Mark v. Mark

Full title: MARK, APPELLANT v. MARK ET AL., APPELLEES

Court: Supreme Court of Ohio

Date published: May 31, 1945

61 N.E.2d 595 (Ohio 1945)

61 N.E.2d 595

Opinion

No. 30171

Decided May 31, 1945.

Divorce and alimony — Grounds and rights of relict fixed by statutes — Act legally done, not extreme cruelty or gross neglect of duty — Gross neglect an omission of legal duty — Sections 11979 and 11997, General Code — Inter vivos gifts to children by former marriage — Not gross neglect or extreme cruelty, when — Nonsupport must exist prior to or at time decree rendered — Husband may dispose of personalty without wife's consent, when — Husband required to provide only present support for wife — Sections 7995 and 7997, General Code — Undermining wife's economic security, not gross neglect or extreme cruelty, when — Quaere: Preventing husband from transferring property to escape supporting wife.

1. All grounds for divorce and/or alimony and the rights of a relict in the estate of a deceased spouse are fixed by the statutory laws of this state.

2. An act legally done by a husband may not be construed as an act of extreme cruelty or gross neglect of duty under the statutes pertaining to divorce and alimony.

3. "Any gross neglect of duty" as used by Sections 11979 and 11997, General Code, refers to an omission of legal duty.

4. Where there is no invasion of a wife's present, existing right to support, the fact that her husband made large inter vivos gifts to his children by a former marriage will not warrant the granting of a divorce on the ground that in so doing the husband has been guilty of either gross neglect of duty or extreme cruelty.

5. Failure to support, to constitute gross neglect of duty, must exist prior to or at the time the decree for divorce and/or alimony is rendered and may not be predicated upon a possible or probable failure of future support, nor does such possible or probable failure of future support constitute extreme cruelty within the purview of the statutes relating to divorce and alimony.

6. A husband may dispose of his personal property during his lifetime without the consent of his wife. ( Bolles v. Toledo Trust Co., Exr., 144 Ohio St. 195, approved and followed.)

7. The provisions of Section 7995 and Section 7997, General Code, do not require a husband to provide other than present support for his wife.

8. The finding by a trial court that the transfer of his personal property by a husband to his children by a former marriage "undermined" the wife's "economic security" is not sufficient to constitute either any gross neglect of duty or extreme cruelty under Section 11979, General Code, or any gross neglect of duty under Section 11997, General Code, where the trial court found no invasion of the wife's right to present support and that the husband was still possessed of unincumbered, improved real estate.

9. Under Section 7995, General Code, husband and wife contract toward each other obligations of mutual respect, fidelity and support. Under Section 7996, General Code, the husband is the head of the family and may choose any reasonable place or mode of living and the wife must conform thereto. Under Section 7997, General Code, it is the husband's duty to support himself and his wife so long as he is able so to do. Under Section 7998, General Code, neither husband nor wife has any interest in the property of the other except the present right of support as provided in Section 7997, General Code, and rights given by statute to a surviving spouse in the remaining property of the deceased spouse.

Quaere: Whether, under an appropriate action, a wife may prevent her invalid husband from disposing of so much of his property as to render him unable to discharge the duty incumbent upon him under Section 7997, General Code, or whether she may cause to be set aside or modified a transfer without consideration which would have the same effect. Such was not an issue in this case and therefore not decided.

APPEAL from the Court of Appeals of Allen county.

With the observation that the only parties defendant in this case were the husband, Marcus Mark, and The City Loan Savings Company of Wapakoneta, Ohio, we adopt as a statement of this case the separate findings of facts and law by the trial court.

"This is a contested divorce case coming on for trial upon the amended petition of plaintiff and the answer of the defendant. The parties, now approximately seventy-two and seventy-seven years of age respectively, were married on October 19, 1926, at Spencerville, Allen county, Ohio, where they have both resided continuously since that date. No children were born of said marriage.

"Both parties had been previously married. The plaintiff had become widowed in 1920 and was residing with a married daughter, her only child, in Spencerville. The defendant became a widower in 1920 and continued to reside with his two minor children in his home at 115 West Second street, Spencerville. He had four children, now all adult and married.

