Allen v. Allen's Administrator 18 Ohio St. 235

John Allen v. John M. Allen’s Administrator.

‘Where A conveyed to B real estate, with intent to defraud C, a creditor of A, and upon a secret trust that B was to hold the title for A; and where, in a proceeding by the administrator of Ato subject the land to the payment of A’s debts, the conveyance is adjudged to be void as against C, and also antecedent and subsequent creditors of A, and that it be subjected to the payment of the debts of A’s estate and the costs of administration: Held, that an allowance for the support of the widow and her child, under section 45 of the administrative act (S. & C. 575), is, under section 82 of that act (S. & C. 580), a debt of the estate, for the payment of which resort may be had to said land or its proceeds.

Motion for leave to file a petition in error to reverse the judgment of the district court of Morgan county.

*In the year 1863, John M. Allen, being the owner of cer- [235 tain real estate, conveyed the same to John Allen, and afterward, in the year 1864, married Polly A. Allen, whom he left as his widow at his decease in May, 1866.

On July 30,1866, the appraisers of John M. Allen’s estate set *236off for a year’s support of this widow and her child the sum of' three hundred dollars.

The district court, at its .September term, 1867, upon petition of John M. Allen’s administrator, found that the conveyance of the real estate by John M. Allen to John Allen was made with intent to defraud one Elizabeth Davis, then a creditor of John M. Allen ; and that the two Allens, John M. and John, were parties to the-fraud, and that John Allen took the title upon a secret trust to hold it for John M. Allen ; and the court adjudged the deed to be void, as to creditors, subsequent as well as antecedent, and ordered a. purchaser of the real estate from John Allen to pay to the administrator of John M. Allen so much of the purchase money that them remained unpaid as would be necessary to pay the debts of the-decedent and the costs of administration ; and in default, that the real estate be sold, etc.

Such subsequent proceedings were had as to present the question, whether the allowance of three hundred dollars for the year’s support of the widow and child was such a debt of the decedent as-should be paid by resort to the real estate thus fraudulently conveyed. The district court, at its September term, 1868, held that, it was such a debt, and adjudged accordingly.

This holding is assigned for error.

Wood & Pond, for the motion :

The conveyance to John Allen being held void only as against, creditors, it remained good as against the grantor or any claiming under him. Burgett v. Burgett, 1 Ohio, 469; Barton v. Morris, 15 Ohio, 408 ; 18 Ohio, 418.

The widow and child of the grantor, as to the allowance for their year’s support, are not his creditors within the meaning of these decisions, but are simply claimants under him.

286] *1. The statute (S. & C., 574, 575, sections 44 — 47), which provides for the allowance, clearly contemplates that it shall be set. off to the widow and child as claimants under the decedent, as a preferred distributive share of the property and effects which actually belonged to him at the time of his death.

2. The allowance to the widow and child is not in the nature of a debt of John M. Allen. There was no right to have it set off until after he died, and it was not fixed until the appraisers actually set it off. Had the widow and child died before it was set off, it could *237not have been set off afterward. Adams v. Adams, 10 Met. 170 Dorah v. Dorah, 4 Ohio St. 292. As it is the widow, and not the wife, who is entitled to dower (Reynolds v. Reynolds, 24 Wend. 193), so it is only after the death of the husband and father that, the widow and child have any claim to have the allowance sot off.

3. To constitute the widow and child, as to the allowance, creditors, there must have been a liability to pay a sum certain existing' against the decedent prior to his death; but an-allowance once made may be increased or diminished by the court. A debt is not susceptible of such adjudication.

E. M. Stanbery, contra :

The conveyance was decreed to be void as to creditors, subsequent as well as antecedent.

The statute treats the allowance as. a preferred debt. S. & C., 580, 581, secs. 83, 84.

The funeral expenses are debts of the estate, yet they are not debts by contract of the decedent, but are created by statute from necessity, and are preferred to all other debts.

The right to a year’s support is of such a nature as not to be affected by any act of the decedent, and contains all the qualities of a debt. Collier v. Collier’s Ex’r, 3 Ohio St. 369 ; Dorah’s Adm’r v. Dorah’s Ex’r, 4 Ohio St. 292.

This fraudulent grantee has no equities, as against this widow and child; and unless there is clear error, the decree of the district court should not be disturbed.