Walker v. Walker , 66 N.H. 390 ( 1890 )

Upon the facts found at the hearing the bill can be maintained. The attempt of the plaintiff's husband to dispose of nearly all of his personal estate so that he should have the enjoyment and control of it for life and the plaintiff be deprived of any portion of it at his decease, cannot be sanctioned. It is settled law, that conveyances of real estate made by the husband during the coverture for the purpose of defeating the wife's rights, are, as to her, fraudulent and void. Whether the same rule obtains in transfers of personal property for the like purpose when the husband reserves therein no right to himself, is a question upon which the authorities are somewhat at variance; but where the transfer is a mere device or contrivance by which the husband, not parting with the absolute dominion over the property during his life, seeks at his death to deprive his widow of her distributive share, there is no substantial conflict of authority that the rule applicable to conveyances of realty prevails. Thayer v. Thayer, 14 Vt. 107 — 39 Am. Dec. 211; Hays v. Henry, 1 Md. Ch. 337; Rabbitt v. Gaither, 67 Md. 95, 100, 105; Littleton v. Littleton, 1 Dev. Bat. 327; McGee v. McGee, 4 Ired. 105; Davis v. Davis, 5 Mo. 183; Stone v. Stone, 18 Mo. 389; Tucker v. Tucker, 29 Mo. 350; Smith v. Smith,12 Cal. 216, 225; Lord v. Hough, 43 Cal. 581; Cranson v. Cranson, 4 Mich. 230; Holmes v. Holmes, 3 Paige 363; Richards v. Richards, 11 Humph. 429; Petty v. Petty, 4 B. Mon. 215.

Such, also, were the decisions under the ancient custom of London, from which our statute of distributions is said to have been borrowed. Thus, in Hall v. Hall, 2 Vern. 277, it was held that if a freeman gives away goods in his lifetime, and yet retains the deed of gift in his own power, or retains the possession of the goods or any part of them, it is a fraud upon the custom, and will not conclude the widow; and in Fairebeard v. Bowers, 2 Vern. 202, a voluntary judgment by a freeman, payable after his death, was postponed to the widow's claim for her customary share. So, in City v. City, 2 Lev. 130, where the deceased had by deed assigned a term to his son, and the son had gone into possession, it was held that this did not bar the widow of her customary share, the assignment being without consideration; and it was said "the same is the law as to goods." And Edmundson v. Cox, 7 Vin. Abr. 203, is of the like general purport. That case was a bill by the widow of a freeman of London for her customary share. The husband had made his will and devised to the wife certain real and personal estate. There was, sealed up in the will, the bond of the testator, executed before the date of the will, conditioned to pay the defendant a given sum of money, or transfer to him a given amount of bank stock. The obligee was the testator's nephew and the bond without valuable consideration. It was held by the master of the rolls that the widow, on first disclaiming all benefit under the will, could have a decree for her customary share, and that the bond should not stand in her way; and he adds, "Such sort of contrivances to evade the custom have always been set aside in this court." See, also, Smith v. Fellows, 2 Atk. 62, and Coomes v. Elling, 3 Atk. 676. These decisions well illustrate what should be the course of decision under our statute. The widow's claim for her share under the statute being strictly analogous to the claim of the widow of a freeman under the custom of London, if a contrivance to evade the rights of the widow under that custom was never tolerated, there is no reason why it should meet with more favor under the statute.

By the declaratory statute of 13 Elizabeth, c. 5, made perpetual by 29 Elizabeth, c. 5, and adopted as part of the common law in this state, for avoiding feigned, covinous, and fraudulent feoffments, gifts, grants, alienations, conveyances, bonds, suits, judgments, and executions, as well of lands, tenements, and hereditaments as of goods, chattels, wares, and merchandise, which feoffments, etc., have been devised of malice, fraud, covin, collusion, or guile, to the end, purpose, and intent to delay, hinder, or defraud creditors and others of their just and lawful actions, suits, debts, accounts, damages, etc., not only to the let or hindrance of the due course and execution of law and justice, but also to the overthrow of all true and plain dealing, etc., it was declared and enacted in the second section, "that all and every feoffment, gift, grant, alienation, and conveyance, and all and every bond, suit, judgment, and execution, to or for any intent or purpose before declared and expressed, shall be from henceforth deemed and taken," as against such creditors and others and their representatives, "to be utterly void and of none effect."

There is no ground to claim, and no claim is made by the defendants, that the act of the plaintiff's husband in relation to the stocks and bonds comes within the proviso in the sixth section, exempting from the operation of the act transactions upon a good consideration and bona fide; but it is contended that the plaintiff is not within the act as a creditor, and therefore is not within its protection. Technically, and in a strict legal sense, she may not perhaps be a creditor; but "the statute by the words ``creditors and others' embraces others than those who are strictly and technically creditors. Even the word ``creditor' does not receive a strict definition, for a party who is not strictly speaking a creditor may stand in the equity of a creditor, and have an interest that may be defrauded. . . . The character of the claim, if it is just and lawful, is immaterial . . . and a contingent claim is as fully protected as one that is absolute." Bump Fr. Conv. (2 ed.) 491, 492. Under this construction of the statute, which is fully supported by the decisions, it is not open to reasonable doubt that the plaintiff comes within its protection. The character of her claim is just and lawful in the highest degree; she stands in the equity, if not in the attitude, of a creditor, she is as much injured as any creditor can be; and the fact that at the time the securities were transferred her distributive right therein was contingent, entitles it none the less to protection than if it had been absolute. And this should be so. Marriage is equivalent to a pecuniary consideration; that is to say, it is a valuable consideration. The plaintiff's right to her distributory share of her husband's large estate, and which is quite likely to have been one of the inducements to her marriage with him, is therefore in the nature of an actual purchase of that right, and may well be given the same effect under the liberal and beneficial construction which the statute is entitled to receive for the suppression of fraud, the advancement of justice, and the promotion of the public good.

