
    Lockwood et al. v. Krum, Administrator de bonis non, et al.
    1. Where a court, upon the trial of questions of fact, states its conclusions of fact separately from its conclusions of law, it is not necessary to the right of a party- to have the decision reviewed on questions of law arising upon the facts found, that he should have made a motion for a new trial.
    2. A wife, living separate and apart from her husband, brought an action for alimony and obtained a decree requiring the husband to pay her a definite sum semi-annually during her life. The payment of this sum the husband secured, and then gave the remainder of his property, consisting of notes and a mortgage of the value of fifteen hundred dollars, to his children, and soon thereafter died. The widow caused letters of administration to be granted, and appraisers to be appointed, who set off and allowed for her year’s support the sum of eight hundred dollars. The administrator brought an action against the mortgagor and said children, to obtain a decree declaring the gifts to the children void, and the application of the fund arising from the mortgage to the payment of said allowance to the widow. The court found that in making the gifts to said children by the deceased, no fraud was intended other than what was to be implied from the transaction. Held, that the administrator was not entitled to recover.
    Motion for leave to file a petition in error to reverse the judgment'of the District Court of Ashtabula county.
    The original action was brought in the Court of Common Pleas of Ashtabula county by Alexander McAdams, ;as administrator of the estate of Abel Lockwood, deceased, against Hiram N. Welton, Win. H. Lockwood, and Charles Lockwood, to foreclose a mortgage executed by Welton to secure certain notes of his given to the intestate in his lifetime, and which were alleged to be in the hands of the Lockwoods. Grizzy Lockwood was made a party defendant. Issues were joined, which were tried in the common pleas, resulting in a judgment for William H. and Charles Lockwood, from which the plaintiff appealed to the district court. McAdams dying during the pendency of the action, Erum, administrator de bonis non, was substituted as plaintiff. The district court, by request of the parties, made a special finding of facts, and stated its conclusions of law separately from the finding. To the judgment rendered on the finding, Wm. H. and Charles Lockwood excepted. The finding and judgment were as follows:
    “ Oil or about the-day of August, 1870, Abel Lockwood, deceased, then eighty years of age, was married to Grizzy Lockwood, then seventy years of age. Failing to .agree, they separated on or about the 1st day of October, 1871. Said Abel was then the owner of personal property, ■consisting of notes secured by mortgage, amounting to about $8,500. He went to live with his son, the defendant, William H. Lockwood, and entered into an agreement with said William H., whereby said William PL, in consideration of $1,500, then paid to him, agreed to support said Abel Lockwood during his life. The note first mentioned in plaintiff’s petition constituted a part of the $1,500 so paid to William IP. for supporting said Abel. The $1,500 was so paid and delivered to said William PI. on the 19th day of October, 1871, and at the same time said Abel delivered to said William PL the balance of his. notes and mortgages, amounting to about $2,000, to be disposed of, as follows: To each son two shares, and to each •daughter one share, amounting to about $400 to each son and about $200 to each daughter; and said Abel, in pursuance thereof, assigned to Charles Lockwood the two last notes mentioned in the petition. That soon after — to wit, October 25, 1871 — and while said property remained in the actual possession of the said William PL, said Grizzy Lockwood, wife of said Abel, commenced suit in the common pleas court for divorce and alimony, making said William IP. Lockwood, Charles Lockwood, Hiram Lockwood, Emeline Goodno, and Esther. Newton, children of ■said Abel, defendants; and in said case a divorce was refused and alimony allowed. Said cause, so far as it related to alimony, was appealed to the district court; and there such proceedings were had that a decree was entered at -the May-term, 1872, of said district court, that defendant, Abel Lockwood, within ten days from the rising of said court, pay to the clerk thereof, for the use of said Gi’izzy, fifty dollars, and the further sum of thirty dollars on the -first day of each July and January thereafter during her natural life, and no longer; and that said Abel pay the ■costs of said suit. That the sum of $1,500 paid by said Abel to said William H. to provide for the support of said Abel during his natural life was just and reasonable; that ■so far as related to the money and property delivered by ■said Abel to said William H. over and above said sum of $1,500 last above mentioned, the court found that said William IP. held the same in trust and as trustee for said plaintiff for the payment of the alimony and cost therein decreed; and it was further ordered that said William H. Lockwood, within thirty days from the rising of said court, deposit said note and securities, over and above said $1,500, with the clerk, or execute and deliver to the clerk of said court, for the use of said plaintiff, a bond, with surety to be approved by the clerk of the court, in the sum of $2,000, conditioned that he would hold, said securities, or the proceeds thereof, in trust for the payment of said alimony and costs. That said William H. executed said bond in all respects as required, paid said alimony and costs in all respects as required by said order, and has ever since paid every installment of alimony as the same became due.
    “ That after said decree was rendered, and during the lifetime of said Abel, it was agreed by and between said Abel and his said children, that said William H. should assume and pay said alimony as it should become due; and for that purpose, and in consideration thereof, he should retain, and he did retain, the sum of $500; and by direction of said Abel, the balance of said property, after paying the costs of said suit, amounting to $279 for each son, and $139.50 for each daughter, was paid over and delivered by said William H. to his said brothers and sisters, he retaining the $1,500 so paid him for the support of said Abel, and $500 for the payment of said alimony.
    “ That said Abel Lockwood died on the 29th day of September, 1872, intestate, leaving no property, real or personal, other than that given to said children as aforesaid. That letters of administration were issued to Alexander McAdams, brother of Grizzy Lockwood, May 18,1873, who caused the appraisers to set off' $800 in money for a year’s support to said Grizzy; but no property whatever ever came into the possession of said administrator, and there was no property from which said allowance conld be paid, unless it should be recovered back from said children, it having already been distributed by said Abel in his lifetime. That there was no consideration for the gifts so made by said Abel to his children except natural love and affection; and the same was done to defeat any claim of said Grizzy for alimony and support. That said note first mentioned in the petition was fully paid by the defendant, Welton, to .said William H. before the suit was begun. That in dividing said property in the lifetime of said Abel, said William H. took the second and third notes mentioned in the petition, and paid to his brothers and sisters in said division •the full amount thereof. That said Welton has paid to said William H. the whole amount of the second note mentioned in the petition, and all but $150 of the last note since this suit was commenced. That there was no evidence of fraud on the part of said Abel in giving or of said William'H. or Charles Lockwood in receiving said property so divided to them, unless it arises as matter of law from the want of other consideration than natural love and affection and the relations then existing between Abel Lockwood and his wife Grizzy.
    “And, as matter of law, the court find that said William and Charles Lockwood hold each the said sum of $279, so received of the said Abel, subject to the debt of said Grizzy for her year’s support as widow of said Abel; that they, said William and Charles, are liable for interest on said sums from the commencement of this suit; that the plaintiff, as such administrator, is entitled to a decree against said William and Charles Lockwood for the amount so received by each as aforesaid, with interest as aforesaid, as a fund with which to pay said debt of said Grizzy.
    “ Whereupon, it is by the court adjudged and decreed that said William and Charles Lockwood each pay to said plaintiff the sum of three hundred and fifty dollars and seventy-five cents ($850.75), the principal and interest aforesaid, within thirty days from the close of this term of this court, and that they pay the costs of this suit, to be taxed, and that in default thereof that execution issue as upon executions at law ; and as to said Hiram N. Welton this cause is dismissed. To each and all of which findings and holdings and decree, said William and Charles Lockwood, each except.”
    
