The bill sets forth that Joseph Kincaid died in August, 1840, and that, by the proper tribunal, the plaintiff was duly appointed administrator upon his estate; that, some twenty years before the death of the intestate, he, being much embarrassed in his circumstances, a constable levied an execution upon a negro woman, named Lucy, and at the sale the defendant, Joseph Hall, a brother-in-law of the intestate, became the purchaser, at what price the plaintiff does not know, as the bill of sale which the defendant took from the constable was never proved and registered. The bill avers, that, before the sale, it was expressly agreed between the said Joseph Kincaid and the said Hall that the latter should purchase said Lucy, and that Kincaid should have the right to redeem her at any time, by paying Hall his money with the legal interest thereon; that in pursuance of this arrangement, Hall, on the day after the sale or in some short time thereafter, sent Lucy back to the intestate, where she remained up to the time of his death; that during the time the said Lucy was in the possession of the said Kincaid she had six children, of whom one was named Betty and another Simon; that, about two years after the purchase by Hall, the intestate, through the agency of the said Hall, sold two other negroes to one Kirder, for about $1,000, and, with a view to pay off all of his debts and redeem (415) Lucy; and soon thereafter the parties met at the house of the said Hall, when they had a settlement, and the said Kincaid made a full payment of the purchase-money for Lucy, and the said Hall, surrendered up the constable's bill of sale, and the said Kincaid took it away with him, and on his way home, from forgetfulness or some other casualty, left it at the house of one Linster, also a brother-in-law; and that thereafter the said Hall obtained possession of the said bill of sale, how, the plaintiff does not know, but without the knowledge or consent of Kincaid, which said Hall still keeps under various pretexts, always, however, admitting that Kincaid had paid him his money; that, about the year 1830, the intestate became diseased and continued to get worse until 1835, when he became entirely deranged, and so continued up to the time of his death; that, in 1837, the said Hall conveyed the said negro Lucy, with her increase, to one Ashbell Smith, then and still a resident of a foreign government, in trust, for the entire benefit of the defendant, Eleanor Kincaid, then the wife of the said intestate, during her life, and, after her death, the negro Simon to be conveyed to the defendant Lucinda Kincaid, and the negro Betty *Page 326 and her increase to the defendant Sarah W. Kincaid, and the remainder of the property to be sold and equally divided among the heirs of the said Eleanor; that the said Lucinda and Sarah were children of his intestate, besides whom he left a son living out of the State, another daughter under coverture, and an infant granddaughter, whose mother was dead; that, in January, 1840, the negroes Betty, Simon and Mary, were hired out by one Jesse Kincaid, as the agent or attorney in fact of the said Smith, but that notes were taken payable to the said Hall, and that, in January, 1841, the said Hall, as trustee for Mrs. Kincaid, hired out the same negroes, though forbidden to do so; that the rest of the negroes remained in possession of the said Eleanor, and, soon after the plaintiff administered, he attempted to take them into his possession, and sell other portions of the property, all of which was claimed by the defendants, and they refused to surrender up the bill of sale; that the (416) defendants, Eleanor, Lucy and Sarah, often, before his intestate became deranged, declared that the said Hall had no right to the negro Lucy, and that the said intestate had fully paid up Hall for the money, and that he surrendered the bill of sale; and that the defendants had conspired to defraud the deceased and his next of kin, and that the said Ashbell Smith had full knowledge of these facts at the time he accepted the deed of trust. The prayer of the bill is for a surrender of the negroes by the defendants, and that they may account for the hire, and concludes with a prayer for general relief.
The answer of Joseph Hall admits the death of Joseph Kincaid, and that the complainant is his rightful administrator, the sale of Lucy by the constable, and that he purchased her for $300. But he denies positively that there was any agreement or understanding between him and the said Kincaid as to the redemption of Lucy; before the sale or after. He avers, that, at the time he purchased Lucy, he bought a negro boy named York, and, as he was returning home, upon Mrs. Eleanor Kincaid complaining of the circumstances, he told her it was out of his power to keep both of the negroes; that, if, in the sale, he reimbursed himself, he would secure to her all over, but that this promise was merely voluntary; that he purchased York and Lucy for a fair and full price, and for himself, but with a determination to do something for the wife of Kincaid, who was the sister of his wife, as he saw the family would come to want; that Joseph Kincaid was entirely insolvent, and unable to pay his debts, and that, in a short time, all his property was sold, and did not discharge what he owed, and that a considerable amount remains unpaid still; that Joseph Kincaid never *Page 327 set up any title to the negro Lucy, and knew of his conveying her and her children to Ashbell Smith, and the purposes thereof; that he never had a settlement with Kincaid, as to the money paid, nor has any of it ever been repaid him; that he kept Lucy some time in his possession after he bought her, and then hired her at the price of $50 a year, to the said Kincaid, and that he has always claimed the title of said Lucy from the time of the sale, and held her and her children (417) adversely to the said Kincaid, and with his knowledge. He admits the transfer of Lucy and her children to Ashbell Smith, and avers that Kincaid knew it at the time, and approved of it; that, some years before his death, Kincaid was afflicted with fits, but denies that they affected his mind, except for the time they were on him, but avers that his mind was sound to the time of his death, and denies all fraud.
