20 Kan. 509 | Kan. | 1878
The opinion of the court was delivered by
The plaintiff's counsel says that there is but one question in this case, and that is this:
"Can an administrator, by virtue of the power and authority vested in him under a proper statutory appointment to said office, recover property which the decedent had given to his children during the lifetime of the ancestor, provided he, the said decedent, was indebted to the extent of insolvency at the date and time of the gift, and, after his death, without the money and property thus given away, his estate would not pay its debts? Now, can an administrator recover money and property thus given away? And, if not, why not?"
Nearly all the authorities are against the power of the administrator to sell, or to recover from the fraudulent vendee, or 1° use as assets of the estate (without the consent of the fraudulent vendee) property which ha(j previously been sold by the deceased to defraud his creditors. Among said authorities are the following: McLaughlin v. McLaughlin, 16 Mo. 242; Brown v. Finley, 18 Mo. 375; George v. Williams, 26 Mo. 190; Martin v. Martin, 1 Vt. 91; Moody v. Fry, 3 Humph. (Tenn.) 567; Sharp v. Caldwell, 7 Humph. 415, 416; Dunbar v. McFall, 9 Humph. 505; Commonwealth v. Richardson, 8 B. Mon. (Ky.) 81, 93; Winn v. Barnett, 31 Miss. 653; Gully v. Hull, 31 Miss. 20; Snodgrass v. Andrews, 30 Miss. 472; Ellis v. McBride, 27 Miss. 155; Crosby v. DeGraffenried, 19 Ga. 290; Chouteau v. Jones, 11 Ill. 300; Osborne v. Moss, 7 Johns. (N. Y.) 161;. Ordronoux v. Helie, 3 Sandf. (N. Y.) Ch. 512; Cobb v. Norwood, 11 Texas, 556; King v. Clarke, 2 Hill (S. C.) Ch. 611, 613; Williams v. Williams, 34 Penn. St. 312. All the authorities hold, (except where there are express statutes to the contrary,) that when a person conveys his property, real or personal, for the purpose of defrauding his creditors, the conveyance is good and binding upon him, and upon all his-representatives, whether such representatives be his agents, his executors, his administrators, or his heirs. As to him and all his representatives, the title to the property has passed irrevocably, except with the consent of the fraudulent vendee. The sale or conveyance is void only as against the creditors of the fraudulent vendor, and is not void as against him and his representatives. The authorities above cited hold that the administrator is the
The judgment of the court below will be affirmed.