Witsell v. Charleston
| Decision Date | 15 March 1876 |
| Citation | 7 S.C. 88 |
| Parties | WITSELL v. CHARLESTON. |
| Court | South Carolina Supreme Court |
Under Article XIV, Section 8, of the Constitution of the State, a married woman has power to alienate her equitable estate in stock held by her at the time of the adoption of the Constitution.
A declaration in a bequest of personal property for the sole and separate use of a woman, that it shall not be liable for her debts or the debts or contracts of any husband she may marry hereafter, imposes no restraint upon her power of alienation.
A married woman having power to alienate her separate estate may pledge the same as security for her husband's debts.
A municipal corporation is liable to a cestui que trust for an illegal transfer to a stranger of shares of its stock standing in the name of a trustee.
BEFORE REED, J., AT CHARLESTON, JUNE, 1875.
Action by Mary S. Witsell, plaintiff, against the City Council of Charleston and George W. Williams & Co., defendants.
The case was referred to J. E. Burke, Esq., as Referee, and the facts are fully stated in his report, which is as follows:
This case was referred to me to inquire as to the matters stated in the pleadings, and to report upon all the issues of law and fact involved in the case, with leave to report any special matter.
I beg leave to report that I have been attended by the attorneys herein, have examined the pleadings, and taken the testimony herewith filed as a part of this report, and find the following facts:
I. That Alexander Fraser died in the year 1854, leaving a last will and testament, whereby he bequeathed to plaintiff a legacy of $9,000, payable on the death of his wife, Mary Fraser; and directed that such legacy should be invested for plaintiff's sole, separate and exclusive benefit and behoof, and not be in any manner liable for her debts, or for any debts and contracts of any husband she might marry thereafter.
II. That said testator provided in his said will that the legacies bequeathed therein should be paid in such stocks or bonds as his estate might be invested in at the decease of his wife.
III. That Mary Fraser was appointed executrix of said will, and proved the same, and qualified thereon October 20, 1854. She died subsequently, and after the close of the late civil war (the precise time is not given in the evidence,) leaving a will whereof Jane Neyle was appointed executrix. Said Jane Neyle proved said will and duly qualified as executrix.
IV. That at the time of the death of Mary Fraser, a part of her husband's estate was invested in stock issued by the City Council of Charleston; and in the distribution of the estate plaintiff selected $4,280 of said stock in part payment of her legacy of $9,000.
V. That after the death of Mary Fraser, Jane Neyle, the executrix of her will, endorsed the certificate of stock which plaintiff had selected as part of her legacy, and which stood in the name of estate of Dr. Alexander Fraser, as follows:
VI. That the said Jane Neyle departed this life in 1869, and Henry M. Neyle administered upon her estate; and he endorsed said certificates as follows: " Transfer the within scrip to Charles E. Miller, trustee of Emanuel and Mary S Witsell, and pay the interest, as it becomes due, to the order of Mary S. Witsell." Signed Henry Neyle administrator Jane Neyle.
VII. That Emanuel Witsell and plaintiff were married in 1858. Plaintiff was a daughter of Jane Neyle, who lived with Dr and Mrs. Emanuel Witsell up to the time of her death.
VIII. That the scrip for the said stock was kept in a trunk in the house of said Dr. Witsell, and after the death of Mrs. Neyle was held by the plaintiff, who drew the interest thereon regularly until January, 1872.
IX. That in January, 1872, Dr. Witsell and plaintiff entered into an agreement with one P. Gadsden Hasell to obtain from him advances for that year's crop. The agreement was in writing, and was signed by plaintiff and her husband. This agreement was not produced, as it could not be found. It appears, however, from the testimony, that Hasell agreed to advance $1,000 in sums as should from time to time be needed, and was to be secured by lien on the crop; and $2,500 of the said city stock was to be pledged to secure the deficiency which would exist should the crop security prove insufficient. That Mrs. Witsell consented to the pledging of the stock, and gave her husband the scrip to be delivered to Hasell.
