Opinion
09-16-1898
GNICHTEL v. JEWELL et al.
G. O. Vanderbilt, for receiver. James, Hayes, for defendants.
Bill by Frederick Gnichtel, receiver, in discovery proceedings, against Edward Jewell and Elizabeth Oliver, to set an assignment aside as in fraud of creditors.
One Rowland got a judgment against Edward Jewell in January, 1881, for $576.02; one Fielder, a judgment against the same defendant, in February, 1884, for $211.29. Moore & Bastido got a judgment against the same defendant in March, 1884, for $105.25. Nothing has been realized upon the said judgments. The defendant, in April, 1894, received from Joseph H. Bruere, sole surviving executor of Elisha Jewell, deceased, $975. Elisha Jewell was the father of Edward Jewell, the defendant. Of this sum Edward Jewell got $175, and deposited $800 in the Princeton Bank, to the credit of his wife. Up to May 17th she had drawn out $154. On May 18.1894, petitions were filed on behalf of the three judgment creditors for discovery, and for the appointment of a receiver, and an order was made for discovery, and restraining orders granted, which orders were served upon the defendants on Saturday, May 19th. On Monday, May 21st, the defendant, with his wife's check, drew from the Princeton Bank the balance of the $800, which balance amounted to $646, which money the wife has since spent. In the discovery proceedings it appeared that, apart from this sum, the defendant had been the owner of the following interests: An uncle of his, one William D. Jewell, who had died in May, 1893, had left $100,000, to be divided into five shares, one of which shares was to go to the children of Elisha Jewell, the father of Edward. Edward's share of the one-fifth part was $2,721.42, of which he was to receive the interest during his life. It also appeared that William D. Jewell, deceased, died intestate as to a part of his estate, and that the defendant, as heir or next of kin, was entitled to the sum of $3,036.47 as his portion thereof. It further appeared that, shortly after the death of William D. Jewell, Edward Jewell executed an assignment of all his interest in the estate of the former, in favor of his wife's sister Elizabeth Oliver. This instrument is dated June 17, 1893, and the expressed consideration for it is $4,000. The complainant was appointed receiver in the proceedings for discovery, and, as such, filed this bill to have the said assignment set aside as a fraud upon the said creditors.
G. O. Vanderbilt, for receiver.
James, Hayes, for defendants.
REED, V. C. (after stating the facts). The testimony leaves no doubt in my mind that the intention of Edward Jewell, in making the assignment mentioned, was to baffle and defeat his creditors. My only doubt is whether the assignee participated in such intent. It certainly looks as if there was a tacit, if not an express, understanding that Jewell was to have the control of this property after the assignment as fully as before, with the possible exception that she was to be paid the amount which she had loaned Edward. But I hesitate to fix a fraud upon Miss Oliver, although the circumstances as to inadequacy of the consideration and the fairness of the transaction are certainly suspicious. I will therefore adopt the equitable rule employed by Chancellor Kent in Boyd v. Dunlap, 1 Johns. Ch. 478, which case was approved in Muirheid v. Smith, decided by our court of appeals, and reported in 35 N. J. Eq. 312. I will let the assignment stand as security for the unpaid part of the money loaned and for such amount of services as 1 think the defendant Oliver is entitled. The assignment covers not only the $3,036.47, but also the life interest of the assignor in the income from the sum of $2,721.42. This sum, invested at 5 per cent. interest, would realize the sum of $136.07 each year. The assignor was at the time of the assignment 59 years old. By the' tables of mortality, the present value, at 5 per cent., of an annuity of $1, at the age of 59 years, is $9.1989. The value of an annuity of $136.07, at that age, is $1,251.69. Miss Oliver, therefore, got by the assignment $3,036.07+$1,251.69=$4,287.76.
The agreement sworn to by Miss Oliver and her sister, that she was to receive $4 a week, was not entered into by Jewell, nor, so far as appears, communicated to him. In fact, it does not appear that he ever knew that his sister-in-law was working for wages at all. So, assuming that she was to be paid, she is only entitled to a quantum meruit. This I have concluded to allow her. In fixing this, it is to be kept in mind that she either must have been furnished with money by her sister, to assist in clothing herself during the period of 22 years, or she must have (as I understand Mr. Jewell to say she did), during that period, engaged for short terms in dressmaking. In either case, it would diminish the amount she is entitled to recover; for, in the first instance, she has already received something, and in the other had not rendered services for the full time in the household of the defendant. She is entitled to the amount of the loan, which is $230, less $50 paid, leaving $180 due, with six months' interest, amounting to $64.80, making a total of $244.80. For her services I think $2.50 a week is ample compensation. She claims for22 years. This amounts to $2,860. Add this to the $244.80, the sum total is $3,104.80. The difference between the value of what she received by the assignment, namely, $4,287.76, and what she is permitted to recover, is $1, 182.96. This sum the receiver is entitled to receive and apply to the judgments, and to the interest thereon, so far as it will go.
I will advise a decree that if the assignee pay this sum to the receiver within 60 days, with the costs of this suit, the assignment will be permitted to stand. But, if not paid within that time, the assignment is to be set aside as to the receiver, and he is to collect, of the amount due Edward Jewell, the sum of $1, 182.96, with interest on the, same sum from the time of entering this order, and the costs incurred in the collection of the same, and apply the same to the payment of the judgments; and is also to collect enough in addition to pay the costs of this suit.