The bill states that Solomon Marsh, the father of the complainant, gave by deed certain negroes to the plaintiff and her children, which is in the following words: "Know all men by these presents, that I, Solomon Marsh, for and in consideration of the natural love and good will which I have and bear towards my daughter, Eunice Ashcraft, have given and granted, and by these presents do freely give and grant unto the said Eunice Ashcraft and her children, a negro girl ten years old, by the name of Clarissa, and her increase; but the said gift to extend to no other person." At the time this gift was made, Eunice was the wife of James Ashcraft and had two children who were boys, both of whom are since dead. James Ashcraft, the husband, being largely indebted, judgments were had against him and under the executions issuing thereon, the negro Clarissa and her children were by the sheriff levied on and sold as the property of the defendant Ashcraft, and the defendant Little became the purchaser. The bill claims, that under the deed of Solomon Marsh, the plaintiff, who is the Eunice Ashcraft mentioned in the deed, was entitled to the sole use and benefit of one-third of the negro Clarissa and her children, or to one-third of their value, and prays that they either may be divided and one-third allotted to her or to some person for her sole use, or sold, and one-third of the value so allotted; and that the defendant Little may be decreed to account with her for one-third of the hires of said negroes since they have been in his possession.

The defendants have filed a demurrer, and assigned for reason, that it appears, by the plaintiff's own showing, that she has not any separate estate in the negroes mentioned in the bill. Upon argument, the demurrer was sustained and the bill dismissed with costs.

NASH, J.

