Duncan research files of
Laurens Co. (Washington Dist.) SC Equity Court Records (FHL film 24,092; nothing in either file to show outcome of case)
1811, No. 4. Henry Hilborn & Rachel his wife vs. Abel Dunkin executor of John Duncan decd, bill.
In Equity. Complaint by Henry Hilborn and wife Rachel of Newberry Dist. SC, that John Dunkin of Edgefield Dist. on 5 Nov. 1805 made his will and appointed his wife Rachel Dunkin and his son Abel Dunkin executrix and executor; that some time afterward, about 24 March 1809 he died without revoking or altering the will, copy attached marked "A". That Rachel Dunkin wife of John Dunkin, before the death of John Dunkin, about 11 Dec. 1805 died and said Abel Dunkin after the death of John Dunkin (date blank) qualified as sole executor. That oratrix (Rachel Hilborn) is the daughter of John Dunkin decd and one of the legatees in the will by the name of Rachel Dunkin and that on 22 Jan. 18xx (too dark) before the death of John Dunkin married orator (Henry Hilborn), and that John Dunkin's will provided (dark) ... equally divided among my children. That Abel Dunkin sold the property (accounting marked "B"). (Hilborns bought some items at the sale of property; they are claiming additional money due them from the division of the estate.)
1812, No. 1. William Abrams & Martha his wife, Nicholas Welch & Margarett his wife, John Watson & Elizabeth his wife, Moses Duncan & Sarah his wife, Solomon Duty & Susannah his wife, vs. Elizabeth Whitmore administratrix of George Whitmore decd.
Complaint of William Abrams & Martha his wife of Laurens Dist., Nicholas Welch & Margaret his wife, John Watson & Elizabeth his wife of Pendleton District in State afsd, Moses Duncan & Sarah his wife, Solomon Duty & Susannah his wife of the State of TN; that George Whitmore late of Newberry Dist. SC (day blank) Feb. 1810 died intestate and without issue but possessed of considerable estate (including slaves, etc.), leaving Elizabeth Whitmore his widow & relict. Administration was granted his widow, who took his personal estate into her possession. That oratrixes Martha Abrams, Margaret Welsh, Elizabeth Watson, Sarah Duncan and Susannah Duty are sisters of said George Whitmore decd and entitled by law to a distributive share of the personal estate of the said George Whitmore. That Elizabeth Whitmore refuses to make an accounting and to pay the heirs their share; she sometimes pretends that the estate was not enough to pay his debts, and other times that there was a marriage contract between them that the whole estate belongs to herself.
Answer of Elizabeth Whitmore; that she and George Whitmore previous to their marriage, about 22 Dec. 1810, entered into a marriage contract, where it was agreed, that if they did not have issue during the marriage, if she were the longest liver, she would enjoy the real and personal estate for life and have the power to will one-half of it at her death; that if George Whitmore was the longest liver, he was entitled to the whole estate and could will one-half of it at his death. Marriage contract marked "A" (MAD: ?? not in file). That when Elizabeth married George Whitmore, she was a widow and possessed of a considerable personal estate; that George Whitmore also possessed considerable estate. That the personal estate they acquired after marriage was sold to pay debts, but it was insufficient to cover them. Elizabeth was the widow of William Garey? and at his death she and Thomas Gerry her brother in law were administrators; that before her marriage to George Whitmore, Isaac, a son, died intestate without issue and she was administrator; that at the time of her marriage she was indebted to her children for their part of their brother's estate in the amount of $514.90; that David Garey, another son, about 7 July 1810 made his will leaving 1/3 to his wife Susannah Garey, 1/3 to his son William Beauford Garey, and the other third to his daughter Malinda Garey and appointed his wife Susannah and said Elizabeth as his administrators, and died shortly afterwards and a short time after his death, his wife Susannah also died and said Elizabeth on 4 Aug. 1806 proved the will in the Newberry Dist. Court of Ordinary; that her property was acquired from the estate of said William Garey, Isaac Garey, and David Garey.
