Wolfsberger v. Mort , 104 Mo. App. 257 ( 1904 )

BLAND, P. J.

(after stating the facts as above.) — We think the evidence clearly shows that much of Mrs. Fritsch’s bank deposit was of money received from her husband. The evidence is so indefinite as to the amount she earned by her own labor as to make it impossible, to form a just estimate of it, but from her testimony we think the inference is reasonable that her earnings were wholly insufficient to make up half of the amount it is shown she deposited from time to time in bank. But it is contended that as the evidence shows Emil Fritsch "had no property except the furnishings of his barbei shop, and as he did not at any one time give to his wife money that was subject to be taken on execution or attachment, no fraud was committed against the plaintiff as his creditor. If this contention is good law, then an insolvent debtor may give over to his wife his monthly earnings in small sums and the latter may deposit these gifts in bank to her individual credit or purchase therewith property in her individual name and in this manner in time accumulate a large bank account, or acquire in her own right a large amount of property free and exempt from the claims of her husband’s creditors, when if the money had been deposited by him or the property purchased in his own name, it would have been subject to levy. It is the law that a husband has the right to give his personal services and skill to the management of his wife’s property without any other consideration than the support of himself, and that the result of his labor on his wife’s property is not subject to levy. Seay v. Hesse, 123 Mo. 450; Gruner v. Scholz, 154 Mo. 415; State ex rel. v. Jones, 83 Mo. App. 151; Hibbard, Spencer, Bartlett & Co. v. Heckart, 88 Mo. App. 544. He may also give his wife personal property when such gift is not in fraud of his creditors. Bank v. Simpson, 152 Mo. 638; Sanguinett v. Webster, 127 Mo. 32; Thomas v. Thomas, 107 Mo. 459; Bettes v. Magoon, 85 Mo. 580. But it seems to us that to permit an insolvent husband, having creditors, to systematically and continuously give his wife practically all his earnings and to allow the wife with these gifts to acquire in her own name and for her separate use, personal property and hold it exempt from the just demands of the creditors of her husband, when if the same property had been acquired directly by the husband, it would have been subject to levy, would work a gross fraud on the husband’s creditors. The learned circuit judge, as is shown by the declarations of law given and refused, concluded that gifts made in the manner indicated by Fritsch to his wife were fraudulent as to plaintiff. We think this was the correct view of the law. Shanklin v. McCracken, 151 Mo. 587. We think, furthermore, that the evidence abundantly sustains the finding of the trial, court that a portion of Fritsch’s money was used in the purchase of the piano and that the trial court correctly held that in the proportion his money was used in payment for the piano, the interpleader held the piano in trust for him and correctly subjected his interest to the payment of plaintiff’s judgment. Jones v. Elkins, 143 Mo. 647.

The judgment is affirmed.

All concur.