{
  "id": 2100127,
  "name": "EUNICE ASHCRAFT vs. ALEXANDER LITTLE AND OTHERS",
  "name_abbreviation": "Ashcraft v. Little",
  "decision_date": "1846-06",
  "docket_number": "",
  "first_page": "236",
  "last_page": "244",
  "citations": [
    {
      "type": "nominative",
      "cite": "4 Ired. Eq. 236"
    },
    {
      "type": "official",
      "cite": "39 N.C. 236"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "2 Dev. Eq. 430",
      "category": "reporters:state",
      "reporter": "Dev. Eq.",
      "case_ids": [
        8693198
      ],
      "opinion_index": -1,
      "case_paths": [
        "/nc/17/0430-01"
      ]
    },
    {
      "cite": "3 Ired. Eq. 420",
      "category": "reporters:state",
      "reporter": "Ired. Eq.",
      "opinion_index": 0
    },
    {
      "cite": "2 Dev. Eq. 430",
      "category": "reporters:state",
      "reporter": "Dev. Eq.",
      "case_ids": [
        8693198
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/nc/17/0430-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 621,
    "char_count": 15932,
    "ocr_confidence": 0.461,
    "pagerank": {
      "raw": 1.7340340796705746e-07,
      "percentile": 0.7059593049633396
    },
    "sha256": "66c9b93156a67b9fa4fcc719fdf1f7961ce70f63e48c64aadb8793d0f5703794",
    "simhash": "1:33a893b262e78c84",
    "word_count": 2878
  },
  "last_updated": "2023-07-14T20:48:00.619362+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "EUNICE ASHCRAFT vs. ALEXANDER LITTLE AND OTHERS."
    ],
    "opinions": [
      {
        "text": "Nash, J.\nWe concur with his Honor, in his opinion. The plaintiff contends, that, under the expression used' in the deed, \u201c but the said gift to extend to no other person,\u201d she has in one-third part of the negroes a sole property, separate and distinct from her husband, and over which he has no control, and which is not subject to his debts or incumbrances. Do these words, taken in connexion with those which immediately precede \u201cthem, give her such property ? It is admitted, that no technical words or particular form of expression is required, to convey to a married woman property to the exclusion of her husband, but that any words are sufficient, which leave no doubt that such was the intention of the devisor or settlor. It is the intention of the donor, which is to govern, but this intention of excluding-the husband must not be left to inference, but must be clearly and unequivocally declared. If the intention be clear, the Court will execute it, though it may not be expressed in technical 'language. Lew. on Trusts, p. 150, and the authorities there referred to. The governing principle is, that the husband is not to be deprived of what the law gives him, by the jus mariti, by inference. In the case of Heathman v. Hall, 3 Ired. Eq. 420, this doctrine is fully recognized. The words, \u201c for the entire use and benefit, profit and advantage of Mrs. Eleanor Kincaid,\u201d being equivalent to for the sole use, &c. Words which were held to be sufficiently explicit, in the case of Adamson v. Armitage, 19 Ves. Jr. 416, also reported in Cooper, 283, and also in the case, Ex parte Ray, 1st Mod. 199, and Lynes' case, 1st Younge, 562. So also the case of Rudisell v. Watson, 2 Dev. Eq. 430, expressly and strongly enforces the same doctrine. \u201c It will not do (the Court say,) to guess. The husband cannot be excluded without plain recorded words or a necessary implication.\u201d These cases abundantly show, that, to exclude the husband, the intention of the settlor must be clear, certain, and unequivocally declared. This certainty, it is said, exists in this case by force of the clause, \u201c but the said gift to extend to no other person.\u201d Taken by themselves, they might have that effect; but coupled, as they are with others preceding them, we do not think so. Our attention has been drawn to the case, Margetts v. Barringer, 10th Cond. Ch. Rep. 158, 7th Simons 482. The condensed report is very concise. The case is as follows: John Eustace devised to Louisa Margetts and Ann Margetts, all the residue of Kis property to be equally divided between them, for their own use and benefit, independent of any other person. The Vice Chancellor Sm Launcelot Shadwell decided, that the words \u201c independent of any other person,\u201d meant \u201c independent of all mankind,\u201d and of course included the husband. In the previous case of Wagstaff v. Smith, 9th Ves. Jr. 520, it had been declared by the Master of the Rolls, Sir William: Grant, that a devise to a trustee to suffer a married woman to take to her own use, &c. \u201c independent of her husband,\u201d the interest of certain stock, was a devise to her separate use. For such expressions; are clearly inconsistent with the idea of any interference on the part of the husband. The only question, which appears to have been brought to the attention of the Court in Margettfs case was, whether the husband was included in the words \u201cindependent of any other person,\u201d by force of the words themselves, and the Vice Chancellor so declared. The words \u201c for their own use and benefit\u201d are not noticed, because, if the husband was included in the words of exclusion, then it was admitted, she had the property to her sole and separate use. There was nothing in the devise, in that case, inconsistent with such an intention on the part of the settlor, and indeed his obscure purpose could not be carried out under any other construction. The husband therefore was excluded by a necessary implication. Is there any such necessary implication in this case? The words are, \u201cbut the said gift is not to extend to any other person.