621
WILLIAMS
et liZ.
'D. WILLIAMS.
(OIirCUJtt COurt, D. Kansa8. GIFTs-INTER VIVos-HUSBAND AND WIFE.
November 25, 1889.)
Plaintifl', living in England,separatedfrom her husband. The latter came to America,married defendant, who did not know of his former marriage, and died, leaving children by both wives. Some time before his death he transferred his property, without consideration, to defendant, and, though he continued to have the use of it for his support, i1;did not appear that he could dispose of it without defendant'.s consent. Plaintiff never lived in the state in which the husband lived in this cOuntry, so that the husband's conveyances to defendant did not require plaintifl"s signature. Defendant ·worked til 'help accumulate the property, 'an.d nursed the husband for several years, while he was disabled. Held, that plaintiff and her children had no claim on the property thus transferred to defendant.
In Equity. . Gillett, Fowler &: Saddler, for complainants. J!1rook H. Hay and Joh'lUJOn,Martin &: Keeler, for defendant. FOSTER, J. This action is brought by Anne Williams, widow,jointly with eight of her children, heirs at law of William Williams, all subjects of Great Britain, and residents of Wales, against Catherine Williams, of Osage county, Kan., widow of said .William Williams, under an illegal marriage, to recover the estate left by said William Williams, deceased, alleged to be worth about $8,000.' Anne Williams and William Williams were married in Wales in 1846. At the date of .this marriage, Anne had, in her own right, in possession and expectancy, quite an .estate. By the law of England, the husband at marriage' became entitled to her personal property,. and did receive quite a sum of money from her estate. There was an antenuptial contract entered into between the parties, by which Anne reserved an hundred pounds, the income of which was to be and remain her separate property. Among other things, it was provided in said contract, in case Anne should survive her. husband having living issue, .the estate was to be divided .between Anne and her children in such· proportions as William might, by will; designate. The parties lived together until 1871, when theyseparated, and in 1873 William came to America, bringing with him about £800. In 1875, Williams and the defendant, Catherine, were married in Kansas, and have two children living, issue of such marriage.. Williams died in 1887, leaving quite an estate, among which is the farm in Osage county on which the defendant and her children now reside. The testimony as to whether Catherine, at the time .of her marriage with Williams, was aware of hia having a wife living in the old country, is somewhat conflicting; but I think the weight of the testimony and circumstances tend to show that she did not have such knowledge prior to the marriage, but first became aware of it after the birth of her firstchild. At the time of the plarriage, Catherine had about $5.00 of ,herowomoney, which went into the hands of her husband.. These parties lived together, as man and wife, for 12 years. They were industrious and thrifty. The defendant worked as well as her husband to accumu-
FEDERAIi !REP01tTER,
vol.AO.
late property, and she nursed and attended him for several years, while disabled from a sore"01lhislegi! ."During the time of their marriage; Williams from time to time transferred and turned over to Catherine all the real and personaFproperty, s(Fthat at the time of his death it was all in her name. The farm was deeded to her in1885,fhe live-stock and, the ,p.¢l.'$onll1 property, frortdiipe to time, ... "':ith exe.eption of $.500,Ofllel,',p.wnmolWY· and m accumulatIOn .of m.o.pertl',· ull;ble. transfer, w,AA the obJect was ;to. children, an? keep it .f:om the wIfe and rests m,amlyas a gIft from Williams to Catherine. Under this state of facts, the question arises, which party has the right and title to the estate? .The 'antenuptial agreement cuts no particular figutei lin the ('.ase, as Williams made' no will, and, .the 'estflte ooing inKMJ.s8:s, it is governel1 'by·the laws of this state, so far as descent and distribution are concerned; and as the complafn'S,n.ptn4'1eWillianistneverlr4lfiided in Kansas, her signature was 'riot necessary! to a oorivay'ance of 'the: husbll.nd's real estate.· 'i The main' initS broadeat' sense, is simpiytbis: Can a married mangiirie/ilwayhis /property,'during, coverture., Jor ,the purpose of preventirighis! 