We concur with his Honor, in his opinion. The plaintiff contends, that, under the expression used in the deed, "but the said gift to extend to no other person," she has in one-third part of the negroes a sole property, separate and distinct from her husband, and over which he has no control, and which is not subject to his debts or encumbrances. Do these words, taken in connection with those which immediately precede them, give her such property? It is admitted, that no technical words or particular from of expression is required, to convey to a married woman property to the exclusion of her husband, but that any words are sufficient, which leave no doubt that such was the intention of the devisor or settlor. It is the intention of the donor, which is to govern, but this intention of excluding the husband must not be left to inference, but must be clearly and unequivocally declared. If the intention be clear, the Court will execute it, though it may not be expressed in technical language. Lewin on Trusts, p. 150, and the authorities there referred to. The governing principle is, that the husband is not to be deprived of what the law gives him by the jus mariti, by inference. In the case of Heathman v. Hall, 38 N.C. 420, this doctrine is fully recognized. The words, "for the entire use and benefit, profit and advantage of Mrs. Eleanor Kincaid," being equivalent to for the sole use, etc. Words which were held to be sufficiently explicit, in the case of Adamson v. Armitage, 19 Ves. Jr., 416, also reported in Cooper, 283, and also in the case, Ex parte Ray, 1 Mod., 199, and Lynes's case, 1 Younge, 562. So also the case of Rudisell v. Watson, 17 N.C. 430, expressly and strongly enforces the same doctrine. "It will not do (the Court say,) to guess. The husband can not be excluded without plain recorded words or a necessary implication." These cases abundantly show, that, to exclude the husband, the intention of the settlor must be clear, certain, and unequivocally declared. This (239) certainly, it is said, exists in this case by force of the clause, "but the said gift to extend to no other person." Taken by themselves, they might have that effect; but coupled, as they are with others preceding them, we do not think so. Our attention has been drawn to the case, Margetts v. Barringer, 10 Cond. Ch., 158, 7th Simons, 482. The condensed report is very concise. The case is as follows: John Eustace devised to Louise Margetts, and Ann Margetts, all the residue of his property to be equally divided between them, for their own use and benefit, independent of any other person. The Vice Chancellor, Sir Launcelot Shadwell, decided, that the words, "independent of any other person," meant "independent of all mankind," and of course included the husband. In the previous case of Wagstaff v. Smith, 9 Ves. Jr., 520, it had been declared by the Master of the Rolls, Sir William Grant, that a devise to a trustee to suffer a married woman to take to her own use, etc., "independent of her husband," the interest of certain stock, was a devise to her separate use. For such expressions are clearly inconsistent with the idea of any interference on the part of the husband. The only question, which appears to have been brought to the attention of the Court in Margett's case was, whether the husband was included in the words "independent of any other person," by force of the words themselves, and the vice-chancellor so declared. The words "for their own use and benefit" are not noticed, because, if the husband was included in the words of exclusion, then it was admitted, she had the property to her sole and separate use. There was nothing in the devise, in that case, inconsistent with such an intention on the part of the settlor, and indeed his obscure purpose could not be carried out under any other construction. The husband therefore was excluded by a necessary implication. Is there any such necessary implication in this case? (240) The words are, "but the said gift is not to extend to any other person." These words extend to the whole gift, as well to the children as to the mother. These children being sons, the words, as to them, could not have been used, to create an estate to their separate use, but for some other purpose; as to show the intention, that, upon the death of one of them, the other should take and not some other person. But whether this last was the intention or not, it is clear they could not create estate in them, and therefore we can not say that the same words, connected as they are with others, create a separate estate in the mother. But in the case of Margetts, the gift was to a mother and her daughter; the purpose thereof was consistent and applied to both. Here the children of Eunice Ashcraft were boys, and to put upon the words, as to them, the construction that is urged on the part of the mother, would be absurd. This view of the case is sustained by the case of Wardel v. Claxton, 16 E. Cond., Ch. 324. The testator bequeathed his residuary estate to trustees, to invest, etc, and to pay the interest and dividends thereof to his wife, for her life, to be by her applied for the maintenance of herself and children, etc. The question was, whether the widow, who had married again, was entitled to the income of the property to her separate use. The vice-chancellor observed, "I do not think that this is a gift to the separate use of this lady. In all the cases that have been cited the sole object of the bounty was the woman, etc. But in this case, the words to be by her applied, have reference not only to the testator's widow, but to all the children." The chancellor admits, if the words applied only to the widow, she would have had a separate estate. Such might have been, in the case before us, the intention of the donor. "It is possible," as the Court say in Rudisell v. Watson, 17 N.C. 430, "nay, very probable, that the donor did intend that his daughter should have the sole separate use of her share of the negroes." We are inclined to think he did so (241) intend; but we can not say he did, for we are not sure of it. But it will not do to guess. The donor might further have supposed, that, without the use of those words, the gift to the children of Eunice might embrace all the children she might thereafter have. The question is not, whether he was expert in the law, whether he was right or wrong in that supposition, if he did entertain it, but what was his intention in using the expressions. As before stated, it is probable it was to give the property to the sole use of the wife; but a probable, a possible intention, will not sustain the wife's claims. Hence, although the words might have the construction contended for, yet if they will have the other also, as being in the mind or intention of the donor, though he was wrong in his conclusion, the claim of the wife is repelled; not because the donor did not intend the sole and separate use to her, but because he has not used such language as to enable us to say he did so intend. See the case of Rudisell v. Watson, supra. The opinion pronounced by the Court in that case, it appears to me, governs and controls this. The husband can not be deprived of his marital rights by conjecture, however strong. There must be a certainty, to that degree which shows that the donor must have so meant, and could not have meant otherwise. If such was the intention here of the donor, from the words he has used, we can not declare it so to have been. By the gift of Solomon Marsh, one-third of the negro Clarissa and her future increase vested absolutely in James Ashcraft, the husband, by virtue of "the jus mariti," and the other two-thirds in his children then born of his wife Eunice. Upon their death, their interested passed to him, and the whole title vested in him, and was liable to the payment of his debts.

The decree of the Court below must be affirmed, the demurrer sustained, and the bill dismissed with costs.

DANIEL, J.