\u201d \u2022 These words extend to the whole gift, as well to the children as to the mother. These children being sons, the words, as to them, could not have been used, to create an estate to their separate use/but for some other purpose; as to show the intention, that, upon the death of one of them, the other should take and not some other person. But whether this last was the intention or not,'it is clear they could not create a separate estate in them, and therefore we cannot say that the same words, connected as they ai\u2019e with others, create a separate estate in the mother. But in the case of Margelts, the gift was to a mother and her daughter; the purpose, therefore, was consistent and applied to both. Here the children of Eunice Ashcraft were boys, and to put upon the words, as to them, the construction that is urged on the part of the mother, would be absurd. This view of the case is sustained by the case of Wardel v. Claxton, 16th E. Cond. Ch. Rep. 324. The testator bequeathed his residuary estate to trustees, to invest, &c. and to pay the interest and dividends thereof to his wife, for her life, to be by her applied for the maintenance of herself and children, &c. The question was, whether the widow, who had married again, was entitled to the income of the property to her separate use. The \"Vice Chancellor observed, \u201c I do not think that this is a gift to the separate use of this lady. In all the cases that have been cited the sole object of the bounty was the woman, &c. But in this case, the words to be by her applied, have reference not only to the testator\u2019s widow, but to all the children.\u201d The Chancellor''admits, if the words applied only to the widow, she would have had a separate estate. Such might have been, in the case before us, the intention of the donor. \u201c It is possible,\u201d as the Court say in Rudisell v. Watson, \u201c nay, very probable, that the donor did intend, that his daughter should have the sole, separate use of her share of the negroes.\u201d We are inclined to tthink he did so intend ; but we cannot say he did, for we are not sure of it. But it will not do to guess. The donor might further have supposed, that, without the use of those words, the gift to the children of Eunice might embrace all the children she might thereafter have. The question is not, whether he was expert in the law, whether he was right or wrong in that supposition, if he did entertain it, but what was his intention in using the expressions. As before stated, it is probable it was to give the property to the sole use of the wife; but a probable, a possible intention, will not sustain the wife\u2019s claims. Hence, although the words might have the construction contended for, yet if they will have the other also, as being in the mind or intention of the donor, though he was wrong in his conclusion, the elaim of the wife is repelled: not because the donor did not intend the sole and separate use to her, but because he has not used such language as to enable us to say he did so intend. See the case of Rudisell v. Watson. The opinion pronounced by the Court in that case, it appears to me, governs and control this. The husband cannot be deprived of his marital rights by conjecture, however strong. There must be a certainty, to that degree which shows that the donor must have so meant, and could not have meant otherwise. If such was the intention here of the donor, from the words he has used, we cannot declare it so to have been. . By the gift of Solomon Marsh, one-third of the negro Clarissa and her future increase vested absolutely in James Ashcraft, the husband, by virtue of \u201c the jus mariti,\u201d and the other two-thirds in his children then born of his wife Eunice. Upon their death, their interest passed to him, and the whole title vested ia him, and was liable to the payment of his debts.\nThe decree of the Court belo-w must be affirmed, the demurrer sustained, and the bill dismissed with costs.\nDaniel, J.