Documenting the American South Logo
Loading

The Legal Status of Women in the United States of America. January 1, 1938. Report for North Carolina. An Advance Printing of Individual State Material, Constituting Part of a Compilation Now Being Prepared to Show the Present Legal Status of Women in the United States of America:
Electronic Edition.

United States. Women's Bureau


Funding from the Institute for Museum and Library Services supported the electronic publication of this title.


Text transcribed by Apex Data Services, Inc.
Images scanned by Don Chalfant
Text encoded by Apex Data Services, Inc., Matthew Kern and Melissa Meeks
First edition, 2002
ca. 80K
Academic Affairs Library, UNC-CH
University of North Carolina at Chapel Hill,
2002.

        © This work is the property of the University of North Carolina at Chapel Hill. It may be used freely by individuals for research, teaching and personal use as long as this statement of availability is included in the text.

Source Description:
(title page) The Legal Status of Women in the United States of America. January 1, 1938. Report for North Carolina. An Advance Printing of Individual State Material, Constituting Part of a Compilation Now Being Prepared to Show the Present Legal Status of Women in the United States of America.
(series title) Bulletin of the Women's Bureau, No. 157-32
United States. Women's Bureau
vi, 20 p.
Washington, D. C.
Government Printing Office
1939

Call number Cp396 U58w (North Carolina Collection, University of North Carolina at Chapel Hill)



        The electronic edition is a part of the UNC-CH digitization project, Documenting the American South.
        The text has been entered using double-keying and verified against the original.
        The text has been encoded using the recommendations for Level 4 of the TEI in Libraries Guidelines.
        Original grammar, punctuation, and spelling have been preserved. Encountered typographical errors have been preserved, and appear in red type.
        All footnotes are inserted at the point of reference within paragraphs.
        Any hyphens occurring in line breaks have been removed, and the trailing part of a word has been joined to the preceding line.
        All quotation marks, em dashes and ampersand have been transcribed as entity references.
        All double right and left quotation marks are encoded as " and " respectively.
        All single right and left quotation marks are encoded as ' and ' respectively.
        All em dashes are encoded as --
        Indentation in lines has not been preserved.
        Running titles have not been preserved.
        Spell-check and verification made against printed text using Author/Editor (SoftQuad) and Microsoft Word spell check programs.


Library of Congress Subject Headings

Languages Used:

LC Subject Headings:


Revision History:


        

Illustration

[Title Page Image]


UNITED STATES DEPARTMENT OF LABOR
FRANCES PERKINS, Secretary
WOMEN'S BUREAU
MARY ANDERSON, Director

The Legal Status of Women in the
United States of America
January 1, 1938
REPORT FOR
NORTH CAROLINA
An advance printing of individual State material, constituting
part of a compilation now being prepared to show the present
legal status of women in the United States of America

BULLETIN OF THE WOMEN'S BUREAU, No. 157-32 WASHINGTON
UNITED STATES
GOVERNMENT PRINTING OFFICE
1939


For sale by the Superintendent of Documents, Washington, D. C. . . . . Price 5 cents


Page ii

THE LEGAL STATUS OF WOMEN IN THE UNITED
STATES OF AMERICA

        In response to urgent requests for such information, a report as to the legal status of women in the United States of America is being prepared by the Women's Bureau, the official agency in this country having to do with the conservation and advancement of the welfare of women.

        The report is based on an original search of, and compilation from, the Constitutions, official statutes, and related decisions of courts of last resort of the Federal Government and the several States, as well as pertinent law texts of recognized authority.

        This pamphlet presents a digest of the material compiled for a single State, which later will be incorporated in the complete report.

        A copy of a preliminary summary of the incomplete report for the United States was sent by the Women's Bureau, at the request of the Secretary of Labor, to the Secretary of State for transmission to the Secretary-General of the League of Nations. It was printed as an official League of Nations document, September 29, 1937 (League of Nations, Official No. A. 14 (e) 1937. V). A mimeographed copy of this preliminary summary can be obtained from the Women's Bureau.


Page iii

LETTER OF TRANSMITTAL

UNITED STATES DEPARTMENT OF LABOR,
WOMEN'S BUREAU,
Washington, September 23, 1939.

        MADAM: I have the honor to transmit to you a report on the legal status of women in North Carolina. This is a section of a full report, now in progress, to include all the States, a type of information for which the Women's Bureau has had repeated requests. A preliminary report, including complete material for some States, partial information for others, has been sent to Geneva by the Secretary of State in response to a request from the Secretary-General of the League of Nations.

        The section for each State represents a thorough search of statutes and decisions of appellate courts construing statutes or establishing judicial policy.

        These studies are the work of Sara L. Buchanan, of the Women's Bureau research staff and member of the bar of Mississippi and the District of Columbia, under the general direction of Mary Elizabeth Pidgeon, chief of the research division. Miss Buchanan was assisted by Mary Loretta Sullivan.

        After completion of the report for each State, the material was sent for approval or suggestions by competent persons within the State.

Respectfully submitted.

MARY ANDERSON, Director.

Hon. FRANCES PERKINS,
Secretary of Labor.



Page v

CONTENTS


Page 1

THE LEGAL STATUS OF WOMEN IN THE
UNITED STATES OF AMERICA

INTRODUCTION

        Any conclusion bearing on woman's status under the laws of the United States of America must take into account the common law, on which the fabric of the Nation's jurisprudence is woven.

        The common-law rules of property sprang from various causes, notably tradition, military or economic exigency, natural male dominance, and the social status of women. Shifts in these have effected an almost complete overturn in laws governing the property owned by a woman prior to her marriage and that coming into her individual ownership after her marriage, by gift, inheritance, will, or accumulation from her premarital possessions.

        In general, it has been the rule that where specific statutes abrogating them have not been enacted, common-law principles apply. In the century just past, much ground has been covered in superseding by specific laws the old common-law injustices to women. The largest remaining area to be reformed to the present-day trend lies in the matter of ownership and control of property acquired by the efforts of husband and wife after marriage.

        The material considered centers largely around the woman in the marriage relation, since at the present time the legal status of the unmarried woman is practically identical with that of the unmarried man, with the exception of discriminations occurring in some States in certain political privileges (such as jury service, election or appointment to public office), or variance between men and women in the statutory age of majority or age of consent to marriage, or rights of property exemptions from seizure for debt.


