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in effect, a conveyance by the bankrupt, and The following is the opinion of Bergen, V. was voidable at the instance of her trustee. C., referred to in the opinion: [Ed. Note. For other cases, see Bankruptcy,
"James Travers died November 1, 1883, Dec. Dig. § 177.*]
testate, leaving him surviving a daughter, 6. BANKRUPTCY (8 181*)_VALIDITY-PABTICI- Annie E. Travers, and a widow, Sophia V. PATION BY GRANTEE-CONSIDERATION.
Where defendant participated with her Travers, who on August 15, 1889, married mother, a bankrupt, in procuring transfers to William H. O'Brien, now deceased. When her to 'hinder and delay the mother's principal he died, James Travers was seised of certain and only creditor, the conveyance was voidable, though given in satisfaction of an honest debt: real estate, situate at Point Pleasant, in this
(Ed. Note.--For other cases, see Bankruptcy, state, which may be sufficiently described as Dec. Dig. § 181.*]
lots Nos. 4, 5, 289, and 290, on the map of 6. BANKRUPTCY (8 186*)—FRAUDULENT Con lands of the Point Pleasant Land Company, VEYANCES-ACTION BY TRUSTEE.
and also of an equal undivided half part of Where a bankrupt only owned an undivid- lots numbered 17 and 18 on said map. He ed one-third of certain land, which she fraudulently conveyed to defendant, and the bill oi the also left personal property, the amount of trustee in bankruptcy to set aside such convey. which is in dispute, but as it, except the ance, and the answer, admitted that defendant portion used by the widow, and not accountreceived $6,370 from certain insurance op build-ed for, about which the complainant raises ings destroyed by fire, after paying $4,630 in discharge of mortgage liens, for which the poli- no question, was used to improve the real cies had been pledged as collateral, defendant estate, and is devised in the same manner was only chargeable with one-third of such
as it is, the question of the amount of the sum, and not one-third of the entire amount of the insurance, and the error was not cured by personal estate will only become important the fact that the decree only vacated the con- should it be necessary to determine whether veyance subject to all valid mortgages existing a reasonable consideration was paid by the at the time it was made, where the mortgage daughter to the mother for the conveyance of debts had been discharged and were not reinstated by the decree.
the real estate which the present proceeding [El. Note.-For other cases, see Bankruptcy, assails. That portion of the will of James Dec. Dig. § 186.*]
Travers pertinent to the issue devises and 7. APPEAL AND ERROR ($ 719*)-ASSIGNMENT bequeaths: "To my wife while she remains OF ERRORS-NECESSITY.
A decree should not be disturbed because it my widow, all of my property of every de imposed a lien on defendant's land for the scription and character not hereinbefore disamount found due complainant, where no such posed of, with full power of disposition and objection was contained in defendant's reasons alienation provided, however, that in case for appeal.
my daughter survives her, that all the prop(Ed. Note.—For other cases, see Appeal and erty not disposed of prior to my wife's deError, Dec. Dig. $ 719.*]
cease, shall be and become the property of 8. APPEAL AND ERROR (8 870*) - REVIEW SCOPE.
our said daughter, and in the event of my Where complainant, a bankrupt's trustee, wife contracting another marriage, then it is did not appeal from the part of a decree which my will that she shall possess and enjoy as charged against defendant the nie of furniture transferred by the bankrupt, complainant's of her own right, only one-third of the ohjection that the amount so charged was less property then remaining, and that the other than the conceded value of the furniture in de- two-thirds shall be invested and held in fendant's answer would not be reviewed.
trust for my daughter Annie, and paid to (Ed. Note.-For other cases, see Appeal and her upon attaining her majority, and fur. Error, Cent. Dig. $$ 3487-3512; Dec. Dig. $ 870.*]
thermore should my daughter die without 9. BANKRUPTCY_($ 473*) - Costs-ACTION BY leaving child or children, it is my will that BANKRUPT'S TRUSTEE.
any property which she may be entitled to Where a bankrunt's trustee was successful or enjoy under this will, shall go to my two in setting aside a frandulent conveyance made sisters, Mrs. Sidney Wiginia Mitchell, and by the bankrupt to defendant, the trustee was entitled to costs.
