Rogers v. Hinton

• Decision Date: 31 January 1867
• Citation: 62 N.C. 101
• Court: North Carolina Supreme Court
• Parties: SION H. ROGERS, Adm'r. v. JOSEPH B. HINTON, and others.

62 N.C. 101

SION H. ROGERS, Adm'r.

v.JOSEPH B. HINTON, and others.

Supreme Court of North Carolina.

January Term, 1867.

If one, who has a general power over an estate, exercises it for purposes regarded as secondary, a Court of Equity will hold such estate as thereby rendered liable to all the usual incidents of property; therefore,

Where a feme covert, who had a separate estate, with a general power of appointing the same by deed or will, disposed of such estate to various devisees and legatees, subjecting expressly only a portion of it to the payment of her debts: Held, that her creditors had a right to resort to the whole estate for their satisfaction.

( Leigh v. Hunt, 3 Ire. Eq., 442, cited and approved; Frazier v. Brownlow, 3 Ire. Eq., 237; Knox v. Jordan, 5 Ire. Eq., 175, and Felton v. Reid, 7 Jon., 269, cited, distinguished and approved.)

BILL, to obtain instructions as to the duty of the complainant, as administrator with the will annexed of the late Mrs. Margaret G. Hinton, filed to Fall Term, 1859, of the Court of Equity for WAKE, and at Fall Term, 1866, set for hearing upon bill, answers and exhibits, and transferred to this court. The husband and the devisees and legatees of the testatrix were made parties.

The deed, under which Mrs. Hinton acquired the right to make a will, conveyed the property to a trustee, “to the sole and separate use of Margaret G. Hinton, wife of Joseph B. Hinton, as if she were a feme sole,” &c., and to “convey the slaves and lot as she may, by any paper writing executed by her in the nature of a deed or will, direct, although she may, at the execution of said deed, or will, or paper in the nature of either, be under coverture,” &c.

The will expressed an intention “hereby to execute all powers of appointment to all property, real and personal, owned by me, and of which I have the right to dispose, by virtue of any deed, will or agreement whatsoever, and especially by virtue of a deed,” &c., [the above.] By the first clause of the will Mrs. Hinton directed a negro, named “Happy,” to be sold, and the money arising therefrom “to be applied to the payment of my debts and funeral expenses, my debts being very small, and principally due to Mr. James McKimmon and Doctor Fabius J. Haywood; and out of the surplus”--she gave some legacies. By the second clause she gave a valuable house and lot in Raleigh, certain slaves and other property to her husband for life, and then over. Her debts were not mentioned in any other part of the will, which consisted of seven clauses.

The executor named in the will having renounced, the complainant propounded the will in Wake County Court, at November Term, 1857, when, under the direction of Mr. Badger, then presiding, the verdict of the jury upon the issue, “Is the paper writing, &c., or any part thereof, the last will and testament of Margaret G. Hinton, dec'd., and if so, what part?” was thus entered, viz: “That the said paper writing is the last will and testament of the said Margaret G. Hinton, late wife of the caveator, Joseph B. Hinton, of and concerning all the property, estate and effects of which, notwithstanding her coverture, she had power to dispose, under the deed of Sarah Stone in the said paper writing mentioned, and of and concerning all other property, estate and effects of any of which she had otherwise power to dispose, without the consent of her husband, and as to such property, estate and effects she did devise, bequeath, appoint and direct as contained in the said paper writing.”

Batchelor, for the creditors .

B. F. Moore and Haywood, contra.

1. The general debts of a feme covert are void. Frazier v. Brownlow, 3 Ire. Eq., 237; Newlin v. Freeman, 4 Ire. Eq., 312; Harris v. Harris, 7 Ire. Eq., 111; Draper and Knox v. Jordan, 5 Jon. Eq., 175; Johnson v. Malcom, 6 Jon. Eq., 120; Felton v. Reid, 7 Jon., 269.

2. And her separate estate, in the hands of her executor or administrator, after her death, cannot be subjected to the payment of such. 2 Roper on Husband and Wife, 238, and 245, and note on 245; Anon. 18 Ves., 248; Gregory v. Lockyer, 6 Madd. 90; Court v. Jeffrey, 1 Sim. and Stu., 105, Con. Eng. Chan., 1, 50; Clinton v. Willis, Sug. on Pow., vol. 1, 208, n.; Shattock v. Shattock, Law Rep., 2 Eq., 182; Am. Law Rev., vol. 1, No. 2, p. 314.

3. The doctrine, that where a man has a general power of appointment over a fund, and he actually exercises it, whether by deed or will, the property appointed shall form part of his assets, so as to be subject to the demands of the creditors, in preference to the claims of his legatees or appointees, does not apply, where such creditors are the general creditors of a feme covert who has a separate estate. 2 Sug. on Powers, p. 29, 1st vol., 208; Shattock v. Shattock, above.

4. Our case differs from Leigh v. Smith, in that there the debt of the feme covert was a valid one, contracted before marriage. Leigh v. Smith, 3 Ire. Eq., 442.

5. Contracts of a married woman, even for necessaries, are void, not voidable, so far as her personal liability is concerned. 2 Roper on Hus. and Wife, p. 117, &c.

6. The bare execution of a bond or note cannot be regarded as a defective execution of a power, even when the donee of the power is a feme covert, who has no separate estate, but only the power.

A fortiori, it cannot be a defective execution of such power, where such feme covert has a separate estate. I Sug. on Pow., 426 and 427, also 416.

7. Nor can a recognition of debts, in an ineffectual testament, and an appropriation in said will of other property, over which the feme has no power, to the payment of said debts, be looked upon as a defective execution of a power over property which she can appoint, and has appointed in the same will to a different purpose. The two leading essentials to effectuate defective executions of powers are:

1st. That such effectual execution is in accordance with the intention of the donee of the power. 2d. That it is for the benefit of one of the favored classes, a purchaser, a creditor, a wife or child, or a charity. They are both wanting in this case. 2 Sug. on Pow. 103. 1 Sug. on Pow. 373.

8. It may well be doubted, whether a defective execution of a power by a feme covert will be relieved against in equity, even in favor of a purchaser, creditor, child, or charity, in N. C. See cases cited under 1. The feme, as donee of a power, may exercise it modo et forma, no more; in all other respects she is feme covert. 2 Sug. on Pow., 103, 104.

9. There can no question of election arise in this case. 2 Sug. on Pow., 165.2 Wms. Ex'rs., 888. 2 Story Eq., §1096. Adams Eq., 91, 92, &c. 1 Jar. Wills, 389.

10. It is not to be forgotten that the property in this case is real estate.

BATTLE, J.

The bill, which was filed by the plaintiff as the administrator cum testamento annexo of Margaret G. Hinton, deceased, wife of the defendant Joseph B. Hinton, propounds many questions about which it asks the advice of the...