The real and personal property of any female in this State acquired before marriage, and all property, real and personal, to which she may, after marriage, become in any manner entitled, shall be and remain the sole and separate estate and property of such female, and shall not be liable for any debts, obligations, or engagements of her husband, and may be devised and bequeathed and conveyed by her, subject to such regulations and limitations as the General Assembly may prescribe. Every married woman may exercise powers of attorney conferred upon her by her husband, including the power to execute and acknowledge deeds to property owned by herself and her husband or by her husband.
Cross References. - As to conveyances by husband and wife, see G.S. 39-7 et seq.
As to powers and liabilities of married persons, see G.S. 52-1 et seq.
History Note. - The provisions of this section are similar to those of Art. X, § 6, Const. 1868, as amended in 1956 and 1964.
Legal Periodicals. - For note on wife's conveyance of her realty by virtue of husband's power of attorney, see 31 N.C.L. Rev. 228 (1953).
For note on constitutionality of husband's right to dissent from wife's will, see 41 N.C.L. Rev. 311 (1963).
For comment as to whether North Carolina really has a homestead exemption, see 2 Wake Forest Intra. L. Rev. 53 (1966).
For comment on the constitutionality of the privy examination under G.S. 52-6(a) (now repealed) and its relation to this section, see 12 Wake Forest L. Rev. 1007 (1977).
For comment on tenancy by the entirety in North Carolina, see 59 N.C.L. Rev. 997 (1980).
For article analyzing North Carolina's tenancy by the entirety reform legislation of 1982, see 5 Campbell L. Rev. 1 (1982).
For comment on the tax effects of equitable distribution upon divorce, see 18 Wake Forest L. Rev. 555 (1982).
For comment discussing the status of the presumption of purchase money resulting trust for wives in light of Mims v. Mims, 305 N.C. 41, 286 S.E.2d 779 (1982), see 61 N.C.L. Rev. 576 (1983).
For article, "A Spouse's Right to Control Assets During Marriage: Is North Carolina Living in the Middle Ages?", see 18 Campbell L. Rev. 203.
CASE NOTES
Editor's Note. - Most of the cases cited below were decided under former Art. X, § 6, Const. 1868, before and after amendment. In addition, these cases were decided prior to the repeal of §§ 30-1 to 30-3, relating to the right of a surviving spouse to dissent from the will of the deceased spouse, and the enactment of § 30-3.1 et seq., relating to the right to claim an elective share.
As to the history of this section, see Perry v. Stancil, 237 N.C. 442, 75 S.E.2d 512 (1953).
General Policy of Section. - This section is intended to emancipate married women and place them, so far as property rights are concerned, on a par with men and femmes sole. McLeod v. Williams, 122 N.C. 451, 30 S.E. 129 (1898).
There is no "beneficent provision of the Constitution" which throws additional shackles around women in the management of their separate property. This provision of the Constitution is in exactly the opposite direction, in accordance with the free spirit of the age and with the universal trend of legislation the world over. Its purpose is not to further assimilate married women to the condition of infants, but to make free women of them, to emancipate them from most of the restrictions formerly existing. Strouse v. Cohen, 113 N.C. 349, 18 S.E. 323 (1893).
The historical context of this Article makes clear that wives were simply accorded rights in their property similar to those rights husbands already enjoyed in their own property. Armstrong v. Armstrong, 85 N.C. App. 93, 354 S.E.2d 350 (1987), rev'd on other grounds, 322 N.C. 396, 368 S.E.2d 595 (1988).
Purpose to Give Wives Same Rights as Husbands. - The historical context of this Article makes clear that wives were simply accorded rights in their property similar to those rights husbands already enjoyed in their own property. Armstrong v. Armstrong, 85 N.C. App. 93, 354 S.E.2d 350 (1987), rev'd on other grounds, 322 N.C. 396, 368 S.E.2d 595 (1988).
Section Subject to Limitation Prescribed by General Assembly. - Whatever the remedial purpose of this section, it is by its own terms subject to limitations prescribed by the General Assembly, including any statutory classification and distribution of property under the Equitable Distribution Act. Under G.S. 50-20(b) of that Act, military retirement pay is treated no differently, whether its recipient is male or female. Armstrong v. Armstrong, 85 N.C. App. 93, 354 S.E.2d 350 (1987), rev'd on other grounds, 322 N.C. 396, 368 S.E.2d 595 (1988).
