73 Vt. 88 | Vt. | 1901
The defendant was indebted to his wife, the claimant, in the sum of $477 for money loaned by her to him at different times after their marriage, part of which sum was hers in her own right before marriage, and part she borrowed of her brother. These loans were made by her to- her husband upon his promise toi repay the same, but there was no- agreement to pay interest.
The defendant owed the plaintiff for services in securing a pension for him on account of disabilities received by him as a soldier, and ‘had promised to pay him when he got his pension. He subsequently received a pension check for $1,287.80, which he gave to his wife, and it was then agreed between them that she should have $500 of the pension money in payment of what he owed her. She kept the check about two weeks and then handed it to her husband to take to a bank to be cashed. The bank held notes against the defendant secured by a mortgage upon his homestead, and from the avails of the pension check the defendant paid the bank the amount of his notes, took $167 in money and the remainder, $600, in six bank checks of $100 each payable to himself, which he took home and delivered to his wife, agreeing with her that five of them belonged to her, and one he kept himself. She took and retained them until they were passed to the trustee. The defendant in his wife’s presence made a loan of $600 to- the
The commissioner finds that the defendant intended to pay and did pay this debt to his wife in preference to his other creditors. The court below held the trustee chargeable for the $23, the claimant and trustee excepting.
Upon the finding of the commissioner, when the claimant recived the pension check from her husband, by her agreement with him she had a property in it of $500, and the five bank checks were her property, as part of the pension check, and the $500 note which the trustee gave her for the five checks was hers also.
Nothing appears to have been said about interest when the $477 was paid, and the $23 cannot be considered as interest eo nomine, yet is is evident that the $500 was given by the defendant to his wife in consideration of her loan to him of $477, and as it was then a part of his pension money, his right to dispose of it in payment of this debt cannot be questioned. Sec. 4747 R. S. of the U. S. is as follows:
“No sum of money due, or to become due, to any pensioner, shall be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, whether the same remains with the Pension Office, or any officer or agent thereof, or is in course of transmission to the pensioner entitled thereto, but shall inure wholly to the benefit of such pensioner.”
The only question then is whether the $23, which was the ■difference between the defendant’s debt against her husbandand the $500, was attachable upon the defendant’s debt to the plaintiff. We hold that it was not for it was evidently paid as a compensation for the loan. It was also valid as a gift, •as it was made from the defendant’s pension which inured wholly to his benefit. This is so held in Hayward v. Clark, 50 Vt. 612, which, to this extent, is held good law in Martin v. Hurlburt, 60 Vt. 364.
Judgment reversed; judgment that the trustee is not ichargeable; that the claimant is entitled to the funds in controversy, and that the trustee and claimant recover costs.