19 Haw. 620 | Haw. | 1909
OPINION OP THE COURT BY
L. L. McCandless, a creditor- of the decedent, brought a petition in probate setting forth that the decedent died about March 9, 1908, testate; that the Bishop Trust Co., administrator with the will annexed, had collected assets to the amount of $774.76, which, after deducting $250.97, expenses of administration, left $523.76 for the claims allowed which amounted to $1007.48; that when the petitioner’s claim of $200 accrued Lopez was solvent owning property more than sufficient to pay all his debts, but thereafter, on February 27, 1905, he conveyed to one Foster in trust, for certain purposes, all his real estate, which the petitioner .avers upon information and belief was of the value of over $30,000, retaining personalty insufficient to pay his debts and that he was insolvent then and until he died; that the deed was executed in fraud of creditors including the petitioner; that the administrator has made no report of the land as an asset nor of the circumstances relating to the deed, and though requested by the petitioner to take necessary steps to realize upon the land for the benefit of creditors, has refused so to do, wherefore the petitioner prayed that he be ordered to take such steps as may be necessary to have the deed set aside or to subject the lands or so much thereof as may be necessary
The circuit judge reserved the question whether the demurrer should be sustained.
In several states referred to by the petitioner authority is given by statute to bring such suits, as in California, Ohio, New York, Vermont, Wisconsin and Massachusetts. The petitioner, while admitting that courts are not in accord on the question, submits that the following cases support his- contention and are supported by sound reason. Abbott v. Tenney, 18 N. H. 109, 111; Cross v. Brown, 51 N. H. 486; Cooley v. Brown, 30 Ia. 470, 472; McLean v. Weeks, 61 Me. 277, 280; Frost v. Libby, 79 Me. 56; Stewart v. Kearney, 6 Watts 453; Pringle v. Pringle, 59 Pa. St. 286; Bouslough v. Bouslough, 68 Pa. St. 499; Andruss v. Doolittle, 11 Conn. 283; Freeman v. Burnham, 36 Conn. 469; Bassett v. McKenna, 52 Conn. 437; Martin v. Bolton, 75 Ind. 295. His contention is that in case of an insolvent estate the administrator is the representative of the creditors and that the heirs are not interested since all the property belongs to the creditors, so that it is necessary that the administrator have the right to sue which the creditors would have had if the decedent had not died. He urges that this is .essential to the equitable apportionment of the assets after recovering back property fraudulently conveyed and that the administrator’s suit avoids multiplicity of suits and prevents one creditor from obtaining preference over others since if one creditor brings the suit he is under no obligation to make other creditors parties and they might not know of it.
The administrator claims that by the overwhelming weight
Except in one of the Maine cases the decisions cited by the petitioner appear to relate to personal property and to be based mainly upon the doctrine that deeds of sale and transfers of personal property made in fraud of creditors are as against them absolutely void, and not merely voidable, and therefore that the adminisrator may bring an action at law for the property or its proceeds, treating the transfer as a nullity. In Cooley v. Brown, 30 Ia. 470, 472, the court said that the statutes requiring the administrator “to collect the assets and to pay them over to creditors required that whatever ought to be applied to payment of debts ought to be recoverable by the administrator representing the creditor’s rights and that unless property voluntarily and fraudulently conveyed can be reached by the administrator the creditors would have to bring actions in their own names, involving multiplicity of suits and interfering with the singleness of the administration.”
These considerations have weight but we are not at liberty to infer that "the same conclusion would have been reached in the absence of the statutes. The administrator here may obtain a decree of “sale of any real estate of deceased persons for the purpose of paying their debts, whensoever the personal state of such persons shall prove to be insufficient for the pur
If a debtor is living a creditor obtains, if he can, the lien of a judgment in order to bring a bill to secure for himself and creditors who intervene the exclusive benefit, to the extent of their judgment debts, of property fraudulently conveyed.
But in this Territory a judgment of itself gives no lien and a creditor gains nothing by obtaining it. Moreover, whatever action would lie either on the administrator’s bond or for a devastavit, there is no right of action against the administrator to recover a claim which he has allowed.
A creditor’s bill then against the grantee of a fraudulent conveyance would not be demurrable on the ground that the plaintiff had not obtained judgment against the administrator and taken out execution on which nulla bona had been returned.
The demurrer should be sustained.