Common-Law Rule Changed. - The common-law rule giving to the husband the actual or potential ownership of the separate choses in action belonging to his wife by reducing them into possession is now changed by this section giving to the wife the sole ownership of her separate estate. Turlington v. Lucas, 186 N.C. 283, 119 S.E. 366 (1923).
By virtue of this section and other provisions, the relation which married women formerly sustained to their husbands has been materially modified. Unity of person in the strict common-law sense no longer exists, and many of the common-law disabilities have been removed. Not only may they contract with each other; a married woman may now sue her husband in contract or in tort. Etheredge v. Cochran, 196 N.C. 681, 146 S.E. 711 (1929); Dorsett v. Dorsett, 183 N.C. 354, 111 S.E. 541, 23 A.L.R. 15 (1922); Roberts v. Roberts, 185 N.C. 566, 118 S.E. 9, 29 A.L.R. 1479 (1923); Shirley v. Ayers, 201 N.C. 51, 158 S.E. 840 (1931).
This section completely abolished the general doctrine of the common law that as to property husband and wife are in legal contemplation but one person, and that the husband is that one, and made very material and far-reaching changes as to the rights respectively of husband and wife in respect to the wife's property, both real and personal, and enlarged the wife's power in respect to and control over her property. Dudley v. Staton, 257 N.C. 572, 126 S.E.2d 590 (1962), commented on in 91 N.C.L. Rev. 311 (1963).
Purpose of 1964 Amendment. - The 1964 amendment to this section was enacted to abrogate the effect of the decision in Dudley v. Staton, 257 N.C. 572, 126 S.E.2d 590 (1962) and to make the rights of husbands and wives the same in each other's separate property. Fullam v. Brock, 271 N.C. 145, 155 S.E.2d 737 (1967).
Statutes allowing husband to dissent from wife's will violated section prior to 1964 amendment. Dudley v. Staton, 257 N.C. 572, 126 S.E.2d 590 (1962), commented on in 41 N.C.L. Rev. 311 (1963); Fullam v. Brock, 271 N.C. 145, 155 S.E.2d 737 (1967).
And Wife Could Bar Husband's Curtesy by Devising Property. - By marriage, before the adoption of the Constitution of 1868, the husband acquired no vested rights in the lands of his wife before a child was born capable of inheriting; and when the first child of the marriage was born after the adoption of the Constitution of 1868, which gave a married woman the power, among other things, of disposing, by will, of her property acquired before marriage, she could accordingly dispose of it by will and deprive her husband of his interest therein as tenant by the curtesy. Richardson v. Richardson, 150 N.C. 549, 64 S.E. 510 (1909).
Under the Constitution of 1868 there was no curtesy after the death of the wife in property which she had devised. Tiddy v. Graves, 127 N.C. 502, 37 S.E. 513 (1900); Dudley v. Staton, 257 N.C. 572, 126 S.E.2d 590 (1962), comment on in 41 N.C.L. Rev. 311 (1963).
The common-law estate of the husband as tenant by the curtesy initiate in the lands of his wife was abolished by Art. X, § 6, Const. 1868. Walker v. Long, 109 N.C. 510, 14 S.E. 299 (1890); Dudley v. Staton, 257 N.C. 572, 126 S.E.2d 590 (1962), commented on in 41 N.C.L. Rev. 311 (1963).
But vested curtesy rights of husband at adoption of the Constitution of 1868 were not impaired. Richardson v. Richardson, 150 N.C. 549, 64 S.E. 510 (1909).
Amendment of 1964 Restored Husband's Right to Dissent. - The effect of the adoption by the voters of the 1964 amendment to this section was to restore, subject to the qualifications set forth in Session Laws 1963, c. 1209, the right of the husband to dissent from the will of his wife. Fullam v. Brock, 271 N.C. 145, 155 S.E.2d 737 (1967).
And Dissent Could Be Based on Anticipatory Legislation Prior to Amendment. - Where, at the time of his wife's death in 1965, the amendment to this section authorizing the legislature to empower a husband to dissent from his wife's will had been certified but the legislation reenacting former G.S. 30-1, 30-2, and 30-3 had not become effective, the husband had a right to dissent from his wife's will based on anticipatory provisions of Session Laws 1963, c. 1209, which directed the submission of the constitutional amendment, and which provided that the word "spouse" should apply to both husband and wife in certain statutes. Fullam v. Brock, 271 N.C. 145, 155 S.E.2d 737 (1967).
