Studebaker Bros. Manuf'g Co. v. Welch

• Decision Date: 21 April 1897
• Citation: 70 N.W. 920,51 Neb. 228
• Parties: STUDEBAKER BROS. MANUF'G CO. v. WELCH ET AL.
• Court: Nebraska Supreme Court

51 Neb. 228

70 N.W. 920

STUDEBAKER BROS. MANUF'G CO.

v.WELCH ET AL.

Supreme Court of Nebraska.

April 21, 1897.

Syllabus by the Court.

1.An endowment policy was taken out by a husband, which was made payable to his wife.The premiums thereon were paid by him, and likewise the money due on the policy was received by the wife from the insurance company during the solvency of the husband, and the money so received was invested in real estate in her name.Subsequently the husband became insolvent.Held, that such property was not subject to the claims of his creditors.

2.A gift from a husband to his wife will be upheld if made when the former was solvent, and the existing rights of creditors were not thereby impaired.

Appeal from district court, Lancaster county; Tibbets, Judge.

Action by the Studebaker Brothers Manufacturing Company against Merritt D. Welch and Lizzie C. Welch and others.From the judgment, the manufacturing company and William A. Sayers and A. E. Scoville appeal.Affirmed.Ricketts & Wilson, J. C. Johnson, and S. B. Jams, for appellants.

Lamb & Adams, for appellees.

NORVAL, J.

This action was instituted by plaintiff to subject certain real estate to the payment of its two judgments recovered against the defendantMerritt D. Welch.Subsequently William A. Sayers and A. R. Scoville filed an answer and cross petition, praying that a judgment recovered by them against said Welch be adjudged a lien on the said property, and that the same be sold upon execution to satisfy the judgment.From a decree dismissing the petition and cross petition, plaintiff and the defendants Sayers and Scoville appeal.

The facts may be summarized as follows: The defendantsMerritt D. Welch and Lizzie C. Welch are, and have been since 1872, husband and wife.In July, 1893, plaintiff recovered two judgments in the county court of Lancaster county against said Merritt D. Welch, one for $506.43 and costs, and the other in the sum of $499.15 besides costs of suit.Transcripts of these judgments were duly filed and docketed in the district court of said county, and executions were issued thereon, which were returned nulla bona.Subsequently alias executions were issued and levied upon lots 8 and 9 in block 4 of Pleasant Hill subdivision of lots 3, 4, 5, and 6, in the N. E. 1/4 of section 36, township 10, range 6 E., in Lancaster county, as the property of said Merritt D. Welch, the title of record to which property was in the name of his wife.On April 21, 1892, the defendants Sayers and Scoville obtained a judgment against said Welch in the district court of Lancaster county for $889.60 and $48.05 costs, upon which execution was issued and returned unsatisfied.A second execution was thereafter issued on said judgment, and levied upon the premises above described.It is sought by these proceedings to have said property subjected to the payment of said several judgments, the creditors claiming that the money with which the same was purchased belonged to the husband, and not the wife, which position is assailed by the Welches.There is no conflict in the evidence relating to the ownership of the premises in controversy.It is disclosed that in 1873 Mr. Welch procured a tontine policy on his life for $4,000, in the ...