Johnson v. Rutherford
| Decision Date | 16 April 1914 |
| Citation | 147 N.W. 390,28 N.D. 87 |
| Court | North Dakota Supreme Court |
Opinion on petition for rehearing filed May 25, 1914.
From a judgment of the district court of Cass county, Pollock, J both the administrator and Mary Rutherford separately appeal and trial de novo is had.
Modified and affirmed.
Affirmed.
M. A. Hildreth, for appellant Mary Rutherford.
Fraudulent intent must be alleged and proved in an action to set aside a deed or gift as a fraud upon creditors; and such an intent is a question of fact. Windhaus v. Bootz, 92 Cal. 617, 28 P. 557; Emmons v. Barton, 109 Cal. 662, 42 P. 303; Murphy v. Clayton, 114 Cal. 526, 43 P. 613, 46 P. 460; Ackerman v. Merle, 137 Cal. 157, 69 P. 982; Aigeltinger v. Einstein, 143 Cal. 614, 101 Am. St. Rep. 131, 77 P. 669; Dalrymple v. Security Loan & T. Co. 9 N.D. 307, 83 N.W. 245; Stevens v. Meyers, 14 N.D. 398, 104 N.W. 529.
There must be allegations and proof that the personal property was transferred as a gift in view of death. Rev. Codes 1905, §§ 4993, 5000.
Plaintiff's right to maintain this action as administrator must rest upon the statute, as it is purely a statutory proceeding. Janes v. Throckmorton, 57 Cal. 368; San Francisco v. Pennie, 93 Cal. 465, 29 P. 66; Field v. Andrada, 106 Cal. 107, 39 P. 323; Murphy v. Clayton, 114 Cal. 526, 43 P. 613, 46 P. 460; Sayward v. Houghton, 119 Cal. 545, 51 P. 853, 52 P. 44.
Plaintiff must stand or fall on the complaint and proof as made. Long v. Long, 142 N.Y. 552, 37 N.E. 486; Murphy v. Clayton, 113 Cal. 157, 45 P. 267, 114 Cal. 536, 43 P. 613, 46 P. 460; Baker v. Kingsland, 10 Paige, 366; Emmons v. Barton, 109 Cal. 663, 42 P. 303; Harris v. Harris, 59 Cal. 623; Eberstein v. Oswalt, 47 Mich. 254, 10 N.W. 360; Hogan v. Kavanaugh, 138 N.Y. 417, 34 N.E. 292; Patteson v. Ongley Electric Co. 87 Hun, 462, 34 N.Y.S. 209; Dunning v. Dunning, 82 Hun, 462, 31 N.Y.S. 719; Cory v. Leonard, 56 N.Y. 503; Platt v. Platt, 105 N.Y. 489, 12 N.E. 22; Kingsland v. Murray, 133 N.Y. 170, 30 N.E. 845; Reeves v. Howard, 118 Iowa 121, 91 N.W. 896; Basket v. Hassell, 107 U.S. 602, 27 L.Ed. 500, 2 S.Ct. 415.
The heirs and next of kin of the deceased should have been made parties defendant, and plaintiff's failure to do so is fatal. Butts v. Genung, 5 Paige, 254; Mooers v. White, 6 Johns Ch. 360, and cases cited in notes; Thompson v. Brown, 4 Johns. Ch. 619; Webb v. Atkinson, 122 N.C. 683, 29 S.E. 949, 3 Prob. Rep. Anno. 513; Mayer v. Gilligan, 2 N.Y. S. R. 702; Haines v. Haines, 69 N.J.L. 39, 54 A. 401; Holmes v. Bush, 35 Hun, 639.
W. J. Courtney, for Administrator on cross appeal.
A creditor of an intestate decedent has the right to administer the estate if no administration is granted to those prior in right of order. Rev. Codes 1905, § 8022.
The result, where one conveys all his property in anticipation of death and to avoid administration, is to avoid the right of the creditor to have the estate administered. Rev. Codes 1905, § 8173.
It is not necessary to show that it was the purpose of decedent to place his property beyond the reach of his creditors. The transfer itself and alone is sufficient. Walker v. Cady, 106 Mich. 21, 63 N.W. 1005; Early v. Owens, 68 Ala. 174; McKeown v. Allen, 37 Fla. 490, 20 So. 558; Whitehouse v. Bolster, 95 Me. 458, 50 A. 243; 2 Bigelow, Fr. pp. 30, 39.
The honest intentions of the grantor are immaterial. If his acts in effect hinder and delay his creditors, the intent is sufficiently established. The standard is external, not internal in the grantor's mind. 2 Bigelow, Fr. pp. 80-83, 173, 178, 347, 375.
In voluntary conveyances, the intention to defraud, required by the statutes, does not necessitate a bad motive or a dishonest purpose. These may be wanting, and the conveyance still be fraudulent. 14 Am. & Eng. Enc. Law, 301, notes 1 & 2, 302.
The rult of evidence as to the manner in which the fact may be established is not changed. Marston v. Vultee, 12 Abb. Pr. 143; Edgell v. Hart, 9 N.Y. 216, 59 Am. Dec. 532; Newell v. Wagness, 1 N.D. 68, 44 N.W. 1014; Coburn v. Pickering, 3 N.H. 415, 14 Am. Dec. 375; Bergman v. Jones, 10 N.D. 529, 88 Am. St. Rep. 739, 88 N.W. 284.