"Reports of Cases Heard and Determined by the Supreme Court of South Carolina" Volume XII, from November 1878 to November 1879, inclusive; by Robert W. Shand; "South Carolina Reports" Vol.12, pgs.180 to 184 (California State Law Library, Sacramento, 3/2004)
THE STATE v. LOUISA PITTS; Case No. 758; Supreme Court of South Carolina; 12 S.C. 180; September 19, 1879, Decided.
Before ALDRICH, J., at Laurens, February, 1879. Heard April term 1879.
This was an indictment for grand larceny. The goods stolen were a silk dress and other articles of ladies' clothing, laid in the indictment as the property of John T. Duncan. The silk dress was bought by John T. Duncan for his first wife, who died in 1855; the other articles were purchased by him for his present wife. The goods were stolen July 21st, 1878. Verdict -- guilty. Defendant appealed. Counsel for appellant prepared a statement of the case for the appeal court; the solicitor not accepting it, prepared his statement. The two were submitted to the Circuit judge, who adopted the solicitor's statement. Subsequently counsel signed the following paper: We agree on the following statement, and consent that it [this case] be heard on this statement and brief filed.
The defendant's attorney asked his Honor to charge as a matter of law, that prior to the adoption of the constitution of 1868, the paraphernalia of a married woman consisted of clothing and jewels, and in these she had a separate estate; that since the adoption of the present constitution, a married woman has a separate estate in her clothing and all other property, and the marital rights of her husband cannot attach; and if they believed the clothes stolen were the property of Mrs. John T. Duncan, the prisoner should be found not guilty. His Honor Judge Aldrich refused so to charge, and defendant's counsel excepted. His Honor sentenced the defendant in open court to one year's imprisonment in the penitentiary, and afterwards, through a clerical error, wrote it two on the indictment. ...
The indictment was for larceny of clothing, and the property therein was laid in John T. Duncan. The evidence tended to prove that part of the property alleged to have been stolen consisted of clothing of a deceased wife of Duncan, who died in 1855, and the residue of the clothing of his present wife.
It does not appear when Duncan was married to his present wife. The larceny was alleged to have occurred July 21st, 1878. The requests to charge, as stated in the agreed statement of counsel, contains three propositions. The first proposition is, "that prior to the adoption of the constitution of 1868, the paraphernalia of a married woman consisted of clothing and jewels, and in this she had a separate estate." This proposition is immaterial, and no regard need be paid to the question whether it is strictly accurate. ...
It is true that under the constitution she may have a separate estate in her clothing and all other property, and the marital rights of her husband cannot attach to such separate estate; but the question whether in point of fact she has such separate estate depends on whether such property was acquired in the manner prescribed by the constitution as the means requisite to create in her such separate estate.
Article XIV. of the constitution, Section 8, provides that "the real and personal property of a woman, held at the time of her marriage, or that which she may thereafter acquire, either by gift, grant, inheritance or otherwise, shall not be subject to levy and sale for her husband's debts, but shall be held as her separate property, and may be bequeathed, devised or alienated by her the same as if she were unmarried; provided that no gift or grant from the husband to the wife shall be detrimental to the just claims of his creditors." It is clear that a wife can acquire, as her separate estate, real and personal property by gift or grant from her husband, for, in the first place, her power to acquire is in terms unlimited as to the person from whom she may so acquire, and in the second place the proviso necessarily implies that such acquisition may be directly from her husband. It must therefore appear, either by proof or a proper presumption, that either expressly or by implication such an act of acquisition has occurred. Such an act implies the transfer to the wife of real or personal property, with the intention that title thereto should pass to and vest in her, in order that the character of a separate estate should be imposed upon it as intended by the constitution.
The second proposition is defective in assuming, as matter of law, that the mere fact that a wife is in the use and enjoyment of clothing or other personal property is sufficient to establish her right to a separate estate therein.
The third proposition is to the effect that "if the jury believed the clothes were the property of Mrs. John T. Duncan, the prisoner should be found not guilty." This proposition was improperly refused. The fact that Mr. and Mrs. Duncan bore towards each other the relation of husband and wife may have been calculated to raise a presumption that he had such a possession of the articles alleged to have been stolen as to warrant the allegation made in the indictment, yet that would give rise to a question of fact which the judge could not decide.
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