Page 2

NORTH CAROLINA

EXPLANATORY NOTE

        References to the State Constitution are indicated by parenthetical insertions of article and section numbers following the abbreviation Const., as (Const., art. 10, sec. 6), placed after the related subject matter.

        Code section references are likewise in parentheses, thus (sec. 2506); Supplement to Code, thus (Supp., sec. 4103).

        Case citations, definitely construing statutes or declaring judicial policy in the absence of express statutory provision, are indicated by numerical footnote references, and appear immediately after the related paragraphs. Cases showing historical development of a statute or policy are followed by the abbreviation (Hist.).

        Subject headings are preceded by numbers, which remain constant for their respective topics through the entire State series. Cross references among topics employ these numbers for brevity, as "See Number 6," which refers to the subject heading "Separate Earnings of Married Woman--Ownership and Control."


Page 3

NORTH CAROLINA

A.--CIVIL RIGHTS

I.--CONTRACTS AND PROPERTY

1. Age of Majority.

        The age of majority for men and women is 21 years, by rule of common law, which operates in the absence of express statute. See section 970, 1935 Code; also Price v. Slagle (1925), 189 N. C. 757, 765, 128 S. E. 161.

2. Contractual Powers of Minors.

        Except for necessaries or contracts authorized by statute, an infant may avoid his contracts concerning personalty either during his minority or on coming of age, if he acts promptly. On such avoidance, he may recover the consideration paid by him either in money or property, with the limitation that he must restore the consideration received if he still has it in hand, or return or account for the value of property in which it has been invested, if still under his control and ownership. 1

        1 Hight v. Harris (1924), 188 N. C. 328; 124 S. E. 623.


        See section 2516 in Number 5.

        The deed of an infant is voidable, not void, and if he does not wish to be bound he must repudiate it within a reasonable time after becoming of age. Under the North Carolina decisions, this period is fixed at 3 years. 2

        2 Hogan v. Utter (1918), 175 N. C. 332, 334; 95 S. E. 565.


Statutory exceptions.

        Minors from the age of 12 years may own shares in building and loan associations with all the rights and liabilities of an adult in regard to such ownership (sec. 5181).

        See Number 14 as to wills.

        Minors may not serve as executors or administrators (sec. 8, subsec. 1).

        All married persons under the age of 21 years have the same privilege to renounce dower rights and rights of curtesy and to give written assent to conveyances of real property as have married persons 21 years old and over (sec. 4103b).

        Married women under the age of 21 years may renounce dower rights in the "home site" as if they were married women of full age (Supp., sec. 4103).


Page 4

3. Property Exemptions from Seizure for Debt--Respective Rights of Men and Women.

Personal property.

        Any resident of the State may select personal property to the value of $500, and hold it exempt from sale under execution or other final process of any court, issued for the collection of any debt (Const., art. 10, sec. 1) (sec. 737).

        The earnings of the debtor for personal services, at any time within 60 days next preceding a court order to seize property in satisfaction of a judgment, are exempt, if it is shown by the debtor's affidavit or otherwise that these earnings are necessary for the use of a family supported wholly or partly by his labor (sec. 721).

Insurance.

        The husband may insure his own life for the sole use and benefit of his wife and children, and at his death the proceeds are to be paid over to the wife and children, or guardian for any under age, free from all claims of the husband's representatives or creditors. Nor is the policy subject to claims of the insured's creditors during his life, if the insurance was issued for the sole use and benefit of the wife and children, or wife, or children (Const., art. 10, sec. 7).

        The statutes exempt the proceeds of group insurance policies (sec. 6466d) and the benefits under membership in cooperative nonprofit life benefit associations (sec. 6467f), and in fraternal orders (sec. 6510).

Homestead.

        Every homestead, with its dwellings and buildings, not exceeding in value $1,000, to be selected by the owner, or instead, at the option of the owner, any lot in a city, town, or village with its dwelling and buildings, of not more than $1,000 value, when owned and occupied by any resident of the State, is exempt generally from sale for debt, but is subject to sale for payment of taxes or purchase-money (Const., art. 10, sec. 2), or for a laborer's or a mechanic's lien, as provided by law (Idem, sec. 4).

        The allotted homestead is exempt as long as it is owned and occupied by the homesteader or by anyone for him, but a valid conveyance of it destroys the exemption as to liens attaching prior to the conveyance. The homesteader who has conveyed his allotted homestead may have another allotted, and as often as is necessary (sec. 729).

        "* * * But if the land proposed to be sold is all that the execution debtor has, he is entitled to have his homestead therein laid off to him, although there be no dwelling house or other habitable building thereon, because he may build a house and other buildings on the land, and thus have the beneficent provision of the Constitution." 1

        1 McCracken v. Adler (1887), 98 N. C. 400, 403; 4 S. E. 138.


[This liberal construction as to the homestead right was applied in behalf of a married woman in a recent decision. 2

        2 Assurance Society v. Russos (1936), 210 N. C. 121, 125; 185 S. E. 632.


]

        If the owner of a homestead dies, leaving a widow but no children, the homestead is exempt from the debts of her husband, and the rents and profits from it inure to her benefit during the widowhood, unless she is the owner of a homestead in her own right (Const., art. 10, sec. 5). When a person entitled to the homestead exemption dies without having it set apart, and leaves no children, his widow may


Page 5

proceed to have the homestead allotted. If she fails to do so and claim is made against the real estate for debts and charges of administration, the court must appoint appraisers to set a homestead apart for her (sec. 748).

        But the widow is not entitled to the homestead exemption against the heirs at law, if the husband dies without creditors, 3

        3 Caudle v. Morris (1912), 160 N. C. 168; 76 S. E. 17.


or if he leaves children, whether minors or adults. 4

        4 Barnes v. Cherry (1925), 190 N. C. 772, 774; 130 S. E. 611.


See "dower," Number 15.

Conveyance of homestead.

        No deed of the owner conveying the homestead is valid without the wife's voluntary signature and assent, "signified on her private examination according to law" (Const., art. 10, sec. 8), if the homestead has been laid off as exempt, or if a judgment lien exists against the property. 5

        5 Dalrymple v. Cole (1915), 170 N. C. 102, 107; 86 S. E. 988.


        See also provision as to "home site" in Number 10.

