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Williams v. Holcomb...

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Ziegler v. Ziegler-

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[Superior Court of Cincinnati, General Term, January, 1876.)

Jas. P. KILBRETH, TRUSTEE, V. John W. Wright.
For opinion in this case, see 5 Dec., R. 321 ; s. C., 4 Am. Law. Rec. 449.

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[Superior Court of Cincinnati, General Term, January, 1876.) FREDERICK AND LOCISE P. JAEGER V. GEORGE M. HERANCOURT.

Yaple, O'Connor and Tilden, JJ. H. in the year 1836, became the owner of the one undivided fourth interest in a

brewery property and business, which was always managed and operated by his co-partner, he being engaged in other business. In 1840 he married the sister of his co-partner's wife, with whom he obtained, in money, from $1,000.00 to $1,500.00, which became his in right of marriage. In 1842, H. and wife haci born to them a daughter, L. P. H., and the mother died. In 1843, H., being unmarried, and having no other child than L. P., became embarrassed in business, and, in consideration of the money he received from his said wife, conveyed his interest in the brewery property and business, valued at $1,650.00, to his co-partner in trust for his said daughter, such conveyance being intended to prevent his creditors from reaching such property, and no creditor ever attempted to reach it. The daughter lived with the trustee about four years, until her father remarried, which he did, and removed to another city, where he has ever since continued to reside, raising a family of seven children; the daughter continued to live with her father as a member of his family until her marriage in 1869, or until she was twenty-seven years old. From time to time, between May, 1847. and September 10th, 1860, the trustee paid to the father and the father received for the daughter, as dividends upon the brewery investments, monies amounting to $15,514.87, on which last day, she being then of full age, she executed to

her trustee a release from liability on account of such payments. In 1861, she deeded her interest in the brewery property and business to her father,

he giving her therefor his note for $1,650.00, and she at the same time releasing him, by an instrument under seal, from all liability to account for any part of such sum of $15,514.87. The nature of this transaction and the contents of all the papers were fairly explained to her by her father's attorney, in the father's absence, before consummating the same.

1 L. B.

Superior Court of Cincinnati.

Vol. I.

Afterwards thinking the property would thereby sell for more to the former trustee

and co-partner, the father gave up this deed to his daughter, and she gave him up his note, and in 1864, she, her father being present and assenting thereto, sold and conveyed the property to the original trustee for $9,000.00; $2,000.00 cash, and the residue upon seven equal payments of $1,000.00 each, for which the purchaser gave her his notes. The father got from her, at that time, the $2,000.00 cash, which he promised, in writing, to pay her on demand, with interest. He, also, on October 5, 1853, received from such trustee $400.00, for dividend, from October 1, 1862, to October 1, 1863, which he receipted for as

having received in his own right. In January, 1869, after the father learned that the daughter was engaged to be mar

ried, he got her to release him from liability for the $2,000.00 and to give him

the last three $1,000.00 notes. The daughter was married in March, 1869, and in April, 1869, suit was brought by

her and her husband against the father, to recover the said sum of $5,000.00 with interest from the time the father received the same, for the $400.00,

dividend and interest, and for an account of the $15,514.87. Held: 1. That the right to an account for the $15,514.87 was barred by lapse of time, eight

years after the daughter came of age, and the statute of limitation prescribed

by the Code: Secs, 14, 15, 19. 2. That while the grantee of property fraudulently conveyed to hinder and delay

creditors, is, as between the parties, under a moral but not a legal obligation to recovery to the grantor, yet in this case, the grantor might make a settlement upon his wife's heir, in consideration of what he received from the wife, creditors not objecting, and the transactions between the father and daughter, after she came of age, make a gift of the same from him to her independently of the

original transaction. The daughter is, therefore, entitled to recover the $5,000.00 and the $400.00, as

prayed for, and relief is denied her as to all the residue of her claims. 3. The plaintiff is entitled to recover the costs of the action. YAPLE, J.

This cause was reserved in Special Term upon the evidence, and in that manner is now presented to us for decision upon the law and the testimony. The action was brought on the 13th day of April, 1869. The main facts, not disputed or fairly established by the evidence, are that, in the year 1836, the defendant, George M. Herancourt, took a fourth interest in a certain brewery property and business in the city of Columbus, Ohio, with one Silvernagle, who owned a fourth, and Lewis Hoster, who owned the half thereof. The sum put in by Herancourt was $1,650. He took no part in carrying on the business, that being conducted by his co-partners, he being engaged in the business of a jeweler. In the year 1840 Herancourt married the mother of the plaintiff, Louisa, she being the sister of the wife of the partner, Lewis Hoster. The wife had a small personal estate amounting to between $1,000 and $1,500, in money, which Herancourt received and employed as his own in the jewelry business, apparently with the consent of his wife. This, by the law of Ohio at that time and until the year 1861, made such money the husband's, at least to the extent of his creditors' rights against him, and to the extent that he might see fit to claim it in right of his marriage. The plaintiff, Louisa, was the only child of the marriage, she having been born in the year 1842, her mother having died in a few hours thereafter. The defendant subsequently married again, his second wife and several children of the second marriage being still alive.

