Benson v. Benson

Stone, J., delivered the opinion of the Court. Joseph M. Brian became security on t'he guardian bond of Thales A. Linthicum, who was the guardian of the complainant Elizabeth H. Benson about the year 1868. The said Joseph M. Brian died in 1878, and the guardian Linthicum in 1880. The same year in which he died Brian conveyed all his property to his two children, a son and a daughter.

Linthicum the guardian, died insolvent and before any final settlement of his guardian accounts ; and after his death it’ was discovered that he was largely indebted to his ward. It also turned out that the other two securities on the guardian bond were totally insolvent, and Mrs. Benson then filed the bill in this case to set aside the deeds made by Brian to his children as fraudulent and void against her; and whether these deeds are fraudulent and void as against her is the first and most important point in the case. These deeds were executed by Brian a short time — a few months — before his death. The consideration set forth in the deed to his daughter professed to be love and affection; the consideration set forth in the deed to his son was the sum of seventeen thousand dollars.

But the son proves that he did not pay his father a dollar in money, but claims to have paid subsequently debts due by his father to about that amount. The deed executed by Brian to his daughter was for real estate only, and was executed on 3rd Sept., 1878. The deed to his son was executed on the following day, and embraced all the property, both real and personal, of the said Joseph M. Biian, except what he had before given to his daughter. There is no evidence in- the record of the value of the property given to his daughter, but there is evi ²⁵⁶ deuce of the value of the real estate given to his son, and it seems to have been worth about forty thousand dollars, or perhaps a little more.

There was a considerable amount of personal property which passed to the son under the deed to him, which, if we understood his evidence correctly, was intended as compensation to the son for services rendered the father. Simultaneous with the execution of these deeds the father, Joseph M. Brian, Sen'., entered into a written agreement with his children, by which each agreed to pay him, if lie demanded it, five hundred dollars a year. If he demanded any money from one he promised to demand an equal amount from the other, so that he might not be a greater burden on one than the other, and all arrears of his annuity were to be considered as paid and settled at the time of his death, so that his personal representative (if any) could make no claim for such arrears. The recital of these facts shows conclusively the character of this whole transaction.

A man advanced in life and of considerable wealth, about two months before his death, conveys all his property to his children. His son is to pay his debts, and his .share was probably for that reason greater by the amount of such debts, than his daughter's. The deed to his daughter was confessedly a purely voluntary conveyance, and the deed to the son, upon the proof, is also a voluntary conveyance. The son did not pay a dollar for the property.

All he professes to have done was to pay some debts of the father, not amounting at most to half the value of the real estate alone that he got. It needs no authority for so plain a proposition, that the son was not under these circumstances a purchaser for a valuable consideration and to be treated as such. The deeds, the agreement, and the proof show that Mr. Brian's object was to divide' his property between ²⁵⁷ liis children in his life-time, retaining only an annuity sufficient for his wants for his life. There is nothing in this record to show that Mr. Brian contemplated any fraud whatéver.

He may not, and probably did not, apprehend any loss on account of his being on this guardian bond. But whether he did or did not, these deeds cannot avail against the claim of these complainants, and must be declared, as against them, fraudulent and void. To hold otherwise would he to declare that an obligor on a bond might always relieve himself, when loss was apprehended by giving his property to his wife or child. The remaining question for us to decide, is whether the bond sued on in this case is liable for the proceeds of certain real estate of the minors sold by Linthicum as trustee ?

It is contended by the defendants that the land of the minors was sold under sections 36 and 37 of Art. 16 of the Code of 1860, which provides for the sale of the lands of infants, if the' Court is satisfied that it will he advantageous to the infants to sell it. The complainants on the other hand contend that the land was sold under sec. 99 of the same Article for the purpose of partition. The difference is important. If sold under sec. 99 of Article 16 of the Code of 1860 for the purpose of partition, the proceeds went rightfully into the hands of the guardian.

If, on the contrary, the sale was under sections 36 and 37 of the same Article, although the