Small v. Small

56 Kan. 1 | Kan. | 1895

The opinion of the court was delivered by

Martin, C. J.

: Many questions respecting rights as well as remedies have been presented, and very ably argued orally and in the voluminous briefs of counsel, but we have found it necessary to decide only one of them. The underlying question is whether, under the laws of Illinois or of Kansas, the several gifts and advancements made by Daniel Small to his children are to be treated as fraudulent and void as to his widow. Most of these gifts and advancements were made without the knowledge of Rebecca Small, and Daniel Small appears to have enjoined upon his children that the subject should not be mentioned to her, nor in her presence. Secrecy is often called a badge of fraud, -but it is not fraud itself. If a man’s disposition of his property is fair and lawful, the concealment of the transaction cannot render it fraudulent. Tf the rights of the children were dependent only iqion the trust agreement of March 19, 1878, it is doubtful if they could stand tlie test of law and equity, for, notwithstanding the trust appeared upon its face to be a valid disposition of the property and securities therein mentioned, such as would be binding upon Daniel Small, yet the trusteeship of Darius Small seems to have been only nominal, and Daniel Small virtually controlled the property, and did as he pleased respecting it, just as he had done before ; his son, Eli D. Small, the nominal attorney in fact of the trustee, merely assisting in the transaction of the business of collecting and reinvesting. If Daniel Small had .died while the securities were in this condition and the Kansas lands in the name of Darius Small as tru'stee, probably it should be said that all belonged in equity to Daniel Small and formed part of his estate upon his death ; but a considerable portion of the so-called trust fund was invested in the Kansas lands and improvements thereon, and both Daniel Small and the trustee, through his attorney in fact, conveyed the lands to the sons and the daughter absolutely in 1886. The advancements were made in 1882, and prior thereto, and we suppose they formed part of said trust fund and its accumulations, and 19 days before the death of Daniel Small he made the final gift, exceeding $100,000. On April 1, 1888, two weeks before his death, Daniel Small had no control in law or equity of the money advancements, the Kansas lands, nor the notes, securities, etc., which were the subject of the gift of March 26, 1888. All were valid dispositions as to him, and lie could not have recovered a dollar thereof from his children. Upon his death they therefore formed no part of his estate, unless upon some established principle of law or equity his widow had a light to so consider them. And this brings us to the main question in the case, namely, under the laws of Illinois and of this state may a married man during coverture, as against any post-mortem claim of the widow, give away to his children the bulk of his property when the known effect of so doing is to diminish the share which she would have been otherwise entitled to upon his death? In this state there are some limitations upon the right of disposition of real property by a husband where the wife is a resident of this state ; but section 8 of our act concerning descents and distributions (Gen. tftat. 1889, ¶ 2599), which allows to the widow one-half in value of all the real estate in which the husband at any time during the marriage had a legal or equitable interest, not sold at judicial sale, and not necessary for the payment of debts, and to which the wife has made no conveyance, provides further, that the wife shall not be entitled to any interest under said section in any lands to which the husband has made a conveyance, when the wife at the time of tire conveyance is not, and never has been, a resident of this state ; and in Buffington v. Grosvenor, 46 Kan. 730, it was held that this proviso is constitutional. Under this decision Rebecca Small is cut off from any claim of right, title or interest in the Kansas lands, and the court below was correct in so holding.

The advancements of money and the gifts of notes and securities of March 26, 1888, were made in Illinois, and, if lawful there, we should probably so consider them here, even though invalid if made in this state ; and this leads us to a consideration of the laws of Illinois applicable to this subject. The controversy constituting the subject-matter of the cases of Padfield v. Padfield in its several aspects was three times before the supreme court of Illinois, and received very full consideration. (68 Ill. 210; 72 id. 322; and 78 id. 16.) It was finally held in the last suit, which was brought by the widow, that any disposition of personal property and credits by a husband in good faith, where no right or interest is reserved to him either present or ultimate, though made to defeat the rights of his wife, will be good against her; and that there is nothing in the statute respecting the estates of deceased persons that in the slightest degree prevents the husband from disposing of his personal property free from any claim of his wife, whether by sale, gift to his children, or otherwise, in his lifetime. The court quotes approvingly from a note in Kerr on Frauds and Mistakes, 220, as follows :

"There can be no doubt of the power of a husband to dispose absolutely of his property during his life, independently of the concurrence and exonerated from the claim of his wife, provided the transaction is not merely colorable, and be unattended with circumstances indicative of fraud upon the rights of the wife. If the disposition of the husband be bona fide, and no right is reserved to him, though made to defeat the right of the wife, it will be good against her.”

And the court refers to Dunnock v. Dunnock, 3 Md. Ch. 140 ; Cameron v. Cameron, 10 Smedes & Mar. 394; Lightfoot v. Colgin, 5 Munf. 42 ; Stewart v. Stewart, 5 Conn. 317; and Holmes v. Holmes, 3 Paige, 363, as fully supporting the doctrine. The court further says :

"Again, the act of 1861, known as the ‘Married Woman’s Law,’ confers upon femes covert the power of disposing of their separate property, absolutely and as they may choose, free from the control of their husbands. It was manifestly the intention of the general assembly to confer on married women the same and no greater rights, in regard to their property, as were possessed by their husbands. It would be singular, and we cannot suppose that the legislature could have intended to confer other or greater power on the wife than upon the husband. To hold that a feme covert has a vested interest in her husband's personal estate, that he is unable to divest in his lifetime, would be disastrous in the extreme to trade and commerce. Owing to commercial necessities, personalty must be left free for exchange, and, to be so, some one must be vested with full power to sell and transfer it free from latent and contingent claims.”

