Opinion
(June Term, 1842.)
1. A devised as follows: "I give, devise and bequeath all my estate to my daughter C and my son T, to have and possess said real and personal estate during their natural lives, and after their death the said property, real and personal, to descend and be transmitted to their children. Should my son T die without leaving issue of his body, my will is that the property devised and bequeathed to him, after his death, shall be limited and vested in the children of my daughter C. My will and desire is that the negroes I have given to my daughter C and son T shall be hired out in the county of Rowan, and not without the county, and the profits of their hiring shall be equally divided between them during their natural lives; and my further will is that neither my dwelling-house nor tract of land be rented out, on which I live, but any other tracts may be rented out as they may deem fit." At the date of this will, and at the death of the testator, his daughter C was a married woman: Held, that the wife, under the expressions of this will, did not take an estate to her separate use.
2. The Court will not force a construction to raise a trust for the separate use of the wife, nor gather the intention that a separate estate is limited for her, from terms that are ambiguous or equivocal.
THIS was an appeal from an interlocutory decree of his Honor, Pearson, J., at Spring Term, 1842, of ROWAN Court of Equity, dissolving an injunction which had been obtained by the plaintiffs.
The facts presented by the pleadings are stated in the opinion delivered in the Supreme Court.
D. F. Caldwell and Boyden for plaintiffs.
No counsel for defendants.
Thomas Mull, on 1 January, 1835, executed a last (239) will and testament, which after his death was admitted to probate, and the executor therein named having renounced the office of executor, administration on the estate of the deceased cum testamento annexo was granted to William D. Crawford, the husband of Christina Crawford, the daughter of the testator. By his will the testator devised and bequeathed as follows: "I give, devise and bequeath all my estate to my daughter Christina Crawford and my son Thomas Mull, Jr., to have and possess said real and personal estate during their natural lives, and after their death the said property, real and personal, to descend and to be transmitted to their children. Should my son Thomas die without leaving issue of his body my will is that the property devised and bequeathed to him, after his death, shall be limited and vested in the children of my daughter Christina Crawford. My will and desire is that the negroes I have" (given) "to my daughter Christina and son Thomas shall be hired out in the county of Rowan, and not without the county, and the profits of their hiring shall be equally divided between them during their natural lives; and my further will is that neither my dwelling-house nor tract of land be rented out on which I live, but any other tracts of land may be rented out as they deem fit." William D. Crawford and Thomas Mull, Jr., made a division of the slaves of the testator comprehended in the general devise and bequest therein set forth, and afterwards Crawford, for the purpose of indemnifying some of the defendants from injury by reason of their liability for him as his sureties, executed a deed of trust to the defendant Shaver whereby he conveyed all his interest, whatever it might be, in the negroes bequeathed to his wife. A bill was filed in the name of Christina Crawford and her infant children, suing by their next friend, against the trustee and the cestuis que trust in this deed of Crawford, to enjoin a sale of these negroes upon the ground that in equity the same belong to the plaintiff Christina during her life, exclusively of her said husband, with remainder or a residuary interest thereinafter her death to her children, the other plaintiffs. The injunction was granted as prayed for, but upon the coming in of the answers of the defendants it was ordered that the injunction be dissolved so far as (240) to permit the trustee to sell the estate which William D. Crawford had in the negroes for and during the life of his wife, upon bond with sufficient surety being taken for the forthcoming of the same and the increase thereof at her death. From this interlocutory decree the plaintiffs prayed and obtained an appeal to this Court.
The appellants object to the decree for that by his will the testator has declared his purpose that the plaintiff Christina should have a beneficial interest for her life in the slaves in question independent of the control and exempt from the disposition of her husband, with remainder in the slaves to her children. But we can find no ground upon which this construction can be maintained. Marriage is at law an absolute gift to the husband of all the goods of which the wife was possessed in her own right at the time of the marriage and of such others as come to her during the marriage. In equity the wife may take and hold personal as well as real estate separate from and independent of her husband; but as equity follows the law, it must appear, either from the nature of the transaction or the terms of the conveyance, that the property is given to her separate use before his marital rights thereto can be excluded. There is nothing in the nature of the transaction (as in a case of a marriage settlement, where the husband is a party, or as in a case of a conveyance by a husband to the use of his wife) which manifests a necessary intent that she should take a separate property. And whatever expressions may be found in the will tending to raise an inference of such an intent, they fall far short of those which have been judicially determined to be insufficient for that purpose. See Rudisell v. Watson, 17 N.C. 430; Gilliam v. Welch, 15 N.C. 286. The Court will not force a construction to raise a trust for the separate use of the wife nor gather the intention that a separate estate is limited for her from terms that are ambiguous or equivocal.
It must be certified to the court below that there is no error in the interlocutory decree appealed from.
PER CURIAM. Ordered accordingly.
(241)