"Faced with the approaching marriage and removal of his younger daughter, his housekeeper, in 1926 the defendant approached plaintiff, who was then employed in a hat shop in Spencerville, and proposed marriage, which was consummated on October 9, 1926.

"In connection with this proposal and resulting marriage the plaintiff has testified, and it is not contradicted, that the defendant said to her in effect 11 have a comfortable home here in Spencerville furnished with everything that we need, and I have accumulated enough money to provide for all our needs as long as we live. I have $10,000 in the bank and it should be enough for us.'

"These representations by defendant were correct, he did have the property as represented, the parties were married and resided in his home until their separation on about March 31, 1943.

"In her amended petition in this case the plaintiff complains of failure to provide for her necessities in the form of clothing and medical care, of defendant's failure to maintain the home in proper condition, of his unclean and unsanitary habits, of unkind and disagreeable conduct and deportment, of his peculiarities in diet and of his continuing to maintain his minor son in the home, contrary to what she alleges was his agreement in that respect. Nevertheless the court finds that all of these above complaints were of minor import, that there were no greater differences between these parties by reason of them than ordinarily arise between husband and wife, similarly situated, and that the parties continued to live happily together until the disclosure of the events hereinafter set forth, in about September, 1942. All of these allegations in the amended petition, therefore, may be disregarded and the court's finding is against the plaintiff with respect to them.

"Coming on to the other facts which the court deems material in this controversy, and which are for the most part conceded, the court finds the following facts to be material:

"1. That defendant's $10,000 remained in his name and under his control until June 1937, at which time his certificate of deposit with the defendant City Loan Savings Company was renewed in the names of 'Marcus Mark or John Mark.'

"2. That by detailed transactions, transfers and renewals of certificates continuing through until December 1942 all of said $10,000, together with still additional funds, have been gradually transferred from defendant's name to the individual names of his four married children by his first wife, so that each of said children during these years has received the sum of $3,000.

"3. That at the time of the hearing in this case, August 25, 1943, only $133.33 appeared to remain in the name of Marcus Mark.

"4. That all of said transactions and transfers were negotiated without the participation, consent or knowledge of the plaintiff, and that her first information with respect to same came in about September 1942 in the form of a letter directed to her husband by The City Loan Savings Company, and which came to her attention.

"5. That defendant's residence real estate at 115 West Second street in Spencerville, Ohio, has remained, and still is in the name of the defendant, and is worth somewhat in excess of $2,000.

"6. That said transferred certificates of deposit, although now in the names of the defendant's individual children, Viola Wolfe, Hester Boyer, Hobart Mark and John Mark, at least to the extent of $8,500, are still represented by certificates of deposit with The City Loan Savings Company of Wapakoneta, Ohio, defendant in this case.

"7. That since the transfer of said money to his children the defendant has continued through the years to enjoy the use of all of the income from said deposits and, in addition, during the more recent months has been receiving more substantial payments from his son Hobart Mark, by way of repayment of what they have referred to as a 'loan' to Hobart.

"8. That defendant was unemployed during all but approximately the first year of the time he and plaintiff were married but their standard of living was on a modest scale so that the income from defendant's deposits has provided for their maintenance through the years.

"9. That the plaintiff is possessed of a bank account now amounting to $1,600 by way of an inheritance from the unsettled estate of her first husband, and in the ownership of which her married daughter, Mrs. Nelle Souers, is jointly interested.

"10. That the defendant has been in failing health, had an operation in 1940, which has left some doubts as to a possible malignancy, and since then has suffered two minor strokes of paralysis.

"11. That following plaintiff's discovery, or partial discovery, of the transfer of assets in about September 1942 there were a series of negotiations and conferences tending toward settlement, and in which the children of the parties participated, and that no settlement was consummated.

"12. That as a part of said settlement negotiations the defendant made, executed and conditionally delivered to plaintiff his promissory note for $1,200, which has remained in the possession and control of plaintiff.