Mrs. Mary Wynee, their heirs and assigns, (Ed. Vote.-For other cases, see Bankruptcy, share and share alike.' The widow was apDec. Dig. $ 473.*]
pointed executrix of the will, which she 10. Costs ($ 234*)-APPEAL AND ERROR. caused to be probated, and took upon her
Where defendant was obliged to appeal to self the execution thereof, but no inventory correct a decree against her which was improper, she was entitled to costs on the appeal,
was ever made by her of the personal esincluding cost of printing, though complainant tate, nor has she accounted for the same, ei. was successful in the suit.
ther in the orphans' or prerogative court. Fl. Notr-For other cases, see. Costs, Cent. In 1884 the defendant Sophia V. Travers Dig. $$ 892-899; Dec. Dig. § 234.*]
erected a cottage at a cost of $6,000 or $7,Appeal from Court of Chancery.
000 on lots 289 and 290, manifestly using a Action by Edmund J. Parker, as trustee portion of the personal estate of her deceasin bankruptcy of Sophia V. Travers, against ed husband for that purpose, as she had no Annie E. Travers and others. From a decree other funds, and on August 13, 1888, she for complainant for less than the relief individually, and not as executrix, conveyed demanded, both parties prosecute cross-ap- all of the real estate devised by the will of peals. Modified and affirmed.
her husband to William H. O'Brien, to whom
she was afterwards married, and he, on, under the will of her father, in the event of the day following, conveyed the same lands remarriage, was defeated thereby, because to his son, Bryan O'Brien, who on August that act was a disposition of the property, 15, 1888, as admitted in defendant's answer, and under the terms of the will vested an reconveyed the same to her. In 1892 she absolute estate in the mother, so that nothcaused to be erected a building on lots 4 and ing remained of the estate to go to the 5 to be used as a hotel, at a cost which not daughter, when she, the mother remarried. only exhausted all of the personal property “The rule is well established in this state of the Travers' estate remaining, admitted that, when to a life estate, with a remainder by Mrs. O'Brien to have been about $18,000 over of what may be undisposed of, there is or $20,000, but required the raising of addi- added a power of disposition, the property tional funds, which was accomplished by right or interest of the life tenant is not mortgaging the real estate. In 1895 lot 17, thereby enlarged, but the devisee takes a life was sold by proceedings in chancery, and estate only, with a power of disposal to be purchased by Mrs. O'Brien, she thus acquir- exercised by the devisee during the continuing the outstanding title which was not vest- ance of the estate, for his benefit. Robeson ed in her former husband. On February 23, v. Shotwell, 55 N. J. Eq. 318, 36 Atl. 780. 1905, Sophia V. O'Brien conveyed to the de- The interest in the real and personal properfendant Annie E. Travers all of her interest | ty of James Travers, which his widow acin the foregoing lands, as well as in another quired under the devise to her above set out, tract, to be hereinafter referred to. At the was a life estate, determinable upon her retime this conveyance was made Mrs. O'Brien marriage, with the power of disposal and was indebted to one Elizabeth O'Brien, a sis. alienation during the continuance of the ester of Mr. O'Brien, and judgments had, on tate, subject to a gift over of what remained February 10, 1905, been entered against her undisposed of at her death should she remain therefor in the court of common pleas, in the unmarried, and also subject to the condition county of Philadelphia, in the state of Penn. that, in the event of her remarriage, she sylvania, for over $6,000. The judgments should take in her own right one-third of the were assigned to a Mr. Roney residing in property then remaining, and invest the Camden, N. J., who on February 15, 1905, residue for the benefit of her daughter, to be commenced an action in the Supreme Court paid to her when she became of age. It is of this state to recover the amount due there admitted by the complainant that two-thirds on, which action was defended, and, as stat- of the personal estate remaining in the hands ed by counsel on the argument, yet remains of the widow when she married immediately undetermined. Having transferred all of the became a trust fund for the benefit of the property to ber daughter, Mrs. O'Brien, on daughter, but he insists that, as to the real September 8, 1905, filed her petition in bank- estate, the widow, having exercised her ruptcy in the United States District Court power of disposal, thereby became entitled for the District of New Jersey, from which to an absolute estate and title in the lands, it appears that the only debts then owing by thus defeating the gift over to the daughter her, outside of a few traders' accounts, which was to become effective at the teramounting to $105, and an alleged claim of mination of the life estate. I find myself the daughter, was the debt due on the unable to accept this result; for, assuming O'Brien judgments. The judgment indebted that the contention of the complainant that ness and the claim of the daughter being the conveyance was executed for the purpose presented, proved, and allowed in the bank- of defeating the gift over is correct, it could ruptcy