Appeal, No. 179, March T., 1953, from decree of Court of Common Pleas of Butler County, June T., 1951, in Equity, No. 3, in case of Bernice P. Soffee, Maude L. Lowther and Grace A. Sellers v. Harry H. Hall. Record remanded.
Leo C. McCandless, for appellants.
Luther C. Braham, with him Thomas O. Cratty, Darrell L. Gregg, and Galbreath, Braham & Gregg, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
That numerous errors were committed in this case is undoubted, but, for reasons that will appear, appellants are not in a position to take advantage of them on this record.
Plaintiffs, three sisters, brought a bill in equity against the defendant, their stepfather. The bill alleged that he was 85 years of age and that plaintiffs had advanced to him sums aggregating $2,500 which he recognized as a debt due to them. It further averred that plaintiff Bernice P. Soffee had provided a home for him, caring for and nursing him, and that he had
promised to will his house to her but had now informed her that he was about to become a resident of the Odd Fellows Home at Grove City, and to convey to it for his future care and maintenance a frame dwelling which he owned in fee simple in the City of Butler, and also to assign to the Home certain personal assets in accordance with a promise that he would turn over to it such property. The bill then stated that defendant's attempt to convey the property would place it beyond his ability to pay his obligations and be fraudulent as to plaintiffs, there not being sufficient property remaining in his hands to satisfy their claim. The bill prayed for an order restraining defendant from disposing of his property until he had made payment to plaintiffs, and requested that a receiver be appointed to take charge of his assets.
It is clear that this was a bill, not for specific performance of the alleged promise to will defendant's house to Bernice, but a bill to prevent a transfer of his property in fraud of creditors. Defendant filed preliminary objections which are not printed in the record but seem merely to have claimed that plaintiffs had an adequate remedy at law. In its opinion overruling the objections and ordering defendant to file an answer to the bill the court below properly stated that "if the defendant carries out his intention to convey his real estate and other assets to the Odd Fellows Home at Grove City, the consideration for such transfer would be the future care and maintenance of the defendant and probably burial at the time of death. This is a good consideration and the defendant has the right to do it if he so desires." Since this pronouncement correctly pointed out that a transfer of property for fair consideration is not fraudulent as to creditors it would properly have led to a dismissal of the bill had a demurrer thereto been filed.
Defendant filed an answer to the bill denying that plaintiffs had advanced any money to him, that he had ever promised to will his house to Bernice, or that she had provided a home for him and cared for and nursed him. It stated that he had entered the Odd Fellows Home at Grove City as a resident after agreeing to the usual arrangements of the Home with respect to his property, real and personal. Hearing was had and the court made findings of fact, one of which was that defendant had conveyed his real estate, life insurance, automobile and certain stock to the Odd Fellows Home for the Aged and Infirm of Western Pennsylvania for the sum of $1.00, -- an erroneous finding in view of the fact that the consideration for defendant's conveyance was not really $1.00 but the obligation of the Home to care for and maintain him during the remainder of his life. The court ordered that the case be certified to the law side of the court to determine whether defendant was indebted to plaintiffs or any of them, and, if so, in what amount. This order was likewise erroneous in that it would have led to an entirely futile proceeding. It had been shown in the testimony that defendant's real estate of the assessed value of $3,000 (but claimed by plaintiffs to have a value of $7,000), his insurance policy in the amount of $3,000, the cash he turned over to the Home amounting to either $300 or $700, and the proceeds of the sale of an old automobile, aggregated a total of $7,000 or perhaps $10,000 in value, which could ...