Morris v. . Morris

Smith, C. J. (after stating the case). We find no error in the rulings of the Court. The husband’s right to receive and appropriate to his own use, his wife’s distribute share in her mother’s *617 estate, was vested, under the law then in force, of which no subsequent legislation could deprive him, without his consent. This marital right, does not, however, attach to personal property-coming to the wife, after the Constitution of 1868 went into effect notwithstanding the marriage relation was entered into before. Kirkman v. Bank of Greensboro, 77 N. C., 394; Citizens National Bank v. Green, 78 N. C., 247; Holliday v. McMillan, 79 N. C., 315; O’Connor v. Harris, 81 N. C., 279. In the case last cited, it is held, not only that the husband could collect and apply to his own use his wife’s dioses in action acquired before the change introduced in the Constitution, but one claiming as assignee under an assignment made by him in 1873, could exercise the same right for his own benefit. It is equally true, that the deceased, by the birth of issue, became tenant by the curtesy initiate, to a separate estate for his own life, in his wife’s land, the usufruct or profit of which, during that period, was absolutely and exclusively his own property. This has not been questioned in this State, since the decision in Williams v. Lanier, Busb., 30, and others following that case, Halford v. Tetherow, 2 Jones, 393; Childers v. Bumgarner, 8 Jones, 297; McGlennery v. Miller, 90 N. C., 215; Osborne v. Mull, 91 N. C., 203. It is insisted by the counsel for the appellant, however, that the act of January 29th, 1849, (The Code, §1840,) which exempts from execution any interest of the husband in his wife’s real estate, and disables him from selling or leasing the same, without her consent, when the marriage has taken place since the third Monday of November, 1848, has had the effect of destroying all estates by the curtesy, and rendering the wife’s real estate separate property in her. The contrary has been so often and uniformly held, and the estate by the curtesy recognized as subsisting in the husband, when the statute had become operative, that we will be content with a reference to some of the cases most in point. Houston v. Brown, 7 Jo., 161; Long v. Grœber, 64 N. C., 431; Jones v. *618 Carter, 73 N. C., 148; Wilon v. Arentz, 70 N. C., 670; Jones v. Cohen, 82 N. C., 75; State v. Mills, 91 N. C., 581. In the case last mentioned, Ashe, J., uses this forcible and clear language, in stating the true rule: “ If he was married, and the land acquired by his wife before the adoption of the constitution of 1868, and the act called the ‘ marriage act,’ he was a tenant by the courtesy initiate, notwithstanding the act of 1848. Houston v. Brown, 7 Jo., 161; and if he was the tenant by the curtesy initiate, he was necessarily entitled to the possession, Wilson v. Arentz, 70 N. C., 670 ; and if entitled to the possession, he had a right to the pernancy of the rents and profits,” &c. It is then manifest, that the money received by the intestate from his wife’s distributive share in her mother’s personal estate, and from rents of her land, belonged to him, and whatever he may have intended or said in reference to these funds, they did not thereby become the plaintiff’s, and his personal representative cannot be held responsible to her demand therefor. It is otherwise as to the ox given her, and sold by the intestate, and as to the sum received upon the sale of her land, to the interest of which latter' sum only, was he entitled during life. The intestate died in December, 1882, and letters of administration issued on his estate in 1883, at what time is not stated, but necessarily before July 19th, when the suit wras commenced. Nor does it appear that the administrator ever contested his intestate’s liability for the sums adjudged to be due plaintiff. The case is very like that of May v. Darden, 83 N. C., 237, and must follow’ the ruling there made. There is no error, and the judgment must be affirmed.