58 Neb. 457 | Neb. | 1899
It was alleged in the petition herein that Charles Hofmann, then a resident of Richardson county, died on or about January 25, 1893, and that he left no last will and testament, and on September 8, 1893, the defendant in error was by the proper court appointed administrator of the estate of the deceased, gave his bond, and, after the completion of usual preliminary proceedings, entered upon his duties as such administrator; that claims were presented and allowed, in the aggregate the sum of $2,000, and there were further claims of which the administrator had information which would probably be presented for adjustment; that Charles Hofmann, at the time of his death, was the owner and in possession of certain personal property which had been appropriated by Charles H. Hofmann, a defendant in the action, now plaintiff in error, and the administrator had been unable to obtain possession or control of any portion or article of the personal estate of the deceased, and the whole of it, or its proceeds, if he could have reduced it to possession and disposed of it, would not have been sufficient to discharge the claims allowed against the estate. It was further pleaded that Charles Hofmann, at the time
After the trial of the issues presented the court made a finding “That the real estate in question was deeded by the deceased in his lifetime, Charles Hofmann, to his two sons, Charles Hofmann and Frederick Hofmann, charged with the payment of all the legal debts of the grantor,” and adjudged “That the claims allowed against the estate of the said Charles Hofmann, deceased, be, and the same are hereby, declared to be a charge and lien against the real estate of Charles Hofmann, deceased, ¿[escribed in the plaintiff’s petition herein.” The petition was so framed as to possess a dual character or
The first branch of the petition to which we have referred was evidently written to outline a right of the administrator to claim relief under and by virtue of the .provisions of section 211, chapter 28, Compiled Statutes 1897, which reads as follows: “When there shall be a deficiency of assets in the hands of an executor or administrator, and when the deceased shall, in Ms lifetime, have conveyed any real estate or any right or interest therein, with the intent to defraud his creditors, or to avoid any right, debt, or duty of any person, or shall have so conveyed such estate that by law the deeds or conveyances are void as against creditors, the executor or administrator may, and it shall be his duty to commence and prosecute to final judgment any proper action or suit at law or in chancery for the recovery of the same, and may recover, for the benefit of the creditors, all such real estate so fraudulently conveyed,- and may also, for the benefit of the creditors, sue and recover for all goods, chattels, rights, or credits which ihay have been so fraudulently conveyed by the deceased in his lifetime, whatever may have been the manner of such fraudulent conveyance.” And the pleading, aside from some possible indefiniteness not very material, was sufficient in its averments of a cause of action under said section. To authorize the action by the administrator there must be creditors and an insufficiency of assets in the hands of the administrator or of the estate tó be administered to discharge the debts. (Field v. Andrada, 39 Pac. Rep. [Cal.] 323.) It has also been announced that prior to the allowance of the claims against the estate, the statu
In the case at bar the petition contained declarations of claims which had been allowed, but when the proof was reached it disclosed that prior to the inception of the suit none had been allowed, although they had been presented for adjustment; hence, regardless of the view we might have accepted relative to the rule which should prevail of the two to which we have alluded, or a modification of either, there was a variance herein between the allegations and the proof, and the latter would not support the former. It has been held that the administrator cannot sue to enforce a trust and compel a reconveyance of lands. (James v. Throckmorton, 57 Cal. 387.) But this we need not decide. The evidence in the case at bar tended to support a third possible theory of the petition — that is, that the land had been conveyed to the sons upon the agreement by them to pay the grantor’s debts. This was admitted by the plaintiff in error with the modification that the agreement was not to pay all the father’s debts but to pay such as were specified, and of which there are averments in the answer. Yiewed in any light or upon any entertainable theory of the issues formed and the evidence adduced, the finding and the judgment of the court based thereon, the entry of which we have quoted, were not warranted or sustained, must be reversed, and the cause remanded.
Reversed and remanded.