4. Property of Married Woman Owned at Marriage--Ownership After Marriage.

        The real and personal property of any female in this State acquired before marriage remains her separate property after marriage (Const., art. 10, sec. 6) (sec. 2506). See also Number 9.

5. Contractual Powers of Married Women.

        Except as to contracts with her husband in which certain statutory forms must still be observed [see the following paragraph], and except in conveyances of her real estate, in which case her examination separate and apart must still be taken and her husband's written consent obtained, a married woman can make any and all contracts, "so as to affect her real and personal property in the same manner and with the same effect as if she were unmarried" (sec. 2507). 1 2

        1 Warren v. Dail (1915), 170 N. C. 406, 410; 87 S. E. 126. (Hist.)


        2 Martin v. Bundy (1937), 212 N. C. 437, 444; 193 S. E. 831.


        No contract between husband and wife made during marriage is valid to affect or change the wife's real estate or its income for a period longer than 3 years from the contract date, or to impair or change the body or capital of the wife's personal estate or its income, for a like period of time, unless the contract is in writing and proved as required for land conveyances. The officer who takes the wife's acknowledgment separate and apart from her husband, must certify that the wife's execution of the contract is voluntary and with her free consent, and that the terms of the contract are "not unreasonable or injurious to her" (sec. 2515).

        A married woman can make a valid conveyance of her real estate only with her husband's written consent (Const., art. 10, sec. 6) (sec. 2506) and upon her examination, separate and apart from her husband, as to her voluntary act in executing the deed (secs. 2507, 2509, 997). She can make a valid deed to her husband by complying with the provisions of section 2515. 3

        3 Best v. Utley (1925), 189 N. C. 356, 361; 127 S. E. 337.


        These statutes drew pungent comment from the late Chief Justice Clark, of the North Carolina Supreme Court, in a special concurring opinion in Warren v. Dail, 170 N. C. 415, 87 S. E. 126, 129, in which he said:


Page 6

        "* * * In short, the act of 1911 [section 2507 of Code], known as the 'Martin Act', simply sums up a long line of statutes and culminates by recognizing in married women the right to make any and all contracts as fully as if they had remained single, or that their husbands could make, save only contracts between husband and wife under Revisal * 2107 [section 2515 of Code], as to which the presumption in law remains that the husband will take advantage of the wife and that the wife is incompetent to prevent it, and that the preventive is the wisdom of some adjacent magistrate who shall supervise such contracts. With that exception there is no restraint upon the contracting powers of married women.

        " As to conveyances there is the constitutional restraint upon alienation, that the wife must have the written consent of the husband to conveyances of her realty. There is a further restriction in the privy examination of the wife, which is still required in North Carolina, . Whether this requirement is a greater reflection on the honesty of the husband or on the competency of the wife is an open question."


        See also Number 9.

        Contracts between husband and wife which are not forbidden by the statutory provisions of section 2515 and not inconsistent with public policy are valid. Any persons of full age about to be married, and, subject to section 2515, any married person, may release and quitclaim dower, tenancy by the curtesy, and all other rights which they might respectively acquire or may have acquired by marriage in the property of each other (sec. 2516).

        Bank deposits made by or in the name of a married woman may be paid only to her or on her order (sec. 2508).

        A married woman has all the powers, rights, and liabilities of an unmarried woman in ownership and control of shares in building and loan associations (sec. 5181).

        She may, in her own name or in the name of a trustee with his assent, "cause to be insured for any definite time the life of her husband, for her sole and separate use, and she may dispose of the interest by will, notwithstanding her coverture" (sec. 2512).

        The indorsement or assignment of a negotiable instrument by "a corporation, an infant, or married woman passes the property therein, notwithstanding that from want of capacity the corporation, infant, or married woman may incur no liability thereon" (sec. 3012). 4

        4 Vann v. Edwards (1901), 128 N. C. 425; 39 S. E. 66 (Hist.) (1902), 130 N. C. 70; 40 S. E. 853. (1905), 135 N. C. 661; 47 S. E. 784.


[It should be noted that in the original Act the phrase "married woman" does not appear. Public Laws, 1899, chapter 733, section 22.]

        The wife alone is liable for her debts, her contracts, and for damages from her wrongs, arising before marriage (sec. 2517), and for damages caused by her, or costs or fines incurred in a criminal proceeding against her, after her marriage (sec. 2518).

        In actions against a married woman who is not a "free trader" [see Number 8], summons must be served on the husband also. With her consent, the court may allow the husband to defend for her in her name, but no judgment may be given against him on her liability (sec. 2520).

        Mechanics', laborers', and materialmen's liens are enforceable against the property of a married woman when it is shown that the


Page 7

work or material used on her land was obtained with her consent or procurement (secs. 2433, 2434). 5

        5 Ball v. Paquin (1905, 140 N. C. 83; 52 S. E. 410. (Hist.)


        Execution under judgment against a married woman must be levied only upon her separate property (sec. 665).

        See also Numbers 6, 7, and 11.

Fiduciary capacity.

        In general, the husband or widow of an intestate decedent has prior right, on application, to administer the estate (sec. 6), but the right may be lost through misconduct (secs. 10, 11, 12). See Number 15 as to husband's rights over intestate personal estate of wife.

        On the marriage of an executrix, if her husband fails to give bond, her letters of administration may be revoked by the clerk, on application of any creditor or other party interested in the estate (sec. 34, subsec. 2).

Arrest.

        No woman may be arrested in any civil action except for a willful injury to person, character, or property (sec. 768, subsec. 5).

6. Separate Earnings of Married Woman--Ownership and Control.

        The earnings of a married woman under any contract for her personal service are her separate property, and she may recover them by suit in her own name (sec. 2513).

