Caffey v. Kelly, 45 N.C. 48, 1 Busb. Eq. 48 (1852)

Dec. 1852 · Supreme Court of North Carolina

45 N.C. 48, 1 Busb. Eq. 48

JAMES D. CAFFEY AND WIFE, AND OTHERS, against CORNELIUS KELLY AND WIFE, ISABELLA.

The husband, hy marriage* acquires title to his wife’s personal property, not claimed adversely by any other person, whether he reduces the same into his possession or not; and her being tenant in common thereof with another, makes no difference. .

As where, after marriage, certain slaves, the property of the wife, remained at the house of her mother, with whom the parties lived, as she did at the time of marriage, and were understood to belong to her and her brother — though the husband did not excr-eise any acts of ownership over them, nor take them away on removing to another residence* where, shortly afterwards, he died: — Held, that he acquired title thereto by virtue of his marital right.

(The cases of JPettijohn v. JBeasly, 4 Dev., 512, and Stevens v. Doak, 2 Ire. Eq., 348, cited and approved.)

Cause removed from the Court of Equity for the County of’ Guilford, at the Fall Term, 1852.

James McNeely died intestate in the early part of the year 1849, leaving surviving him, a widow, the feme defendant, since intermarried with the other defendant, and two children, the feme plaintiffs. His widow administered on his estate, and this bill is filed for a settlement of her accounts as administratrix. The principal questions raised by the pleadings, calling for a decree of this Court, and on which proofs were taken upon the plaintiffs’ replication to the answer, wefe substantially the following. It appears, that at the time of the defendant Isabella’s marriage with her intestate, she owned an undivided half of two slaves, (Sarah, aged about five years; and Thompson, about five months,)as a tenant in common with her brother, William Mitchell, which slaves they had acquired by gift from their father ; and she and her then hus^ band Avent to live with her mother, Mrs. Mitchell, in whose possession were the said slaves, as well also a quantity of furniture belonging to the defendant, Isabella. Whilst living Avith Mrs. Mitchell, it does not appear that the intestate ever exercised any positive acts of ownership over the said slaves, nor that he set up any claim to them by virtue of his marriage; but they Avere simply understood in the family to be the property of the said Isabella and William as tenants in common. Nor does it appear that he asserted any OAvnership or control over the furniture there, which Avas his Avife’s. The intestate died Avithin about three months after his marriage — having, a short time before his death, removed to a house of his own; and on removing,'he did not carry with him the said slaves, or either of them, nor the said furniture. The bill alleges that the defendant’s intestate, by virtue of his marriage, and acts of OAvnership exercised by him over the said property, acquired title thereto; and prays that the defend-* ants may be held to account for the same as p«¡.i;t'of his estate, Avhich had not been done by them in their inventory and accounts rendered.

The answer denies that the intestate ever reduced said property into possession, or claimed or exercised control over the same, and insists upon the title of the defendant Isabella, by right of sur-vivorship. Proofs were taken also rrpon the question of the defendants’ liability to account for certain bonds made to the defend^ ant, Isabella, before her said marriage with the intestate; but this point Avas yielded by the plantiffs’ counsel in this Court;

Miller, for the plantiffs.

No Counsel appeared for the defendants ih this Court.

Battue, J.

There can be no doubt that the negro girl Sarah and the boy Thompson became the property of the defendant Isabella’s intestate by his intermarriage Avith her. They Avere at the house of the said defendant’s mother, Avith Avhom she lived at the time of her marriage, Avere not claimed adversely by her mother or any other person, and, therefore, became the property of her husband jure marito, whether he ever took them home or not. The two cases of Pettijohn v. Beasly, 4 Dev. Rep. 512, and Stephens v. Doak, 2 Ire. Eq. Rep. 348, cited by the plantiffs’ counsel, show that the wife’s being tenant in common with another person, of the said slaves, made no difference. The household furniture which the said Isabella had at her mother’s, at the time of her said marriage, became also the property of her husband, for which she, as his administratrix, is bound to account as part of his estate. But the notes which she held, payable to herself, having never been collected by her husband, survived to her ; and it is now admitted by the plaintiffs’ counsel that she is not bound to account for them.

The plantiffs are entitled to an account from the defendants, of the administration of the estate of the intestate by the defendant Isabella, for which a reference must be made to the Clerk, if the parties desire it.

Per Curiam. Decreed accordingly.