Fourth National Bank v. Mead, 214 Mass. 549

Fourth National Bank v. Mead

214 Mass. 549 | Mass. | 1913

Braley, J.

The bill is brought against the defendant as •executrix of her husband’s will to have the indebtedness due from him to the plaintiff at the time of his death on three promissory notes for money lent established, and against her individually to reach and apply three parcels of real property alleged to have been deeded to her with the intention of hindering, delaying and defrauding the testator’s creditors. It is averred and the answer admits that the estate has been represented insolvent under the R. L. c. 142, § 2, and commissioners have been appointed by the Probate Court to receive proof of claims.

The statute not only makes full provision for the presentation and allowance of claims, but by § 30 after the estate has been represented insolvent no action shall be maintained either at law or in equity to charge an executor or administrator with the payment of debts due from the deceased except in cases of preference not affected by the insolvency of the estate, or where the assets prove more than sufficient to pay debts allowed by the commissioners. Herthel v. McKim, 190 Mass. 522, 524. Ryan v. Lyon, 212 Mass. 416, 420.

The defendant as executrix moreover upon insolvency of the estate represented creditors, and being bound to recover and *551hold for their benefit all the assets, which includes lands fraudulently conveyed, and hence liable to attachment and execution by a creditor of the testator in his lifetime, the plaintiff cannot under the guise of a bill to reach and apply usurp these powers, or transfer to a court of equity the settlement of the insolvent estate over which the court of probate is given by statute exclusive jurisdiction. R. L. c. 142; c. 146, § 2. St. 1907, c. 549. Cummings v. Cummings, 143 Mass. 340. Putney v. Fletcher, 148 Mass. 247, 248. Flynn v. Flynn, 183 Mass. 365, 366. Dunbar v. Kelly, 189 Mass. 390, 392. Tracy v. Strassel, 191 Mass. 187. Coram v. Davis, 209 Mass. 229, 247. Norton v. Lilley, 210 Mass. 214, 217. Horton v. Robinson, 212 Mass. 248. The properly appointed representative of the estate is the only person to institute proceedings for the recovery of the property, which if recovered is held in trust for creditors. French v. Peters, 177 Mass. 568, 572. Sargent v. Wood, 196 Mass. 1. York v. Flaherty, 210 Mass. 35, 43, and cases cited. Stockwell v. Shalit, 204 Mass. 270. Tyndale v. Stanwood, 186 Mass. 59. R. L. c. 148, § 17.

If by reason of the conveyances the executrix is rendered incapable of properly executing the trust, the remedy of the creditors, and of the plaintiff, is to apply to the Probate Court for her removal if upon request she refuses to account for the property, and asserts her title. Glines v. Weeks, 137 Mass. 547. Putney v. Fletcher, 148 Mass. 247, 248. Dunbar v. Kelly, 189 Mass. 390, 391, 392. Norton v. Idlley, 210 Mass. 214, 217.

But neither by demurrer nor answer have these defenses been raised, and the case is here on the plaintiff’s appeal after a trial on the merits at which it prevailed only as to one parcel.

The consent or waiver of the defendant if sufficient to give jurisdiction of herself could not create jurisdiction over the cause and subject matter, which has not been vested by law in the trial court. Elder v. Dwight Manuf. Co. 4 Gray, 201, 204. San-tom v. Ballard, 133 Mass. 464. National Fertilizer Co. v. Fall River Five Cents Savings Bank, 196 Mass. 458, 462.

The decree being void this court cannot decide the case on appeal, and the order must be, appeal dismissed. Jochumsen v. Suffolk Savings Bank, 3 Allen, 87. Bearce v. Bowker, 115 Mass. 129. Peabody v. School Committee of Boston, 115 Mass. 383.

Ordered accordingly.