        But a wife cannot recover compensation for services she has rendered her husband in his business or outside of her domestic duties, unless there is a contract, understanding, or intention between them that the wife should receive such compensation. 1

        1 Dorsett v. Dorsett (1922), 183 N. C. 354; 111 S. E. 541.


7. Liability of Married Woman for Family Necessaries.

        Under the statute enabling married women to contract, in general, as if unmarried [section 2507], the wife may purchase not only necessaries but other articles in her own name and on her own credit, and the creditor may recover of her for them, 1

        1 Lipinsky v. Revell (1914), 167 N. C. 508; 83 S. E. 820.


but there must be an express promise from the wife to pay for the goods. 2

        2 Bowen v. Daugherty (1915), 168 N. C. 242, 245; 84 S. E. 265; Ann. Cas. 1917B, 1161.


8. Formal Procedure Required for a Married Woman to Engage in a Separate Business.

        A married woman, 21 years of age or over, may become a "free trader" with her husband's consent, either by: (1) Antenuptial contract, duly proved and registered, or (2) declaration of both wife and husband that she is entered as a free trader, as provided by statute (sec. 2525). From the time either document is registered as required the married woman becomes a free trader, and is authorized to contract and deal as if she were unmarried (sec. 2526). She may cancel her privilege by recorded notice and newspaper publication as required by statute (sec. 2528).


Page 8

        In general, the privilege of a "free trader" does not empower a married woman to convey her real property without joinder of her husband and without her privy examination. 1

        1 Council v. Pridgen (1910), 153 N. C. 443, 449; 69 S. E. 404.


But a married woman who is separated legally from her husband, or whose husband has been adjudged an idiot or a lunatic, is deemed a free trader with power to convey her personal and real property without the husband's assent (sec. 2529).

        A wife whose husband abandons her, or maliciously turns her out of doors, is deemed a free trader "so far as to be competent to contract and be contracted with, and to bind her separate property," but without impairing her husband's liability for her reasonable support. She is empowered to convey her personal and real estate without the husband's assent (sec. 2530).

9. Married Woman's Separate Property--Control During Marriage--Liability for Husband's Debts.

        "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, with the written assent of her husband, conveyed by her as if she were unmarried" (Const., art. 10, sec. 6) (sec. 2506).

        The word "conveyed" in the constitutional provision refers only to transfers and alienations of real estate, 1

        1 Vann v. Edwards (1904), 135 N. C. 661, 670; 47 S. E. 784. (Hist.)


and a married woman may dispose of her personal property as fully and freely as though unmarried. 2 3

        2 Idem, p. 672.


        3 Rea v. Rea (1911), 156 N. C. 529, 532, 533; 72 S E. 573, 873.


        Every conveyance, power of attorney, or other instrument affecting the estate, right, or title of any married woman in "lands, tenements or hereditaments" must be executed by her and her husband and duly acknowledged by each, separately. In addition, the private examination of the wife "touching her voluntary assent to such instrument" must be taken "separate and apart from her husband" and duly certified by the officer taking the acknowledgment (sec. 997).

        If the husband is a lunatic, the wife may make a valid sale of her lands under an order of the clerk of the superior court of the county where the land lies, on petition of herself and the husband's guardian (sec. 2293). See also Number 8.

        Statutory provision is made for the sale of property owned by a person who has been adjudged lunatic or insane and committed to an asylum in the State, when his wife is in needy circumstances, provided she was living with her husband at the time he was committed to the institution (sec. 2294). For a husband's conveyance of his lands when wife insane, see Number 15, "Dower."

        A power of attorney to another to convey the real property of a married woman is valid only if "freely executed by her with her husband" (sec. 1002), in the manner provided by statute (sec. 997).

        After a sale of lands under "betterment" proceedings, when the party claiming the land was awarded its value from a defendant claiming for improvements placed by him on the property, if the


Page 9

party by or for whom the land was claimed is a married woman, minor, or insane person, such value is deemed real estate and is to be disposed of as the court considers proper for the benefit of the persons interested (secs. 699 to 708).

        The savings from the income of the separate estate of the wife are her separate property. If the husband receives the income from her separate estate during the marriage, without objection from the wife, he is liable to account only for the receipts for the year next preceding the action brought to recover them, or next preceding her death (sec. 2514). But if the wife is a "free trader" his liability to account for her income received by him is unlimited except by the general law applicable to agents and other persons. 4

        4 Manning v. Manning (1878), 79 N. C. 300, 302.


The husband may not sell or lease his wife's real estate, except with her formal consent as provided by statute. No interest whatever of the husband in such real estate is subject to execution sale for his liabilities (sec. 2510).

Estates by the entireties.

        When land is conveyed or devised to a husband and wife as such, they take the estate so conveyed or devised as tenants by the entirety. This tenancy by the entirety takes its origin from the common law when husband and wife were regarded as one person, and a conveyance to them by name was a conveyance in law to but one person. The estate rests upon the doctrine of unity of person, and, upon the death of one, the whole belongs to the other. The estate thus created has never been destroyed or changed by statute in North Carolina. It still possesses here the same properties and incidents as at common law. 5 6 7

        5 Long v. Barnes (1882), 87 N. C. 329, 333.


        6 Simonton v. Cornelius (1887), 98 N. C. 433, 436; 4 S. E. 38.


        7 Davis v. Bass (1924), 188 N. C. 200, 203; 124 S. E. 566. (Hist.)


Neither husband nor wife can convey during their joint lives so as to bind the other, or defeat the right of the survivor to the whole estate. Subject to this limitation, the husband has the same rights in the estate which are incident to his own property. 8

        8 Bank of Greenville v. Gornto (1913), 161 N. C. 341; 77 S. E. 222.


        "It is well established law in this State that the husband, during coverture and as between himself and the wife, has absolute and exclusive right to the control, use, possession, rents, issues, and profits of property held as tenants by the entirety. The common-law rule still prevails." 9

        9 Lewis v. Pate (1937), 212 N. C. 253; 193 S. E. 20.


        If either husband or wife, or both, owning an estate by the entireties, should be mentally incompetent to convey such property, and the sale or mortgage of the property is necessary or desirable, statutory procedure is provided for its valid conveyance through the clerk of the superior court of the county in which the lands are situated. The action of the clerk of the court in authorizing the conveyance must be approved by the resident judge or the judge holding the courts in the judicial district where the property is located. The clerk may direct the application of the funds arising from a sale or mortgage in such manner as may appear necessary or expedient for the protection of the interest of the mentally incompetent spouse (sec. 2294, subsec. 1 to 5).

        "This statute [sec. 2294, subsecs. 1 to 5] ought to serve a rather useful purpose in this State where the anomalous marital estate by the entireties still flourishes as at common law with all its common-law properties and incidents. Considerable real estate is held by the entireties in North Carolina, and the legal profession has been


Page 10

somewhat puzzled as to the legally proper steps, if any, to be taken in situations where economic necessity demanded that land held by the entirety be mortgaged or sold to provide for one or both mentally incompetent spouses. This statute furnishes the answer as to the proper procedure to be followed.

