Opinion
(December Term, 1833.)
In this State the wife has no equity against her husband to have a provision made for her out of her choses accruing during the coverture, although he be insolvent, and no settlement has been made on her.
THE petitioner, while the widow of Josiah Byrd, filed her bill against the defendant, her brother, who was the executor of her father, claiming a part of his residuary estate. Pending that suit she married Craven Lassiter, her present husband, who became a party to it. A final decree was had in favor of the plaintiffs, and $484.50 was ordered to be paid into court, subject to a further order for settling it on the petitioner. The order to pay the money into court not being complied with, the wife by her next friend filed a petition, stating the above facts, and alleging that her present husband was insolvent, had made no settlement on her, and had abandoned her without leaving her any means of support; and, further, that for the purpose of defeating her of the right of having the above mentioned sum of $484.50 secured to her, under the directions of the court, had released it to the defendant. The prayer was that the money might be raised and settled to her sole and separate use. Upon this petition an order was made directing execution to issue, under which the money was made by the sheriff and paid into court. The defendant filed an affidavit in answer to the petition, in which he admitted the execution of the release, but contended that it was given in consideration of debts which Lassiter owed him, to the (384) amount of the above mentioned sum.
W. C. Stanly and Badger for petitioner.
J. H. Bryan and Mordecai, contra.
We do not think it necessary to examine into the merits of the settlement between the husband and Dawson; for, however the validity of an assignment by the husband of the wife's legal or equitable chose in action might depend upon its consideration, when set up in opposition to her right by survivorship to the subject then outstanding, the husband may certainly at law release, without consideration, to the wife's debtor, and also in equity, unless she has a right in this Court to have her equitable choses set apart as a separate provision for her and her family. This case is brought to that point, on which the Court is more ready to place it, because the case of Bryan v. Bryan, 16 N.C. 47, has been supposed in argument not to lay down the rule then adopted, as a general principle. We have considered that case, and although some exceptions are supposed by Chief Justice Taylor, arguendo, to be under certain circumstances admissible, yet no case can be supposed which could more emphatically call for the interposition of the court than the one then under consideration. The husband was insolvent, and had made no settlement on the wife, but had converted a larger part of the proceeds of her real estate, and she had been bred in affluence, and had brought into the family a large fortune. This was admitted by the counsel for the defendant to be an irresistible case, if the equity of the wife raised by the British courts was to be acknowledged in ours, and it seems to us that the admission was not inadvertent or beyond the truth. Yet the Court refused the relief, and that not upon the ground that the husband had released or disposed of the wife's interest by assignment, but that Sellers, who held the fund, was a creditor of the husband to a larger amount than her share. The judgment of the Court, therefore, went as far as it could do to establish the general principle; and we know that the other judges who then sat in the (385) Court intended to adopt the rule then acted on, universally, as being appropriate to the habits of our people and the state of our society, and a necessary result from the indefeasible interest given by our law to the wife in the personal estate of the husband.
The same may be said of the case before us, that the merits of the wife are great, and the demerits of the husband glaring, and that the Court would protect her if we could in any case intercept the exercise of the marital rights of the husband. But the authority of the decision in Bryan v. Bryan is conclusive against it, and therefore the petition must be dismissed, and the sum raised on the execution and now in court refunded to the defendant.
PER CURIAM. Dismiss petition.
Cited: Allen v. Allen, 41 N.C. 295; Arrington v. Yarborough, 54 N.C. 81.