W. J. Courtney, for Administrator.
Proceedings of a county court in the exercise of its jurisdiction are construed in the same manner and with like effect as are proceedings of courts of general jurisdiction, and its records, orders, and decrees are accorded like force and effect. Joy v. Elton, 9 N.D. 428, 83 N.W. 875; Sjoli v. Hogenson, 19 N.D. 82, 122 N.W. 1008.
If the execution of a voluntary conveyance, however meritorious in itself, leave the donor with insolvent property to meet his existing liabilities, it is fraudulent and void. May v. State Nat. Bank, 59 Ark. 614, 28 S.W. 431; Freeman v. Burnham, 36 Conn. 469; Clayton v. Brown, 30 Ga. 490; Aultman v. Huddlestun, 31 Ill.App. 556; Gable v. Columbus Cigar Co. 140 Ind. 563, 38 N.E. 474; Stewart v. Rogers, 25 Iowa 395, 95 Am. Dec. 794; Ware v. Purdy, Iowa , 60 N.W. 526; Blue v. Schurtz, 115 Mich. 690, 74 N.W. 178; Van Wyck v. Seward, 18 Wend. 375; Seybold v. Grand Forks Nat. Bank, 5 N.D. 469, 67 N.W. 682; Kaehler v. Dibblee, 32 Wis. 19.
Donations in view of death are not regarded as bona fide. Swartz v. Hazlett, 8 Cal. 126; Annin v. Annin, 24 N.J.Eq. 184; Stevens v. Meyers, 14 N.D. 398, 104 N.W. 529; Rev. Codes, § 5000.
M. A. Hildreth, for Mary Rutherford, respondent on cross appeal.
There is no allegation in the complaint to the effect that the transfer of the personal property was as a gift, as the trial court found, and such part of the judgment cannot be reviewed. Salemonson v. Thompson, 13 N.D. 183, 101 N.W. 320.
The complaint does not entitle plaintiff to any relief upon the theory that the transfer of the personal property was a gift in view of death. Field v. Syms, 2 Robt. 35; Bradley v. Aldrich, 40 N.Y. 504, 100 Am. Dec. 528; Ross v. Mather, 51 N.Y. 108, 10 Am. Rep. 562; Barnes v. Quigley, 59 N.Y. 265; Beach v. Eager, 3 Hun, 610; Peck v. Root, 5 Hun, 547; Combs v. Dunn, 56 How. Pr. 169; McMichael v. Kilmer, 76 N.Y. 36; Stevens v. New York, 14 Jones & S. 274, S.C. 84 N.Y. 296; Evans v. Burton, 5 N.Y. S. R. 216.
The recovery must be in accordance with the complaint. Arnold v. Angell, 62 N.Y. 508; Hollister v. Englehart, 11 Hun, 446; Volkening v. DeGraaf, 12 Jones & S. 424; Southwick v. First Nat. Bank, 84 N.Y. 420.
One may give away his property, and if he does so in good faith and without intent to hinder and delay his creditors, the transaction is not fraudulent. Threlkel v. Scott, 89 Cal. 353, 26 P. 879; Windhaus v. Bootz, 92 Cal. 617, 28 P. 557; Daugherty v. Daugherty, 104 Cal. 221, 37 P. 889; Emmons v. Barton, 109 Cal. 662, 42 P. 303.
This action in equity is brought to have property owned by John Rutherford, now deceased, and by him transferred to his wife, Mary Rutherford, declared subject to an alleged debt of decedent. The administrator was appointed to collect said claim, approved by the county judge as a valid demand for $ 789.50. At his death Rutherford left no estate. On trial this action was dismissed as to the real estate, but the personal property was held subject to disposition by the probate court to the amount of the claim. The widow attempted to prove that said claim had been fully paid, and offered in evidence canceled checks and receipts for about $ 900, asserted to have been paid thereon. This proof was excluded, and the approval of the claim by the county judge was held to be res judicata of its validity in this action, and that the matter of payment was one within the sole cognizance of the probate court, except as it might reach the district court by appeal from probate court. The trial court found that all the property was both transferred and received with no actual intent to defraud, hinder, or delay collection of debts. From this finding the administrator appeals, demanding trial de novo of the entire case. The trial court further found that the note was an unpaid, outstanding, valid claim against the estate of the decedent; that the transfers by deed and bill of sale were made without consideration and with full knowledge of the impending and approaching death of Rutherford; that the real estate so transferred consists of a section of land and of $ 3,000 of personal property; that the personal property in excess of exemptions to the widow should be subject to the debt of Harvey, in so far as it "may be shown to be a just and equitable claim against said estate;" and that the transfer of personal property thus made was a gift causa mortis, which, under § 5000, Rev. Codes 1905, must be treated as a legacy so far as the creditors of the deceased are concerned. From these findings the widow appeals on separate specifications of fact, as to which only a review is demanded.
The administrator has moved to dismiss the appeal of Mary Rutherford on the ground that the specifications of fact are insufficient to confer jurisdiction of her appeal, and cites Douglas v. Richards, 10 N.D. 366, 87 N.W. 600; Salemonson v. Thompson, 13 N.D. 182, at page 189 101 N.W. 320; and Stevens v. Meyers, 14 N.D. 398, 104 N.W. 529, in support of the motion. Specifying merely ultimate conclusions of law to be reviewed is insufficient to warrant any retrial, but the defendant has specified both conclusions of fact and evidentiary facts in relation to particular findings, with parts of the complaint upon which the same are based, with sufficient particularity as to facts desired reviewed to authorize a retrial thereof. The motion is denied. Nothing can be gained by treating the appeals separately, as all matters are before the court on...
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