Lassiter v. Dawson, 17 N.C. 383, 2 Dev. Eq. 383 (1833)

Dec. 1833 · Supreme Court of North Carolina

17 N.C. 383, 2 Dev. Eq. 383

Elizabeth Lassiter v. James Dawson.

In this State the wife has no equity against her husband to have a provision made for her out of her cAoees accruing during tiie coverture,although he he 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 Graven Lassiter, her present husband, who became a party to it. A final decree was bad in favor of the plaintiffs, ami the sum of jg484$ was ordered to be paid into court, subject to a further order for settling it on the petitioner. The or* der 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 aban denied 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 $484$, secured to her, under the directions of the court, had releas-it to the defendant. The prayer was that the money might be raised, and settled to her sole and seperate use. Upon this petition, an order was made directing execution to issue.under which the money was made by tiie 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 amount of the above mentioned sum.

v< Bryan, (anteWol pAT) considered, and dopted declared to be general, The case at

W. C. Stanly & Badger, for the petitioner.

J. II. Bryan & Mordecai, contra.

Ruffin, Chief-Justice

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 sur-vivorship to the subject then outstanding, the husband may certainly at law, release, without consideration, to the wife’s debtor, and also in equity7, unless she has a right in this court to have her equitable dioses set apart as a separate provision for her and her family.— This case is brought to tiiat point, on which the Court is more ready to place it, because the case of Bryan v Bryan, (ante 1 Vol. p. 47,) has been supposed in argument not to Jay down the rule then adopted,as a general «rinciiilc. We have considered that case, and although 1 ° some exceptions are supposed by Chief Justice Taylor, arguendo, to be under certain circumstances admissible,' yet no case can be supposed which could more cmpiiat-ically call for the interposition of the court,tiian the one then under consideration. The husband was insolvent, and bad 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 bad brought into the family a large fortune. This was admitted by the counsel for the defendant to bo 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 tbe 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 \vc know that the other Judges who then sat in the court intended to adopt the rule then acted on, universally, as being appropriate to the habits oí 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 the petition.