184 Ky. 400 | Ky. Ct. App. | 1919
‘Opinion op the Court by
Affirming.
On November 11,1913, Joseph Rudd, a widower, and Belle French, a widow, married, and continued as husband and wife, until January 20, 1916, when the husband died. He was seventy-six years of age, at the time of his «death, and, by a former marriage, was the father of seven children, who were living, and two, who were dead. Each, of the latter, left a number of children, surviving him. The living children of Joseph Rudd, were all mature persons, and some of them had passed the middle «of life. The widow, Belle French, owned a small farm, upon which she lived. She owed a note, for the sum of $400.00, which seems to have been a lien upon her lancl.
The administrator, the widow and one of the daughters of decedent, who had not been permitted to share in the distribution of his property, brought this action against Abner Rudd and the other heirs of decedent, and sought the recovery of the money and the proceeds of the notes, and for a distribution of same among the widow and heirs, in accordance with their legal rights. They alleged, that Abner Rudd had secured the money and notes under an arrangement with the decedent, and had kept the greater part, himself, but, distributed portions to others of the defendants in fraud of the rights of the widow, and the other heirs of the decedent, who at the time of the transaction between him and Abner Rudd, by which the latter secured the possession of the money, was so infirm and imbecile, that he did not know the quality of his actions, and was procured to deliver the possession
This paper was subscribed on the 25th day of January, 1916, at the time, when Bela Rudd informed the widow of the death and burial of her husband, and the paper recited, that the widow in consideration of retaining the personal effects of her husband, which were in her possession, except his trunk and pictures and the contents of the trunk, x-elinquished all claim to any of his personal effects in Bracken and Pendleton counties, and Bela Rudd, for the heirs of decedent, agreed to pay all •the burial expenses, and all debts, which the decedent
It should be stated, that the same person, who was the-draftsman of the writing between Abner Rudd and the-decedent, and which was executed at Brooksville, accompanied Bela Rudd to the home of the widow, in Pendleton county, and there, prepared the writing, which was. subscribed by the widow and Bela Rudd for the heirs of Joseph Rudd. Under the contract between Bela Rudd and the widow, she only retained of her husband’s estate, certain articles of bed clothing, and probably, a few other-household articles of comparatively small value. The-only thing of any value in the house of the widow, was sl mortgage, for the sum of $150.00, payable to the decedent, and secured by a lien upon a horse and mule, and this, Bela Rudd obtained under the contract, and carried away with him, but it seems thereafter to have gone into» the hands of Abner Rudd. After hearing the evidence-offered in the case, the court sustained a motion for a rule against Abner Rudd, to show cause why he should not pay into court the sum of $1,701.75, as the-money received from his father, Joseph Rudd. To this rule, he responded, that he received from his father.* only the sum of $1,551.75 in trust, to pay it in equal amounts to- the six children of decedent, namely, Bela Rudd, Webb Rudd, Isaac Rudd, Julia Rudd, Lizzie Rudd and himself, and that he had, long since, executed the trust, by retaining-one-sixth of it himself, and paying one-sixth of it to each of the others named, and that he had made this division after the payment of the burial expenses and other expenses incident to the sickness of his father, and that he-did not have the money then in his possession, or under his control, and that the only money, he had in his possession, was $1,500.00, which he-had received as the price of a farm, which he had sold,’and which was his homestead. The response was adjudged, insufficient, and the rule made absolute, and he was adjudged to be in conT tempt of the court, and that he could purge himself of the contempt, by paying into court, the sum of $1,182.76, and an order of an arrest was directed to be issued, and' the officer directed to execute it, by arresting Him,, and
Abner Rudd knew, that he was acquiring possession of the entire estate, as he, after the death of decedent, received the benefits of the $150.00 mortgage. He was obliged to know, that the arrangement was a fraud upon the rights of the widow. The right of a father to give, to his children, during the existence of a marriage relation, gifts of property if done under circumstances, which evidence good faith, is not questioned, but, when it is made with the purpose of defrauding the wife, it will be set aside, at least to the extent, that it affects the wife. Manikee’s Admr. v. Beard, 85 Ky. 20. In Murray v. Murray, 90 Ky. 1, it was said: “ If, however, a gift or voluntary conveyance of all or the greater part of his property be made to his children by a former marriage without the knowledge of the intended wife, or it be advanced to them after marriage without the wife’s knowledge, a prime case of fraud arises, and it rests upon the beneficiaries to explain away the presumption.” Redmond’s Admr. v. Redmond, etc., 112 