Watts v. Warren

• Decision Date: 19 May 1891
• Citation: 108 N.C. 514,13 S.E. 232
• Court: North Carolina Supreme Court
• Parties: Watts et al. v. Warren et al.

13 S.E. 232

108 N.C. 514

Watts et al.

v.Warren et al.

Supreme Court of North Carolina.

May 19, 1891.

Fraudulent Conveyances—Evidence—Transactions with Decedent—Assignments of Error.

1. Where, in an action by creditors to set aside as fraudulent an assignment of a life insurance policy to decedent's brothers, the defense was that the latter had theretofore paid a number of decedent's debts; that one of them, as co-executor with him of their father's estate, was obliged to pay large sums on account of his default; and that the sums so paid were a just and fair price for the assignment, —evidence as to such payments was material to prove the consideration for the assignment, and the bona fide character of the transaction.

2. Code N. C. § 590, provides that no one interested in an action adversely to a deceased person shall be examined as a witness in his own behalf, "concerning a personal transaction or communication between the witness and the deceased person. " Held, in an action to set aside an assignment to decedent's brothers of a life insurance policy, that defendants, although incompetent under said section to prove the contract of assignment, or the consideration agreed upon therefor with decedent, could testify to their transactions with third persons in that regard, and show what money they had paid in settlement of decedent's debts, and also what sums they had been compelled to pay on account of decedent's default as co-executor of their father's estate.

3. Assignments of error in disallowing certain questions, as to what payments had been made by defendants for and on account of decedent, sufficiently suggest the materiality of the evidence proposed; and, although the evidence itself is not specifically set forth, such assignments will be considered on appeal.

Appeal from superior court, Durham county; MacRae, Judge.

It appears that Julius B. Warren died intestate in the county of Durham, in the month of June, 1889, and the defendant W. A. Warren duly became the administrator of his estate. This action is brought by the creditors of the intestate to compel the defendant administrator to an account of his administration, and to pay the creditors what may be payable to them respectively. The other defendants are brought into the action to the end that they may be concluded in respects not necessary to be particularly mentioned here. In the life-time of this intestate, he obtained from the Provident Savings Assurance Society of New York a policy of insurance of his own life, payable to him and for his own benefit, dated the 15th of March, 1888, for the sum of $15,000. On the 29th day of March, 1889, he assigned transferred, and delivered this policy of insurance to his two brothers, the defendants W. A. Warren and Frank Warren, "for value received." No particular consideration is recited. At the time of the death of the Intestate-, he was largely indebted to divers creditors, and it is alleged that the assets of his estate are lnsu Indent to pay his debts and the costs of administration. It is further alleged, among other things, that such assignment of the policy of insurance was made in fraud of and to defraud the creditors of the intestate, etc.; and that, at most, such assignment was intended only to secure certain debts and the payment of premiums upon the policy a3 the same might come due, etc. The plaintiffs allege that th3 policy belongs to and constitutes part of the assets of the estate, and they demand judgment that it be so declared, etc. The defendants deny the alleged fraud, and aver that such assignment was made in good faith, and for a just and fair consideration; and they further contend that, at all events, they bought the insurance policy for a just consideration, in good faith, and without knowledge or notice of any such fraudulent intent or purpose of the said intestate. The court submitted to the jury the following issues, and the jury responded to the same as indicated at the end of each: "(I) Was the assignment by J. B. Warren to W. A. Warren and F. R. Warren absolute and for full val'ie? Answer. No. (2) Was said assignment intended as a security for indebtedness of J. B. Warren as executor of his father's estate or otherwise? A. No. (3) Was such assignment made simply as a security for premiums paid out and to be paid thereon by W. A. Warren and F. R. Warren? A. No. (4) Was said assignment made by J. B. Warren with intent to hinder, delay, and defraud his creditors? A. Yes. (5) Did the defendants W. A. Warren and F. R. Warren have notice of such intent when the assignment was made?" There was no response to this issue. On the trial there was evidence tending to prove that the intestate and the defendant administrator were executors of their deceased father's will and that the intestate in his lifetime had used very considerable sums of money—how much did not definitely appear—that belonged to legatees of the will, and that the defendant W. A. Warren had paid and had to pay the same, etc., and that such payments constituted part of the consideration paid by him for the policy of insurance. The defendant administrator was examined as a witness in his own behalf, and his counsel, among others, put to him questions as follows: " What payments have you made to other persons than J. B. Warren in consideration of that assignment? This was objected to by the plaintiffs, and, the objection being sustained, the defendants except. Defendants' counsel asked: What sums of money have you paid out by reason of your liability as co-executor with J. B. Warren of F. L. Warren, deceased? Objection by plaintiffs sustained, and defendants except." The defendant F. R. Warren was also examined as a witness for the defendants, and, among others.this question was put to him: "State if you have made any payment, if so, to whom, on debts of J. B. Warren. The plaintiffs objected, and, objection being sustained, the defendants except." There were numerous other exceptions, but they need not be reported. The court gave judgment upon the verdict for the plaintiffs, and the defendants thereupon appealed to this court.

John W. Graham and Jas. S. Manning, for appellants.

Boone & Parker, W. W. Fuller, and VI'. A. Guthrie, for appellees.

Mekrimon, C. J., (after stating the facts as above.) Assignments of error, upon the ground that evidence tendered on the trial was improperly rejected, should distinctly specify its relevancy and materiality. The court must be able to see its nature and application with reasonable certainty; otherwise it cannot say that there is or is not error. The presumption Is that the rulings of the court are correct until the contrary is made to appear in some appropriate way. Whitesides v. Twitty, 8 Ired. 431; Knight v. Killebrew, 86 N.C. 400; Summer v. Candler, 92 N.C. 634. Although the evidence which the defendants sought to elicit by the questions put to the...