The answer of Jesse Kincaid admits the death of Joseph Kincaid, and the qualification of the complainant as his administrator, denies all knowledge of any understanding or agreement between Hall and the said intestate, as to the purchase of Lucy, avers the total insolvency of the intestate, and denies that his mind was unsettled by his disease, but avers that it remained strong and active to the time of his death.
The joint answers of Eleanor and Sarah Kincaid admit the sale of Lucy and York by the constable, and the purchase by Joseph Hall, in the year 1821, but that he purchased for himself, and that, at that time, Joseph Kincaid was entirely insolvent, unable to pay his debts, and that they still remain unpaid. They aver that the intestate was not at the sale, but that, after it was over, Joseph Hall promised the defendant, Eleanor, that, after indemnifying him for what he had paid for the negroes, he would convey all over to her, that it would not do to convey anything to the said intestate, as his creditors would immediately seize it; that this conversation was communicated to Joseph Kincaid, who approved of the arrangement, and never during her life claimed said negroes as his, but always admitted they were Joseph Hall's. They deny that the intestate was, at any time before his death, deprived of his reason, or unable to manage his affairs, except when fits were on him, admit the making of the deed as set forth, and deny that they ever thought or said that Joseph Hall had no right to the negro Lucy and her increase, or that they were afraid he would injure the intestate. The foundation of the plaintiff's bill is that Joseph Kincaid, being in embarrassed circumstances, a constable levied an execution on the negro Lucy, and it was agreed between him and the defendant, Hall, that he, Hall, should purchase said negro, and permit the said Kincaid to redeem her, and the gravamen is that, in violation of that contract, he has conveyed the negro Lucy and all her increase to the widow of Kincaid, the defendant, Eleanor, for her life, and after her death, the negro Simon to Sarah Wells Kincaid, and Betty, the child to Lucinda Kincaid the other two defendants, and, after the death of the said Eleanor, the remainder of the negroes to be sold and divided among all her children. The defendant, Hall, positively denies that he ever made any such agreement with Joseph Kincaid, either before or after the sale; states that he purchased the negro Lucy with his own money, at a full price, and for his own purposes; that it would have been idle to have made any such contract, for he knew Kincaid was very much embarrassed; that he then owed at least $1,000 more than he could ever pay, which is still due and unpaid, and that, seeing the embarrassed situation of the family, he told Mrs. Eleanor Kincaid his intention of securing to her whatever might remain after repaying himself; that this promise was entirely gratuitous, but that he had performed it. The plaintiff has entirely failed to sustain his charge; no evidence has been adduced by him to prove the existence of any contract or agreement, or even understanding, between his intestate and Hall, that the former should have the right to redeem.
He alleges the long and continued possession of the intestate as proof of it. The answer of Hall fully and expressly denies it, and the circumstances proved in the case support the answer, and sufficiently explain the possession. Hall did not purchase with any view to his own profit, but with the intention to aid the sister of his wife and her children, and he has fully and, we think, honestly done so. The (419) plaintiff further alleges, that, about two years after the constable's sale, Kincaid and Hall met at the house of the latter, when they had a full settlement, and Hall surrendered up the bill of sale for Lucy to Kincaid. This part of the plaintiff's case rests upon the testimony of Joseph Linster and his wife. The character of the former has been assailed in such a manner as greatly to weaken the force of his testimony, and to incline the Court to lay it aside, and the testimony itself is suspicious. He appears, from his own account and from his connection with the parties, to have fully known all the circumstances attending the transaction; yet he gives us no particulars, does not tell *Page 329 us what was settled, except that it was about Lucy, and in the presence of Newberry Hall, who, he says, made the statement, and that Hall surrendered up the constable's deed to Kincaid. The wife of Linster makes the same statement, as to the surrender of the deed.