Legislative Control over Capacity to Make Will. - This section, conferring upon married women the right to make a will, etc., was designed chiefly to remove the common-law restriction on married women in this respect, and was not intended to free such right from every and all legislative regulation. Flanner v. Flanner, 160 N.C. 126, 75 S.E. 936 (1912).
Trust for sole use and benefit of married woman held passive, in view of this section. Pilkington v. West, 246 N.C. 575, 99 S.E.2d 798 (1957).
Devise of Equitable Separate Estate. - A married woman may devise her equitable separate estate, in the absence of contrary provisions in the instrument creating it, where the trustee is a passive trustee; and, whether the trust be passive or active, where the trust is to terminate with her life, and the estate to become absolute thereafter. Freeman v. Lide, 176 N.C. 434, 97 S.E. 402 (1918).
Provisions of Instrument Creating Estate Still Control. - Married women have no greater estates, by operation of this section of the Constitution, than those conveyed by the terms of the deed under which they derive title; nor are the properties and incidents belonging to estates changed by that instrument. Long v. Barnes, 87 N.C. 329 (1882).
The Constitution imposes no limitation upon the right of a grantor or devisor to restrict or enlarge, by the terms of the instrument through which title passes, married woman's jus disponendi. Kirby v. Boyette, 118 N.C. 244, 24 S.E. 18 (1896).
Marriage Does Not Sever Unity of Title and Possession Under Joint Tenancy. - Where a deed of bargain and sale conveys a joint tenancy in the grantees with right of survivorship, the subsequent marriage of one of the grantees does not sever the unity of title and possession. Vettori v. Fay, 262 N.C. 481, 137 S.E.2d 810 (1964).
Estates by entireties are not changed or affected by this section. Moore v. Shore, 208 N.C. 446, 181 S.E. 275 (1935), citing Bank of Greenville v. Gornto, 161 N.C. 341, 77 S.E. 222 (1913).
Lien Against Land Held by Entireties. - Estates by entireties as between husband and wife still exist in North Carolina, but where there is a judgment upon a joint contract against husband and wife, a lien thereunder is created against lands held by them in entireties, and execution may be issued against them. Martin v. Lewis, 187 N.C. 473, 122 S.E. 180 (1924).
Conveyance, etc., of Land Held by Entireties. - The husband has the right, during coverture, to deal with the possession of land held by him and his wife by entireties without the consent of the wife, but neither may make a contract affecting title so as to defeat the right of the survivor in the whole estate without the consent of the other. Moore v. Shore, 208 N.C. 446, 181 S.E. 275 (1935).
Where lots are conveyed with restrictive covenants limiting buildings to residences, and one of such lots is owned by husband and wife by the entireties, husband may not convey or contract in respect to the negative easement of such lot over the other lots without the consent of his wife, since the wife has the right to such negative easement as a part of the estate if she should survive her husband. Moore v. Shore, 208 N.C. 446, 181 S.E. 275 (1935).
Conveyances Between Husband and Wife. - While a deed executed by husband to wife in 1841, even if a fee simple deed, would have been void in law, and sustainable in equity only upon meritorious consideration, it is otherwise as to such deed executed now, which is rendered valid under this section. McLamb v. McPhail, 126 N.C. 218, 35 S.E. 426 (1900).
As to former requirement of husband's written assent to wife's conveyance, see Jennings v. Hinton, 126 N.C. 48, 35 S.E. 187 (1900); Coffin v. Smith, 128 N.C. 252, 38 S.E. 864 (1901); Vann v. Edwards, 135 N.C. 661, 47 S.E. 784 (1904); Smith v. Bruton, 137 N.C. 79, 49 S.E. 64 (1904); Freeman v. Lide, 176 N.C. 434, 97 S.E. 402 (1918); Joiner v. Firemen's Ins. Co., 6 F. Supp. 103 (M.D.N.C. 1934); Martin v. Bundy, 212 N.C. 437, 193 S.E. 831 (1937); Nichols v. York, 219 N.C. 262, 13 S.E.2d 565 (1941); Buford v. Mochy, 224 N.C. 235, 29 S.E.2d 729 (1944); Perkins v. Isley, 224 N.C. 793, 32 S.E.2d 588 (1945); Merchants & Farmers Bank v. Sherrill, 231 N.C. 731, 58 S.E.2d 741 (1950); Perry v. Stancil, 237 N.C. 442, 75 S.E.2d 512 (1953); Dudley v. Staton, 257 N.C. 572, 126 S.E.2d 590 (1962), commented on in 41 N.C.L. Rev. 311 (1963).
