Mesmer v. Jenkins

Sharpstein, J.: The first question which the record suggests is: Can the creditors of the insolvent estate of a deceased person maintain an action against the administrator of such estate, and others, pending administration, to compel him and them to transfer to the estate, real property to which he has, for himself, and them, obtained the legal title, in such a Way as to raise a constructive trust in favor of the estate? In other words, have the plaintiffs in this case the legal capacity to sue?

If the decedent in his life-time had conveyed any part of his real estate, with intent to defraud his creditors, the administrator, on application of creditors, and their paying or securing to be paid such part of the costs of suit, as the Court or Judge might direct, would have been bound to bring an action for the recovery of the property so conveyed. (C. C. P., §§ 1,589, 1,590.)

In Holland v. Cruft (20 Pick. 321), it was held that the administratrix was the proper party to bring the action in such a case; and in Caswell v. Caswell (28 Me. 232), that a creditor of the insolvent estate copld not maintain an action to recover property conveyed by the intestate to defraud his creditors, although such an action might be maintained by the administrator of the estate.

The case before us differs from that provided for in the Code, in this: Here the administrator is charged with having procured to be conveyed to himself and his co-defendants, for their own private use and benefit, a piece of real property, which ought to have been conveyed to the estate of his intestate, while the Code provides for eases where the decedent, in his life-time, conveyed with intent to defraud his creditors.

If an administrator, in his representative, cannot sue himself in his private capacity, it is quite clear that the defendant Jenkins could not maintain this action on behalf of the cred[153]itors of the insolvent estate, of which he is administrator. But does it necessarily result from this that the creditors of the estate can maintain this action ? If they can, it must be upon the same ground that a judgment creditor may invoke the aid of a Court of Equity to discover and apply the property of the debtor to satisfy his judgment; and before he can successfully do that he must show that all legal means for obtaining satisfaction have been exhausted. The plaintiff must do all which the law will enable him to do to obtain the object of his pursuit, and 'until he has exhausted his legal remedies, he is not entitled to the aid of a Court of Equity. (Caswell v. Caswell, 28 Me. 232; Fletcher v. Holmes, 40 id. 364; Holland v. Cruft, 20 Pick. 321.)