        "From the standpoint of properly allocating and administering the fund derived from the sale or mortgage of the realty, trouble perhaps is brewing for the Clerk. The statute is not clear as to the status of this fund--whether it is personalty for all purposes, or whether, being derived from realty held by the entirety, it retains for some purposes some of the characteristics and incidents of an estate by the entirety? Litigation would have been obviated had the statute definitely specified that the fund derived from the sale or mortgage of the realty immediately becomes personalty for all purposes. All of which is by way of further argument that the estate by the entirety is an anomaly in our system of jurisprudence and should be abolished by the legislature." 10

        10 The North Carolina Law Review, v. 13, p. 377. "A Survey of Statutory Changes in North Carolina in 1935."


        "This estate by entirety is an anomaly and it is perhaps an oversight that the Legislature has not changed it into a cotenancy, as has been done in so many States." 11

        11 Bynum v. Wicker (1906), 141 N. C. 95; 53 S. E. 478.


10. Property Acquired After Marriage Through Cooperative Efforts of Spouses--Ownership and Control.

        In general, the rules of the common law apply, when there is no constitutional or statutory provision in conflict with them (sec. 970). Under common law, property acquired during marriage by the cooperative efforts of husband and wife belongs to the husband, since he is entitled to the wife's services in the home in return for her support which the law requires of him.

Control.

        However, some measure of joint control during marriage is provided by statute, in that: (1) A valid deed cannot be made by the owner of a homestead without the voluntary joinder of his wife, "signified on her private examination, according to law" (Const., art. 10, sec. 8); (2) generally, the owner cannot, without the wife's voluntary joinder signified on her private examination according to law, make a valid conveyance of a "home site," except for purchase-money, so as to pass possession or title during the wife's lifetime (sec. 4103); and (3) all conveyances of household and kitchen furniture by a married man, made to secure the payment of money or other things of value, unless for purchase-money of such furniture, are void without the wife's joinder and private examination as required by statute (sec. 2577).


Page 11

Homestead and home site distinguished.

        The homestead, as defined by the Constitution, is clearly distinguishable from the home site as defined by the statute. The homestead, consisting of a lot or tract of land, with buildings, if any, may not exceed $1,000 in value, and is exempt from seizure and sale for creditors' claims. When allotted as an exemption, it can be conveyed by the husband only with the joinder of the wife.

        The home site also consists of a lot or tract of land, which with the residence and other buildings must be used or susceptible of use by the owner as a home for himself and wife. The value is immaterial. No conveyance by the husband of his home site without the joinder of the wife is valid as against her, so long as she lives.

        The purpose of the [home site] statute is: (1) To protect both husband and wife during the wife's lifetime, as the husband is under obligation to maintain a home for both; and (2) at the death of the husband, intestate, if the wife survives, to protect her from controversies over allotment of dower in lands to which, except for this statute, he could have conveyed title and possession, immediately on delivery of the deed, subject to her dower. 1

        1 Boyd v. Brooks (1929), 197 N. C. 644, 649, 650; 150 S. E. 178.


11. Damages Recovered for Injury by Strangers to a Married Woman's Person, Property, or Character--Ownership and Control.

        Any damages for personal injuries, or other tort sustained by a married woman, can be recovered on her suit alone. When recovered, such damages are her sole and separate property, as if she had remained unmarried (sec. 2513).

        When a married woman is a party to a civil suit, her husband need not be joined as a party with her when: (1) The action concerns her separate property, or (2) the action is between herself and her husband. In no case need she prosecute or defend by a guardian or next friend (sec. 454).

12. Action to Recover Damages for Willful or Negligent Injuries to the Person or Property of One Spouse by the Other--Respective Rights of Husband and Wife.

        The right of a wife to sue her husband, under section 454, is not limited by any provision of the statute to actions involving the rights of property only, but, when considered with section 2513, extends to recovery of damages for injury inflicted on her by him. Under this construction of the law, a wife was awarded damages from her husband, for coercing her and willfully and recklessly infecting her with a venereal disease. 1

        1 Crowell v. Crowell (1920), 180 N. C. 516; 105 S. E. 206. Rehearing (1921), 181 N. C. 66; 106 S. E. 149.


See Number 11 for text of statutes cited here.

        It is well settled in this jurisdiction that a wife may sue her husband for negligent injury. 2 3

        2 Earle v. Earle (1930), 198 N. C. 411, 414; 151 S. E. 884.


        3 York v. York (1938), 212 N. C. 695, 699; 194 S. E. 486.


13. Competency of Spouses to Testify For or Against Each Other.

        In general, the husband or wife of any party to a civil action is competent and compellable to give evidence, as any other witness


Page 12

on behalf of such party. This provision does not render any husband or wife competent or compellable to testify for or against the other in any action or proceeding: (1) In consequence of adultery; (2) for divorce on account of adultery, except to establish the fact of marriage; or (3) for or on account of criminal conversation (except that in actions of criminal conversation brought by the husband in which the wife's character is assailed, she is competent to testify in refuting such charges). Neither spouse may be compelled to disclose any confidential communication made by one to the other during the marriage (sec. 1801). Husbands and wives are competent and compellable to give evidence for or against each other, except in the particular cases specified in the statute. 1

        1 Barringer v. Barringer (1873), 69 N. C. 179, 181.


        In all criminal actions or proceedings, the husband or wife of the defendant is a competent witness for the defendant, and is subject to cross-examination as any other witness. Neither spouse may be compelled to disclose any confidential communication made by one to the other during the marriage. The statute does not make a husband or wife competent or compellable to testify against the other in any criminal action or proceeding, except to prove the fact of marriage in bigamy cases, and except that the wife may be examined in behalf of the State against the husband in criminal prosecutions against him for: (1) An assault and battery upon her; (2) abandonment of his family; or (3) neglect to provide for his family's support (sec. 1802).

        The wife is competent to make affidavit and testify in application for peace warrants against the husband (sec. 1802a).

14. Disposition of Separate Property by Will--Extent of Married Woman's Right.

        No person is deemed capable of disposing of real or personal estate by will until he has attained the age of 21 years (sec. 4128).

