Mellinger's Administrator v. Bausman's Trustee

The opinion of the court was delivered, by SxROnu, J. This was a feigned issue, directed to test the validity of two judgments given on the 9th day of April 1853, by Daniel Hess to a trustee for his wife. The consideration for the judgments was alleged to be the receipt by the husband of money which belonged to the wife, and which she had taken as a legatee and devisee under her father’s will. The death of her father occurred on the 14th day of December 1847, of course before the passage of what is known as the Married Women’s Act of April 11th 1848. From the executors of his will there was received, on the 6th day of December 1849, the sum of $1965.51£, for which Daniel Hess and his wife joined in a release. Subsequently, the widow and heirs of the decedent sold the real estate, and on the 1st day of April 1853, Hess and his wife joined in a release for $1306.10, part of the wife’s share of the proceeds of sale, and on the 14th of March 1855, they released for $653.05, which was the remainder. Very soon after, a note was given by Daniel Hess to Adam S. Dietrich, in trust for his wife, for the sum of $5000. The note was dated April 9th 1855. At that time it does not appear that Hess was indebted to any other person than his wife, except that he had become a surety for his brother in the sum of $1436. Before [527] her father’s death, Mrs. Hess had received from him an advancement of $1000; and prior to April 1860, she received from her mother’s estate the sum of $300. On the 15th day of September 1860, Daniel Hess gave two judgment-bonds to Daniel Baus-man, the defendant in error, in trust for his wife: one of them conditioned for the payment of $5000, and the other conditioned for the payment of $2000. Upon those bonds judgments were entered in due form, and these issues have been ordered to try their validity. With such a state of facts before the jury, the prominent question for their decision was whether.there was an honest consideration for the judgments, or, in other words, whether Hess was in truth indebted to his wife in the two sums named, at the time when the judgments were given. The verdict was in support of the judgment for $5000, and against the other. The question presented for trial involved two considerations : first, whether Daniel Hess received the money which came to his wife from her father’s estate; and secondly, if he did, whether be thereby became a debtor to his wife. The first was a matter of fact which could only be determined by the jury. To them the court submitted it, and of this the defendant (now plaintiff in error) complains in his third assignment. It is true, there was no positive and direct evidence that the husband took the money which came from the sale of the lands, and from the executors of the will of the wife’s father; but the fact that he joined in the release given for it, coupled with the fact that within a few days after the last sum was paid, he gave her a note for $5000, a sum considerably less than the amount of payments and interest, is indirect evidence, of considerable weight, tending to show that a sum not less than the note called for, had passed into his hands. As between any others than husband and wife, it would be quite sufficient proof; and there seems to be no good reason why she should be denied the benefit of the presumptions which naturally arise from such a state of facts. It is not the case of a purchase by a wife of property which she attempts to withdraw from her husband’s creditors. There she must show clearly that she had the means to purchase, not acquired from her husband, and that such means were actually applied to the purchase. And even if it were such a case, the jury must determine, if there be any evidence upon the subject, whether her money was thus applied. The note of Hess to a trustee for his wife was given, and her money was received by him, if received at all, before any considerable indebtedness of the husband originated. That which would have been evidence of debt then, must be evidence of debt now. We think, therefore, the court would not have been justified in withdrawing from the jury the question whether the money came to the hands of the husband. [528] And as bearing upon tbis question, tbe note of April 9tb 1855, given by Daniel Hess to Adam S. Dietrich, was correctly received in evidence. It was something more than a mere declaration of the husband, and not at all within the principle laid down in Gamber v. Gamber, 6 Harris 863. The second and fourth assignments of error may be considered together. They present the other consideration, which is, whether if the husband received the money from the executors of the will of the wife’s father, and also the proceeds of sale of the wife’s share of the land, he thereby became her debtor. The solution of this question depends upon the answer to be given to another. Was it, in law, his money or hers ? It is not pretended that she made a gift of it to him. If it was not his in law, then the presumption is that he received it for her, as was ruled in Johnston v. Johnston’s Adm’r., 7 Casey 450. The language of the 6th section of the Act of April 11th 1848 is: “Every species and description of property, whether consisting of real, personal, or mixed, which may be owned by, or belong to, any single woman, shall continue to be the property of such woman as fully after her marriage as before; and all such property, of whatever name or kind, which shall accrue to any