proceedings, the complainant, as trus- not be supported as a bona fide exercise of tee in bankruptcy, filed his bill of complaint the power conferred, which must always be in this cause, charging that the conveyance executed in good faith, looking to the carryheretofore referred to was contrived and car- ing out of the expressed intention of the parried out for the purpose of hindering and ty creating the power. By the gift over of delaying creditors, and therefore void, upon what remained undisposed of at the death which a prayer is rested to have the convey of the life tenant, and the substituted dispoance declared fraudulent and void, and the sition on the remarriage of the widow of land decreed to be the property of the debt- what then remained, the testator plainly inor, and made subject to the payment of her dicated that it was his intention that his debts. As to the property now under con- widow should exercise the power of disposal sideration, the first question to be determin- and alienation to such extent as might be ed is what was the state of the title which required for the beneficial enjoyment of the was conveyed to the daughter in 1905, she property during her tenancy, but clearly a claiming that on the marriage of her moth-transference of title which did not alter the er two-thirds of the property passed to her, identity of property or owner, for the purand that she paid full value to her mother pose of defrauding the remainderman, was for the other one-third. The insistment of not such an exercise of the power of disthe complainant is that, by virtue of the con- posal granted as to change a life estate to a veyance from Mrs. Travers and the reconvey-fee simple, nor do I think it would have ance to her, the absolute title vested in her, made any difference in this case if there had verted into money; for the proceeds thereof, who is the only real creditor in the bankwhich remained in her hands undisposed of ruptcy proceedings, in the collection of debts when the tenancy ended would have been a which were then in existence, I am of opinpart of the estate 'that remains,' and be sub- ion that, as she accepted from the daughter ject to the alternative bequest. The pur- the balance that was due on her loan, and pose for which the conveyances were made conveyed to that daughter this particular does not appear in the deeds; and, although land with full knowledge of all the condithe intention of the grantor must, if possible, tions, she is estopped by her deed, and canbe gathered from the writing, parol evidence not justly complain that a conveyance, which is admissible to show the object for which she made with full knowledge of the situathe power was exercised, where the deed | tion, is a fraud perpetrated by the defenddoes not disclose it, and on this subject the ants against her, and shall advise that the life tenant, Mrs. O'Brien, testified that, be- bill be dismissed as to lots 2 and 3. As to fore her second marriage, Mr. O'Brien, her lots 17 and 18, of which the testator died intended husband, who was a lawyer living seised, it appears from the pleadings that in Philadelphia, advised her to alienate the they were sold in partition proceedings, and property, before her marriage, 'otherwise, if lot 17 was purchased by the mother, and by I kept the ground just as it was, in my her conveyed to one Van Note in order that name, that I would not be able to sell until he might make a sale of it, but substantialAnnie became of age, and that the property ly, as I construe the evidence, for the purmight depreciate.' She also testified that pose of securing to him, out of the proceeds she was advised that the transfer would of such sale, a debt of $200. This debt the not affect Annie's interest, for by her fa- daughter paid, and he conveyed the lot to ther's will she would be entitled to two- her August 3, 1905. It is not denied that the thirds of the property as soon as she (the property then belonged equitably to Mrs. mother) married. This evidence negatives O'Brien, and the conveyance by Van Note the claim of the complainant that the con- was, in effect, a conveyance by Mrs. O'Brien; veyance was intended to be, and was, an and, as the transfer to the defendant Annie exercise of the power of disposal for the pur- E. Travers was made within four months of pose of conversion, but, on the contrary, the filing of the bankruptcy petition, it is shows that it was an alienation of the prop-clearly void as against the trustee in bankerty for other purposes, and was not intend- ruptcy, under the bankruptcy act, and if ed to change the character of the estate then this conveyance is a hindrance to the appliheld by the life tenant. I am satisfied that cation of the property to the payment of in 1903, when the conveyance was made to the bankrupt's debts, it should only be allowthe daughter, she was entitled to have two-ed to stand as a mortgage to secure the thirds of the property of which her father amount paid by the daughter, viz., $200. As died seised, which is described as lots 4, 5, to lot 18 it is impossible to ascertain, from 289, and 290, conveyed to her without con- the pleadings or evidence, what became of sideration, and that her mother was then it. It was sold in partition proceedings at seised, in her own right, of the one-third the same time lot 17 was sold, but who be part of the same land.