It is contended by counsel for Rebecca Small that section 4 of the Illinois statute of frauds was amended in 1874, after the rights in the Padfield cases had vested, so that gifts made with intent to defraud ‘‘ creditors or other persons' ’ (the last three words having been added) were declared void, and that a widow comes within the designation of “other persons,” and therefore the doctrine in the last Padfield case is changed by statute, and that this is recognized in Tyler v. Tyler, 126 Ill. 525. In that case it appears that William A. Tyler, in anticipation of proceedings by his wife against him for separate maintenance in Broome county, New York, ■went to Conneaut, Ohio, and assigned and delivered to his son, John B. Tyler, a large amount of notes, bonds, and mortgages, and also indirectly transferred to him certain lands. The suit was brought by the wife soon after the transfer. Afterward, William A. Tyler commenced an action in Illinois against his son to compel a reassignment of said notes, bonds, and mortgages, and a reconveyance of the lands ; but it was held by the supreme court of Illinois that the action could not be maintained, said William A. Tyler having transferred the property with intent to defraud the wife, and to render any judgment for separate maintenance ineffectual, the wife coming within the designation of “other persons” in said section 4 of the statute of frauds as amended. The Padfield cases are not overruled, distinguished, nor otherwise referred to, but the case follows Draper v. Draper, 68 Ill. 17, where it was held that a conveyance, after bill filed for divorce and alimony, with intent to deprive the wife of alimony, was fraudulent, and should be set aside. The phrase “ other persons’ ’ probably would not include a widow seeking to enforce her rights under the'statute of descents and distributions. When general words follow particular and specific words, the former must be confined to things of the samekind. ( Suth. Stat. Const. §§ 268, 278,277 ; Guptil v. McFee, 9 Kan. 30, 37; White v. Ivey, 34 Ga. 186, 199; The State v. McGarry, 21 Wis. 496, 498.) The word ‘ ‘ creditors ’ ’ serves to limit and control the generality of the following words “ other persons ” so as to include only those of like or similar kind and nature to creditors.

There seems to be a distinction between the rights of a widow and those of a wife driven by the aggressions of her husband to a suit for alimony or separate maintenance. In the latter case the wife is seeking to establish an unliquidated claim against her husband for money or property, and her relation to him is that of a quasi creditor. This dissimilarity is pointed out by Agnew, J., in Bouslough, v. Bouslough, 68 Pa. St. 495, 499, as follows :

“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.”

Recognizing this distinction, it would seem that Rebecca Small, while residing with her husband in the most amicable relations, could not have maintained an action to set aside or annul the advancements and gifts to the children, nor to compel either her husband or the children to account to her for the same; and, as these advancements and gifts were valid as to her and valid as to Daniel Small when made, they formed no part of the estate at his death. But we need not go so far in this case.

The reasoning in Padfield v. Padfield, supra, as to the ‘‘ Married Woman’s Law” in Illinois is of much force here. In some states property acquired during coverture is known as “community property,” and partakes to some extent of the nature of partnership property between husband and wife ; but our legislation is in the opposite direction, manifesting a purpose to maintain, as far as practicable, the separate rights of husband and wife as well to accumulations during as before the existence of the marriage relation, and each is entitled to dispose of his or her own goods and chattels, with a slight modification as to mortgaging the same. Some of our former decisions have accorded in spirit with the doctrine established in Illinois. (Butler v. Butler, 21 Kan. 521, 525, 526; Munger v. Baldridge, 41 id. 241-244.) The cases of Busenbark v. Busenbark, 33 Kan. 572, and Green v. Green, 34 id. 740, both relate to protection of the husband and wife, respectively, during coverture from fraudulent alienation of real estate by the other, and are only remotely analogous to the case now under consideration.

In Williams v. Williams, in tlie circuit court of the United States for the district of Kansas, (40 Fed. Rep. 521,) Foster, J., delivering the opinion of the court, said :

“The main question, in its broadest sense, is simply this : Can a married man give away his property, during coverture, for the purpose of preventing his wife from acquiring an interest therein after his death? The law seems to be that, if such gift is bona fi.de and accompanied by delivery, the widow cannot reach the property after the donor’s death. . . . Neither the wife nor children have any tangible interest in the property of the husband or father during his lifetime, except so far as he is liable for their support; and hence he can sell it or give it away without let or hindrance from them. Of course the sale or gift must be absolute and bona fide, and not colorable only. And if the sale or gift would bind the grantor, it would bind his heirs.”

We ,are aware that the authorities are not all in harmony upon this subject, but the cases asserting a contrary doctrine are generally under statutes or customs different from those of Illinois and Kansas ; and we think the weight of authority in states having statutes upon this subject of the same general nature as our own establishes the doctrine herein announced. We cite some authorities in addition to those hereinbefore given, viz. : Pringle v. Pringle, 59 Pa. St. 281 ; Lines v. Lines, 142 id. 149; Richards v. Richards, 11 Humph. 429 ; Sanborn v. Goodhue, 8 Foster, 48 ; Ford v. Ford, 4 Ala. (N. S.) 142, 146 ; Smith v. Hines, 10 Fla. 258, 285; Stewart, Husb. & Wife, §301; Thornt. Gifts & Adv. § 488.

We are of opinion that the rights of Rebecca Small are controlled by the will and the contract of May 9, 1888. If there was any real estate or personal property in Illinois or elsewhere not disposed of by the will nor included in the contract, of course she is entitled to her proper share of the same.

The judgment will be reversed, and the case remanded for further proceedings in accordance with this opinion.

All the Justices concurring.