Sneed v. Sneed

Hart, C. J., (after stating the facts). After the transcript was lodged in this court, Julia L. Sneed died intestate, and a motion was made by counsel for appellees to dismiss the appeal and to prevent a revival of case in the name of a special administrator appointed for that purpose. The ground of the motion was that Julia L. Sneed was a nonresident of the State, and that her heirs did not desire to prosecute the appeal. Her attorney objected to the dismissal of the case on the ground that he had, under contract with Julia L. Sneed, a one-half interest in the $1,000 legacy which had been transferred to Julia L. Sneed by Dr. A. L. Sneed, in the event of the reversal of the decree and- a finding by the court that she was entitled to the legacy. Under this state of facts, it was proper to make an order to revive the case in the name of a special administrator appointed for that purpose, and it was ordered that the case be revived in the name of H. J. Burney as such special administrator. In such case, where there is no general administrator, it is proper that revivor shall be in the name of a special administrator appointed by the court in which the action is pending. Anglin v. Cravens, 76 Ark. 122, 88 S. W. 833. This brings us to discussion of the case on its merits. The Irav is that a wife who secures a judgment for alimony in a suit against her husband for a divorce is a creditor, and a conveyance made in fraud of her rights as such may be set aside or the property subjected to the lien of the judgment, provided that the rights of purchasers vdthout notice and for a valid consideration have not intervened. Masterson v. Ogden, 78 Wash. 644, 139 Pac. 654, Ann. Cas. 1914D, 885; Barber v. Barber, 21 How. (U. S.) 582; Fahey v. Fahey, 43 Col. 354, 96 Pac. 251, 127 Am. St. Hep. 118, 18 L. R. A. (N. S.) 1147; and Austin v. Austin, 143 Ark. 222, 220 S. W. 46. In the case at bar the facts are that Elizabeth Sneed and Dr. A. L. Sneed were divorced in September, 1912, and she was awarded alimony in the sum of $40 per month and given the custody of their two minor children. Dr. Sneed paid the alimony until October, 1914. At that time he left the State, and has not paid any alimony since. Unpaid alimony in the sum of $4,800 had accumulated at the time he became entitled to the $1,000 legacy. According to the testimony of Julia L. Sneed, who was at that time his wife, he assigned this legacy of $1,000 to her and she paid him $1,000. It is true that she testified that this was not done foi the purpose of defeating claim of Elizabeth Sneed for alimony. The circumstances surrounding the transaction are against her claim. She knew that Dr. Sneed owed his former wife alimony in the sum of $4,800, and knew that he was insolvent, and had even placed his office fixtures and books in her name. At least, she is presumed to have known this, for the daughter of Dr. Sneed testified to these facts, and she did not attempt to deny them. • She contented herself with stating’ that the assignment was not made to her for the purpose of defeating the plaintiff’s claim for alimony. The undisputed testimony shows that the attorney for the •plaintiff, for several years, had been making every effort to collect the alimony and had been unable to do so-because he could not find any property in the name of Dr. A.- L. Sneed. If the assignment of the leg’acy was not made for the purpose of defeating the plaintiff in the collection of her claim for alimony, it had just as well not have been made. It is 'a significant fact that Julia L. Sneed claims to have paid-her husband $1,000 for the $1,000 leg’acy left him. No attempt is made to explain what was done with the $1,000 or for what purpose the assignment was made. Under these circumstances we are of the opinion" that the assignment was fraudulent and void as to the plaintiff as a creditor of Dr. A. L. Sneed. An equitable garnishment was the proper remedy to impound the fund, pending a decision of the question to whom it belonged. Riggin v. Hilliard, 56 Ark. 476, 20 S. W. 42, 35 Am. St. 113. It follows that the decree must be affirmed.