'wife from i acquiring 'an interest therein after his death? U'he lawseetr.l$! to be that if"such:giftcis bona, fidej 'and accompanied by widow cannot reach,itm property,after the donor's death. Withm,y-.,W6Wller\ H)Pa.. St. Deeouche'v.;Savetier,.3Johns.Ch. t'90;Halma v. Wolme8/3,Paige,:36B; Fordv.Ford; 4 Ala. 145; Stone iV. 18tone, 18,Moo' 390. !Neither· the''V\'ife norohildren have any' tangible ·interelltflin1 the hu.sband or father during his iil liable' for theirisupport,.and hence he can sell it or givei't let. or hindrance ;front. them.. Of course, the sale 'orgifbmnst'b6 ,abs(jlute and'ibona filk, and riot colorable ·only. And if the sale or gift Wbuld'bindthe:grantodt would bind his heirs. CarUh. tn ,y,·Weaver,' 7R;an. HOi.;, It is oJa.imed by the· complainants that these ·transfers from! WilliamSf'w ';Clitherine' were' not absolute,but that the 'grantor lind douol' still ,used, .enjbyed, and controlled :the property. !Thi&oonclusionis'rea:ched more rrom>thefact that the;":pal'ties assumed ..till, held'ihEN'elationof,husbandaJnd 'wife toeilCh otller, rather than :noIilJany: tliteot':testimotl1' to' ,True ,it is, he contirlued to li\l'eon the farm as 'hefoTe;and likely looked after the business, ;l1U:t that ,hahad' the power,to dispose of any of ,the pr,opertywithout' Catberina's consEl'nt;Besidesthis,there was a high moral obligliti.on'imposed upon Williafus,to provide·for-and support this :womana'dd':ehildrenr to'Slly nothing of the valuableeonsideration of and she c())itributed to the common fund. If there refua-ins"anyxpropertyowned by Williams at ,his death, the complainmtsare 'entitled to a debree for itjifnot, the bill must be ! { , ,. ;,'
I
:j ..',;'
' .:;
'\ .. -' ;",'
' .. '"
.,!
'. '. 'LOCEE;cT .v; .aUMBOlJGlL i
:
623
LoCKETT et' al· .,.RUMBOUGIf
et al., .
(Cf.rcuit Coure, W. D. North CarciUna" ,November, 18811.) GARNXSlDfENT-,-EQUITY-INTERPLEADER.
lIiattachment and garnishment proceedings, it'ai>pllared that thegarnlsliee: hacl in his hands, received from defendant, in the garnishee claimed no divid.:ual interest, aJld which he offered to PllY tothe pall1lY adjudged t4ereto. Defendant's 'wife interpleadlld, and cliJ.inied that the 'garnishee received'the-fund under an express trust for her henefit; . Plaintiffs claimed a lien by-the proceedings on the fund, and alleged that defendant's ,attempted (lisPllsit\on of it for his wife's henefit was in frllud of creditors. It was not alleged that the gar!. knew of suoh'fraud. Held,that the to determine the of the the
".'
,
, '.
.MLaw.
Moore Merrick, P. A. Cummings, and F. A. StmdleiJ, Cor Joseph Adams andT., H. Cobb, for defendants.
Attachment proceediQgs.
.·.
.
: .
,," .
. DICK, J. This case is <fne of a number.oC similar actions brought by creditors of. the Warm Springs Company, and the order herein made extEindsto all the cases now pending in this court. .These several actiPIls were ibrought against the defendants .lor debts incurred by Springs Company, and judgments have been rendered for the amounts of such, indebtedness. In the course of proceedings the plaintiffs warrantso! attachment against the property: of Joseph Pettyjohn, upon affidavits alleging that he had Ilssignedand disposed of his property with intent to defraud his creditors. . These warrants pf' attachment were duly served on the respondent M.,E. Carter, and he was summoned as nishee to appear at court andansw.<er .upon oath as to what eff-ects .he ha<i in, his possession belonging. to the defendant. PettyjQlm. in his answer, set forth the amount of money wbiah from Pettyjohn, and the facts and cir.cfimsta,nces which ltttended.the transaction, and expressed· his readiness to dispose' of the. money ill.. his hands under the order ofthe court; and prayed'Jor indemnity tectionagainst any pel'8onalliability, in law Or equity, tQ:anyofthe rival claimants. Upon proper application. Mrs., LoUisa B. PettY30hn and her trustee, A. a.Pannell, were allowed ta interplead, and by affi<.lavits set up their claim to the money attached, in the manner and Upon the conditions 'provided by the laws of the state. filed by the plaintiffs, andiss-ues of fapt were :framedJor a trial byjul'Y. Among other things, the pleadings show the following aJ;1d allegations in relation to the fund in controversy:. The defendants·J()\o seph Pettyjohn and his wife, Louisa ,B. Pettyjohn, purchased a 9ne-.third interest in the property of the Warm Springs Company, Ilnde:x:ecutEld a mortgage to secure the payment of a balance of purchase mpney, and expressly stipulated that their interest in any insurance lJPOIl h,otel should be paid in discharge of such indebtedness;, The: bQtelwllS stroyed by fire" and Pettyjohn declined to sign the proof of, aecount of somE!, difficulty which hEl and:&U41s,ua.4