In 1843, Herancourt, being then unmarried, and his only child the plaintiff, Louisa, became embarrassed in business, to prevent his property from being reached and sacrificed by his creditors, on February 7, 1843, entered a deed of trust to Hoster, reciting that he had intermarried with Louisa Ambos, by whom he received the sum of $1,650; that she had

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deceased, leaving one daughter, Louisa Philippine Herancourt, her only child and heir at law, and that he was desirous of appropriating the said sum of $1,650, so by him received, to the use of the said Louisa, where upon it was witnessed that he had given, granted, bargained and sold, etc., to Lewis Hoster, the distillery property, describing it, it being the one undivided fourth thereof, and also the undivided fourth part of the stock on hand, tools, materials, and other fixtures connected with the said brewery business, etc., supposed to be equal in value, at the time, to the sum of $1,650. The conveyance was expressed to be in trust : “That the said Lewis Hoster shall carry on, or cause to be carried on, the business of brewing in said establishment as heretofore, and that he apply the profits arising from the interest heretofore conveyed, from time to time, to the nurture, education, maintenance and support of the said Louisa Philipine Herancourt, as the same may become necessary, until the said Louisa Philipine shall attain to the age of eighteen years, then the said Lewis Hoster is to convey to her, her heirs and assigns, the above-mentioned property,

with any unexpended profits that may remain in his hands unappropriated as aforesaid. And should the said Louisa Philipine depart this life before she attains the age of eighteen years, without leaving heirs of her body, then the above-mentioned property, with the unexpended proceeds,

if any, is to revert to and to be reconveyed to the said George M. Herancourt and his heirs in fee simple," etc.

Louisa remained for some years in the family of Hoster, in Columbus, but her father, the defendant, having married again and removed to Cincinnati, where he has ever since resided, and engaged in business, came to live with him, and did reside with him as a member of his family until her marriage with Frederick Jaeger, on the 4th day of March, 1869, when she was about twenty-seven years old. Until she became of age her health was not robust, and she received only an ordinary education, and such care and attention as were suitable to one in her rank and condition in life.

From May 13, 1847, to September 10, 1860, Hoster, out of the profits of the business, paid to the defendant, for her, nineteen (19) several sums of money, amounting, in all, to $15,514.87.

On September 13, 1860, Louisa--being at Hoster's, in Columbus, and to whom his acts as such trustee were fully explained by him to her, she being then of full age--gave him a receipt, specifying every and all such several sums of money, and releasing him therefrom. This paper, signed by her, specified, after referring to the deed of trust of February, 1843, that Hoster "has paid over for my use and benefit, according to the tenor of said instrument of writing to my said father, G. M. Herancourt, at divers times, the following sums of money, being the dividends and profits which have arisen from the brewing business carried on by said Lewis Hoster, in which said business my said father had invested the sum of sixteen hundred and fifty dollars, according to said instrument of writing, for my use and benefit and until my maturity, viz." (specifying the several sums, etc., the last being by note, dated September 10, 1860, for $858.25). “Now, be it known to all it may concern that I, Louisa Philipine Herancourt have this day had and received, at divers times as aforesaid, from my said trustee, Lewis Hoster, through my father, G. M. Herancourt, the said sum of fifteen thousand five hundred and fourteen

Vol. I.

Superior Court of Cincinnati.

dollars and eighty-seven cents, being the amount owing, payable and belonging to me up to the 10th day of September, 1860, from the trusteeship as aforesaid; and while having arrived at maturity, do, by these presents, release, acquit, and forever discharge the said Lewis Hoster as such trustee, his heirs, executors, and administrators, of and from the said share, interest, or dividends of said trusteeship as aforesaid, and from all actions." All these receipts were given by Herancourt to Hoster, and, up to that of February 14, 1859, were expressed to be for the nurture, education and support of Louisa, afterwards, "for Louisa Herancourt,” except the receipt for the note of $858.25, dated September 10, 1860, and a receipt for $54.12 of that date, which were worded as the first receipts above mentioned. The $858.25 note was endorsed by Louisa to her father, to whom it was paid.

Between September 10, 1860, and August 18, 1864, when the Herancourt interest in the brewery was conveyed to Hoster, the latter paid to Louisa and her father together the further sum of $927.19. There is a receipt of Herancourt's to Hoster, dated October 5, 1863, for $400, for dividends of the brewery business from October 1, 1862, to October 1, 1863, which purports to be paid to him absolutely, no trust being mentioned. Subsequently on January 11, 1861, the defendant and his daughter, the plaintiff, went to the office of Judge Stallo, a lawyer of high character and ability in his profession, and there had him prepare a deed from the daughter to her father for her said interest in the brewery property, etc., which she duly executed, acknowledged, and delivered, the consideration expressed being $1,650; and the father executed to her a promissory note for $1,650 for such interest. This recognized and admitted the fact that such interest belonged to her, and not to him. At the same time and bearing the same date, Louisa executed and delivered to her father's, release, which stated, among other things, that, “from said sixth day of February, 1843, and up to the present time, principally during the minority of said Louisa Philipine Herancourt, said George M. Herancourt has received the rents, proceeds, avails, and dividends of said property in Columbus, and, whereas, during said period said George M. Herancourt has provided, out of the funds so received by him as aforesaid, for the maintenance and education of the said Louisa Philipine Herancourt; and has otherwise paid out and expended money for her and on her behalf. Now, therefore, this is to witness that a full settlement of all the accounts and claims referring to and growing out of the premises has this day been had by and between the said George M. Herancourt and the undersigned, Louisa Philipine Herancourt, and the said Louisa Philipine Herancourt has received full satisfaction of all her claims and demands on account of any money or other property hitherto received for her and on her account by said George M. Herancourt; and that she hereby releases and discharges him from all claim or liability by reason thereof."

Signed and sealed and witnessed by J. B. Stallo.

There is no doubt but that Judge Stallo, before she executed any of the papers or took the note, in the absence of her father, fully explained to her their contents and legal effect, and that she informed him that she understood the same, that she and her father had talked the same over, agreed, and that she consented to the transaction. From this on we feel satisfied, and find that she understood that her father claimed to keep

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