"13. That on March 31, 1943, upon the filing of this case, the defendant Marcus Mark was enjoined from disposing of any property which he then owned or had the right to dispose of until the further order of the court.

"14. That during the trial of these proceedings, on August 24, 1943, the court, on its own motion, advised O.V. Franklin, managing bookkeeper of the defendant company, then a witness on the stand, that said above injunction had been issued, and that at the stage of the proceedings as they then were, and until the further order of the court, he and his company should regard the certificates of deposit issued in the individual names of defendant's children, as being assets under the control of the defendant within the intent and meaning of the injunction above referred to.

"Upon the above statement of the facts the court finds the law of the case to be as follows:

"1. That the transfer of assets by the defendant to his children, under the circumstances as the court has found them to be, undermined plaintiff's economic security, was a fraud upon her rights, and constituted a gross neglect of duty on the part of defendant.

"2. That the transfer of assets by the defendant to his children under the circumstances as the court has found them to be, and leaving both plaintiff and defendant dependent for their future needs upon the caprices of his children removed plaintiff's reasonable economic expectations, created mental uncertainty and fears for her future, and also imposed upon her a contingent economic burden in case defendant's children failed him, all in such a way as to constitute extreme cruelty on the part of the defendant.

"3. That said transfer of assets into the individual names of defendant's children was a fraud as against the rights of plaintiff, and that said fraud was actively participated in by defendant's children, and each of them.

"4. That said transfer of assets, although absolute in form, was regarded as a conditional and qualified transfer as between defendant and his children so that defendant has continued to enjoy the income from said property up to the present time, all under circumstances which leads the court to believe that defendant's children would have continued voluntarily to turn back to defendant whatever sums he might require during his life time.

"5. That the defendant's promissory note for $1,200 now in plaintiff's possession as aforesaid was issued without consideration, is void, and should be returned to defendant.

"Upon the above statement of the case, upon the court's findings as to the facts and the law the court now finds that the defendant has been guilty of gross neglect of duty and extreme cruelty and that the plaintiff is entitled to a divorce by reason thereof, and the court decrees accordingly; that plaintiff should be restored to her former name of Gabrella Reynolds; that defendant's $1,200 note now in plaintiff's possession was issued without consideration and is void, and plaintiff is ordered to return same to defendant; that all of the funds on deposit with The City Loan Savings Company at Wapakoneta originating from defendant's money, and whether now (as of August 24, 1943) in his name or in the names of his individual children shall be and are regarded as assets in the defendant's control and from said funds it is ordered that the defendants pay to plaintiff in full settlement of her alimony and property rights in defendant's estate the sum of $3,000 within 15 days of the date of this decree; that said $3,000 be and it hereby is declared in the first instance to be a lien upon the funds so in control of the defendant company, and if necessary this case may be held open for the purpose of bringing additional parties into court in order to enforce equitable contribution; that said $3,000 shall be a secondary lien upon defendant's residence real estate in Spencerville, Ohio, but that upon payment of said sum real estate is awarded to the defendant free and clear from any and all of plaintiff's claims therein; and that plaintiff shall be entitled to remove such of her individual furniture, furnishings, personal effects and property as may remain in defendant's home. The defendant will pay the costs herein taxed in the sum of $__________. Exceptions saved for all parties. Appeal bond fixed at $1,000. September 2, 1943."

Upon appeal to the Court of Appeals for Allen county the judgment of the trial court was reversed and final judgment awarded the husband, Marcus Mark.

The cause is in this court following the allowance of a motion to certify the record.

Mr. George J. Bowers and Messrs. Meredith Meredith, for appellant.

Mr. C.W. Long, for appellee.

TURNER, J.

To show clearly the application of the controlling principle of law to the facts, the statement of facts has been and this opinion will be unavoidably long. It should be borne in mind that this is a statutory divorce and alimony case and not a chancery case. See 14 Ohio Jurisprudence, 380, Section 6; Durham v. Durham, 104 Ohio St. 7, 135 N.E. 280; Marleau v. Marleau, 95 Ohio St. 162, 115 N.E. 1009; DeWitt v. DeWitt, 67 Ohio St. 340, 350, 66 N.E. 136.