came the purchaser, or where the title is "In addition to the foregoing, other lands, now vested, I am unable to discover, and being lots 2 and 3 on said map, were convey- certainly in the present state of the proceeded by the same deed to Annie E. Travers, ings, no decree can be made regarding it. the status of which will now be considered. There yet remains to be considered a tract In 1891 these lots were conveyed by a Mr. of land described in the pleadings as lot No. Lomas to William H. O'Brien, and the con- 1. This lot was purchased November 16, sideration was paid with $3,000 borrowed by 1895, by the defendant Sophia O'Brien, and O'Brien from Elizabeth, his sister, as ap- on January 21, 1905, she conveyed it to her pears from a paper writing, in the nature of daughter, without any consideration other a declaration of trust or equitable mortgage, than an alleged indebtedness from the mothby the terms of which he and his wife, So- er to the daughter on account of her interest phia, agreed to convey said lots to Elizabeth in the estate of her deceased father. It also upon default in payment of the sum so loan appears by the pleadings that, when the coned. William E. O'Brien held the legal title veyance of the real estate was made, the to this land when he died, and by his last mother also transferred to the daughter a will devised it to his sister, Elizabeth. It is considerable quantity of furniture, which claimed by the answer of both defendants the daughter admits was of the value of $1,that the property belonged, in equity, to S0-500. The bill charges that it was of much phia, subject to the payment of the loan; greater value, but no evidence was produc. that of this she had paid $2,000, although ed upon which I can base any reliable estithe legal title was vested in Elizabeth, who, mate of its value, and I have concluded to on Vay 22, 1905, conveyed the lots to the accept the figure admitted by the defendant. daughter. . As the equity of the present pro- It, therefore, appears that at the time of this ceeding is based entirely upon the charge conveyance the mother was possessed of an that this conveyance was contrived for the equal undivided one-third interest in lots 4, and furniture to the value of $1,500, all of which she had undoubtedly obtained credit. which was conveyed to the daughter in sat. It was a bald declaration of a fraudulent Isfaction of what they estimated to be her purpose, which was subsequently carried out, interest in her father's estate.
and the parties should not be permitted to "I shall not undertake to analyze the evi- enjoy its benefits. dence for the purpose of ascertaining what "I will advise a decree, declaring void the would have been due to the daughter on a transfer so far as the mother's interest in strict accounting, because in my judgment the the property is concerned, subject to the transfer of the mother's interest in the real mortgages on the lands when transferred, estate last referred to, and also in the furni. and also requiring the defendant Annie E. ture, was contrived and carried out for the Travers to account for $1,500, the admitted purpose of hindering and delaying Elizabeth value of the furniture. It appeared during O'Brien, the creditor of the mother, in the the trial that one of the buildings had been collection of her debt. The grantee has been destroyed by fire since the conveyance, and above the age of 21 years for a long time; that the defendant Annie E. Travers has and, although she now testifies that she made collected the insurance. of this sum she repeated demands upon her mother to ac- will be decreed to pay one-third to the comcount, she never took any steps looking to plainant as representing her mother's interthat end until the mother was being pressed est therein." for the collection of a debt, whereupon the
Wilson, Carr & Stackhouse, for complainmother conveyed, and the daughter accepted, ant. Frank Durand and John H. Backes, for all of the property which the mother possess-defendants. ed, without, so far as this case shows, any accounting between them, and the only consid- SWAYZE, J. There are cross-appeals in eration which the daughter now sets up was this case. As far as concerns the questions an unadjusted claim, which, it was estimated, presented by the petitions of appeal, we agree was more than the value of the property, and with the views expressed by the Vice Chanalthough since that time the state of the al. cellor. Through inadvertence, the decree leged account has been reduced