Opinion
10-16-1889
TAYLOR v. STEWART et al.
Oscar Jeffrey, for complainant. H. W. Hunt, for defendants.
On bill to set aside a conveyance.
Oscar Jeffrey, for complainant. H. W. Hunt, for defendants.
BIRD, V. C. October 1, 1886, Jacob Thomson and wife, then residing in Illinois, executed a deed whereby they conveyed the title to the lands in question, situate in New Jersey, to Cornelius Stewart, to be held by him in trust "that Hannah Thomson, widow of Edward Thomson, deceased, shall have the continued use to and occupation of said premises for herself and family as a homestead, and all the rents and profits thereof, during her natural life, and at her decease that the fee-simple title to said premises shall be well and truly conveyed by deed by the said party of the second part, his heirs and assigns, to and unto the children, heirs at law of the said Edward Thomson, deceased, the same to have and to hold unto said heirs at law of the said Edward Thomson, deceased, their heirs and assigns, forever." The defendant Alexander H. Thomson, one of the children and heirs at law of the said Edward Thomson, was, in the month of December, 1877, indebted to the complainant on a judgment recovered in the supreme court in the sum of $262.85. On the 1st day of April, 1879, before his mother's (the said Hannah's) death, he made and delivered a conveyance of all his interest in said lands to one William H. Thomson. On July 6, 1879, the said Hannah died leaving two sons, one of whom was the said Alexander. August 1, 1879, execution was issued to the sheriff of the county of Warren, in which the said lands lie. It does not appear that the said execution was ever returned. This bill is filed by the creditor to set aside the said conveyance made by the said Alexander to the said William, April 1, 1879, because, it is alleged—First, that said deed is absolutely void; and, secondly, that it was without consideration, and was made to defraud and defeat the creditors of the said Alexander in the collection of their claims and demands.
The insistment upon the part of the defendant is, and of course the answer is filed upon that theory, that the defendant Alexander had no legal interest, but only an equitable one, in the lands, by way of expectancy, depending upon the death of his mother, upon which the judgment of the complainant was not a lien, but which the said Alexander could convey, by virtue of the act respecting conveyances, (Revision, p. 167, § 82,) before the death of his mother, who had a life-estate therein. The complainant insists that the proviso to said section takes the case in hand out of the operation of the principal part of the section. The proviso is "that no person shall be empowered by this act to dispose of any expectancy which he may have as heir to a living person, or any contingent estate or expectancy, where the contingency is as to the person in whom, or in whose heirs, the same may vest; nor any estate, right, or interest to which he may become entitled under any deed to be thereafter executed, or under the will of any living person." At the time of the conveyance by Alexander to William, Hannah, the mother of Alexander, was still living. Counsel for complainant contends that the second clause of the proviso, namely, "or any contingent estate or expectancy, where the contingency is as to the person in whom, or in whose heirs, the same may vest," embraces the case in hand, and so renders void the deed from Alexander to William. As above remarked, Alexander's interest, which was in expectancy, depended entirely upon the contingency of his surviving Hannah, his mother. I think that the chancellor in the recent case, Wilkinson v. Sherman, ante, 228, has completely disposed of this question, by declaring that such an expectancy as we have in the case under consideration may be conveyed under our statute. In that case the testator gave to his executor a house and lot, to be held for the benefit of his son John, and his son's wife, during their joint lives; and, in case the joint estate should cease by the death of John, then to convey the same to his daughter Elizabeth, and his grandson Frederick Wilkinson; or, in case of the death of either, then to the survivor; or, in case both be deceased, then to the heir or heirs at law of the said Frederick; but, in case the said joint estate should cease by the death of the wife of John, then the trustee was directed to convey to John in fee. Frederick conveyed his interest duringthe life-time of John. Such interest depended upon John's dying before his wife, and upon his surviving both John and his wife, and Elizabeth, the daughter of the testator. The chancellor held such conveyance was not within the proviso of the section referred to, but passed the expectancy, which matured into a fee in the grantee upon the death of John. In the case now presented for decision, Alexander was the beneficiary in case he survived his mother, for whom an estate for life was secured in the conveyance for Mr. Stewart. If he survived, he took an estate in fee; if not, he took nothing. The case seems to be fully within the view expressed by the chancellor in the Wilkinson Case. In the case before me there was no uncertainty or contingency as to the person who was to take; for such person (Alexander) was in being at the execution and delivery of the deed to the trustee,—the uncertainty being only in the event of him surviving the life-tenant, a circumstance which the proviso is not aimed against.
But the complainant insists, in the second place, that he is entitled to have his judgment declared to be a lien on those lands, notwithstanding the ability of the defendant Alexander to make such conveyance under the statute, because it was made to defraud creditors. No sufficient proof has been produced to sustain such view. Looking to the preponderance of testimony, I must adjudge that the transaction, so far as William, the grantee, was interested, was for a good consideration, and bona fide. If my conclusions are right, the complainant's bill should be dismissed, with costs.