The Court of Appeals summarized the assignments of error in that court as:

"1. That the judgment in said cause is contrary to law in that, upon the finding of facts in said cause, the defendant was entitled to judgment in his favor.

"2. Error of the court in overruling the motion of the defendant for judgment in his favor upon said finding of facts."

As stated by counsel for appellant: "* * * the fundamental question of law involved is whether or not the facts as found by the trial court are such as to constitute gross neglect of duty and extreme cruelty within the meaning of the statutes pertaining to divorce in the state of Ohio. Fundamentally the legal question is even deeper than that. This case concerns the question of whether or not a husband, who is approximately seventy-five (75) years of age and in failing health and who has lived with his wife for approximately eighteen (18) years can transfer practically all of his property to children by a former marriage with the express purpose of defeating his wife's right to share in his estate and without reserving anything whatever for her future support and maintenance, said transfer being wholly without consideration. In other words, might such a transfer be such an act as to constitute gross neglect of duty and extreme cruelty? Furthermore, the question in this case involves whether or not the phrase 'any gross neglect of duty' means any gross neglect of a legal duty or does it mean any gross neglect of a marital duty having in mind that a marital duty means the duty of mutual respect, fidelity and support. The sole assignment of error in this case is that the judgment of the Court of Appeals is contrary to law."

Counsel for appellant cite paragraph 9 of the syllabus in the case of Porter, Exr., v. Lerch, 129 Ohio St. 47, 193 N.E. 766, which reads:

"The term 'any gross neglect of duty' made one of the causes for divorce under Section 11979, General Code, is elusive of concrete definition and its application as a cause for granting a divorce must depend upon the circumstances of the particular case."

Counsel then make the following argument:

"The Court of Appeals in making its decision in this case holds that to constitute a ground of gross neglect of duty that there must be a gross neglect of a legal duty as affecting property. The court says in substance that this husband was under no legal duty to see to it that his wife was provided for beyond the grave of the husband. Therefore, if the wife should live many years after the husband, even though she is an old woman, she must look after herself. We say to this court that such a conclusion on the part of the Court of Appeals is erroneous and that a husband has more of a duty to perform than that under Section 7995 of the General Code. The facts in this case show that he breached his contract toward the wife in failing to carry out his obligation of mutual respect, fidelity and support and therefore such breach of contract was a gross neglect of duty. In other words we are placing this matter upon a higher basis than property rights and contending that human rights should prevail."

As to extreme cruelty, counsel for appellant argue:

"Can anyone imagine more mental abuses and mental anxiety and mental torment than to be an old woman broken in health with a knowledge that a husband has been so disrespectful to her as to convey all of his property, or practically all of the property without consideration so that she might not enjoy it should her husband pass away? If that is not an act as cruel and inhuman as an act could be, mental cruelty means nothing in this state. * * *

"We have searched long and diligent to find any case reported similar to this one but we have found none. However, we believe that broad general rules of law should apply and that the trial court should be sustained."

Gross neglect is an omission of duty. The trial court in its findings of fact brushed aside all charges of neglect and found in favor of defendant husband in respect of them. However, the trial court did find that by an act of commission the husband had been guilty of both gross neglect of duty and extreme cruelty. Unless this act of commission was an act which violated some statutory duty of the husband toward the wife, it could not be the predicate of either gross neglect of duty or extreme cruelty.

In 14 Ohio Jurisprudence, 203, Section 88, it is said:

"The husband having absolute dominion over his personalty during his lifetime, it has been held that he may, by a bona fide gift inter vivos, deprive his widow of any share in the same; this act constitutes no fraud upon her marital rights."

The amended petition in addition to the grounds upon which the trial court refused a divorce, contains the following allegation:

"That after living for a period of approximately sixteen years on the interest from his money and being deprived of the usual support and necessities defendant has endeavored to defeat her rights by disposing of the principal of said money so that in the event of defendant's decease that plaintiff would be forced to depend upon charity for her support."

As to the defendant husband's representations in his proposal of marriage, the trial court found such representations to have been correct. Therefore, no fraud was practiced at that time.