to figures, fails to follow the opinion in some respects, there was no proof that previous to, or at the and in others seems to require explanation. time of, the conveyance there was any at- 1. It decrees that the deed conveying lots tempt to ascertain the true condition of 4, 5, 289, and 290 be set aside, annulled, and their respective relations to the estate of the made void. The opinion makes it clear that testator. But even if the amount due had it is only void as to the equal undivided one been correctly ascertained, and the transfer third of Sophia V. O'Brien. The deed is not made in consideration thereof, the fact that printed in the record, but it seems to have the daughter participated with the mother in conveyed only the undivided interest of Soprocuring the transfers for the express pur- phia V. O'Brien. Although she had on the pose of hindering and delaying the principal face of the earlier deeds a paper title to the and only creditor of the mother in the col- whole, it is clear that in equity she was a lection of her debt is sufficient to avoid the trustee as to two-thirds for Annie E. Travers, conveyance, even if given in satisfaction of even if the conveyances by which the title an honest debt. That such was the purpose was conveyed to her in 1888 were efficacious of the daughter is conclusively shown by a to pass the legal title. If they were not efletter which the daughter wrote but a short ficacious for that purpose, Mrs. O'Brien had time before the transfer to her attorney, Mr. a legal title to one-third only. We regard the Peterson, of which the following is impor- deed of January 24, 1905, as conveying only tant: 'I had suggested mother putting her one-third, and with this explanation, the de property in my name, and then having herself cree in this respect is affirmed. declared bankrupt. In that case, if she were 2. The decree adjudges that the complainforced to pay the notes, she would be exempt, ant is entitled to one-third of $11,000, mon. would she not? I wish you would advise me eys collected by Miss Travers for insurance of the wisdom of this.' This letter plainly on the buildings that were destroyed by fire, diselosed that the daughter had suggested to and fixes the amount, with interest, at $3,her mother the putting of the title of her 710. The bill charges, and the answer adproperty in the daughter's name to avoid the mits, that she received (after paying mortpayment of the notes held by Elizabeth gage liens amounting to $4,630, for which a O'Brien. There was no pretense that the part of the insurance policies had been pledg. property was to be conveyed in satisfaction ed as collateral security) the sum of $6,370. of any debt. On the contrary it plainly dis- She should be charged only with one-third of closed a scheme by which the property was to this amount. The mistake in the decree is be put beyond the reach of the creditor and not cured by the fact that the deed is set of bankruptcy proceedings, and could have aside, subject to the lien of all valid morthad no object other than preventing the gages existing at the time of the conveyance. creditor, then pressing her claim, from ob- The mortgage in question seems to have been taining satisfaction out of the property which satisfied, and the decree does not attempt to the mother had held in her own name for a reinstate it, but in so many words adjudges
an amount which makes no allowance for sole property, but was entirely consistent with what was paid on the mortgage. This mis- a desire on his part that she should be the cus
todian thereof. take requires a reversal of the decree upon
[Ed. Note. For other cases, see Husband and the appeal of Annie E. Travers.
Wife, Cent. Dig. § 251 ; Dec. Dig. $ 4942.*] 3. The decree adjudges that the complainant 4. HUSBAND AND WIFE (8 4942*)GIFTS–Evhave a lien, for the amount found due upon the interest of Annie E. Travers in the land. A direction by a husband to his wife to Her counsel argues that such a lien is not au- take the proceeds of a sale of his property and thorized, but in the reasons for reversal | to put it in her own name and nobody could
put it in her own name, for she had earned it, stated at the conclusion of her petition of ap- touch it, if, when standing alone, sufficient evipeal, no such reason is assigned. We think, dence of a gift, cannot be held to evidence a therefore, that we should not disturb the de- gift, where the husband made other statements,
with which it must be read, showing no gift, cree in this respect.