As to status of husband as freeholder where wife owned land and there were children, see Hodgin v. Southern R.R., 143 N.C. 93, 55 S.E. 413 (1906); State v. Avant, 202 N.C. 680, 163 S.E. 806 (1932).
Legislative Power to Declare Wife Free Trader. - There is no constitutional inhibition on the power of the legislature to declare where and how the wife may become a free trader, this section being intended to protect and not to disable her. Hall v. Walker, 118 N.C. 377, 24 S.E. 6 (1896); Dudley v. Staton, 257 N.C. 572, 126 S.E.2d 590 (1962), commented on in 41 N.C.L. Rev. 311 (1963).
Liability of Husband for Rents Paid Wife after Foreclosure. - Where lands belonging to the separate estate of a wife were foreclosed under a deed of trust thereon duly executed, and after such foreclosure the rents from the land were paid to the wife, the husband could not be held responsible for such rents by the person entitled thereto by virtue of the foreclosure, since under this section a wife is given sole ownership of her separate estate. In re Longley, 205 N.C. 488, 171 S.E. 788 (1933).
Liability of Wife as Surety to Husband. - This section, providing that the separate property of the wife shall not be liable for the debts of the husband, has no application to the obligation of the wife as surety of her husband, such obligation being regarded as a direct one between the creditor and herself. Royal v. Southerland, 168 N.C. 405, 84 S.E. 708 (1915).
Action for Tort to Spouse. - Husband cannot sue to recover his wife's earnings or damages for torts committed on her, and there is no reason why wife can sue for torts or injuries inflicted on her husband. The law has never authorized the wife to maintain such action for torts sustained by the husband. If the husband could maintain an action to recover damages for torts on his wife, she would be able to maintain an action on account of torts sustained by her husband. Such right of action, if it existed in favor of the husband, should exist in favor of the wife. It should be in favor of both, or neither, but in view of the Constitution of 1868 and the statute on the subject, such action cannot be maintained by either on account of the injury to the other. Hipp v. E.L. Dupont de Nemours & Co., 182 N.C. 9, 108 S.E. 318 (1921).
Tort Action Against Spouse. - The right of a married woman to maintain an action against her husband to recover for negligent injury is not limited to residents of this State, but a nonresident wife may maintain an action here against her nonresident husband on a transitory cause of action which arises in this State, and she is entitled to any recovery as her separate property. Bogen v. Bogen, 219 N.C. 51, 12 S.E.2d 649 (1941).
Power to Contract. - Contention that when the Constitution gave married women separate estates in their property, it gave them by necessary implication an unrestricted dominion over the property, to bind it directly or indirectly, except when expressly forbidden, and an unrestricted right to contract, such as a feme sole or a man has, would be rejected on grounds that no such grant was implied, that the terms "sole and separate estate" had a known and definite meaning in the law when the Constitution was framed, and that it would be taken that they were used in that instrument in the sense which had been affixed to them by prior decisions of the court. Pippen v. Wesson, 74 N.C. 437 (1876). But see now G.S. 52-2.
Cited in Spencer v. Spencer, 37 N.C. App. 481, 246 S.E.2d 805 (1978); Murphy v. Davis, 61 N.C. App. 597, 300 S.E.2d 871 (1983); White v. White, 312 N.C. 770, 324 S.E.2d 829 (1985); Armstrong v. Armstrong, 322 N.C. 396, 368 S.E.2d 595 (1988); Dunn v. Pate, 334 N.C. 115, 431 S.E.2d 178 (1993).
Opinions of Attorney General
The requirement that an equitable distribution of property must follow a decree of absolute divorce is statutory and not constitutional. See Opinion of Attorney General to The Honorable Henson P. Barnes, North Carolina Senate, 57 N.C.A.G. 30 (1987).