We adopt the summary made by the Court of Appeals in its per curiam opinion wherein it was said:

"In the instant case the court expressly found against the plaintiff on her complaints in her amended petition that the defendant had failed to provide for her necessities in the form of clothing and medical care and had failed to maintain the home in proper condition, of defendant's unclean and unsanitary habits, of unkind and disagreeable conduct and deportment, and of his peculiarities of diet, and on all other allegations made by her as to misconduct on the part of the defendant other than the transfer of the certificates of deposit above mentioned. Other than the allegations of her amended petition above mentioned, which the court found against her, the plaintiff predicated her right to divorce and alimony and the avoidance of such transfers upon an allegation that, 'defendant has endeavored to defeat her rights by disposing of the principal of said money so that in the event of defendant's decease that plaintiff would be forced to depend upon charity for her support.' "

Commenting upon the conclusions of law reached by the trial court the Court of Appeals said:

"Assuming, however, that the conclusions of law made by the court to the effect that such transfers undermined plaintiff's economic security, and left both plaintiff and defendant dependent for their future needs upon the caprices of his children and removed plaintiff's reasonable economic expectations and created mental uncertainty and fear for her future, and also imposed upon her a contingent economic burden in case defendant's children failed him, are warranted by the allegations of the amended petition and the finding of fact made by the court, such conclusions of law are insufficient to warrant the avoidance of the transfers and the granting of divorce and alimony to plaintiff, as they fail to show any invasion of plaintiff's present existing right to support.

"Furthermore, failure to support, to constitute gross neglect of duty, must exist at the time a decree for divorce and alimony is rendered and cannot be predicated upon a possible or probable failure of future support, nor does such possible or probable failure of future support constitute extreme cruelty within the purview of the statutes relating to divorce and alimony." (Italics ours.)

With these observations and conclusions of the Court of Appeals we agree.

In the case of Bolles v. Toledo Trust Co., Exr., 144 Ohio St. 195, 58 N.E.2d 381, ___ A. L. R., ___, this court held:

"A husband may dispose of his personal property during his lifetime without the consent of his wife; but a husband may not bar his widow of her right to a distributive share of any property which he owns and of which he retains the right of disposition and control up to the time of his death." (Italics ours.)

In the instant case we do not have the question of the widow's right to have a fraudulent transfer set aside and her right established to a distributive share of property so conveyed. On the contrary the question here is whether a husband's gifts to his children constitute, as found by the trial court, gross neglect of duty and/or extreme cruelty. The basis of a widow's right to participate in property so transferred is that the deceased husband did not part with the absolute dominion over the property during his lifetime.

The principal contention of appellant is founded upon Section 7995, General Code, which provides:

"Husband and wife contract towards each other obligations of mutual respect, fidelity, and support."

Appellant contends that the disposition of the $10,000 by the husband was a violation of the marital duties defined in Section 7995, supra, and that such violation was a gross neglect of duty; that under the facts of this case the husband was under a legal duty to see that the wife was provided for after his death; and that the facts in this case show that the husband breached such contract of mutual respect, fidelity and support and that such breach of contract was a gross neglect of duty.

In this connection counsel for appellant say: "In other words we are placing this matter upon a higher basis than property rights and contending that human rights should prevail."

All grounds for divorce and/or alimony and the rights of a relict in the estate of a deceased spouse are fixed by the statutory law of this state. We are unable to find in the statutory law of this state any justification for holding that a husband's disposal or attempted disposal of his personal property during his lifetime with intent to defeat his widow's rights constitutes either gross neglect of duty or extreme cruelty.

Section 11996, General Code, provides:

"When it is made to appear to the court, or a judge in vacation, that a party is about to dispose of or incumber property, or any part thereof, so as to defeat the other party in obtaining alimony, such court or judge may allow an injunction to prevent this, with or without bond, at discretion. A party may sell and assign the order for alimony or allowance, after it is made."

The amended petition contains no allegation to the effect that the husband was about to dispose of or incumber his property so as to defeat plaintiff in obtaining alimony. The complaint in this respect is, "defendant has endeavored to defeat her rights by disposing of the principal of said money so that in the event of defendant's decease that plaintiff would be forced to depend upon charity for her support."

