Morrison v. White, 67 N.C. 253 (1872)

June 1872 · Supreme Court of North Carolina

67 N.C. 253

JOHN H. MORRISON, Collector, &c. vs. DAVID WHITE, Ex’r. of D. WHITE, deceased.

When a marriage contract is in these words, viz: “ That the said J. H. is to have the entire disposal of her own property, as her own judgment may see proper, at her death. If she should die before the said D. W., then she doth give and allow him to hold for his benefit all my estate, real and peisonal his life time, and at his death the said property to be delivered up, as I, J. H. had directed it to be done, at my death. This obligation to be kept in good faith by both parties.” It was held, that the legal effect of the contract was to give to D. W., (the husband) the use of the property during his life, and after his death to revert to his wife, the said J. H.

When a testator directed, in his will, that “ the marriage contract be carried fully into effect,” and in addition gives to his wife other legacies; Held, that a case of election is not presented, as the wife does not claim under and against the will, but under the will and the contract, which is made a part ot it.

When receipts are given for specific things, they do not operate as a release of any right, though under seal, but must be confined to the subjects of such receipts.

Civil Action tried before Logan, J., Spring Term, 1872, of ©abarrus Superior Court.

The complaint alleged that (original) plaintiff was the wife of one John Iline, who died in 1S56, having made liis last will and testament, in which he appointed the plaintiff and ono David White executrix and executor.

That 'by said will she was to have all the household and kitchen furniture and one half tile personal estate of every kind, amounting in value to some^three or four thousand dollars, and she and the said David White qualified as executrix and executor.

That about the 17th of July she (plaintiff) and the said David White, in contemplation of marriage, entered into a contract, which in substance is as follows, viz : “ That the said Jane Hi tie is to have the entire disposal of her own property, as her own judgment may see proper, at her death. If in case she should die before the said David White, then she doth give and allow him to hold for his benefit all my estate both real and personal his life time, and at his death the said property to be delivered up as I, Jane Iline, had directed it to he done, at my death.

' This obligation to be kept in good faifh by both parties,

' (Signed,) • DAYID WHITE,

JANE IIINE.”

That, shortly after this agreement was made, the plaintiff and David White were married, and there came into his hands, to be held under the contract, money, notes and other personal property of considerable value.

- That it was the intention of the contracting parties that.'all the property of the plaintiff should vest ip herself, and not become fbe property of her husband.

That David White died in 1867, having made his will in which was contained the following clause, viz ;

“ Item. I direct that the existing marriage contract between myself and my present wife, signed by us respectively, be carried fully inte effect.”

The defendant was appointed executor of David White’s will and was qualified as such, during the pending of the'case in the Superior court. The plaintiff Jane Iline died and the present plaintiff as collector was made party in her stead.

Judgment was demanded for a reformation of the contract, and tor an account, &c.

Defendant admits the execution ot the marriage articles referred to in the complaint, but insist that they are of no f’orco or effect, in fact or in law. He denies several allegations in the complaint, and especially that his testator received into his hands the assets of the estate ot Iline and the estate ot plaintiff claimed under the will of said Iline. He claims that receipts were given by plaintiff to his testator before their marriage, viz: in 1857 for$4,456.85,1858, $800, Dec. 1872, $325.65.. He denies that the estate is accountable for $1,420 in cash.

Defendant insists that plaintiff disposed of most of the specific articles willed to her by her former husband. lie says that under the will of his testator certain legacies were given her, and among other things certain notes belonging to Hine’s estate, that certain other property was likewise given her. That she executed receipts, which are exhibited, to him as executor, for the legacies of specific articles given to her under the will, and that she is estopped thereby, and should be compelled to elect. He denies his liability to account as demanded in the complaint, and insists upon various acts of the plaintiff, indicating an approval and an acquiescence in defendant’s construction of the will.

His Honor delivered a written opinion, viz. “The Court declares its opinion to be that the contract entered into between Jane Hiñe and David White was intended by them as an ante-nuptial contract in regard to the estate owned by the said Jane Iline, and that David White was entitled to the use of the estate during his life, and that upon his death such portion thereof as was not consumed in its use, such as wheat, corn &c.Si should revert to said Jane Hiñe as her seperate estate, for h$p own exclusive use and benefit.

It is therefore ordered and decreed, that plaintiff recover, of the defendant, that portion of the estate of said Jane which was received by said David White, with the exception of that not consumed in the use, or was lost by death as aforesaid, and to this end that the matter be and is hereby declared to be referred to John A. McDonald, to take an account of the estate of said Jane &c.”

Prom this judgment defendant appealed.

J. Tí. Wilson, for the plaintiff.

Tl. Barringer, for the defendant.

Pearson, C. J.

1. His Honor does not undertake to reform the marriage contract, but puts a construction upon it. We concur in the view taken by him as to the legal effect of the ■contract.

2. The testator directs “ the marriage contract to be carried fully into effect,” and, in additon to what his wife is entitled to under the contract, gives her certain legacies. So acase for election is not presented ; the wife does not claim under and against the will, but derives her title, under the will, and the contract, which is incorporated and made a part of the will.

2. The receipts although under seal, ido not have the legal effect of “ a release ” of any right, but being specific, must be confined to the subjeet of the receipts, and can have no further effect. In this point of view they are treated in the order for an account “as credits” for payments made by defendant, under the will.

No error; decretal order affirmed.

■ Per Curiam. Judgment affirmed.