\nOn the 15th day of December 1822, Solomon Marsh made the deed in question, and delivered it to James Marsh, to be kept for the benefit of the plaintiff and her two sons, as the bill alleges. The deed recites, that for the natural love and good will that the donor had for his married daughter, (the plaintiff,) he, \u201c by these presents, do freely give and grant to the said Eunice Ashcraft and her children, a negro girl ten years old, by the name of Clarissa, and her increase ; but the said gift to extend to no other person.\u201d Clarissa has now several children. The bill is filed by the plaintiff, against her husband and Alexander Little and others, who claim the slaves under a judgment and execution against her husband, to have one-third of them secured to her sole and separate use. The defendants have demurred. \u2019 The demurrer was sustained in the Court of equity for Anson county, and the bill was decreed to be dismissed. The plaintiff then appealed. . ,\nAny person may make a gift to the wife of another man, and shut out the husband\u2019s interference, by .clearly expressing.such an intention in the instrument creating the gift, Lewin on Trusts, 148. But whether a trustee is appointed or not, the intention of the testator or settlor, of excluding the husband, must not be left to inference, but must be clearly and unequivocally declared. For, as the husband is bound to maintain his wife, and bears the burthen of her incumbrances, he has, prima facie, a right to her property. But provided the meaning be certain, the Court of equity will execute the intention though the settlor may not have expressed himself in technical language, Lewin, 148, 150 (marg. page,) and 2 Story's Eq. 909, 610, where all the authorities are collected and remarked on. If Marsh had said thus, in his deed of gift, \u201c but the said gift is not to extend to my daughter\u2019s husband,\u201d or \u201c she is to have it independent of her husband,\u201d it would then have been clear, that the husband was intended to be excluded, and the property would go to the separate use of the wife. Wagstaff v. Smith, 9 Ves. 520. Simons v. Howard, 1 Keen 7. So if the gift bad been to Eunice Ashcraft and her children,>\u00a3 independent of any other person\u2019\u2019 it would have been a separate estate to the wife of her share, Margetts v. Margetts, 10 Cond. Eng. C. Rep. 158. This case is, in my opinion, very much in point. It was as follows : John Eustice; by his will, gave all the rest and residue of his estate and effects unto Louisa Margetts (a married woman) and Ann Margetts, her daughter, to be equally divided between them, share and share alike, for their own use and benefit, \u201c independent of another person \u201d The Vice Chancellor said, that the words, \u201c independent of any other person\u201d meant, \u201c independent of all mankind,\u201d and therefore in-eluded the husband, and the wife had a separate estate. This case was well considered, I presume, as the reporter informs us, that Mr, Barber and Mr. Parker were counsel in the cause. It seems to me that the words, \u201c independent- of any other person,\u201d are in meaning, the same as the words,l! and to extend to no other person.\u201d If, therefore, the first set of words, when applied to Mrs. Margetts (a znarried woman) and her daughter, gave the feme covert a separate estate in the legacy, (as we see they did,) it is plain and clear, that the latter set of words, (\u201c and to extend to no other person\u201d) must also exclude the husband ; and give the negroes to Mrs. Ashcraft and her two sons then born. The case reported is a gift to Mrs. Margetts and her daughter Ann Margetts; the case before us is a gift to Mrs. Ashcraft and her two sons. I ask, where is the difference? The case of Rudisell v. Watson, 2 Dev. Eq. 430, was a decision that has no bearing oh the case now before the Court. It was a devise and bequest, by a father to his married daughter, \u201c to her and her heirs proper use ;\u201d and this Court said, that the words \u201c to her proper use\u201d did not clearly mean to convey the-estate \u201c to her separate use.\u201d As to the two children of Mrs. Ashcraft, the deed would have conveyed to each of them, his one-third part of the slaves, without supplemontary words used by the donor. But as Mrs. Ashcraft was a feme covert, the donor used the words, \u201c independent of any other person,\u201d to exclude her husband: he being the only person in the world, that the said words, could\u2019 have any effect or bearing on. If the donor did not mean to exclude him, I would ask whom did he mean to exclude l The words have no. meaning at all, if they do not exclude the husband. To say that the husband is not clearly meant to be excluded by the words used, is to say that no words in the English language, which may be used in deeds or will, can exclude the husband, unless he is expressly or particularly named ; and such a decision has not yet been made in any Court. I think the demurrer ought to be over-ruled.\nPer Curiam.\nDecree below affirmed, the demurrer sustained and the bill dismissed with costs.",
        "type": "majority",
        "author": "Nash, J. Daniel, J. Per Curiam."