        Every married woman has power to devise and bequeath her real and personal estate as if she were unmarried (sec. 2511). A married woman owning real or personal property may dispose of it by will (sec. 4129). See also Numbers 9 and 15.

15. Estate of Deceased Husband or Wife--Share of Surviving Spouse.

REAL PROPERTY

Absolute interest.

        When any person dies intestate leaving none who can claim as heir, but leaving a widow or surviving husband, such widow or husband is to be deemed the decedent's heir, and as such inherits the estate (sec. 1654, subsec. 8).

Life interests.

A.--DOWER.

        A widow is entitled to dower as at common law unless she has forfeited her right by committing adultery and living separate from her husband at his death, or by conviction for the felonious slaying of her husband or as accessory before the fact to such slaying (sec. 4099).


Page 13

        Under such dower right, the widow of a person dying intestate, or a widow who dissents from her husband's will, is entitled to an estate for her life in one-third in value of all real property of which her husband was "seized and possessed" at any time during the marriage. This one-third includes the family dwelling and its premises, unless the widow requests otherwise (sec. 4100). The widow's right to dower rests upon the theory that during the marriage her husband was seized of an estate which any child she might have borne him could possibly have taken by descent. 1

        1 Alexander v. Fleming (1925), 190 N. C. 815, 819; 130 S. E. 867.


        The dower right is not defeated by the sole conveyance of the husband, unless such conveyance be to secure purchase-money of the property (sec. 4101).

        A husband whose wife is a lunatic or insane may convey any of his real estate, except his homestead when it has been actually allotted, "free and exempt from the dower rights and all other interests of his wife" without the wife's signature or private examination; but the conveyance must have attached to it a certificate under seal from the clerk of the superior court of the county where the wife was adjuged insane or lunatic, or from the superintendent of an insane institution of this State, or any other State, certifying that she has been adjudged insane or lunatic, and that her sanity has not been declared restored as provided by law. The conveyance must be executed, probated, and registered as required by statute (sec. 4103a). See also section 1004, a similar statute.

        A wife may release her dower by joining her husband in the deed of conveyance in the manner required by statute (sec. 4102).

        See Numbers 3, 5, 9, and 10; also Number 17 as to rights on dissent from the husband's will.

        Neither the dower right, nor such real estate as may be willed to the widow by the husband if not in excess of the portion she would have received as dower, is subject to payment of the husband's debts during her life (sec. 4098).

B.--CURTESY.

        When a married woman dies intestate, if a child was born alive of the marriage, the surviving husband is entitled to curtesy during his life in all the real property held by the wife, during the marriage, in which such child was capable of inheriting, unless, at the wife's death, the spouses are legally separated and living apart, or the husband has abandoned his wife or maliciously turned her out of doors so that they are living separately, or the husband has separated himself from his wife and is living in adultery (sec. 2519).

        After birth of issue alive, curtesy initiate is regarded as a valuable interest [during marriage] which may ripen into an estate of freehold, or curtesy consummate on the wife's prior death. 2

        2 Colwell v. O'Brien (1930), 198 N. C. 228; 151 S. E. 190.


        The wife by her will may deprive her husband of curtesy in her separate estate (Const., art. 10, sec. 6) (sec. 2506). 3

        3 Hallyburton v. Slagle (1902), 130 N. C. 482; 41 S. E. 877. Rehearing (1903), 132 N. C. 947; 44 S. E. 655.


See Number 17 as to widow's dissent from husband's will.

PERSONAL PROPERTY

Absolute title.

        The surplus [above debts and charges] of personal estate not disposed of by the will of a decedent is distributed in the following manner:


Page 14

    To the widow--

  • 1. One-third part, if there are not more than 2 children.
  • 2. A child's part, if there are more than 2 children.
  • 3. One-half, if there is no child nor legal representative of a deceased child but there are "next of kin," who inherit the other half.
  • 4. All the personal estate, if there is no child nor legal representative of a deceased child, nor "any of the next of kin" of the decedent (sec. 137, subsecs. 1, 2, 3, and 7).

    To the surviving husband--

  • 1. One-half, if only 1 child is living.
  • 2. A child's part, if more than 1 child or its legal representative survive (sec. 137, subsec. 8).
  • 3. The husband is entitled to administer his wife's personal estate which she has not bequeathed by will, and, subject to claims of her creditors and others having rightful demands against her, to hold such personal property to his own use, unless he has forfeited such rights through divorce or misconduct [see sections 10, 12]. If the husband dies after his wife, but before administering, his executor, administrator, or assignee receives the wife's personal property as a part of the estate of the husband, subject, as if he were living, to the claims and exceptions recognized by statute (sec. 7).

        In a case involving the application of section 7, the court observed that section 137, subsection 8, of the statute of distribution applies only when a married woman dies intestate, leaving a husband and a child, or the representative of such child. 4

        4 McIver v. McKinney (1922), 184 N. C. 393, 398; 114 S. E. 399.


Advancements to children.

        In general, advancements to children must be accounted for to the widow of an intestate in determining her "child's part" of the estate (sec. 138).

How respective property rights may be barred.

        Husband and wife, respectively, lose, upon absolute divorce: (1) All right to an estate by curtesy or dower, (2) all right to any year's provision or distributive share in the personal property of the other, (3) all right to administer on the estate of the other, and (4) every right and estate in the real and personal estate of the other, which, by agreement before or after marriage, was settled upon such party in consideration of the marriage only. Also, when either party is convicted of the felonious slaying of the other or of being accessory before the fact of such slaying, the party so convicted loses all the rights just enumerated (secs. 10, 2522).

        When a married woman elopes with an adulterer, or willfully and without just cause abandons her husband, refusing to live with him and is not living with him at his death, or if a divorce from bed and board has been granted on the husband's application, she is barred from her rights in the estate of the husband enumerated in the preceding paragraph (secs. 11, 2523).


Page 15

        When a husband separates from his wife and lives in adultery, or willfully and without just cause abandons his wife, refusing to live with her, "and such conduct on his part is not condoned by her," or if a divorce from bed and board is granted on the wife's application, he is barred from his rights in the estate of the wife, enumerated under sections 10 and 2522 (secs. 12, 2524).