On 15 December, 1822, Solomon Marsh made the deed in question, and delivered it to James (242) Marsh, to be kept for the benefit of the plaintiff and her two sons, as the bill alleges. The deed recites, that for the natural love and good will that the donor had for his married daughter (the plaintiff), he, "by these presents, do freely give and grant to the said Eunice Ashcraft and her children, a negro girl ten years old, by the name of Clarissa, and her increase; but the said gift to extend to no other person." Clarissa has now several children. The bill is filed by the plaintiff, against her husband and Alexander Little and others, who claim the slaves under a judgment and execution against her husband, to have one-third of them secured to her sole and separate use. The defendants have demurred. The demurrer was sustained in the Court of Equity for Anson County, and the bill was decreed to be dismissed. The plaintiff then appealed.

Any person may make a gift to the wife of another man, and shut out the husband's interference, by clearly expressing such an intention in the instrument creating the gift. Lewin on Trusts, 148. But whether a trustee is appointed or not, the intention of the testator or settlor, of excluding the husband, must not be left to inference, but must be clearly and unequivocally declared. For, as the husband is bound to maintain his wife, and bears the burthen of her encumbrances, he has, prima facie, a right to her property. But provided the meaning be certain, the court of equity will execute the intention, though the settlor may not have expressed himself in technical language, Lewin, 148, 150 (marg. page) and 2 Story Eq., 909, 910, where all the authorities are collected and remarked on. If Marsh had said thus in his deed of gift, "but the said gift is not to extend to my daughter's husband," or "she is to have it independent of her husband," it would then have been clear that the husband was intended to be excluded, and the property would go to the separate use of the wife. Wagstaff v. Smith, 9 Ves., 520. Simons v. Howard, 1 Keen, 7. So if the (243) gift had been to Eunice Ashcraft and her children, "independent of any other person," it would have been a separate estate to the wife of her share. Margetts v. Margetts, 10; Cond. Eng. C., 158. This case is, in my opinion, very much in point. It was as follows: John Eustace, by his will, gave all the rest and residue of his estate and effects unto Louisa Margetts (a married woman) and Ann Margetts, her daughter, to be equally divided between them, share and share alike, for their own use and benefit, "independent of another person." The vice-chancellor said, that the words, "independent of any other person" meant, "independent of all mankind," and therefore included the husband, and the wife had a separate estate. This case was well considered, I presume, as the reporter informs us, that Mr. Barber and Mr. Parker were counsel in the cause. It seems to me that the words, "independent of any other person," are in meaning, the same as the words, "and to extend to no other person." If, therefore, the first set of words, when applied to Mrs. Margetts (a married woman) and her daughter, gave the feme covert a separate estate in the legacy (as we see they did), it is plain and clear, that the latter set of words ("and to extend to no other person") must also exclude the husband; and give the negroes to Mrs. Ashcraft and her two sons then born. The case reported is a gift to Mrs. Margetts and her daughter Ann Margetts; the case before us is a gift to Mrs. Ashcraft and her two sons. I ask, where is the difference? Rudisell v. Watson, 17 N.C. 430, was a decision that has no bearing on the case now before the Court. It was a devise and bequest, by a father to his married daughter, "to her and her heirs proper use"; and this Court said, that the words "to her proper use" did not clearly mean to convey the estate "to her separate use." As to the two children of Mrs. Ashcraft, the deed would have conveyed to each of them, his one-third part of the slaves, without supplementary words used by the donor. But as Mrs. Ashcraft was a feme covert, the donor used the words, "independent of (244) any other person," to exclude her husband: he being the only person in the world, that the said words could have any effect or bearing on. If the donor did not mean to exclude him, I would ask whom did he mean to exclude? The words have no meaning at all, if they do not exclude the husband. To say that the husband is not clearly meant to be excluded by the words used, is to say that no words in the English language, which may be used in deeds or wills, can exclude the husband, unless he is expressly or particularly named; and such a decision has not yet been made in any court. I think the demurrer ought to be overruled.

PER CURIAM. Decree below affirmed, the demurrer sustained and the bill dismissed with costs.

Cited: Baron v. Holt, 47 N.C. 225; Freeman v. Moses, 55 N.C. 25; Young v. Young, 56 N.C. 219; Smith v. Martin, 59 N.C. 182; McKenzie v. Sumner, 114 N.C. 429.