      }
    ],
    "attorneys": [
      "Winston, for the plaintiff.",
      "Strange, for the defendants."
    ],
    "corrections": "",
    "head_matter": "EUNICE ASHCRAFT vs. ALEXANDER LITTLE AND OTHERS.\nA hnsband cannot be deprived of his right to property given to his wife, except by clear and unequivocal expressions in the deed of gift or devise, leaving no reasonable doubt that the property was given to the separate use of the wife.\nWhere a deed of gift of a negro was made to a married woman and her children, (two sons,) and these words were added, \u201c but the said gift to extend to no other person\u201d \u2014 Held, Daniel, J. dissentiente, that these words did not create a separate estate in the wife, especially as they extended equally to the gift to the sons, and that therefore the hurband was entitled to the share of the negro so given to his wife.\nThe case of Rudisell v. Watson, 2 Dev. Eq. 430, cited and approved.\nThis was an appeal from a decree of the Court of Equity of Anson County, at the spring term, 1846, his 'Honor Judge Dick presiding, by which decree a demurrer, which had been filed by the defendants to the plaintiff\u2019s bill, was sustained and the bill dismissed with costs.\nThe bill states that Solomon Marsh, the father of the complainant, gave by deed certain negroes to the plaintiff and her children, which is in the following words : \u201c Know all men by these presents, that I, Solomon Marsh, for and in consideration of the natural love and good will which I have and bear towards my daughter, Eunice Ashcraft, have given and granted, and by these presents do freely give and grant unto the said Eunice Ashcraft and her children, a negro girl ten years old, by the name of Clarissa, and her increase; but the said gift to extend to no other person.\u201d At the time this gift was made, Eunice was the wife of James Ashcraft and had two children who were boys, both of whom are since dead. James Ashcraft, the husband, being largely indebted, judgments were had against him, and under the executions issuing thereon, the negro Clarissa and her children were by the sheriff levied on and sold as the property of the defendant Ashcraft, and the defendant Little became the purchaser. The bill claims, that under the deed of Solomon Marsh, the plaintiff, who is the Eunice Ash-craft mentioned in the deed, was entitled to the sole use and benefit of one-third of the negro Clarissa and her children, or to one-third of their value, and prays that they either may be divided and one-third allotted to her or to some person for her sole use, or sold, and one-third of the value so allotted; and that the defendant Little may be decreed to account with her for one-third of the hires of said negroes since they have been in his possession.\nThe defendants have filed a demurrer, and assigned for reason, that it appears, by the plaintiff\u2019s own showing, that she has not any separate estate in the negroes mentioned in the bill. Upon argument, the demurrer was sustained and the bill dismissed with costs.\nWinston, for the plaintiff.\nStrange, for the defendants."
  },
  "file_name": "0236-01",
  "first_page_order": 246,
  "last_page_order": 254
}