If the character of Linster was unimpeached, corroborated as his statement, on this part of the transaction, is, by that of his wife, we should be compelled to believe that such a settlement had taken place, and that the bill of sale had been surrendered by Hall. But the latter denies that any such settlement ever did take place, or that Kincaid has ever repaid him any portion of what he paid for Lucy, and, with respect to the settlement, Newbery Hall explicitly supports the answer. But, if we were satisfied that the fact was as testified by Linster and his wife, as to the surrender of the bill of sale, we could not decree upon that fact, that the slaves should be surrendered for that fact is inconsistent with a trust in Hall, either for Kincaid or for his wife and family. But, according to the statement of Hall, and there is no evidence in the case to disprove it, he purchased Lucy and York absolutely for himself, and his promise to secure to Mrs. Kincaid what might remain after satisfying his own claim, was a promise without a consideration, void in equity, as well as at law, when the action of the former is invoked to carry it into execution. The money by which his claim was satisfied, if satisfied at all, was raised by the sale of York; for it is not pretended by Linster that any money was paid by Kincaid at the time of the (420) alleged settlement; it was therefore the money of Hall.
The most that could be made of the surrender of the bill of sale is, that it was a parol gift of the negro Lucy to the intestate since the Act of 1811, and therefore void, by the act of the General Assembly.
We are of opinion, therefore, upon the point of fact, that the defendant, Hall, did not purchase upon any trust for Joseph Kincaid.
Upon the argument of this case, we were at first in some doubt, whether, under the deed from Joseph Hall to Ashbell Smith, the interest was conveyed to her separate use, or vested immediately in her husband. It was, therefore, necessary to inquire, whether the conveyance was of such a character as to exclude her husband. At the common law a husband is burthened with the debts of his wife, and is entitled absolutely or partially, according to circumstances, to her property; but, in equity, a gift may be made to a feme covert, so as to shut out and exclude the husband's interference or interest in it, *Page 330 provided the intention be clearly expressed. This intention, however, must be clearly and unequivocally expressed; and the reason is, that, as the husband is bound to maintain his wife and bear the burthen of her incumbrances, he has prima facie a right to her property. Lewin on Trusts, 150. There is no technical language, in which this intention must be expressed, to render it efficacious. If the meaning be certain, that the wife shall have the property, exclusive of her husband, a Court of Equity will execute the intention. Darley v. Darley, 3 Atk., 399; Staunton v. Hall, 2 R. M., 180. Various expressions have been considered by the Court sufficient to deprive the husband of his marital right; such as "for the sole and separate use," Parker v.Brooke, 9 Ves., 583 — "for her sole use," Adamson v. Armitage, 19 Ves. — or "for her livelihood," Darley v. Darley, 3 Atk., 399 — or "that she may receive and enjoy the profits," Tyrrell v. Hope, 2 Atk., 258. In Lewin on Trusts, 150, the author has collected together various other cases, in which the courts have held other (421) words to be sufficient, as they were clearly inconsistent with the notion that the husband had any right to interfere with the property. These are but examples of expressions, sufficiently strong to secure the property to the wife, independent of the husband; and wherever words shall be used, equally expressive in the judgment of the Court, they must be deemed sufficient. In the deed we are considering, the words are "for the entire use, benefit, profit and advantage of Mrs. Eleanor Kincaid." The word "entire" governs the conveyance, and gives its meaning and force to each of the other words, and is the same as if written "entire use," "entire benefit," "entire profit," "entire advantage." The best lexicographers define entire to be whole, undivided, not participated inwith others. If this be the proper meaning of "entire," as it certainly is, then it is evident that it was not the intention of the deed, that the husband should have any interest in the negroes whatever; for they are conveyed to Ashbell Smith for the use, benefit, profit and advantage of Mrs. Kincaid, to be enjowed [enjoyed] by her, without any participation with any other person — a mode of expression equally strong with "sole use," "sole and separate use," and equally indicative of the same idea, that she was to enjoy the property free from any interference on the part of her husband. We conclude, therefore, that the deed from Hall to Smith conveyed the negroes to the latter, for the sole and separate use of Mrs. Kincaid, during her life, and therefore no interest vested in her husband, William Kincaid.
The bill must be dismissed as to Mrs. Kincaid, with costs. *Page 331
As to the remainder, after the life of Mrs. Kincaid, the bill must likewise be dismissed with costs; because the trust in remainder, to the two daughters, as to two of the slaves, is certainly good, and the trust to sell the residue of the slaves and divide the proceeds among the heirs of Mrs. Kincaid, vests the right to those proceeds in her children or issue, as purchasers. (422)
My brethren instruct me to say, their opinion is founded on the whole sentence taken together.
PER CURIAM. BILL DISMISSED WITH COSTS.
Cited: Ashcraft v. Little, 39 N.C. 238; King v. Rhew, 108 N.C. 699;McKenzie v. Summer, 114 N.C. 429.