Parker v. Flagg

Under the Gen. Sts. c. 113, §§ 6, 8,10,11, an order which merely sustains a demurrer to a hill in equity, without more, is an interlocutory and not a final decree; and, if a final decree is afterwards entered dismissing the bill, such decree is founded on, and necessarily affected by, that order; and the question whether that order was erroneous is open upon an appeal seasonably taken from the final decree. An executor of an insolvent estate can maintain a bill in equity against the widow of his testator, to set aside conveyances made by the testator to her of all his property, real and personal, consisting in part of mortgages, in fraud of his creditors.

Bill ik equity, filed October 27, 1877, by the executor of the will of Darius S. Flagg, to set aside conveyances by the testator of all his property, real and personal, to his wife, in fraud of creditors. The bill alleged that the testator died on July 18,1876, leaving a will, which was duly proved and allowed, and in which the plaintiff was appointed executor; that, at the time of the testator’s death, and for a long time prior thereto, the testator was largely indebted to divers persons in large amounts, and those debts had never been paid or discharged, and the creditors now hold valid claims against his estate; that, a short time before his death, the testator conveyed all his estate, both real and personal, (which was specifically described in the bill, and consisted in part of mortgages,) without any consideration, to his wife, the defendant, with the intent to delay, defeat and defraud his creditors; that a part of said conveyances were made to other persons for the benefit of his wife, and said persons have since conveyed the same to her, and the latter has purchased other property with funds belonging to the estate; that all of the conveyances were made with unlawful intent, were fraudulent and void and without consideration, and all the parties to said conveyances had knowledge of and participated in the fraud; that the defendant, since the death of the testator, had been and is in possession of all the estate so conveyed, and was collecting the rents of the real estate and the principal and interest of certain notes, and selling and using the personal property, and Atas grossly misusing and wasting the estate, and the same had been greatly reduced in amount and value since the death of the testator ; that the defendant was a person of no pecuniary responsibility, and a judgment against her would be of no value, and the estate of the testator was insolvent; and that the plaintiff had often requested and demanded that the defendant should deliver up and account for said estate, but she utterly refused so to do. The prayer of the bill was that the defendant be required to convey and deliver to the plaintiff all said estate, and the rents, profits and proceeds thereof; and to disclose and discover a true statement and account of the estate so conveyed, and of all rents, profits, proceeds and receipts thereof, and of all property purchased with funds belonging to the estate; that, pending these proceedings, a receiver be appointed to take possession of and manage the estate; and that the defendant and all other persons be restrained from intermeddling with the estate; and for further relief. The defendant demurred to the bill, assigning as ground of demurrer that the plaintiff had an adequate and complete remedy at law. Hearing before Morton, J., who, in March 1878,- sustained the demurrer; and a final decree dismissing the bill with costs was entered on May 20, 1878; and from this decree the plaintiff on the same day appealed to the full court.