but rather an intention to retain the control 4. The complainant urges that the amount orer his money. charged against Miss Travers for the value (Ed. Note. For other cases, see Husband and of the furniture is less than its value as con- Wife, Cent. Dig. $ 254; Dec. Dig. $ 4942.*] ceded in the answer. We think it unneces- 5. EXECUTORS AND ADMINISTRATORS (8 133*) — sary to consider this question, since the com
INCUMBRANCES ON LAND-DUTY TO PAY
REPRESENTATIVES. plainant does not appeal from this part of A mortgage assumed by a grantee is not to the decree
be paid by his executor in favor of the heir or Sophia V. O'Brien's rights do not seem to debt in such manner as to show an intention to
devisee, unless grantee shall have assumed the be affected by the decree, except as to the charge his personal estate. costs. The controversy was between the com- [Ed. Note.-For other cases, see Executors plainant and the defendant Travers. Since and Administrators, Cent. Dig. $ 548; Dec. the complainant prevailed in setting aside the Dig. $ 133.*] conveyance made by Mrs. O'Brien, he was en- 6. EQUITY (8 196*) — AFFIRMATIVE RELIEF – titled to costs. The decree, so far as it is in
Affirmative relief can only be afforded upon volved in her appeal, should be affirmed. The
a cross-bill. same result follows so far as the complain- [Ed. Note.-For other cases, see Equity, Cent. ant's appeal is concerned.
Dig. $ 450; Dec. Dig. § 196.* ] Miss Travers has been obliged to come to this court to correct the decree, and she will of Patrick Collins, deceased, against
Bill by Michael Monogban, executor of the should have costs on the appeal, including Margaret A. Collins and others. Decree for the costs of printing. The complainant is ed'
complainant. titled to costs in the Court of Chancery as the decree adjudged.
William M. Jamieson, for complainant. Martin P. Devlin, for defendant Margaret A. Collins.
MONOGHAN v. COLLINS et al.
WALKER, V. C. The complainant's tes(Court of Chancery of New Jersey. Dec. 7, tator, Patrick Collins, departed this life June 1908.)
28, 1907. His will was proved July 16, 1907. 1. HUSBAND AND WIFE (8 4942*)—GIFTS-Evi. In it, after directing his executor to pay all
his just debts and funeral expenses, he gave, Where a husband purchased premises in the joint names of himself and wife out of the bequeathed, and devised all his real and perproceeds of a sale of his own property, such sonal property absolutely to his wife, her transaction negatives a claim by the wife that heirs and assigns, forever, provided she reher husband had made a gift of the entire pro- mains a widow for the rest of her life, and ceeds of the sale of his property to her. (Ed. Note.-For other cases, see Husband and
should she remarry, then he gave, bequeathWife, Cent. Dig. § 254; Dec. Dig. § 4942.*]
ed, and devised all his estate absolutely to 2. HUSBAND AND WIFE (8 4942*)-GIFTS-VA- his three sons (by a former wife), their heirs
and assigns, forever. He appointed the comA gift by a husband to his wife of the pro- plainant sole executor of his will, which was ceeds of a sale of his property will be set aside, dated November 25, 1905. At the time of the unless it is shown that he had independent and competent advice as to the nature and effect of publication of this will the testator, who was the gift, where he was a man of some years and a saloon keeper, owned a property at the his mind, though not deth roned, was susceptible corner of Union and Steamboat streets in the of domination, and he was in a position of de- city of Trenton, where he conducted the rependency upon his wife.
[Ed. Note.-For other cases, see Husband and tail liquor business. This property he sold Wife, Cent. Dig. g 252; Dec. Dig. Š 4912.*]
to David Fineberg in June, 1907. The pro 3. HUSBAND AND WIFE (8 4943*)-GIFTS-Ev. ceeds of this sale came to the possession of IDENCE.
his wife, the defendant, who claims the same A direction by a husband to his wife to as a gift from her husband, and the exectake the proceeds of a sale of his property her: utor's suit is to compel her to deliver those self and put it in the bank to her account, that she had worked hard for it, was not a declara- proceeds to him as the representative of her tion that he gave her the money as and for her husband's estate. Long before the sale of