Blaisdell v. Peavey , 79 N.H. 243 ( 1919 )

It may be true, in so far as this is a proceeding against the defendant as the deceased's widow, that the plaintiffs' levy is valid. P.S., c. 191, s. 24; Lyford v. Dunn, 32 N.H. 81; Mead v. Harvey, 2 N.H. 341. But while these cases hold that a judgment creditor may levy on the goods and estate of the deceased in the hands of his administrator, they do not hold, as the plaintiffs contend, that when the estate is insolvent, one who has levied secures a preference over the other creditors. All they hold in so far as the question of preference is concerned is that a levy cannot be attacked collaterally. Lyford v. Dunn, 32 N.H. 81, 83. The question whether the plaintiffs' levy may be attacked in that way is not, however, raised by their exception, for, as the case is understood, the court treated the defendant's intervention in her representative capacity as a direct attack, that is, as a motion to bring the original action forward and vacate the levy.

It is illegal for the administrator of an insolvent estate to satisfy the claims of part of the creditors. Coleman v. Hall, 12 Mass. 570. If it is illegal for an administrator to prefer part of the creditors, it follows that they cannot legally secure a preference by reducing their claims to judgments and levying on the goods of the deceased in the hands of the administrator. Any levy, therefore, which gives one of the creditors of an insolvent estate a preference is void as to the other creditors. Since this is so, the question raised by the plaintiffs' exception is whether the court can vacate a voidable levy if it finds that is necessary to prevent injustice; and that it may is not an open question. It is immaterial, therefore, in so far as the question we are considering is concerned whether the insolvency proceeding is valid or invalid, in so far as the plaintiffs are concerned, for the general finding for the defendant will be held to include a finding that the plaintiffs' levy gives them a preference over the other creditors.

Exception overruled.

All concurred.