      Hall Brothers, for the motion.
    
      H. L. Chaffee, contra.
   Boynton, J.

Where alimony is decreed to a wife, not in gross, but in installments, to be paid at stated times, the decree should limit her right to receive the same to the period of coverture, where it is not to terminate before that relation ceases.

The estate of the husband can not, properly, in a proceeding for alimony, be charged or incumbered with the support of the wife to continue after his decease. If this could be done, the settlement of estates would not only be indefinitely prolonged, but funds rightfully belonging to the assets to be administered, would be diverted and employed to make provision for such support. Th§ legal obligation of the husband to furnish support to the -wife ceases upon the termination of the marriage relation. Dunlop v. Johnston, 1 Law Rep. H. L. 109; 1 Bish. on Mar. and Div. § 58. The rights that accrue to her after the decease of the husband, in virtue of the relation terminated by his death, are created by the statute. If he dies leaving an estate to be administered, she is entitled tó an allowance for a year’s support for herself and minor children under fifteen years of age, to be paid after the funeral expenses, those of the last sickness, and of administration are provided for. If there are no assets to be administered, the statutory right to the allowance is of no avail. No complaint, however, appears to have been made, that the obligation to pay the alimony decreed was to com tinue during the life of Mrs. Lockwood. And the same having, been provided for by the deceased, he may well have supposed that her claims upon him were satisfied,.and that he was at' liberty to dispose of the remainder of his property-in such manner as he saw fit; and, hence, after providing for his' own support during life, the terms of which provision the court approved as reasonable and proper, and after securing the payment of the sum decreed the wife, there remained about $1,500, which he divided among his children. This is the alleged wrongful act complained of.

In order to defeat or avoid the gift thus executed, two facts must appear; First, That the same was made to defraud the creditors of the donor; and, Secondly, That Mrs. Lockwood was a creditor in respect to the right to a year’s support, after his decease: .

1. It appears, distinctly, from the special finding, that at the time the division was made among the children, the deceased was entirely out of debt. Such being the fact, the case is distinguishable from Allen v. Allen’s Adm’r, 18 Ohio St. 234, in several respects: (1.) In that case there were existing creditors to be defrauded. (2.) The property conveyed with intent to defraud the creditors of the grantor was real estate, made by statute, when convoyed with such intent (1 S. & C. 589, § 121), expressly liable to be reached and sold by the executor or administrator, the proceeds to be applied to the payment of the debts of the estate; and, (3.) The fraudulent grantee took the title to hold upon a secret trust for the benefit of the grantor.

