Ohm v. Superior Court

Paterson, J. The petitioner is administratrix of the estate of E. F. Ohm, deceased. On March 23,1889, Mrs. Judge filed a petition in the superior court asking for an order directing the administratrix to allow her name to be used in an action to be brought against the surviving wife of the deceased (Augusta L. Ohm), to set aside a conveyance of certain land made by E. F. Ohm in his lifetime to his said wife, with intent to defraud his creditors. It was alleged that at the time of the conveyance E. F. was indebted to sundry persons in the sum of about ninety thousand dollars, including a debt to petitioner of about five thousand dollars; that the conveyance was made without consideration and to defraud creditors; that deceased left no estate—except what was conveyed to his wife as aforesaid — with which to pay the claims of creditors; that the administratrix, though requested to do so, refused to bring suit to set aside the conveyance.

A hearing was had upon the allegations of the peti[547]tion, and the court ordered that Mrs. Judge be allowed to sue in the name of Anna A. Ohm, the administratrix, on condition that Mrs. Judge defray all expenses of the action, and save the administratrix harmless therefrom. Thereupon the administratrix filed a petition herein for a writ of review, the writ was issued, a return has been made setting forth the facts substantially as narrated above, and showing the additional facts in a bill of exceptions, which is made a part of the return; that in due time Mrs. Judge presented her claim against the estate for over five thousand dollars; that the claim was rejected, and that she commenced an action against the administratrix on said rejected claim, which action is still pending.

The question" is presented, therefore, whether a person whose claim has been disallowed by the administratrix, and for the establishment of which as a claim an action is pending and undetermined, is a creditor within the meaning of section 1590 of the Code of Civil Procedure. That section reads.as follows: “No executor or administrator is bound to sue for such estate, as mentioned in the preceding section, for the benefit of the creditors, unless on application of creditors, who must pay such part of the costs and expenses of the suit, or give such security to the executor or administrator therefor, as the court, or judge thereof, shall direct.” Under the provisions of this section, and the provisions of sections 1589 and 1591 of the Code of Civil Procedure, it is clear that the administratrix would have no right to commence an action to set aside a deed of her intestate as void against-creditors, unless “there isa deficiency of assets” (sec. 1589), and there are creditors for whose benefit “ all real estate so recovered must be sold.” (Sec. 1591.) Any creditor is entitled to maintain an action to set aside such a fraudulent conveyance (Hills v. Sherwood, 48 Cal. 392), but he must be a creditor whose claim has been allowed by the administrator, or is evidenced by a