16. Provision for the Surviving Spouse During Administration of the Estate.

        The widow of an intestate, or of a testator from whose will she has dissented, is entitled to an allowance from her husband's personal estate for the support of herself and her family for 1 year after his death. Such an allowance is in addition to her distributive share of the personal property and is exempt from liens by judgment or execution against the husband's property. She forfeits her right to the allowance and the distributive share through misconduct (sec. 4108).

        Unless it is an exceptional case for which other provision is made, the value of a year's allowance to the widow is fixed at $500 (Supp., sec. 4109).

        See also "Homestead" under Number 3.

17. Disinheritance of Husband or Wife by Will of Deceased Spouse--Survivor's Alternative.

        A widow may dissent from her husband's will at any time within 6 months after it is probated, in the manner prescribed by statute (sec. 4096). When she has filed her dissent as required by law, she has the same rights in the real and personal property of the husband as if he had died intestate (sec. 4097). See Numbers 15 and 16.

        No statutory provision is made for the husband's dissent from the wife's will.

II.--MARRIAGE AND DIVORCE

18. Age of Consent to Marriage--Men and Women.

        Unmarried male persons of 16 years or over, and unmarried females of 16 years or over, may lawfully marry, if qualified under the statute in all other respects.

        Females over 14 and under 16 years of age are permitted to marry only under a special license, issued after the filing of the written consent of one of the female's parents or the person who, as a parent, has charge of her.

        Couples resident in North Carolina who marry elsewhere must file a copy of their marriage certificate in the husband's home county within 30 days after their return to the State, as residents (sec. 2494).

        See also Number 22.

        When either party to the proposed marriage is under 18 years of age, he or she must file the written consent of parent or other relative with whom he or she resides, or of the person having custody and control of him or her, as prescribed by statute (sec. 2500).


Page 16

19. Validity of Common-Law Marriage.

        There is no such thing as marriage simply by consent in this State. 1

        1 State v. Wilson (1897), 121 N. C. 650, 656; 28 S. E. 416. (Hist.)


        "* * * from the earliest period of our legislation, * * * it has been constantly required as an essential requisite of a legal marriage, that it should either be celebrated by some person in a sacred office, or be entered into before someone in a public station and judicial trust." 2

        2 State v. Samuel (1836), 19 N. C. 177, 181.


20. Health Certificate Requisites Prior to Issuance of Marriage License--Men and Women.

        [Each applicant for license to marry must supply a medical certificate executed within 7 days of its presentation showing that, from a test made within 2 weeks of the application date, no evidence was found of any venereal disease in the infectious or communicable state, or of tuberculosis in the infectious stages, and that he or she has not been adjudged an epileptic, idiot, imbecile, mental defective, or of unsound mind. The certificate must be executed by a reputable physician licensed to practice in the State. No license to marry may be issued until the required certificates are filed with the Register of Deeds. Exceptions are allowed only under the special conditions prescribed by statute (1939, p. 702, effective April 3, 1939, repealing former conflicting laws).]

21. Interstate Cooperation in Marriage Law Enforcement.

        The general rule is followed, that a marriage will be upheld within the State if valid in the State where it is contracted. 1

        1 State v. Ross (1877), 76 N. C. 242, 245.


An exception to this rule is made if such marriage is entered into by residents of North Carolina to evade its laws, and with the intent to return after marriage to reside in the State. 2

        2 State v. Kennedy (1877), 76 N. C. 251.


22. Grounds for Marriage Annulment--Respective Availability to Man or Woman.

        Without distinction as to sex, the law declares absolutely void prohibited interracial marriages (Const., art. 14, sec. 8), and bigamous marriages (sec. 2495). 1

        1 Watters v. Watters (1915), 168 N. C. 411; 84 S. E. 703.


        Upon application of either party, the superior court may declare void any marriage violative of the statute (sec. 1658); as, when contracted between a male person under 16 years of age and any female, or between a female person under 14 years of age and any male; or between forbidden degrees of kindred; or when one party is physically impotent, or is incapable of contracting from want of will or understanding (sec. 2495).

23. Grounds for Divorce--Respective Availability to Spouses.

        On application of the injured party, an absolute divorce may be granted for: Adultery, natural impotency, voluntary separation, or involuntary separation for 2 successive years resulting from a criminal act committed prior to divorce proceedings, or the crime against nature.


Page 17

        The husband may obtain an absolute divorce if the wife, at the time of marriage, was pregnant by another and without his knowledge (sec. 1659).

        Either party may obtain an absolute divorce when the husband and wife have lived separate and apart for 2 years, if the plaintiff has resided in the State for 1 year (Supp., sec. 1659a).

        But no person will be allowed to take advantage of his own criminal acts against the other spouse in suing for divorce under this statute. 1

        1 Reynolds v. Reynolds (1935), 208 N. C. 428; 181 S. E. 338.


        A divorce from bed and board may be granted on the application of the injured party for the defendant's abandonment, cruel or barbarous treatment endangering the plaintiff's life, maliciously turning the plaintiff out of doors, offering such indignities to the person of plaintiff as to render his or her condition intolerable and life burdensome, or because of defendant's habitual drunkenness (sec. 1660).

III.--PARENTS AND CHILDREN

24. Services and Earnings of Minor Children--Parents' Respective Rights.

        The father is entitled to the services and earnings of his minor child so long as the child is legally in his custody or under his control and not emancipated. 1 2

        1 Shipp v. Stage Lines (1926), 192 N. C. 475, 479; 135 S. E. 339.


        2 Floyd v. Railway Co. (1914), 167 N. C. 55; 83 S. E. 12.


See also Number 25.

25. Guardianship of Minor Children--Parents' Respective Rights.

        The father is the natural guardian of his children, and as a general rule and at common law has the paramount right to the custody and control of them against all the world. It is the moral and legal duty of the father to provide for the protection, maintenance, and education of his children. 1

        1 In re Ten Hoopen (1932), 202 N. C. 223, 226; 162 S. E. 619.


        "* * * This rule, though it may at times be a harsh one, has been mollified only when the best interest of the children required it." 2

        2 Tyner v. Tyner (1934), 206 N. C. 776, 780; 175 S. E. 144.


        At the father's death, the mother of their infant children immediately becomes the natural guardian of them in the father's stead (sec. 2152).

        A guardian of the estate of any minor may be a different person from the one having the tuition and custody of the person of the child (sec. 2155).

        The appointment of the guardian of the estate is a duty of the clerk of the superior court, when application for such appointment has been made, and the choice of the person is a matter for his discretion, after careful investigation of the case (secs. 2154, 2156).