Ky. 760; Petty v. Petty, 4 B. M. 216; McAfee v. Ferguson, 9 B. M. 475; Fannessey v. Fannessey 1 R. 328. If the deceased was not unduly influenced to make the disposition, he was, also, a party to the fraud. If imbecile and overcome by undue influence, the transaction was void, and subject'to attack by his administrator, or any of his heirs. Aside from the question of fraud, or undue influence, the writing, entered into, appears to have been in the nature of a testamentary disposition, as by its terms, the decedent retained control of the fund as long as he lived, and the distribution made by Abner Rudd, was to take place after the decedent’s death. The paper was not executed so as to make it a valid testamentary disposition, and hence, it could have no validity after decedent’s death, and the property in the hands of Abner Rudd, was undevised estate and passed as the property of an intestate. When Abner Rudd undertook then to distribute it,- he became an executor cle son tort. It was held in Hopkins v. Towns, 4 B. M. 124, that one who takes or has in his possession property of a deceased person under a fraudulent conveyance from him, thereby became an executor dé son tort. In 11 R. C. L. 458, citing Rohp v. Rohn, 204
The writing entered into between the widow and Bela Budd, as agent for the heirs of decedent, five days after his death, and when the widow had just been informed thereof, does not present any defense to the' judgment making the order complained of. In the first place, it does not appear, that he had any authority to represent the heirs, especially those, who never ratified his acts by receiving any of the benefits of the contract. The contract was without consideration upon the part of the widow, as she received nothing under it. True she had a right to give all the portion of the estate to which by law she was entitled, to the heirs of her deceased husband, but there is no pretense, that she intended or undertook to do this. She seems to have had some information received from her husband, as to the amount of his estate, or at least to what it had been, and that it was in the hands of Abner Budd, but, at the time of the contract, Bela Budd, who came directly from the scene of Ms father’s death and from where his estate was supposed to be, represented, that there was not a sufficiency of it to pay the burial expenses. The writing prepared and signed to evidence the contract, according to its draftsman, was not written as he intended it, or as he explained its contents. It does not appear, that she had sufficient knowledge as to the amount of the estate, and made the contract understandingly, so as to be bound when there was no consideration for its execution upon her part, and she was relying upon the representation, that there was not a sufficiency of it to pay the burial expenses. The $400.00 note, which decedent paid for her, did not make a consideration to support the contract, as the answers
Had the court authority by a rule to require appellant to pay the money into court, and if so, could it compel obedience to its order by the process of attachment and imprisonment? It is insisted by appellant, that the judgment is one for the recovery of money, and to imprison him for failure to obey the order, is imprisonment for debt, and that same is in violation of the law of the state, as well as certain provisions of the Federal Constitution. While a commitment for contempt for failure to obey an order to pay money, is not an imprisonment for debt, as will be hereafter shown, there is no provision of the Federal Constitution, which prohibits imprisonment for debt under a judgment of a state court, and the provision of the Constitution of this State, upon the subject is section 18, which is as follows: “The person of a debtor, where there is not strong presumption of fraud, shall not be continued in prison, after delivering up his estate for the benefit of his creditors, in such manner as shall be prescribed by law.” The manner prescribed by law is sections 2180 to 2185, inclusive, Ky. Stats. It will thus be observed, that there is no constitutional provision of this state, which prohibits imprisonment for debt, but, the provision of the Constitution prohibits the continuing of a debtor in prison after he has delivered up his estate for the benefit of his creditors, unless there is a strong presumption, that the debtor has not made a bona fide delivery of his property. The statutes, however, govern the authority to imprison for debt. Two writs are provided for the collection of judgments m personam, for money, at law. Upon a judgment, for a trespass vi et armis, for seduction, slander, written or verbal, or for malicious prosecution, except when against
In jurisdictions, where the power to imprison for debt is prohibited by law, it is generally held by the courts that an attachment and imprisonment for contempt in disobedience of a court’s orders to pay over money, is not imprisonment for debt, but, the punishment rests upon the power of the court to vindicate its authority and to punish for disobedience of it. In Re Meggot, 105Wis. 291; Lester v. People, 150 Ill. 420; Bristol v. Pearson, 109 N. C. 718; Jastram v. McAuslan, supra.
The appellant can purge himself, by paying over the money ordered, and is able to do so.
The judgment is therefore affirmed.