Dumangue v. Daniels

Allen, J. The only questions argued relate to the admission of evidence. 1. The testimony of La Motte was competent. The demand-ant’s claim against Thomas Daniels arose out of an accident to the demandant, which occurred December 7,1888. Twelve days afterwards Daniels made to his wife, through a third person, the conveyances which are sought to be avoided as being in fraud of the demandant’s rights. La Motte’s testimony was, that a week or a week and a half after the accident he sought to collect from Daniels the sum due to the demandant for wages, and that on the following day he told Daniels that the demandant intended to hold him liable for the accident, and therefore declined to give him a receipt in full of all demands. Taking it at the longest, that statement to Daniels that the demandant intended to hold him liable for the accident must, according to the testimony, have preceded the conveyances; and it was clearly competent, as bearing upon the alleged fraudulent intent of Daniels. 2. We cannot say that there was any error in law in admitting the testimony of Mr. Rice. The fact that Daniels had no other property at the time of making the conveyances, if it could be proved, would obviously be of some significance. Bristol County Savings Bank v. Keavy, 128 Mass. 298, 303. Evidence that at some previous time he had no other property would clearly be competent, if there was nothing to show a change in this respect. Cozzens v. Holt, 136 Mass. 237. But his condition as to property at a subsequent time would also have some tendency to show his condition at the time of the conveyances, provided it was not too remote. Where the mental condition of a testator at the time of making his will is to be determined, we [486] have recently held that acts and declarations several months afterwards might be put in evidence, under special circumstances. See Lane v. Moore, 151 Mass. 87, and cases there cited. Similar reasons apply to the question of one’s pecuniary condition. It is for the presiding judge to determine, in the first instance, whether the circumstances and the length of time are such as to render the evidence of no value, and very much is necessarily and properly left to his discretion. Commonwealth v. Pomeroy, 117 Mass. 148, 148. Lane v. Moore, ubi supra. In the present case, it is true, the time when Mr. Rice made his search for property may have been from fifteen to seventeen months after the date of the conveyances, but it also appeared that the demandant had sued Daniels by a writ dated March 26,1889, which was about three months after the conveyances, and an attachment of real estate was returned, which would certainly have a tendency to keep things in statu quo as to real estate at least. Moreover, the officer’s return on the execution in favor of the plaintiff was in the case, and it showed a levy on no property except the demanded premises, and the execution was returned unsatisfied for $3,623.47. From this, in the absence of any explanation, it might reasonably be inferred that Daniels had made no conveyance of real estate since the attachment was returned upon the original writ. With this evidence that the condition of things had not changed since a time so near the date of the conveyances, it certainly was within the discretion of the presiding judge to admit the testimony of Mr. Rice. Commonwealth v. Brew, 153 Mass. 588. This mode of proving that a person had no visible property at a particular time has been held proper in Clark v. Chamberlain, 13 Allen, 257, 261. Exceptions overruled.