Champlin v. Seeber

Hardin, J. Eliza and Cora Seeber were competent witnesses in their own behalf. They were not called to speak of transactions and communications had with a deceased person against his administrator, executor, heir at law, next of kin, assignee, devisee or survivor of such deceased person ( Code, sec. 399; Green agt. Edick, 56 N. Y., 613; Lobdell agt. Lobdell, 33 How., 347 ; Simmons agt. Sisson, 26 N. Y., 264; Card agt. Card, 39 N. Y. 317). The objections of the plaintiff to such evidence are, therefore, overruled. The death of S. W. Shepherd, intestate, vested in Eliza Seeber, his daughter, the fee to the one undivided fourth part of the real estate owned by him in his lifetime and described in the complaint. She held the legal title and was entitled to [50] the possession of the undivided fourth part of' said real estate from January 25, 1875, until she conveyed .it away, March 27, 1876, at Herkimer, by her deed there executed to her daughter, Cora Seeber, in consideration of one dollar only. That was after the debt upon which Smith recovered judgment against Eliza accrued. When she conveyed away that property she had no other left and was insolvent and the one dollar was an inadequate consideration: The conveyance apparently was a mere voluntary one without a good and adequate and value-able consideration therefor. "The deed purports to be given for a money consideration and no allusion is made in it to any other consideration- (2 John. Ch., 47 ). These facts would require the court to hold "the deed void as against the plaintiff and the judgment creditor represented by him in as much as the debt was contracted prior to the conveyance and the judgment therein settled and establishes the liability of Eliza Seeber for the debt. If the defendants were to seek to uphold the conveyance to Cora as a donation causa mortis from the grandfather to the granddaughter they would be met by the principle that such gifts must be consummated by a delivery and must clearly appear to have been made in contemplation of death and to be unrevoked ( Champney agt. Blanchard, 39 N. Y., 111; 7 Lans., 108; Gray agt. Barton, 55 N. Y., 71). But the defendants seek to sustain the conveyance as in pursuance of a conversation had between the grandfather and his daughter 10th or 12th of January 1875, when, it is said he requested his daughter Eliza to give her share of his estate to her daughter Cora. Confessedly, after the death of Shepherd, Cora could not have compelled the execution of a conveyance to her by her mother Eliza. The parol agreement would have been void as are all parol agreements as to real estate. It could not be enforced as a legal trust, for the statute of uses and trusts condemns it. Having been executed it is now insisted that.it is valid between the parties. This may be affirmed; but how is it as to creditors of Eliza having [51] debts contracted before the conveyance and apparently upon the credit of the inheritance (2 Johns. Ch., 47 ). The case of Lowery agt. Smith (16 N. Y. Sup. Ct., 514) is cited by the learned counsel to sustain the defense. In that case it was held the evidence of the agreement made by the husband with his father-in-law in respect to taking title to the real estate to realize $600 therefrom and then to convey to his wife the daughter of the grantor should be received. So far the case is strictly an authority in point. The evidence in this case of the conversation between Eliza and her father was received in deference to that authority. But if we .examine that case further we find' that the deed, in legal effect, was a mortgage to secure $600 and that as soon as the $600 was realized out of it, the husband had no beneficial interest in the estate as he had agreed to convey the equity of redemption or'what might remain after the $600 debt was enforced, to his wife, the daughter of the grantor. In this case the conversation of Shepherd amounts to a request that “ "What part he gave to me he wanted me (Eliza) to give to Cora ” “ if it was given to me.” “ What part was to come to me,” i. e. that the daughter should, after the inheritance of it, subsequently give it to her daughter Cora. Eliza assented to the request. The effect of the conversation was (1) that Eliza should inherit, should become the owner of the fee (2 ), that she would herself give it away to Cora. Surely, that is much different from a direct gift by Shepherd to the granddaughter Oora. So far as rested upon the grandfather to give legal direction of his estate he vested the fee and beneficial ownership of one-fourth of his estate in his daughter Eliza. This result followed from his ownership, death intestate and without conveying away his property from his heirs-at-law. Of course it would have been competent for him to give by deed to his granddaughter or by will to devise it to her, but he did neither, he died intestate allowing the property to descend to and vest in the daughter Eliza, leaving only a naked request to his daughter “that she give [52] her share to her daughter Cora,” Instead of being generous to the granddaughter he chose to be just to his daughter and asked her to be generous with her inheritance and give it to her daughter Cora. Even with such a request she ought to be “ just -before she was generous.” She kej>t the inheritance, contracted debt in the time she held the title to it, allowing her creditor to trust her in reliance upon her ability by reason of the property to pay and thus created an equitable lien in favor of the creditor; that debt ought to be paid before she gave her property to another. As we have before seen it was Eliza’s property. The conversation with the grandfather contemplated that it should become hers by operation of the law of descents; the evidence of the conversation bears out this view. “ What part he gave to me he wanted me to give to Cora if it was given to me; what part was to come to me; nothing else that I remember.” The purpose of the grandfather seemed to be that his daughter, after she got the property, should give it to Cora instead of any other person. But he deliberated, died and allowed it to descend and vest in law absolutely in his daughter Eliza. This view of the evidence in this case distinguishes the case from Lowery agt. Smith (supra). The defense is unavailing against the creditor. There must be a judgment declaring the deed by Eliza to Cora void and fraudulent as against the creditor’s judgment and the judgment a lien upon the property described in the complaint. Judgment ordered accordingly.