Smith v. Smith, 60 N.C. 30, 1 Win. 30 (1864)

June 1864 · Supreme Court of North Carolina

60 N.C. 30, 1 Win. 30

MARY B. SMITH against DAVID SMITH, Adr. and others.

Gifts made by a husband to his wife during coverture will be supported “in equity against the representatives of the deceased husband . Contracts by the husband with the wife fora valuable consideration will be enforced against his representatives.

The widow of a deceased vendee, of land who has paid the purchase money, may by a bill against the heirs of her late husband and the heirs of the vendor, compel a conveyance of the land by the heirs of the vendor to the heirs of the vendee, and an assignment of dower to herself.

The case of Garner vs. Garner Busb. Eq. 1, cited and approved.

The plaintiff charges, in her bill that at the time of her marriage with her late husband, Bryan Smith, she was the owner of a tract of land in ' Johnston county, which her hnfeband was desirous of selling, and at Ms request sbe -■onsented to sell and convey it upon his agreeing that he would convey to her as a consideration for her land, another tract of land or slaves of equal value with her land, or in some other way to seeqre her from loss. That her land was sold for $2,110, and in due form of law conveyed to the purchaser, and the price was received by her husband, who was tenant by the curtesy initiate. Before his death he hought of one Whitley, a tract of land which he intended to have conveyed to her in fulfilment of his promise to her: he paid the whole price to 'Whitley, but Whitley never made any conveyance to him. Her husband died possessed of the land bought from Whitley, and of many slaves which are in the possession of David Smith, his administrator. The bill is against the administrator and beirs of her husband, and against the 3;eirs of’Whitley and prays that the contract between her and her late husband, may be specifically executed by the conveyance of the land ' bought of Whitley,’ to her, by his heirs, or by the conveyance of slaves-to her by the administrator oí her husband; o.r that the money received by her husband as the price of her land may be paid to her, and that the heirs'of Whitley may convey the land sold by him to the heirs of her husband, and that she may have her dower in it,

Moore for the plaintiff.

No councel for the defendant.

Battle, J.

The right of the plaintiff to artecree that the heirs at law of Thaddeus W. Whitley shall execute to the heir at law of her deceased husband Bryan.Smith, a-conveyance for the tract of land mentioned in-the pleadings, for the purchase of which there had been a contract in the lifetime of the parties, and that she may have dower therein', is undoubted. It is equally clear that she can not have a decree for the specific execution of the contract made between her husband and herself, to-have the said tra.-t or any other tract of land or negroes of equivalent value, settled upon her in consideration of the price of the land sold under the circumstance’s mentioned hr the bill. The contract which she made with her husband was by parol, and therefore void ' by the statute of frauds, (Rev. Code, ch. 50, sec. liy, só far at least as,a specific execution is sought to be enforced. But, wé think, the wife is entitled under the contract to the proceeds of'her land which was sold in consequence of it, subject to tiie interest which her Lnsbaud as such, had in the land. It is well settled that a husband may,’after marriage, make gifts or presents to his wife which will bo supported in equity against himself and his representatives. Lucas vs. Lucas 1 Atk, Rep. 270, Garner vs. Garner Basb Eq. 1, Atherley on Mar. Set. 331. If a promise made, without a valuable consideration, to a wife, though imperfectly executed, will be enforced against bis personal representatives after his death where his intention had remained unaltered until that event, much more ought-it to be enforced where she stands in the position of purchaser of tie intended benefit for a full and fair value- See Adams Eq. f'Y.

The only question about which there can be any doubt, is as to the amount to which the wife is entitled. After giving to the argument of her counsel that attention to which for its ability and ingenuity it is entitled, and after mature deliberatiou on the subject, we are of opinion that •she can not claim the whole price of her land, with interest from the death of her husband, but that the sum due her must” be estimated upon the following principles. The-contract for the settlement upon her of land or slaves, being made void by the statute of frauds, must be put entirely aside. Ho far as it entitles her to the money for which her land was sold, the epu tract must be considered in this court as having been executed at the time when the price of the land was received by her husband : and as I.e had aixinte"-est for life in the land as tenant by the curtesy, ho had the s .mo interés'..' in the proceeds the sale. T.-jc relative varae of lit: interest and heirs must be ascertained as of that time,, and as the fuels then enisled, otherwise the maxim, in equity that what ought to have j.oen done, will ho covr-idored as done will be violated. Hoe Adams Eq. 135. When -the'amount to winch the wife is entitled is thus ascertained, she will be entitled to it, increased by the (i-1 crest thereon from the time it came into the hands cf her husband. ■ ■ ’

The argument against this mode of estimating the relative rights of the tenant for life and the owner of the reversion, founded upon the idea that it is better to make calculations upon certain and ascertained facts, than upon uncertain and contingent events, will be found in práctico more plausible than just. Suppose the owner for life of a valuable male slave, were to agree with the owner of the ulterior interest, to have him sold for the purpose of dividing the proceeds according to their respective ownerships, and the life tenant should die a week, after the sale, would it be a just and fair execution of their agreement, to give his personal representative nothing, or next- to nothing ? The death of the life tenant in so short a time, was certainly ■ not within the contemplation of the parties, and therefore ought not to control a division which was intended to.be'made between living men, having each his chance for a long or .a short lite. At the time when the contract was made, it is manilect that the interest of the life tenant of such a slave -would he regarded as nearly his whole value, and it must ho presumed that the partita had reference to that in making their agreement for a salo. ¡Such being the case, subsequent events can not fairly be allowed to change the principle upon which their contract was founded. The true rule is,-whrt we have ribuve indicated, .and the plaintiff may have a decree tor Uie value of her interest in the price of her land, ascertained according to that rale. .