66 Ky. 343 | Ky. Ct. App. | 1867
delivered the opinion oe the court:
Prior to the 12th of Aughst, 1850, Bushnell Willey died intestate, in the county of Bourbon, but was a resident of the county of Harrison. On the day above named, administration on his estate was granted .by the Harrison .county court to Susan Willey, his widow.
In less than- one year after the grant of administration to Mrs. Willey, she intermarried with W. S. Young, and it seems they proceeded to administer the estate until 1855, when they had a settlement of the administration with the presiding judge of the Harrison county court, by which it appears that the administratrix had paid off debts of decedent two hundred and seventy-five dollars and thirteen cents more than she had received assets.
That settlement was, in proper time, confirmed by the jHarrison county court, and its correctness not questioned nor impeached .until the 28th of November, 1859, when an action was brought by appellants against Young and
After the recovery of the judgment just named, they instituted another action against the same defendants, alleging that.Young and wife had not accounted for the whole of the personal estate of their intestate; that they had in their possession a valuable negro woman and children of the estate of said intestate, worth between four thousand dollars and five thousand dollars, and of value sufficient to pay their debts; make their former' judgment an exhibit; charge that Young and wife had wasted and failed to account for four thousand dollars of estate which belonged to intestate, and' finally recovered judgment against the defendants for that sum, with interest from the 12th of November, 1860, the date of their judgment.
On appeals prosecuted by the defendants to said actions, both of said judgments were reversed by this court in June, 1863.
Upon the return of the cause to the court below; appellants filed an amended petition, alleging that Young and wife had failed to account for all the assets; that they had converted some slaves of intestate, of value sufficiént to pay their debts, and sought a judgment for the value of said slaves.
In an amended petition, they allege that Willey, at his death, was the owner of two hundred acres of valuable land in Harrison county, purchased of Sail, his wife’s
In July, 1863, administration de bonis non was granted, by the Harrison county court, to Joseph B. McClintock, on the estate of said Willey, who was made a defendant by the amended petition, and the cause transferred to the equity docket.
On the hearing, the court below rendered judgment against McClintock, administrator de bonis non, for four thousand nine hundred and twenty-seven dollars and fifty-one cents, with interest from the 21st of October, 1859, till paid, and costs, to be levied of assets in his hands unadministered; and as to the other defendants, dismissed the plaintiff’s petition without prejudice at their costs; and that judgment they now seek to reverse.
It is shown by the settlement of the administration accounts of Mrs. Young, and of herself and husband, .that she sold the perishable property, and a part of the slaves of decedent, sufficient to pay his debts, so far
Neither Mrs. Young, before her marriage with Young, nor herself and husband since then, sold any more of the slaves of intestate than were necessary to pay debts of which they had notice. Upon her marriage, her authority as administratrix ceased, as this court decided; no admintrator de bonis non was appointed until July, 1863 ; no one either sought or was authorized to take.the slaves from her custody up to that time; and if no debts required it, they were rightfully in her possession; she supposing, doubtless, in the absence of any knowledge of appel
If, after administration de bonis non was granted to McClintock in July, 1863, the slaves were of any appreciable value, we are not prepared to say that he should be made responsible for them because he failed to take them in his possession, or to institute proceedings to recover them, especially in the disturbed condition of the country at that time, and the precarious tenure by which slave property was held, of which courts will take judicial notice.
^Whether the land purchased by intestate of Sail, and conveyed to Mrs. Young, should have been subjected to appellants’ demands, is the next question to be disposed of, which involves an inquiry whether the mere indebtment of a party constitutes, per se, conclusive evidence of fraud in a voluntary conveyance, procured to be made
It was formerly held, by some of the most enlightened judges of England and America, that if a voluntary settlement be made on the wife, or children of a grantor, who is indebted at the time of the settlement, it was presumed to be fraudulent, and no circumstance would permit the pre-existing debts' to be affected by the settlement. And in Read vs. Livingston (3 Johnson’s C. R., 481), Chancellor Kent, at the conclusion of an elaborate opinion, declared, as the settled doctrine on the subject, “that fraud in a voluntary settlement was an inference of law, and ought to be so, so far as it concerned existing debts. But as to subsequent debts, there was no such necessary legal presumption, and there must be proof of fraud in fact; and an indebtment at the time, though not amounting to insolvency, must be such as to warrant the conclusion.” This opinion has been overruled in New York, and the doctrine, thus broadly laid down, almost universally exploded. A voluntary deed, made to a wife or child, with the fraudulent intent as ‘ to existing debts, or with a design to future indebtedness, "would b.e pronounced void, both as to prior and subsequent creditors, because of the ill-faith
The rational and true doctrine on the question is laid down by Judge Story (Story's Equity, section 362), as follows: “ The mere fact of indebtment at the time does not, per se, constitute a substantive ground to avoid a voluntary conveyance for fraud, even in regard to prior creditors.”
The question, whether it is fraudulent or not, is to be ascertained, not from the mere fact of indebtment at the time, but from all the circumstances of the case; and if the circumstances do not establish fraud, the voluntary conveyance is deemed to be above all exception. The language of the court in the case in which these principles are enunciated is as follows: “A deed from a parent to a child for the consideration of love and affection is not absolutely void as against creditors. It may be so under circumstances; but the mere fact of being indebted to a small amount would not make the deed fraudulent, if it could be shown tbmt the grantor was in prosperous circumstances and unembarrassed, and that the gift to a child was a reasonable provision according to his state and condition in life, and leaving enough for the payment of the debts of the grantor. The want of a valuable consideration may be a badge of fraud, but it is only presumptive, and not conclusive evidence of it, and may be met and rebutted by evidence on the other side.” And he farther remarks: “ This language, it should be remembered, was used in a case where the conveyance was sought to be set aside by persons claiming as judgment creditors upon antecedent debts.”
In Enders vs. Williams, 1 Met., 347, it is said: “A distinction, however, has been made, so far as creditors are concerned, between a voluntary conveyance to the grantor’s children and to strangers. In the former case, where there is no actual fraudulent intent, and the gift is a reasonable advancement to the child, considering the donor’s condition in life, and there is ample estate left unencumbered for the payment of his debts, then such conveyance will be valid even against antecedent creditors.”
In the case at bar, it is not alleged that there were any debts owing by intestate at the time the conveyance was made to his wife; and it appears, from the notes sued on, that but one of the debts now claimed and sued for had been then contracted, and, from what is exhibited in the record, the husband had ample unencumbered estate to pay that debt. Indeed, it is not alleged that the deed was procured to be made to the wife with any design on the pai’t of the husband to prevent his creditors from collecting their debts, or with any fraudulent purpose. And, although Curry proves the deed was made to the wife by intestate’s vendor, by his express direction, the charge is not made of a fraudulent intent on his part; that there was not a sufficiency of unencumbered property left to
It should be observed, that the conveyance in this case was not made by Willey to his wife, but by his vendor; and, in Doyle and others vs. Sleeper and Alsop, 1 Dana, 531, this court held, that the statute was never applied to purchases by a debtor, but has been construed to operate only on conveyances by him (which see, and authorities cited to sustain the position). But, for reasons before stated', there was no error in the judgment prejudicial to appellants.
A cross-appeal has been allowed, but no brief has been furnished; consequently, the cross-appeal will not be considered, but the same is dismissed, and judgment affirmed on original appeal.