Bohn v. Weeks

Opinion of the Court, Waterman, J. In November, 1883, Frank Weeks gave to Charles Bohn his two notes, each for $150, and due, respectively, in ninety days and four months from the date thereof. These notes were afterward assigned to appellant, and in December, 1891, a judgment against Frank Weeks for $492.66 was rendered thereon. Upon this execution was issued, and demand having been made, the writ was returned no property found. About May 6, 1890, Frank Weeks having, as he testifies, about $7,200 in money, gave $6,500 of it to his wife, who deposited it in bank to her credit. From this sum, from time to time, she had paid family expenses until at the time of the filing of the creditor’s bill in this case, there remained in bank to her credit the sum of only $284.11. Mr. and Mrs. Frank Weeks, in their answer to the creditor’s bill filed against them, say that he has made no sale, assignment or transfer of his property or effects or any part thereof. The bill having been dismissed for want of equity, the complainant in the creditor’s bill prosecutes this appeal. We think it clear that this gift by Frank Weeks to his wife rendered him insolvent. He was then owing, not only the notes upon which the judgment in favor of appellant was rendered, but other indebtedness. These notes, then many years past due, he, with over $7,000 in money in his possession, makes no offer to pay, but gives to his wife the sum of $6,500. Such conduct, under the circumstances, was clearly fraudulent as regards his creditors. Such was the report of the master, and such report should have been confirmed. Wisconsin Granite Co. v. Ray (Ill.), 33 N. E. 31; Lachman et al. v. Martin et al. (Ill.), 28 N. E. 795; Emerson v. Bemis, 69 Ill. 537, 541; Morrill et al. v. Kilner, 113 Ill. 518. The gift which a debtor may make must be reasonable in view of all the circumstances of the debtor at the time. A gift of $6,500 to one’s wife, out of a total of $7,200 or $7,300 possessed, at a time when the debtor is owing notes amounting to over $400, long past due, is not reasonable. The statute of this State provides that the following property shall be exempt from execution when the debt or judgment is not for the wages of any laborer or servant, in which case not even the clothes upon one’s back, or the shoes upon his feet, are exempt. “First. The necessary wearing apparel, bibles, school books and family pictures of every person; and second, one hundred dollars’ worth of other property, to be selected by the debtor, and in addition, when the debtor is the head of a family and resides with the same, three hundred dollars’ worth of other property, to be selected by the debtor, provided that such selection and exemption shah not be made or allowed to him or her from any money * * * due him or her from any person or persons or corporation whatever.” The statute further provides that whenever any debtor against whom an execution, writ of attachment or distress warrant has been issued, desires to avail himself of the benefit of such exemption, he shall within ten days after notice of the execution, etc., make a schedule of all his personal property, including money on hand and debts due and owing to the debtor, and shall deliver such schedule to the officer having the execution, writ of attachment or distress warrant. It is insisted that the sum of $284.41 in bank to the credit of Mrs. Weeks, which the master found was a part of a sum fraudulently given to her by her husband, and which sum he did not in his answer claim as exempt from execution, he insisting that the money belonged to her, is to be treated as a sum which is exempt from the claims of creditors. It will be observed that as to personal property, it is only that of a debtor which is exempt. There is no provision allowing a debtor to claim as exempt the property of another. The gift of $6,500 by Frank Weeks to his wife, was, as between them, perfectly valid; as against him, the money thus became her property. It was a transfer which his creditors could alone set aside, and they can do so only to the extent of their claims. They have an equitable right to have the gift, to the extent that it was fraudulent as to them, set aside; thereby the money does not again become the property of the husband, although applied to the payment of his debts. Frank Weeks did not, in his answer, nor has he at any time, claimed this money as exempt. A personal demand under the execution issued upon the judgment was made upon him by the sheriff. It was then his right, not necessarily to have, but to have claimed this money as exempt; having failed só to claim and also failed to claim the same in his answer, he must be held to have waived any right he might have had to have it treated as exempt. Menzie v. Kelly, 8 Brad. 259; Griffin v. Maxwell, 23 Ill. App. 405; Ehle v. Deitz, 32 Ill. App. 547: Amend v. Smith, 87 Ill. 198. Frank Weeks testified in this case that he had not any personal or real property. To allow him to hold this money as exempt, is to give him property which he has solemnly sworn he does not own. The decree of the Superior Court is reversed and the cause remanded with directions to enter a decree commanding the Illinois Trust and Savings Bank to pay over to Henry J. Bohn the sum of $284.11, to be applied upon his judgment against Frank Weeks, and to enter a judgment against Frank Weeks and Mrs. Frank Weeks for costs. Reversed and remanded with directions.