The trial court found that the husband was possessed of real estate "worth somewhat in excess of $2,000," and that the transfers complained of were accomplished rather than threatened. However, upon the filing of the original petition, the trial court did enjoin the husband from disposing of any property which he then owned or had the right to dispose of until further order of the court.

It being conceded that the transfers were an accomplished fact, it is not understood how the court, without bringing in the parties to whom the transfers had been made, could determine the rights of property even in a chancery case. The mere holding the case open "for the purpose of bringing additional parties into court in order to enforce equitable contribution" would not cure such defect.

We are not called upon here to determine what remedy, if any, a wife has during her husband's lifetime to set aside a transfer by the husband of his property with intent to deprive her of her right to support during her husband's lifetime. If such remedy does exist, it will be found in chancery and not in the statutory action for divorce and/or alimony. Rather, we are called upon to determine whether the Court of Appeals erred in holding that assuming the truth of such transfers and the alleged purpose thereof, neither gross neglect of duty nor extreme cruelty was thereby established.

In addition to the mutual obligation of respect, fidelity and support prescribed in Section 7995, supra, Section 7996, General. Code, places the husband at the head of the family with the privilege of choosing any reasonable mode of living, to which the wife must conform. Section 7997, General Code, requires the husband, if able, to support his wife.

The trial court's finding of fact does not disclose the violation of either of these sections. Section 7998, General Code, provides:

"Neither husband nor wife has any interest in the property of the other, except as mentioned in the next preceding section, the right to dower and to remain in the mansion house after the death of either, as provided by law; and neither can be excluded from the other's dwelling, except upon a decree or order of injunction made by a court of competent jurisdiction."

The preceding section ___ 7997, General Code ___ provides:

"The husband must support himself, his wife, and his minor children out of his property or by his labor. If he is unable to do so, the wife must assist him so far as she is able."

In 21 Ohio Jurisprudence, 377, Section 52, it is said:

"During coverture the wife had no right whatever to the personal estate of the husband, or any portion of its proceeds or profits, under the common law. In a legal sense, the wife has under the Married Woman's Act no interest in her husband's personal property during his lifetime. She has no such interest in her husband's personal property under G. C. Section 7998. But she does have a right to support out of his property. The wife obtains no interest in his personalty by the marriage, either to sell or relinquish. Although the rights of the wife in the property of her husband are highly favored in equity, and the court will carefully protect them, it cannot create new rights therein for her. To hold that she has any rights, inchoate or otherwise, in the husband's personal property during his lifetime, would not be protecting her existing rights, but legislating in her behalf, and doing that which the legislators have left undone. Nevertheless, the wife has such an interest in the personal property of her husband that he cannot deprive her of it by will without her consent. Hence it is not inequitable to hold that she has such an interest in his personalty during his lifetime as may be protected against the fraud of the husband where the rights of innocent third parties are not involved."

Under the finding of facts and conclusion of law made by the trial court as well as under the trial court's final entry and the per curiam opinion of the Court of Appeals, the appellant's right to present support was not violated. We agree with the Court of Appeals that "* * * failure to support, to constitute gross neglect of duty, must exist at the time a decree for divorce and alimony is rendered and cannot be predicated upon a possible or probable failure of future support, nor does such possible or probable failure of future support constitute extreme cruelty within the purview of the statutes relating to divorce and alimony."

What has been said of the term "any gross neglect of duty" as contained in Section 11979, General Code, applies as well to the same term as used in Section 11997, General Code, which defines the grounds or causes for which alimony may be allowed. It is to be noted that "extreme cruelty" is not given as a ground or cause for alimony in Section 11997, General Code. Instead a ground of separation in consequence of ill treatment is substituted.

The findings of fact by the trial court are insufficient to support either a charge of gross neglect of duty or extreme cruelty.

Therefore, we are of the opinion that the Court of Appeals did not commit any error in reversing the judgment of the trial court or in rendering final judgment in favor of defendant husband (appellee here) or in dismissing plaintiff's (appellant here) petition.

