Wilson v. Demander , 71 Tex. 603 ( 1888 )

Acken, Judge.

Appellant brought this suit as administrator of Kelson Burch, to vacate a deed made by his intestate to appellee, and to have the land adjudged to be assets in his hands, upon the grounds that the deed was without consideration, and was made with intent to defraud the creditors of Burch. It was alleged that Burch was utterly insolvent at the time he executed the deed to appellee, and that his estate was insolvent.

Appellee answered by general demurrer and special exceptions, upon the ground that an administrator can not maintain a suit to set aside and vacate a conveyance made by his intestate, upon the ground of fraud.

The demurrers were sustained and the suit dismissed, from which judgment this appeal is prosecuted.

The proposition that an administrator can not maintain a suit to set aside a deed made by his intestate, upon the ground that such deed was fraudulent as to the creditors of the intestate, is too well settled, we think, to demand or justify the discussion of it now.

However fraudulent the conveyance may have been, the intestate was bound by it, and could not himself have maintained the suit to set it aside. Administrators can bring suits in like manner as their intestates could have done. If the intestate could not have maintained the suit, the administrator can not. (Rev. Stats., art. 1201; Avery v. Avery, 12 Texas, 53; Connell v. Chandler, Admr., 13 Texas, 5; Seawell v. Lowry, 16 Texas, 50; Hunt v. Butterworth, 21 Texas, 141; Hoeser v. Kraeka, 29 Texas, 450.)

We think the judgment of the court below is correct, and should be affirmed.

Affirmed.

Opinion adopted October 30, 1888.

Stayton,

Chief Justice.