Severin v. Rueckerick , 62 Wis. 1 ( 1884 )

LyoN, J.

This action was brought under sec. 3832, R. S., which gives a right of action to an executor or administrator, in case of a deficiency of assets in his hands to pay the creditors of the estate, to recover property conveyed by the testator or intestate in his life-time, when by law such conveyance is void as against creditors.

In the present case there is such deficiency of assets, and the question to be determined is whether the conveyance of his property by the intestate to the defendant is void as against the creditors of the estate.

The conveyance of the real estate and the bill of sale of the personal property, although separate instruments, are founded upon a single agreement, and are part and parcel of the same transaction. They are therefore to be construed together as evidences of one agreement, and their effect is the same' as it would have been had the whole agreement been embodied in a single instrument.

Disregarding mere form, and looking only to the substance of the transaction, as it is our plain duty to do, the conveyance of his property by the intestate to the defendant created a trust in the property conveyed for the support and maintenance of the intestate and his wife during their lives, or during the life of either of them, and for the payment of specified sums of money, after their decease, to their other children. True, the condition expressed in the conveyance is not, in form, for such maintenance, but that is its plain and obvious import. Had the defendant failed to furnish the intestate and his wife the stipulated buildings, and to deliver to them the stipulated proportion of crops raised on the farm, thus depriving them of the means of subsistence, a court of equity would promptly have rescinded the conveyance and restored the property to the intestate. Bogie v. Bogie, 41 Wis. 209; Bresnahan v. Bresnahan, 46 Wis. 385; Bishop v. Aldrich, 48 Wis. 621; Blake v. Blake, 56 Wis. 392; Delong v. Delong, 56 Wis., 514.

The condition for the payment of the specified sums to all the other children is an express trust created by the intestate in their favor, and is a charge upon the property conveyed, which a court of equity would undoubtedly enforce. There can be no difference in principle between such a provision in a deed and a similar provision in a will. Had the intestate devised and bequeathed all of his property to the defendant, requiring him to pay the same amounts to his brother and sister, those amounts would be a charge upon the property taken by the defendant under the will. Powers v. Powers, 28 Wis. 659.

Such being the character and effect of the conveyance by the intestate to the defendant, it seems very clear that the same was a conveyance or transfer of his property by the intestate in trust for his own use, and hence that, under sec. 2306, R S., the same is void as against his creditors, existing or subsequent. The learned circuit judge substantially so held, and we think he ruled correctly. To uphold this conveyance would be to allow the intestate to place his property beyond the reach of his creditors, before and after his death, and at the same time to secure a maintenance for himself and wife during their lives, and the payment of legacies or gifts to his children out of the property after their deaths. The statute was enacted to prevent just such a fraud as this. The fact that the defendant had previously made advances of considerable sums of money to the intestate does not change the character of the conveyance, or strengthen his title to the property as against such creditors.

It is believed that the foregoing observations dispose of all the errors assigned, save one, which will now be considered.

The defendant moved for a new trial on the ground, among others, that the court erred in refusing to submit the evidence to the jury, and here assigns for error the 1’efusal to grant a new trial. Under this assignment of error it is now claimed that there was testimony tending to show that a portion of the property recovered by the plaintiff was purchased by the. defendant elsewhere, and absolutely owned by him. Apparently, this-is the first time in the progress of the case that point has been made. "We have examined the testimony bearing upon this question, and we think it was conclusively proved that all of the property recovered by the plaintiff was held by the defendant under the conveyance by the intestate to him.

The testimony on the subject was all given by the defendant, and is very brief. To the question as to whether the property in controversy was the same property he received from his father under the bill of sale he answered: “ It is the same property — some of it — in the replevin suit; there is some stock that I raised myself and some of the personal property that I bought afterwards. In the suit there are four young cattle that I raised, and one that I bought. I bought it from George Thedy; I paid $27 for it — -$27 or $27.50. There was a cow and a calf that I bought.” This was on his direct examination. On his cross-examination he said: “Those five head of young stock in dispute belong to me. I raised them. ... I raised them from the cows that I bought from my father. They were the increase of those cows that I bought of my father. The five head of young stock was the increase from the cows that I bought.” It will be seen that the defendant only claimed that he bought one of the young cattle from any person other than his father. He says he bought a cow and a calf, but fails to say that his father was not the vendor thereof. On his cross-examination he changed his testimony as to his alleged purchase from Thedy, and testifies that the five head of young cattle which the plaintiff recovered in the action were all of them the increase of the cows conveyed to him by the intestate. As to creditors such increase belonged to the estate. We think the motion for a new trial was properly denied.

The judgment of the circuit court must be affirmed.

By the Court — Judgment affirmed.