Here, there were no existing creditors to defraud, the property given was personalty, and the gift was executed by delivery.

2. It is difficult to see upon what principle the wife can be regarded as a creditor of her husband as respects the allowance for her year’s support after his decease. Where there is a creditor there must be a debt and a debtor. But it is not pretended that any obligation or liability arises in respect to such support while the husband is living, nor is it denied, that it is wholly a creature of statute, with no existence or possibility of existence until after the husband dies. It is true, as was said in Allen v. Allen’s Adm’r, that the right to the year’s support is mentioned in the statute as- a debt to be paid out of the assets of the estate, but, -notwithstanding it is a debt against the estate, it is,- in no just sense, a debt against the husband having any existence during his lifetime. Ris death is a necessary condition to its existence, and,where he survives the wife, it has no existence at all.

The case of Livermore v. Boutelle, 11 Gray, 217, cited in ¡argument affects the question but very little.

That was an action brought to set aside a conveyance -made by the husband of the plaintiff to the defendant, with intent to defraud creditors. The conveyance was made after such marital conduct of the husband as laid the -ground for a divorce and alimony to the wife. It was de-nied that the wife, in respect to her claim for alimony, was .a creditor of her husband within the meaning of the statute against fraudulent conveyances. This was the point -presented for adjudication.

The statute of 13 Eliz. c. 5, in force in Massachusetts, ■avoided “All feigned co vino us and fraudulent feoffments, gifts, grants, alienations, conveyances, bonds, suits, judgments, and executions, devised and contrived of malice, -fraud, covin, collusion, or guile, to the end, purpose, or Intent to delay, hinder, or defraud creditors and others of their just and lawful actions, suits, debts, accounts, dam • ages, penalties, forfeitures, heriots, mortuaries, and reliefs.’‘ "The court held, that if she was not a creditor, she was of the others, whose just and lawful actions, suits, and reliefs, •would be delayed, hindered, or defeated by such conveyance. To the same effect is Bailey v. Bailey, 61 Me. 361. -

But the claim for alimony has a different footing from one involving the right to a year’s support from a dece•dent’s estate. It rests on the common-law obligation of the husband to suppoi’t the wife in a manner suitable to his • condition and station in life during the existence of the marriage relation; a fact which distinguishes the above cases from the one at bar, even had the court there held the wife, as respects her claim for alimony, to be a creditor. And this obligation is as binding after the commission, by vthe husband, of a marital offense entitling the wife to a divorce,as before. In respect to such obligations she may well be held to be a creditor of the husband.

If, in the present case, there had been existing creditors to be affected injuriously by the act of the deceased, in thus dividing his property among his children, aud the administrator had, in consequence thereof, recovered the property or its value, it would have inured to the benefit of all entitled to share in the distribution of the estate, and in the order of priority prescribed by the statute. In such case there would have been a foundation for the action, in the-circumstance that there were creditors entitled to the fund wrongfully parted with ; and the property or its value once-recovered, would be treated as belonging to the estate, to be administered in all respects as intestate property. This is the principle controlling the case of Allen v. Allen’s Adm’r, ubi supra. But if Mrs. Lockwood be treated as a subsequent creditor the result would be the same. "We do-not think it sufficiently appears that the deceased, in giving away his property, intended to defeat the allowance or enjoyment of the wife’s year’s support, nor that the circumstances of the case require or authorize the court to infertile existence of such fraudulent purpose. It follows that the judgment ought to have been the other w'ay.

"We have not felt called upon to discuss or consider the-right of the administrator to maintain an action of the-character of the present.

In Benjamin v. Le Baron’s Adm’r, 15 Ohio, 517, the right of the executor or administrator to maintain an action of trover to recover the value of property sold by the decedent with intent to defraud creditors was denied. It was there' intimated that equity would afford relief where the property was required to pay debts of the estate. But the point as yet has not been authoritatively settled in this state. It is claimed on the one hand that the right of the-executor or administrator to recover the property so sold, or its value, rises no higher than that of the deceased whose-estate is being administered, and on the other, that as the-representative of the creditors, the executor or administrartor is entitled to maintain the action in all cases where the property is required to satisfy the claims of creditors against whom the fraudulent sale was void. As the disposition made of the present case renders it unnecessary to-decide the question, we express no opinion upon it.

The claim that the court is not authorized to review the-judgment of the district court, because no motion fora rehearing was made in that court, is not well founded. The fourth section of the act to relieve the district courts and to give greater efficiency to the judicial system' of the state (73 Ohio L. 140), confers the right to except'to the opinion of the court in all cases of a motion for a new trial for “the reason that the verdict, or in case the jury be waived, that the finding of the court may be supposed to be against law or evidence,” so that the case may be removed by a petition in error. The finding of_the court, to-review which a motion for a new trial is thus made necessary, is a finding of facts from the evidence. It does not embrace conclusions of law arising upon the facts. Westfall v. Dungan, 14 Ohio St. 276.

Motion granted; judgment of the district court reversed and judgment for the plaintiffs.  