Judgment affirmed.

ZIMMERMAN, BELL and MATTHIAS, JJ., concur.

WEYGANDT, C.J., WILLIAMS and HART, JJ., dissent.

HART, J., dissenting.

As it appears to me, the trial court was not called upon to exercise equity jurisdiction in this case. The legality, illegality or voidability of the transfer of funds by the defendant husband (hereinafter called defendant) to his children is relevant only as that fact may have bearing upon the question whether the transfer and the intent accompanying it constituted an element of cruelty toward the plaintiff.

Even though the law should permit a husband to give away all his personal property and thus jeopardize the economic security and support of his wife in the event of his death, it does not follow that such conduct on the part of this defendant did not, under these circumstances, constitute mental cruelty toward her. Social and marital obligations cannot be measured by the same yardstick as that applied to the obligations of the civil law. The former carry with them refinements which transcend the mere test of legality.

In passing it may be observed, however, that there is some conflict of authority as to the validity, as between husband and wife, of such transfers, especially as relating to statutory allowances due a surviving spouse. See 26 American Jurisprudence, 815, 817, Sections 197 and 198; Routson v. Hovis, Admr., 60 Ohio App. 536, 22 N.E.2d 209; 64 A.L.R., 466, annotation; Newman v. Dore et al., Trustees, 275 N.Y. 371, 9 N.E.2d 966, 112 A. L. R., 643, and annotation at 649. But as I view it, it is unnecessary to determine in this action the validity of the transfers in question. The only matters directly in issue here are divorce and alimony. All other issues are collateral.

As an inducement to the plaintiff to marry the defendant, the latter truthfully and undisputedly said in effect to the plaintiff: "I have a comfortable home here in Spencerville furnished with everything we need, and I have accumulated enough money to provide for all our needs as long as we live. I have $10,000 in the bank and it should be enough for us."

After the plaintiff, upon these representations as to future financial security, had served the defendant as wife and homemaker for 16 years and until she had reached the age of about 72 years, the defendant secretly and without her knowledge transferred practically the entire bank deposit of $10,000, which constituted the bulk of his estate, beyond the control of his wife and beyond the hope of any future participation by her therein, regardless of her future needs.

There is no question here as to the legality of the transfers as between the defendant and his children. Furthermore, it matters little, so far as the issues of this action are concerned, whether, as between the plaintiff and the defendant, the transfers were lawfully made. The fact remains that the defendant had pauperized himself, not through any ill luck or unfortunate business transaction, but deliberately and in contemplation of death for the purpose of reducing the assets of his estate and the plaintiff's right to participate therein to the full extent of his ability as originally represented to the plaintiff.

Under these circumstances, the trial court found, and in my judgment was warranted in finding, that the transfer of assets by the defendant to his children undermined plaintiff's economic security, was a fraud upon her rights and constituted gross neglect of duty on the part of the defendant; and that the transfer, leaving both plaintiff and defendant dependent for their future needs upon the caprices of his children, removed plaintiff's reasonable economic expectation, created mental uncertainty and fear for her future and imposed upon her a contingent economic burden in case defendant's children failed him, all in such manner as to constitute extreme cruelty upon the part of the defendant. The court further found upon the facts that the defendant was guilty of gross neglect of duty and extreme cruelty, and that the plaintiff was entitled to a divorce and to an award of alimony in the sum of $3,000.

This being the finding as to facts and law, I do not think this court is warranted in weighing the evidence and in overruling the discretion and judgment of the trial court on these issues. The further findings of fact and judgment of the court may have been, and perhaps were, beyond the jurisdiction of the court in this case, in the absence of service of summons on the new parties. If a decree for alimony should not be paid, then further proceedings in another action may be taken to sequester the funds of the defendant to satisfy the alimony judgment.

In my view, the judgment of the Court of Appeals should be reversed and that of the Common Pleas Court affirmed as to the decree of divorce and alimony, but otherwise modified as herein suggested.

WEYGANDT, C.J., concurs in the foregoing dissenting opinion.