Rance v. Hutchinson

• Decision Date: 14 February 1938
• Citation: 179 So. 777,131 Fla. 460
• Parties: RANCE et al. v. HUTCHINSON et al.
• Court: Florida Supreme Court

179 So. 777

131 Fla. 460

RANCE et al. v. HUTCHINSON et al.

Florida Supreme Court, Division A.

February 14, 1938

Rehearing Denied April 1, 1938.

Suit by Charles D. Rance, individually and as administrator of the estate of Anita Rance, deceased, and others, against Margaret S. Hutchinson and others, to subject certain property to the satisfaction of a judgment. From the decree, the complainants appeal.

Affirmed. Appeal from Court of Record, escambia County A. G. Campbell, judge.

COUNSEL

E Dixie Beggs, Jr., of Pensacola, for appellants.

Watson & Pasco & Brown, of Pensacola. for appellees.

OPINION

PER CURIAM.

The appeal brings for review final decree in part in the following language:

'This cause coming on for final hearing on the bill and answer herein and on the testimony taken orally before the Court and the court having reserved until final hearing herein ruling on the admission of the testimony of Clarence E. Hutchinson taken in the case of Clarence E. Hutchinson vs. Margaret S. Hutchinson, and the court having heard argument of counsel, and being advised of its opinion, finds:

'(1) That the testimony of the said Clarence E. Hutchinson taken in the case aforesaid is not admissible in this cause, and sustains the objection of the defendants to said testimony, to which ruling on said testimony the counsel for the complainants excepts.

'(2) And the court further finds from the testimony that the equities are with the defendants, Margaret S. Hutchinson, Mary Jane Hutchinson McRoberts and Henry J. McRoberts her husband, Gretchen Hutchinson Oexle, Charles W. Oexle, her husband, Martha Hutchinson, Lizzie Mae jackson and Brownlow Jackson, her husband, and The First Bank & Trust Company of Pensacola, a corporation; and that the complainants have not sustained the material allegations of their bill of complaint, and that it appears from the said testimony that the complainants have been guilty of such inexcusable negligence as to amount to laches and deprive them of any right to relief in a court of equity.

'It is therefore ordered, adjudged and decreed that the said suit be and the same is hereby dismissed, and that the defendants, Margaret S. Hutchinson, Gretchen Hutchinson Oexle and Charles W. Oexle, her husband, Mary Jane Hutchinson McRoberts and Henry J. McRoberts, her husband, Martha Hutchinson, Lizzie Mae Jackson and Brownlow Jackson, her husband, and The First Bank & Trust Company of Pensacola, a corporation, recover their costs in this behalf from the complainants, the same to be taxed by the clerk, and that execution issue therefor.'

The complainants in this suit obtained a judgment against Clarence E. Hutchinson on the 9th day of October, 1916. Execution on the judgment was returned nulla bona.

Clarence E. Hutchinson departed this life in April, 1932. H. E. Gandy, sheriff of Escambia county, was shortly prior to the institution of this suit appointed administrator of the Estate of Clarence E. Hutchinson, deceased.

This suit was filed October 3, 1936.

The purpose of the suit was to subject certain property to the satisfaction of the judgment obtained in 1916.

The appellants have stated four questions for our consideration, as follows:

'(1) Where deceased's former wife conveyed property to him in his life time and during their marriage in trust for their three children, and the alleged trust is being attacked as fraudulent by judgment creditors of the husband is the former wife permitted to testify concerning transactions with the deceased where the defendants are claiming as beneficiaries under the trust and as successor trustee and not as executor, administrator, heir at law, next of kin, assignee, legatee, devisee or survivor of such deceased person?'

'(2) Where a husband communicates to his wife the existence of a right of third persons of which he is attempting to defraud them and where the wife and husband in a divorce suit brought by her husband both testify fully regarding such communications, are the communications privileged in a subsequent action by judgment creditors of the husband, since deceased, to reach the assets fraudulently concealed and conveyed?'

'(3) Where a judgment debtor concealed both real and personal property ot him belonging by placing of record instruments indicating their ownership by his wife, and caused his wife to convey all such property to him upon a supposed trust for their three children, and as such supposed trustee held all of the property in his possession and under his exclusive control and dealt with the same without regard to such 'trust' and as he saw fit, without being accountable to anyone and without keeping any records, are the statements made by such judgment debtor regarding the fraudulent character of such transaction made while he is so holding and using the property admissible in evidence on the question of fraud?'

'(4) Are judgment creditors guilty of laches in attacking a fraudulent transfer and fraudulent concealment of property where they had no knowledge of the same until about the time they instituted proceedings to reach the property fraudulently conveyed and concealed?'

The appellee has stated the questions presented as follows:

'No....