77 Ind. App. 439 | Ind. Ct. App. | 1922
Complaint by appellant against Sadie M. Engle and Julius Hatry as executor of the will of Jonas Acker, alleging that said decedent was indebted to appellant for work and labor performed; that appellant had filed his claim for said services with the clerk of Sullivan Circuit Court and that the executor had allowed said claim; that the amount of personal property owned by Acker at the time of his death was not sufficient to pay his debts; that he left no real estate in his own name at the time of his death; that on September 2, 1918, said Acker being the owner of certain described real estate in Sullivan county, Indiana, with intent to cheat, hinder and delay his creditors, including appellant, conveyed said real estate without consideration to appellee Sadie M. Engle; and that said executor has refused to file suit to set aside said conveyance and has refused to file a petition to sell said described real estate until the title thereto has been determined. The prayer is that said conveyance be set aside and said real estate be made subject to sale by said executor for the payment of said debt.
Julius Hatry as executor filed answer admitting the facts alleged in the complaint, while appellee Sadie M. Engle filed an answer of general denial. Trial by the court and judgment against appellant, after which he
Appellee contends that appellant’s claim had not been allowed by the executor or by the court upon trial, and that appellant therefore could not maintain an action to set aside the conveyance.
There is evidence tending to show that the decedent was indebted to appellant; that decedent died testate November 5,1918, his will being probated November 13, 1918; that appellee Hatry qualified as executor November 13, 1918; that appellant filed his claim with the clerk December 14, 1918, and filed his complaint herein December 16, 1918.
Appellant’s claim was neither allowed nor disallowed by the executor, was never. transferred to the issue docket for trial, and was never submitted to the court for trial nor adjudged to be a valid claim against said estate.
In Smith v. Goodrich (1897), 167 Ill. 46, 47 N. E. 316, it was held that the holder of an intestate’s note could not maintain an intervening petition to reach a fund realized from the sale of an intestate’s real estate in the hands of a master in chancery for distribution, when the claims evidenced by the note had not been allowed by the court. In Goodman v. Kopperl (1897), 169 Ill. 136, 48 N. E. 172, where the complaint was filed by a creditor whose claim had not been allowed against the estate, it was said: “There are no instances in which resort to a court of equity has been recognized, under our later decisions, before the claim of the creditor has been allowed against the estate by the probate court.”
In Harvey v. McDonnell (1889), 113 N. Y. 526, 21 N. E. 695, cited by appellant, the claim had been allowed and partly paid out of the proceeds of certain land which had been sold by order of the court.
In Prentiss v. Bowden (1895), 145 N. Y. 342, 40 N. E. 13, the creditor had reduced his claim to judgment during the life time of the decedent, but no" execution had
There being no reversible error in the record, the judgment is affirmed.