Walker v. Walker

• Court: New Hampshire Supreme Court
• Writing for the Court: BLODGETT, J.
• Citation: Walker v. Walker, 66 N.H. 390, 31 A. 14 (N.H. 1891)
• Decision Date: 13 March 1891
• Parties: WALKER v. WALKER et al.

31 A. 14

66 N.H. 390

WALKER

v. WALKER et al.

Supreme Court of New Hampshire. Merrimack.

March 13, 1891.

Exceptions from Merrimack county.

Action by Lorinda Walker against Edward J. Walker and others to recover her legal share in the estate of Nathaniel B. Walker, her deceased husband. Judgment for plaintiff. Defendants except. Exception overruled.

Nathaniel B. Walker died In January, 1889, leaving a will, in which he gave one-third part of his estate to the plaintiff, and the remainder to his two sons by a former wife,—the defendants Edward J. and Charles H. Walker. The defendant Mellen holds in trust for Edward J. and Charles H. Walker a large amount of corporate stocks and bonds, valued at over $38,000, delivered to him to be kept for them by Nathaniel B. Walker in his lifetime. The defendant Stevens is executor of the will. The plaintiff married Nathaniel B. Walker in 1873. May 12, 1877, he purchased a house in Concord for $6,500; taking the deed in his name, as trustee for his two sons, Edward and Charles. This house the plaintiff and her husband occupied as a homestead from that date until his death, in January. 1889. It did not appear that anybody living knew how the title in this house stood until the day before the trial, when, the deed in the hands of the executor being called for by the plaintiff's counsel, the nature of the title was discovered. The house had been assigned to the plaintiff as dower and homestead out of her husband's real estate, she haying waived the provisions made for her in his will. Upon discovery of the state of the title to this house, the plaintiff moved to amend her bill so as to claim a share—one third part—of this estate. The court finding that, at the time he took the deed as trustee for his sons, the deceased had ample means remaining for a suitable provision for his wife, denied the motion, and the plaintiff excepted. In 1883, jealousy had arisen between the plaintiff and her husband, and this feeling grew into an estrangement between them, which continued until his death. In that year his two sons, Edward J. and Charles H, being then 19 and 17 years of age, respectively, left home. About this time their father assigned to them certain shares of railroad stock; giving up his own certificates, and taking certificates, some in the name of Charles, and some in the name of Edward. He took powers of attorney from the boys, to enable him to collect the dividends, but made no delivery or change of possession of the stock and bonds at that time; informing them, in a general way, without specifying the securities, that he had given them, or proposed to give them, certain property of that kind, without specifying the amount. Mr. Walker retained the possession of this property—collecting the interest upon the bonds and the dividends upon the stocks, as upon his own property, sending Charles and Edward certain sums, as their needs required, and using the balance for his own personal and other expenses—until about the 1st of November. 1887, when he went to Worcester, and, at Mellen's office, delivered to him a tin box containing bonds and certificates, and requested Mellen to keep it for his sons Charles and Edward; saying that the securities belonged to them (Charles and Edward), and that he had powers of attorney from them to manage the property and collect the income. Mellen told him he would take the securities, and hold them as he might direct. Mellen found in the box a large amount of corporate stock and bonds, with two lists, written upon a small piece of paper, enumerating the property,—one list having the name "Charles H. Walker" written over It, and the other the name of "Edward J. Walker." These names were In N. B. Walker's handwriting. These stocks and bonds have since remained In Mellen's possession, except that certain other stocks or bonds were added by Mr. Walker, in his lifetime, for the purpose of making the lists more nearly even in amount, and an exchange of one lot was at one time made by him. Mellen collected the interest on the bonds and the dividends upon the stock. Some of the Income collected by him he paid to Charles, and some to Edward, either with or without express directions from their father, and sent him the balance; always accounting to their father, N. B. Walker, for all collections and payments. Mr. Walker died in January, 1889. Charles and Edward did not know the amount or kind of these securities until after their father's death. The value of the whole on the 1st clay of April, 1800, was $37,737. No part of this property was ever delivered to Charles or Edward in the lifetime of Mr. Walker, their father. In the management and control of the property, Mr. Mellen acted entirely under the advice and direction of Mr. Walker, who did not intend that the gift to his sons should take effect until his death. Without the property claimed to be embraced in the gift to the sons, and her interest in the homestead premises, lost as before stated, the value of the plaintiff's entire right in the estate of over $50,000 left by her husband is only $2,211.07. The court found that the gift to his sons by the deceased was testamentary in its character, designed to deprive his wife, the plaintiff, of her rightful share in his estate, and, as to her, was fraudulent and void, and that the plaintiff was entitled to a decree; that Charles and Edward Walker, or said Mellen for them, should pay to the plaintiff the sum of $12,570, being one-third of the value of the property in Mellen's hands claimed by Charles and Edward, and interest on said sum from April 1, 1800, or that said Mellen deliver all of said property to said Stevens, to be administered as part of the estate of said Walker. The defendants excepted.