26. Appointment of Testamentary Guardian for Minor Children--Parents' Respective Rights.

        Any father, though himself a minor, may dispose of the custody and tuition of his unmarried infant children, either by deed in his lifetime, with the mother's written consent and separate examination as to such consent, or by will if the mother is dead.


Page 18

        If the father is dead, has not made an appointment, or has willfully abandoned his wife, then the mother has such right of disposition (sec. 2151).

        In an opinion declaring void an adoption proceeding of which the child's mother had no notice, it was said:

        "* * * It [the decision] affords assurance to all mothers that they cannot, under the laws of this State, be deprived of the custody of their children by adoption proceedings to which they have not consented or to which they have not been made parties to the end that they may be heard before any order is made depriving them of their rights. The decision recognizes that the mother as well as the father has rights to the custody of the child; she cannot be held to have forfeited such rights without a hearing." 1

        1 Truelove v. Parker (1926), 191 N. C. 430, 440; 132 S. E. 295.



27. Inheritance from an Intestate Child--Parents' Respective Rights.

        The estate in lands of an intestate person is inherited by his father and mother as tenants in common or by the survivor if only one parent is living, when the decedent leaves no issue capable of inheriting, nor brother, sister, or issue of them (sec. 1654, subsec. 6).

        The personal property of an intestate person, who leaves neither spouse, child, nor issue of a child, is divided equally between the father and mother, or if either is dead, the surviving parent is entitled to the whole of such property (sec. 137, subsec. 6).

28. Support of Children Born Out of Wedlock--Parents' Respective Responsibility.

        Any parent who willfully neglects or who refuses to support and maintain his or her illegitimate child is guilty of a misdemeanor and subject to the penalties provided by statute. This applies until the child is 14 years of age (Supp., sec. 276a).

        The court before which a suit is brought for support of an illegitimate determines whether the defendant is a parent of the child in question. If the defendant is so adjudged, and the fact of neglect or refusal to support is established, the court must fix by order, subject to modification or increase as later needs require, "a specific sum of money necessary for the support and maintenance of the particular child who is the object of the proceedings. The court in fixing this sum shall take into account the circumstances of the case, the financial ability to pay and earning capacity of the defendant, and his or her willingness to cooperate for the welfare of the child" (Supp., sec. 276f). At the court's discretion, such an order may require the father to pay the necessary expenses of birth and of suitable medical attention for the mother (sec. 276g).

        If any mother willfully abandons her child or children under 16 years of age, whether legitimate or illegitimate, she is guilty of a misdemeanor (sec. 4450a).

29. Inheritance from Child Born Out of Wedlock--Mother's Right.

        When any illegitimate child dies without issue, the mother inherits the real property as if such child were legitimate and the father had predeceased her (sec. 1654, subsec. 10). See the first paragraph of


Page 19

Number 27. All illegitimates are treated as children without a father of any kind. 1

        1 Ashe v. Camp Mfg. Co. (1911), 154 N. C. 241, 243; 70 S. E. 295.


[It should be noted that if a person of illegitimate birth dies intestate, without issue, leaving no mother, but survived by a wife and also legitimate issue of his illegitimate brothers and sisters, such legitimate issue inherit his real property to the exclusion of his wife. The widow is heir only when there is no one else who can claim as heir. 2

        2 Bryant v. Bryant (1925), 190 N. C. 372; 130 S. E. 21.


]

        When an intestate illegitimate child dies, leaving no issue, but his mother survives him, she inherits from his personal estate as if he had been born in lawful wedlock (sec. 140). See the second paragraph of Number 27.

B.--POLITICAL RIGHTS

30. Domicile of Married Women.

        For purposes of registration and voting, the place where the family of a married man or woman resides is deemed his or her place of residence, unless husband and wife have separated and live apart, in which case the place where he or she resides for the required statutory period is considered his or her residence (sec. 5937). The residence of a married woman living with her husband is the place where he resides; if she is living separate and apart from her husband, or if he has no legal residence in the State, then her residence is the place where she actually resides (sec. 5937a).

        For all other purposes, including probate of her will, the domicile of a married woman is that of her husband, ordinarily, by operation of law. 1

        1 In re Ellis (1924), 187 N. C. 840, 844; 123 S. E. 82.


But a wife who is forced to leave her husband may acquire a separate domicile. 2

        2 Rector v. Rector (1923), 186 N. C. 618, 620; 120 S. E. 195.


31. Public Office--Eligibility of Women.

        Women are eligible to hold public office (Const., art. 6, sec. 7) (sec. 3949, subsec. 13). 1

        1 Preston v. Roberts (1922), 183 N.C. 62; 110 S. E. 586.


32. Jury Service--Eligibility of Women.

        The Constitution provides that no person may be convicted of any crime except by the unanimous verdict of a jury of "good and lawful men" in open court (Const., art. 1, sec. 13).

        The statute directs the jury list to be selected from "all such persons" as have paid taxes assessed for the preceding year and are of good moral character and of sufficient intelligence (sec. 2312).

        In ruling that a male defendant could not attack the exclusion of women from the jury before which he was tried, the appellate court thus set out in part the findings of the trial court:

        "The court found as facts that women were not placed upon the jury lists in Guilford County [the place of the trial] and that women were systematically excluded from said lists, even though they may be of good moral character and of sufficient intelligence and may own both real and personal property in said county." 1

        1 State v. Sims (1938), 213 N. C. 590; 197 S. E. 176.



        According to an opinion of the attorney general, dated October 5, 1937, women are eligible for service on juries in North Carolina


Page 20

without further legislative action. In transmitting the opinion to the county attorney at Charlotte, N. C., who requested it, the attorney general said:

        "I suggest that a test case be made, which can be easily done by having summoned as tales' jurors women who are freeholders in the county and have paid their taxes, and are otherwise qualified (except, of course, as to the matter of sex) to serve on juries."


        However, no record of such a test case has been found.

32a. "Freeholder."

        Women of legal age owning realty are deemed "freeholders" for purposes of petitioning elections to assess or levy taxes on real property (sec. 1746), and have been so held in the enumeration of resident freeholders petitioning for a proposed new school district. 1

        1 Chitty v. Parker (1916), 172 N. C. 126; 90 S. E. 17.