The statute of 13 Elizabeth (c. 5) provides in substance that a fraudulent conveyance is voidable by those who are injured by it; so the only persons who can avoid a fraudulent conveyance are those who might take the property from the grantor or from his heirs if no conveyance had been made. Esty v. Long, 41 N.H. 103; Stevens v. Morse, 47 N.H. 532; Stewart v. Inglehart, 7 G. J. 132, — 28 Am. Dec. 202; Bump Fr. Con., ss. 432, 433, 451.
A conveyance tainted with actual fraud as to any persons may be avoided not only by those whose claims were in existence at the time the conveyance was made, but also by those whose claims accrued thereafter. Smith v. Lowell, 6 N.H. 67; Paul v. Crooker, 8 N.H. 288, 290; McConihe v. Sawyer,12 N.H. 396; Robinson v. Holt, 39 N.H. 557; Coolidge v. Melvin,42 N.H. 510; Morrison v. Morrison, 49 N.H. 69; Plaisted v. Holmes,58 N.H. 619; Preston v. Cutter, 64 N.H. 461; Bump Fr. Con., s. 32.
If a conveyance is made to defeat the rights of the grantor's wife, or of his creditors, it will not lose its fraudulent character as to any of them unless they confirm it or are in some other way estopped to attack it. Bump Fr. Con., s. 456. If it is fraudulent as to the creditors of a deceased person, the administrator may maintain a bill in equity to avoid it as their representative if it is necessary to do so to pay the debts of the deceased. Kingsbury v. Wild, 3 N.H. 30; Everett v. Read, 3 N.H. 55; Abbott v. Tenney, 18 N.H. 109; Leavitt v. Leavitt, 47 N.H. 329, 333; Janvrin v. Curtis, 63 N.H. 312; Preston v. Cutter, 64 N.H. 461; Clark v. Clough,65 N.H. 43, 80. When it is fraudulent as to all the creditors, and the estate is insolvent, the administrator after a decree in his favor may treat the property as though no conveyance had been made, and sell so much of it as is necessary to pay the debts of the deceased and the expenses of administration, including the expense of the proceeding to avoid the fraudulent conveyance. Abbott v. Tenney, 18 N.H. 109, 113.
In this case John made the conveyance in controversy to prevent Sarah from satisfying any judgment she might recover if he decided not to marry her; and since the creditors could take the property from John's heirs if no conveyance had been made, it is void so far as their claims are concerned. As to them, the property stands as though no conveyance had been made.
A widow may avoid a conveyance made to defeat her marital rights. Walker v. Walker, 66 N.H. 390. It follows that Sarah may maintain this proceeding as John's widow, for the conveyance was made to defeat her rights as his wife if he decided to marry her, and it is found that she has not confirmed the conveyance and is not estopped to attack it. Although the fact that she had known of the conveyance for some time before her marriage to John is evidence tending to prove that she confirmed it and is estopped to attack it, still this fact does not, as a matter of law, establish either proposition. Derry Bank v. Davis, 44 N.H. 548, 550; Cole v. Tyler,65 N.Y. 73, 79; Bump Fr. Con., s. 456. The fault with the defendant's contention that the validity of the conveyance, so far as Sarah is concerned, is res judicata, lies in the fact that the proceedings she brought in aid of her levy were dismissed on her motion. There must be a final judgment on the merits in order that the judgment may create an estoppel. Hearn v. Railroad, 67 N.H. 320; Gregg v. Company,69 N.H. 247; Pittsfield v. Exeter, 69 N.H. 336; Ordway v. Railroad, 69 N.H. 429; Bank Commissioners v. Association, 70 N.H. 557; MacDonald v. Railway, 71 N.H. 448; Boston Maine R. R. v. Sargent, ante, p. 455.
An heir takes through — not from — his ancestor; so the guardian
cannot maintain this proceeding on the strength of her ward's right as John's heir. Kimball v. Eaton, 8 N.H. 391, Esty v. Long, 41 N.H. 103, Stevens v. Morse, 47 N.H. 532. If the guardian has any right in behalf of her ward as a creditor, such interest is protected by the decree in favor of the administrator.
There was no error of law in overruling Sarah's motion for reinstatement as a judgment creditor and the guardian's motion for the assessment of her ward's damages. Whether or not justice required that these motions should be granted were questions of fact. Whether or not the deed was delivered was also a question of fact, so there was no legal error in the finding that it was delivered if there was evidence to support it. If a person intends to give his property to another and makes a. deed in pursuance of that intention, the deed is delivered whenever it comes into the possession of the donee and is accepted by him. Canning v. Pinkham, 1 N.H. 353, Warren v. Swett, 31 N.H. 332, 340, Cook v. Brown, 34 N.H. 460. There was evidence that John made the deed intending to put his property into Kate's hands to defraud Sarah and her son, and that the deed came into Kate's possession and was accepted by her before John died.
The exceptions as to the admission of evidence were not argued and have not been considered.
Exceptions overruled.
All concurred.