Opinion
(June Term, 1843.)
1. 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.
2. 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 plaintiff.
Bragg for defendant.
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 (554) 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, everything 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 saith 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 recognized this money as belonging to her, and they two kept separate store accounts; that in the course of many years (living between the Petersburg and Portsmouth railroads, and near to each) she was enabled to save the sum of about $350; that she was in the habit of loaning this money and taking the bonds in her own name, with the approbation of her husband. She further states that the present plaintiff has paid to her the purchase money (about $300) of a small tract of land which belonged to her first husband and afterwards became the property of Croker, and which Croker had sold to the plaintiff, taking the bonds therefor payable to her two Whitehead children. Both these sums, with what she has saved since the death of Croker, amounting in all to about the sum of $730, which the other defendant, James Vasser, admits came to his hands since the marriage, and he says that he has (555) executed a bond to pay $500 to each of the two Whitehead children when they come of age, and to furnish each with a horse, saddle and bridle. They deny receiving of Croker's estate any money or evidences of debt, except as above stated. There was a replication to the answers. We are glad to see that the testimony in this cause has been well taken. And we must say that it substantially supports the statements made in the answers. There are species of allowance to the wife by the husband, which may be classed under the head of pin money. It is where he permits his wife to have and make 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 when he makes to her a yearly allowance for keeping his house. The profits in the first 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, upon the principle that all the personal property which a married woman acquires is that of her husband. A leading case on this subject is Shaning v. Style, 3 P. Will., 337. Vide also Sir Paul Neal's case, Pre. Ch., 44; Mangey v. Hungerforce, 2 Eq. Ea. Ab., 155; 2 Roper on H. and W., 138. After marriage the husband may permit his wife to carry on a separate trade, and all that she earns in the trade will, in equity, be her separate property and be applicable and disposable by her as such, subject to the demands affecting it. 2 Roper on H. and W., 171.
It is true that the courts of equity in modern times have laid down the principle that a wife cannot acquire separate property from her husband in her savings, out of a voluntary allowance from her husband, 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. 5 Ves., 79. See Walter v. Hodge, 2 Swans., 97; 2 Roper on H. and W., 140, note c (Jacobs' Ed.). In this case the proof is that Croker acknowledged at sundry times that the savings were the separate property of his wife. They had separate accounts at the (556) stores of their neighboring merchants; when a borrower of money applied to him for a loan, he said he had none to lend, but his wife had; the loan was made by her to the borrower in the presence of her husband, and the bond was taken for the same in her name and with his consent. The husband himself also borrowed money of his wife, to loan to his overseer, which money was by the plaintiff's consent returned to her since the death of the husband. The proofs in the case, in our opinion, come up to these requirements.
We are of the opinion that the bill is not supported by proofs, and it must be dismissed with costs.
PER CURIAM. Bill dismissed with costs.
Cited: McKinnon v. McDonald, 57 N.C. 8; George v. High, 85 N.C. 101; Woodruff v. Bowles, 104 N.C. 210; Hairston v. Glenn, 120 N.C. 343; S. v. Robinson, 143 N.C. 622.
(557)