns. Ch. 78, in which Chancellor Kent held that a married woman must, as to separate property settled on her, beconsidered a feme sole only to the extent of the power expressly given her in the marriage settlement, was subsequently overruled by the higher court. 17 Johns. 548. That fact was noticed in Hardy v. Holly, supra, and the court expressed its approval of the doctrine as announced by the learned chancellor, and its dissent from the views of the higher court.

The suggestion that the constitutional provision (article 10, § 6) was intended to abrogate the right to restrict the wife's power of alienation by deed of...