In re Adams , 2 Redf. 66 ( 1871 )

The Surrogate.

There is no doubt that Surrogate Courts have jurisdiction and power to adjudicate upon all questions arising from acts committed by executors, administrators, or guardians, as such. But the transfer of this bond and mortgage, being an act done before she was executrix, and by the testator, in his lifetime,1 raises a different and more difficult question.

Creditors and others interested in the estates of deceased persons, have a right to appear and be heard on the settlement of the accounts of executors and administrators, before the Surrogate, and they may show that the executor or administrator has failed to account for all the property of the deceased ; and it is the duty of this court to compel them to account for all the property of the deceased, which the law requires them to take charge of and to account for.

On behalf of the creditors of the testator, was this bond and mortgage the property of the wife or of Mr, Adams, after its transfer and before his death ? His death intervening, I do not think changes the character of the transaction. Clearly it was his. The law will not tolerate such acts of an insolvent debtor. The person to whom the transfer is made, will be trustee for the creditors.

Mrs. Adams being such trustee, and also executrix, and this court having obtained jurisdiction of the subject matter, and of the person of the executrix, has it not the power, and is it not its duty, to compel her to account for the bond and mortgage, or so much thereof as will satisfy the claims of the creditors ?

A man cannot give his property to his wife or other persons, to the exclusion of creditors existing at the time of the gift. (2 Rev. Stat, 140, § 1.)

The law declares the act of Mr. Adams fraudulent only so far as creditors are concerned; and if these creditors should bring an action in the Supreme Court, against Mrs. Adams, to account for the bond and mortgage, there would be no answer to their action. A bare statement of the facts would entitle the creditors to a judgment. I see no reason why this court cannot determine this question. The only parties interested are in court, and no question of fraud is to be determined as a question of fact. The law determines the question of fraud upon the facts; and I have only to declare the law applicable to the case.

Of course I must determine from the evidence the character of the transaction, and will receive evidence upon the matter if offered.

Decree accordingly.