married woman during cover-ture by will, descent, deed of conveyance, or otherwise, shall be owned, used, and enjoyed by such married woman as her own separate property,” &c. As Dr. Witmer, the father of Mrs. Hess, died before the passage of this act, the plaintiff in error insists that the receipt by Daniel Hess of his wife’s share of the personal estate, after April 11th 1848, must be presumed to have been a reduction into possession for his use; that he was entitled thus to convert it, and that consequently his note or bond to a trustee for his wife was without consideration, and fraudulent as against his creditors. Such was not the opinion of the court below, and such is not ours. That there was no intention to reduce the wife’s choses in action to the husband’s use, and thereby make the money his own, his giving his note soon after its receipt tends to prove; and even before the Act of 1848, a husband was not under obligation to his creditors to use his marital rights over his wife’s chose in action for their benefit: Skinner’s Appeal, 5 Barr 63. It could not be attached for his debt: Denison v. Nigh, 2 Watts 90; Robinson v. Woelpper, 1 Whart. 179. Even then, whether his receipt of money due by bond or note to his wife, was a conversion of it to his use, so as to divest her property in it, depended upon his intention. But after the passage of the act, had Daniel Hess any right to reduce into possession his wife’s chose in action, and could he thereby acquire an absolute right in it, or in its proceeds as against her ? It has often been said, and several times ruled, that the Act of 1848 did not divest any interest of a husband vested in him [529] when the act was passed: Burson’s Appeal, 10 Harris 164; Buchanan v. Christman, 11 Id. 162. Thus it did not take away his right to her personalty not in action, acquired before its enactment, or his life estate, or curtesy initiate in lands of which she was previously seised. But the marital right of a husband over his wife’s chose in action, never was an interest in it. It was no more than succession to her dominion. He had not even a qualified property: Siter’s Case, 4 Rawle 468; Skinner’s Appeal, 5 Barr 263; Denison v. Nigh, 2 Watts 90, and Robinson v. Woelpper, 1 Whart. 179. He had nothing more than a naked power. No interest in the chose vested in him until he had exercised his power by applying it to his own use. No vested interest, no right of property of his, is then interfered with, though the Act of 1848 takes away his dominion over a chose in action, possessed by his wife when the act was passed. Dr. Witmer died in the fall of 1847, but Mrs. Hess was not entitled to her share of his estate until after April 1848, and it may fairly be said to have accrued to her after that time. The Act of Assembly did not design to disturb vested interests, but its plain intention was to secure to married women all their property in which husbands had not acquired such interests. It is hardly necessary to say Hess had no curtesy initiate in the land when it was sold. His wife never had any actual or potential seisin. We are of opinion, therefore, that the second and fourth assignments of error are not sustained, and that the jury was properly instructed that “ as the law now stands, when the husband receives the wife’s money, the presumption of law is, he receives it for her, although the right accrued to the wife previous to the passage of the Act of April 11th 1848, but was not reduced into possession before by the husband.” We perceive no error in the fifth assignment. There was evidence that the indebtedness of Hess to his wife exceeded $5000 when the judgment for that amount was given, without including the $1000 advanced by her father in his lifetime. If the money was hers, she was entitled to its use, and therefore to its interest. McGlinsey’s Appeal, 14 S. & R. 64, was decided while the common law remained unchanged, and when the rights of a wife were secured by no such statute as we now have. And the circumstances of that case were peculiar. No doubt if a wife permits her husband to use her pei’sonal estate for the benefit of the family, without any agreement on his part to pay interest, he is generally not liable for it. But he may agree to pay interest, or the circumstances proved may show an intention to create the ordinary relation of debtor and creditor. This, however, is of no importance to the present case, for the jury was not instructed that the husband was liable for interest, and there was no prayer for instruction in regard to it. [530] We do not think it-was erroneous to say to the jury they might find one judgment good and the other bad. It is true, the bonds were given on the same day, and probably as parts of one transaction. It is also true as a principle, that what is fraudulent in part is fraudulent as a whole. But this must be understood of intentional fraud, not of that which is really legal. The jury were instructed that the $1000 advancement not having been proved to have been loaned to the husband, could not be treated as in part a consideration for the judgments, and that if it was wilfully included in the judgment for $5000, for the purpose of hindering and delaying creditors, it would render the whole bond void; but not so if it was included by mistake. Viewing the language to which exception is taken, in connection with its immediate context, we cannot say it was incorrect. The last assignment is disposed of by what we have already said. The judgment is affirmed.