Bouslough v. Bouslough

The opinion of the court was delivered,

by Agnew, J.

The record shows that William Bouslough was served as garnishee in his own right, and as executor of Jacob Bouslough, and that Henry Fleck was also a garnishee. The plea of nulla bona was entered generally for both the garnishees, and the trial had apparently on this issue. There is seeming error therefore in entering a special judgment against William Bouslough as executor, on what appears to be a general verdict against both the garnishees. But in point of-fact the jury was sworn as to William Bouslough as executor only, the judgment was so entered, and he as executor only has taken this writ of error. Under these circumstances the error is only formal, and we must treat the record as amended, as was done in Flanagin v. Wetherill, 5 Whart. 280, rather than reverse the judgment contrary to the merits of the case.

The jury did not find what goods or effects were in the hands of William Bouslough, executor, according to the 58th section of the Act of 13th June 1836. This raises a more serious question. The omission would be an error in ordinary cases of' foreign attachment under the Act of 13th June 1836, and of attachment execution under the Act of 16th June 1836 : Hampton v. Matthews, 2 Harris 105; Poor v. Colburn, 7 P. F. Smith 415. It would be an error even under the Acts of 27th July 1842 and 13th April 1843, subjecting legacies, distributive shares, &e., to attachment, as these acts were construed in Bank of Chester v. Ralston, 7 Barr 482, and McCreary v. Topper, 10 Id. 419, holding that the attachment would not lié until the distributive share or other interest had been ascertained by an account settled. But a new aspect was given to the subject when the Act of 10th April 1849 was passed subjecting the interest which any person has in the real or personal estate of any decedent to attachment as soon as the same shall have accrued by the death of the decedent; and when also the decisions were made in Chambers v. Baugh, 2 Casey 105, Sinnickson v. Painter, 8 Id. 384, and Lorenz’s Adm’r. v. King, 2 Wright 93, that the attachment is not premature though served before the final settlement of an account, or a decree of distribution. The legacy share or interest in the estate being now subject to attachment as soon as it accrues, and before it has been ascertained by any decree in the Orphans’ Court, it is impossible for the jury to comply with the provision in the 58th section of the Act of 13th June 1836, by finding what goods or effects were in the hands of the garnishees at the time of the execution of the attachment and the value thereof. There are the demands of the creditors of the decedent himself, which must be ascertained and be satisfied before anything can remain for the legatees or next of kin. Then there are the questions of debt and advancement between the estate and the distributee or legatee, which must be settled before the share or legacy can be ascertained. The attachment transfers to the attaching creditor only the right of the debtor in the estate, subject to all claims of the garnishee as the representative of the estate in his hands: Sect. 2d, Act. 27th July 1842, sect. 10th, Act 13th April 1843; and see Strong’s Ex’rs. v. Bass, 11 Casey 333; Lorenz’s Adm’r. v. King, 2 Wright 97. Thus it is evident that a jury in order to find the sum due or coming to the debtor from the garnishee as executor or administrator, would be compelled to settle the administration account itself, a thing improper, inconvenient and belonging to the Orphans’ Court alone. The requisition of the 58th section of the Act of 13th June 1836 is therefore inapplicable to attachments under the Acts of 1842 ,, and 1843 upon legacies, distributive shares and other interests in the unsettled estates of decedents.

It is true as a general proposition that a wife who does not stand in the relation of a creditor to her husband, cannot set aside his voluntary alienation of his personal estate made in his lifetime: Pringle v. Pringle, 9 P. F. Smith 281; Clark v. Clark, 6 W. & S. 85. Indeed, he cannot avoid his own conveyance or gift even though fraudulent as to creditors. The same rule follows the estate into the hands of his executor or administrator, who cannot set aside the fraudulent act for the benefit of his heirs or next of kin. But when the interest in the subject changes, a different rule prevails. Therefore the executor or administrator may set up the fraud, and avoid the act of the decedent for the benefit of creditors where the estate is insolvent: Buehler v. Gloninger, 2 Watts 226; Stewart v. Kearney, 6 Watts 453. So also arrears of alimony unpaid at the death of the wife, cannot be collected by her adminisitrators. Yet the rule changes if the husband has evaded payment and thereby compelled the wife to contract debts, and there the administrator may recover the arrears for the benefit of the creditors. So the rule that forbids the wife to avoid the voluntary assignment or gift of her husband, must change when her relation to him changes. There is no reason why a wife whose husband has deserted her, and refused to perform the duty of maintenance, or who by cruel treatment has compelled her to leave his house, and commence proceedings for divorce and maintenance, should not be viewed as a quasi creditor in relation to the alimony which the law awards to her. So long as she is receiving maintenance, and is under his wing as it were, she is bound by his acts as to his personal estate; but when she is compelled to become a suitor for her rights, her relation becomes adverse, and that of a creditor in fact, and she is not to be balked of her dues by his fraud. But it is argued that this cannot exist until a decree be made for the alimony. But why is her case before the decree not as much within the spirit and intent of the statute of the 13th Elizabeth, as that of a subsequent creditor who was intended to be affected by a deed made before his debt was contracted, but in view of it. It is not doubted that a voluntary conveyance made in contemplation of future debts to be contracted, and with a view to defeat them, are within the spirit of that statute though not within its letter: Thompson v. Dougherty, 12 S. & R. 448; Snyder v. Christ, 8 Wright 506; Ammon’s Appeal, 13 P. F. Smith 284. Indeed, her right stands on higher ground: for the duty of maintenance existed before he made his assignment. The latter was made in 1861, while the proceeding for the divorce was commenced in 1860.

We are of opinion therefore that the assignment by Jacob H. Bouslough to Philip Bouslough, of all his interest in his father’s estate, made, as the jury have found, with intent to defeat the plaintiff of her claim for alimony, falls within the spirit and intent of the statute of 13th Elizabeth, and is avoided by it. That alimony in its nature falls clearly within the class of subjects provided for in the statute, may be seen by a reference to Heath v. Paige, 13 P. F. Smith 108.

The last objection to be noticed is that an attachment execution will not lie upon a decree for alimony. However difficult it might have been to support the attachment before the passage of the Act of 15th April 1845, Brightly 350, pl. 25, the difficulty does not now exist. That act gave the decree the force and effect of a judgment as a lien upon the real estate of the husband, and provided a remedy for its collection by execution; and also gave authority to the court to exact security from the husband for its payment, if the husband be possessed of sufficient estate for its payment; and the lien of the decree be inadequate as a security. Sufficient estate here means personal as well as real. If, therefore, he be the owner of bonds, mortgages, stocks, and other choses in action, he can be compelled to give security. But if he have alienated them with intent to defraud the plaintiff, why shall she not have the proper process to reach and secure them ? The attachment execution is an execution, and has been always so' classed since the Act of 1836, relating to executions; which gave it as a remedy to reach those rights of property which could not be reached by a fi. fa. There is no reason, therefore, that the term execution as used in the Act of 1845 should be confined to a fi. fa. On the contrary the Act being remedial and intended to secure to the wife the collection of her alimony, and the attachment execution being most appropriate to this end, on every proper rule of interpretation we must hold that the general term “ execution ” in the Act includes an attachment execution. Upon the whole, finding no error in the record,

The judgment is affirmed.