74 Ark. 34 | Ark. | 1905
This is a suit by a trustee in bankruptcy against the wife of one who had been adjudged a bankrupt, to set aside certain gifts of money (amounting to $2,000) which were alleged to have been made to defraud creditors. The voluntary-bankrupt had scheduled none but. exempt assets. The question here is, can the appellee be compelled to disclose such gifts ? Under our law a party may be a witness against himself in a civil suit. Const. 1874, schedule, § 2; Kirby’s Dig. § § 3093-4. In a suit like this such disclosure is not within the rule of privileged communications. Kirby’s Dig. § 3095. In re Fowler, 93 Fed. 417, Judge Bunn said: “The proper way to reach property in the hands of the wife which it is charged was fraudulently-conveyed to the wife by the husband would be by bill of discovery brought by the trustee. If such a bill were brought against the wife, there can be little doubt that she might then be compelled to testify. She would then be a party to the suit. She would not be testifying in a suit either for or against her husband, but would be testifying for or against herself.”
It is undoubtedly the law that a wife may be sued to set aside a conveyance made to her with the intent to defraud creditors, and in such suit she is not incompetent as a witness concerning any matter that is not a privileged communication, and it is . certainly not the policy of the law to hold gifts that were made in fraud of creditors privileged communications. In re Eldred, Fed. Cases, 4328.
These gifts were alleged to have been made by the husband in fraud of creditors,- while he was insolvent, and while he was contemplating voluntary bankruptcy, and just before he was declared a bankrupt. The appellee could be required to disclose the gifts. See cases cited in appellant’s brief.
Whether they were fraudulent and recoverable would be a matter for further determination.
The demurrer should have been sustained.