Chase & Streeter, for plaintiff.

Wm. L. Poster, for defendants.

BLODGETT, J. Upon the facts found at the hearing, the bill can be maintained. The attempt of the plaintiff's husband to dispose of nearly all of his personal estate so that he should have the enjoyment and control of it for life, and the plaintiff be deprived of any portion of it at his decease, cannot be sanctioned. It is settled law that conveyances of real estate made by the husband, during coverture, for the purpose of defeating the wife's rights, are, as to her, fraudulent and void. Whether the same rule obtains in transfers of personal property for the like purpose, when the husband reserves therein no right to himself, is a question upon which the authorities are somewhat at variance; but where the transfer is a mere device or contrivance by which the husband, not parting with absolute dominion over the property during his life, seeks at his death to deprive his widow of her distributive share, there is no substantial conflict of authority that the rule applicable to conveyances of realty prevails. Thayer v. Thayer, 14 Vt. 107; Hays v. Henry, 1 Md. Ch. 337; Rabbitt v. Gaither, 67 Md. 05, 100, 105, 8 Atl. 744; Littleton v. Littleton, 1 Dev. & B. 327; McGee v. McGee, 4 Ired. 105; Davis v. Davis, 5 Mo. 183; Stone v. Stone, 18 Mo. 380; Tucker v. Tucker, 20 Mo. 350; Smith v. Smith, 12 Cal. 216, 225; Lord v. Hough, 43 Cal. 581; Cranson v. Cranson, 4 Mich. 230; Holmes v. Holmes, 3 Paige, 363; Richards v. Richards, 11 Humph. 420; Petty v. Petty, 4 B. Mon. 215. Such, also, were the decisions under the ancient customs of London, from which our statute of distributions is said to have been borrowed. Thus, in Hall v. Hall, 2 Vern. 277, it was held that if a freeman gives away goods in his lifetime, and yet retains the deed of gift in his own power, or retains the possession of the goods, or any part of them, it is a fraud upon the custom, and will not conclude the widow; and In Fairebeard v. Bowers, Id. 202, a voluntary judgment by a freeman, payable after his death, was postponed to the widow's claim for her customary share. So, in City v. City, 2 Lev. 130, where the deceased had, by deed, assigned a term to his son, and the son had gone into possession, it was held that this did not bar the widow of her customary share, the assignment being without consideration; and it was said, "The same is the law as to goods." And Edmundson v. Cox, 7 Vin. Abr. 203, is of the like general purport That case was a bill by the widow of a freeman of London for her customary share. The husband had made his will, and devised to the wife certain real and personal estate. There was sealed up in the will the bond of the testator, executed before the date of the will, conditioned to pay the defendant a given sum of money, or transfer to him a given amount of bank stock. The obligee was the testator's nephew, and the bond without valuable consideration. It was held by the master of the rolls that the widow, on first disclaiming all benefit under the will, could have a decree for her customary share, and that the bond should not stand in her way; and he adds, "Such sort of contrivances to evade the custom have always been set aside in this court." See, also, Smith v. Fellows, 2 Atk. 62, and Cobmes v. Elling, 3 Atk. 676. These decisions well illustrate what should be the course of decision under our statute. The widow's claim for her share under the statute...