57 F. 133 | U.S. Circuit Court for the District of Northern California | 1893
(orally.) Plaintiff sues as administratrix of ihe estate of William P. Smith, deceased, to recover the sum
“Chicago, April 4, 1891.
“For value received, I hereby sell, assign, and transfer to John B. Murphy all of the property, effects, dioses in action, and things of value hereinafter mentioned, and all my right, title, and interest therein: A judgment note, made by Morris J. Allburger for $8,700 or thereabouts; a policy in the N. X. Mutual Insurance Company for $3,000 or thereabouts; accounts due mo as shown by my books, and said books; my horse and buggy; all my stock bonds iu all corporations and associations; all my library, books, instruments, office furniture, and effects of every kind soever. And I hereby authorize said Murphy to take immediate possession thereof, or possession thereof at any time hereafter. " ■ ffm. F. Smith.. [Seal.]”
This hill of sale is set up as a defense by the defendant, claiming it to he an assignment of the policy. There is no doubt the policy referred to is the policy sued on in this case. At the time of the execution of said hill of sale, Smith made his last will, by which bequeathed all his estate to Elizabeth C. Merrill, subject to the payment to Dr. Murphy of $3,400, $50 to his son, and $50 to plaintiff, whom he described as formerly his wife. He appointed an executor, but the latter declined to act, and letters of administration with the will annexed were taken out by the Jennings Trust Company of Chicago, who brought suit on the policy of insurance in Illinois against defendant. This suit is also pleaded as a defense, and it is hence contended that the power to recover on the policy is in the Illinois administrator, where Smith resided and died, and not in California, where the policy was at the time of his death, and now is.
In the case of Insurance Co. v. Woodworth, 111 U. S. 138, 4 Sup. Ct. Rep. 364, one Ann E. Woodworth was insured in the New England Mutual Life Insurance Company, she being at that time a resident and domiciled, in the state of Michigan. She died in Seneca Falls, N. Y. After her death her husband removed to the state of Illinois, and took out letters of administration, then having in his possession the policy of insurance. It was held by the court that
The plaintiff was not only the wife of decedent, but she was a creditor also, she having obtained a judgment against him for alimony, which, at the time of his death, was unpaid; and the evidence, in my opinion, shows that the assignment to Dr. Murphy was made to defraud her, and to give his property, after the satisfaction of the doctor’s claim, to Miss Merrill, the residuary legatee of his will. A motive for this purpose the testimony of witnesses for defendant supplies. To-the lawyer who'drew the assignment and will Dr. Smith expressed the utmost aversion Cor his wife, the utmost affection for Miss Merrill. He virtually disinherited his minor son. The sum of $50, which he bequeathed to him, was not a substantial bequest.
Of the property described in the hill of sale a portion exclusive of stock was sold for $1,350. Certain of the stocks were sold for $380. The other stocks are said to be worthless, and the judgment against Allburger is also said to be worthless. The policy of insurance was good, absolutely good, for $5,000, making, therefore, property to the value of $6,730 conveyed for $3,400, — not to secure, hut to pay $3,400,- — for Dr. Murphy distinctly testifies that the bill of sale was payment, not security. Tha t is $3,330 mere than Dr. Smith owed Dr. Murphy. The disproportion was greater, if we include the $5,000 in money which was in the hands of Mr. Lynch. That ibis sum was intended to he conveyed the defendant denies, hut the evidence establishes it. The bill of sale says, among other things, “All my library, books, instruments, office furniture, and effects of every kind soever.” This is ambiguous. Considering the instrument alone, whether the word “effects” is to he regarded as independent and as comprehending all other property of Dr. (Smith, or whether it is to be limited by the word “office,” and be confined to office effects, is disputable; but what
It is contended by defendant that the transfer was good by the laws of Illinois. It is not necessary to determine whether it was or not. The laws of Hlinois cannot be extended to affect property and creditors in California against the provisions of section 3439- of the Civil Code of California. Green v. Van Buskirk, 7 Wall. 139; Whart. Oonfl. Laws, § 334 et seq., and cases cited. It is also contended that the bill of sale is only voidable, not void, and that it must prevail until set aside in a direct proceeding. This contention is not good. The Codes of this state make the transfer void, not voidable, and therefore it can have no effect whatever.
Judgment for plaintiff.
Mr. McCutchen: I will ask for a stay of 20 days.
Mr. Cannon: I do not think Mr. Clement will have any objection to it.
The Court: Very well.