But however this may be, inasmuch as the design of the statute obviously was to embrace others than those who are creditors in a strict and technical sense, we think that under its designation of "creditors and others" the plaintiff is fairly included; "and if," in the language of Mason, J., in Feigley v. Feigley, 7 Md. 537 (61 Am. Dec. 375), "under such a comprehensive clause as ``creditors and others,' a wife who has been made the victim of her husband's fraud is not to be included, we are at a loss to ascertain to whom it was designed to relate." The same or equivalent statutory language is also held to apply to and include the defrauded wife, in Tyler v. Tyler, 126 Ill. 525 (9 Am. St. Rep. 642), Green v. Adams,59 Vt. 602 (59 Am. Rep. 761), Jiggitts v. Jiggitts,40 Miss. 718, Reynolds v. Vance, 1 Heisk. 344, Boils v. Boils, 1 Coldw. 287, Brewer v. Connell, 11 Humph. 500, Killinger v. Reidenhauer, 6 S. R. 531, Bouslough v. Bouslough, 68 Pa. St. 495, 499, and Johnson v. Johnson, 12 Ky. 485. And if it were even held that the statute does not include the plaintiff, either as a creditor or as one to whom the conveyancer owes a lawful duty in respect of his property which he fraudulently attempts to avoid, it would not leave her remediless under the common law, which is still in force. "As the act is merely declaratory, resort may always be had to the principles of the common law whenever the statute fails to reach a case of fraud. The act itself is not affected by this doctrine, and will in general be received as a true declaration of what the law was; but wherever the statute is ineffective, either through a change of custom, or the introduction of a new kind of property, or the concoction of some new device, there the common law intervenes with its pure and elevated principles of morality and justice, and enforces the dictates of common honesty and common sense." Bump Fr. Conv. 11.

But irrespective of the statute and the common law, the obligations and duties of husbands and wives to each other disable each of them alike successfully to defraud the other by such a disproportionate, unreasonable, and fraudulent transfer of property as appears in this case (Laton v. Balcom, 64 N.H. 92, 94-96); and upon general principles of equity alone the plaintiff's bill may be supported. It is an established rule, that a husband will, upon a proper case being made out, be restrained by injunction from transferring property in fraud of the legal or equitable rights of the wife (2 Sto. Eq. Jur. (12th ed.) s. 955, Kerr Inj. (2d ed.) 534, and cases cited, Eden Inj. 295, 296); and if such transfers are made, equity puts her on the same footing with a creditor who finds himself hindered, delayed, or defrauded by his debtor.

With these views of the transaction, the plaintiff is entitled to her distributive share of the stocks and bonds, as if no transfer of them had been made or attempted. If, however, the transfer was not fraudulent as against her, the same conclusion follows. The gift was not perfected. It was not valid as a gift inter vivos, for that goes into absolute and immediate effect, the donor parting not only with the possession, but with the dominion of the property; nor as a donatio causa mortis, for the securities were not delivered by the deceased in his last sickness, nor when in any particular peril of death, or under any special apprehension of such peril. Craig v. Kittredge, 46 N.H. 57, and authorities cited.

As to the house occupied by the plaintiff and her husband as a homestead, a different case is presented. At the hearing, the plaintiff moved to amend her bill so as to claim one third part of the homestead premises; but the claim was denied on the ground that at the time her husband took the homestead deed as trustee for his sons, he had ample means remaining for a suitable provision for the plaintiff, — to which denial she, excepted.

If the purpose which prompted the husband's act was not to defraud the plaintiff, but a desire to make a reasonable provision for his minor children, whose interests it was his duty to guard and protect, it would be a misnomer to call the transaction fraudulent, and it must be allowed to stand. In such cases the facts are always open to inquiry, "and it seems settled that the court is warranted in considering such circumstances as the meritorious object of the conveyance, and the situation of the husband in point of pecuniary means." Sch. Dom. Rel. 270. And this is right and reasonable. Marriage does not debar a man from all right to dispose of his property during his life according to his will and pleasure. On the contrary, "nothing is better settled than the power of a husband to dispose of his personal property in good faith, by gift or otherwise, during coverture, free from all post-mortem claims thereon by his widow." Dickerson's Appeal, 115 Pa. St. 198 — S.C., 2 Am. St. Rep. 547, 552. It simply debars him from making gifts and conveyances with the view of defeating his wife's marital rights, and to this extent only is his power of disposal clogged and fettered. When his object is not to defraud her, he may therefore lawfully sell or convey, and he may even make a gift of his property for any lawful purpose. If possessed of large estate, the voluntary conveyance of a small portion of it to stranger would scarcely be deemed fraudulent as against her; and if the conveyance is to his children by a former marriage, and he retained that which would, in the ordinary course of events, be ample provision for himself and wife and family, there surely would be no fraud upon her marital rights cognizable in equity. See Butler v. Butler, 21 Kan. 521 (30 Am. Rep. 441, 446), and authorities generally.

Taking into consideration Mr. Walker's pecuniary circumstances, the comparatively small amount invested in the homestead trust estate with reference to the entire amount of his property, the meritorious claims of his children, as such, upon him, and the pregnant fact that this trust was created long before his estrangement from the plaintiff, we are of opinion that the provision made by him for his children was, under the existing circumstances, a just and reasonable one, that no fraud upon the plaintiff was intended, and that her claim for a share of the homestead estate was properly denied.

Exceptions overruled.

DOE, C. J., and ALLEN, J., did not sit: the others concurred.