Mellinger's Administrator v. Bausman's Trustee

• Decision Date: 01 July 1863
• Citation: 45 Pa. 522
• Court: Pennsylvania Supreme Court
• Parties: Mellinger's Administrator <I>versus</I> Bausman's Trustee.

Page 522

45 Pa. 522

Mellinger's Administrator versus Bausman's Trustee.

Supreme Court of Pennsylvania.

July 1, 1863.

ERROR to the Common Pleas of Lancaster county.

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Thomas E. Franklin and H. M. North, for plaintiff in error.

Fordney and Baker, for defendants in error.

The opinion of the court was delivered, July 1st 1863, by STRONG, 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 ¼, 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 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 Bausman, 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 he 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.

And as bearing upon this question, the note of April 9th 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 363.

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...