Opinion · Supreme Court of North Carolina

Little v. . McLendon

58 N.C. 216

Type
Opinion
Court
Supreme Court of North Carolina
Jurisdiction
North Carolina
Date
1859-12-05
Topic
general

Battle, J. The only questions which the counsel for the plaintiff, in his argument before us, lias presented for our consideration, and upon which he has asked for a decision, are, whether under the fifth clause of the will of the testator, Christopher McRae, the femes covert therein named, took estates to their sole and separate use, and if they did, whether, upon their deaths the slaves therein given, belonged to their surviving husbands, to their administrators, or to their.children. . The counsel contends— 1. That the wives took separate estates in the slaves, and secondly, that upon their deaths, they went to their children. We deem it 'entirely unnecessary to decide the first question, for, supposing that the wives did take estates in the slaves, to their sole and separate use, yet, upon their deaths, *218 the slaves passed immediately to Mieir husbands.

Citator

UpLaw has not yet analyzed Little v. . McLendon. The absence of a flag is not a finding that it is good law.

Cited by
1 opinion
LITTLEv. McLENDON,58 N.C. 216(1859)
ALEXANDER LITTLE, EXECUTOR, v. JOHN G. McLENDON ET ALS.
Supreme Court of North Carolina
(December Term, 1859.)
An estate in slaves, limited by will to the sole and separate use of afeme covertwithout any express limitation over to another, devolves, after her death, upon her husband,jure mariti.
CAUSE removed from the Court of Equity of ANSON.
Christopher McRae made his will, and died in 1837, leaving the plaintiff Alexander Little his executor, who qualified. Among many other bequests, the testator gave certain slaves to his daughter Margaret, wife of Allen Teal, and others to his daughter Isabelle, wife of William Teal. Both these daughters died subsequently to the testator, leaving (217) their husbands and several children, each surviving, and administration was taken upon their estates. The bill is filed by the executor of Christopher McRae, praying to be instructed as to the manner of paying the legacies under the will, and particularly to whom he shall pay over the shares of Margaret and Isabella. He sets forth certain clauses of the will, from which it appears to the executor doubtful whether the shares of the two daughters are given to their sole and separate use, and, if so, he asks to be informed upon whom their interests devolve — whether upon their administrators, or their children, or upon their husbands. All these are made parties to the bill, and they insist on the construction favoring their several interests. As, in the view taken of the case by this Court, the question whether the wives took separate estates is not material to the solution of the main question presented, it is deemed unnecessary to recite the terms of the will, out of which it is supposed to arise, further than to state that there is no ulterior disposition of the shares of Margaret and Isabella after their deaths.
Winston, Sr., for plaintiff.Ashe for defendants.Page 179
BATTLE, J.
The only questions which the counsel for the plaintiff, in his argument before us, has presented for our consideration, and upon which he has asked for a decision, are, whether under the fifth clause of the will of the testator Christopher McRae thefemes coverttherein named took estates to their sole and separate use; and if they did, whether, upon their deaths, the slaves therein given belonged to their surviving husbands, to their administrators, or to their children. The counsel contends, first, that the wives took separate estates in the slaves; and, secondly, that upon their deaths they went to their children.

We deem it entirely unnecessary to decide the first question, for supposing that the wives did take estate in the slaves to their sole and separate use, yet upon their deaths the slaves passed immediately to their husbands. This is so clearly established by the authorities (218) that no argument is required in favor of it. See McQueen on Husband and Wife, 66; Law Lib., 82; also, Smith on Real and Personal Property, 89; Law Lib., 578, and the cases therein cited and relied upon. The reason of the rule is that the separate estate of the wife is protected from her husband and from his assignees and creditors for her benefit during the coverture only, and that upon her death such protection being no longer necessary, the property devolves upon the husband immediately,juremariti, unless it be expressly limited over to her children or to some other person. If, indeed, the separate property consists of choses in action, then upon the death of the wife the husband, or some person for him, will be obliged to take out letters of administration upon her estate in order to reduce them into possession. In the present case, it will be declared that the slaves given to the plaintiff under the fifth clause of the will of the testator, in trust for thefemes covertlegatees therein named, now belong to the husbands respectively of those who have died, whether they were given to the sole and separate use of the saidfemescovertor not. We suppose that an account of the estate of the testator must be stated, and we presume the above declaration will enable the parties to settle without further difficulty.

PER CURIAM. Decree accordingly.Cited: Rouse v. Lee,59 N.C. 354;Carson v. Carson,60 N.C. 579.Page 180

(219)