X. That Dr. Witsell delivered the said scrip to said Hasell, without any other endorsements than those before stated; but Hasell desired it endorsed by Charles E. Miller, trustee, and returned it to Dr. Witsell to procure that endorsement. The latter took it to Walterboro, and had it endorsed Charles E. Miller, trustee, in blank, he witnessing the signature. After it was so endorsed, Dr. Witsell took it to Mr. W. L. Campbell, now City Treasurer, but then a clerk in the office of the City Treasurer, to inquire if it were properly endorsed. Mr. Campbell inquired for what purpose it was to be assigned; and on being told that $2,500 of it was to be pledged to Hasell as a security for advances, he wrote over the signature of Mr. Miller the words: " Transfer $2,500 to P. Gadsden Hasell, and the balance to Charles E. Miller, trustee of Emanuel and Mary S. Witsell." Subsequently, said certificate was presented at the office of the City Treasurer of the City Council of Charleston by P. Gadsden Hasell, and new certificates of stock were issued as directed in the last endorsement on said stock, viz., $2,500 to P. Gadsden Hasell and balance to Charles E. Miller, trustee.
XI. That, subsequently, said P. Gadsden Hasell failed, but not before he had advanced Dr. Witsell some $600, as the complaint alleges. The scrip he had received he had in the meantime assigned to G. W. Williams & Co., the defendants herein.
XII. The allegation of the complaint that the said Emanuel Witsell had placed the said scrip in the hands of said Hasell as collateral security without plaintiff's knowledge or approval is not sustained by the testimony of either plaintiff or her husband; and I therefore find that such scrip was so pledged with the knowledge and consent of plaintiff. I also find that Dr. Witsell acted as agent for his wife in regard to pledging the stock to Hasell.
Conclusions of law:
Prior to the adoption of the Constitution of 1868, it is clear that the plaintiff during coverture could have made no valid disposition of the city stock, part of her legacy as aforesaid, nor could she have placed any valid charge upon it. This stock was a part of her separate estate, created by the will of Mr. Alexander Fraser; and, by the well-settled law of this State, she could not dispose of it or change it except in the form and manner authorized by the said will. This instrument, so far from authorizing any mode of alienation or change thereof, seeks rather to restrain the same by declaring that the property shall not be liable for her debts.
It is contended that the present Constitution and laws of this State have made a change in this respect. That in 1872, Mrs. Witsell, the plaintiff, could dispose of this property in any manner that she pleased. That she did pledge it to secure an engagement of her husband, and did authorize the transfer made by the City Council's Treasurer.
The Constitution, Article XIV, Section 8, provides: " The real and personal property of a woman held at the time of her marriage, or that which she may thereafter acquire, either by gift, grant, inheritance, devise, or otherwise, shall not be subject to levy and sale for her husband's debts, but shall be held as her separate property, and may be bequeathed, devised or alienated by her the same as if she were unmarried."
An Act entitled " An Act to carry into effect the provisions of the Constitution relative to the rights of married women," approved 27th January, 1870, provides:
" SEC. 1. That the real and personal property of a married woman, whether held by her at the time of her marriage or accrued to her thereafter, either by gift, grant, inheritance, devise, purchase, or otherwise, shall not be subject to levy and sale for her husband's debts, but shall be her separate property.
SEC. 2. A married woman shall have power to bequeath, devise or convey her separate property in the same manner and to the same extent as if she were unmarried," & c., & c.
S. L., vol. 14, p. 325.
Under the will of Mr. Alexander Fraser, I am of the opinion that the plaintiff was entitled, after the death of Mrs. Mary Fraser, to the beneficial interest in the legacy of $9,000, which was to be invested for her sole and separate use, and of course to the same interest in the city stock, which she selected as a part of that legacy; and that the rights and obligations of the parties were properly expressed when Mrs. Neyle, as executrix of Mr. Fraser's will, ordered, by endorsement thereon, the scrip for the said stock to be transferred to herself as trustee. I think that Mrs. Neyle held the legal estate in said scrip, with the beneficial estate, for her sole and separate use in the plaintiff.
If this is correct, then the language of the Constitution and law above quoted does not apply to this case, as I think that in both the language refers to property the legal title to which is held by a woman, or the legal title to which is given or granted to her after marriage. Property in which she is interested, but which is held by a trustee, cannot, I think, be said to be held by her.
But however this may be, it is clear that wherever the legal title might have been, whether in Mrs. Neyle or in the husband, as trustee, that Mrs. Witsell had a separate estate in...
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