Arena v. Erler

• Decision Date: 30 March 1938
• Citation: 14 N.E.2d 110,300 Mass. 144
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: MICHAEL ARENA v. LOUISE ERLER & others.

300 Mass. 144

14 N.E.2d 110

MICHAEL ARENA v. LOUISE ERLER & others.

Supreme Judicial Court of Massachusetts, Norfolk.

March 30, 1938

February 9, 1938.

Present: RUGG, C.

J., DONAHUE LUMMUS, QUA, & DOLAN, JJ.

Equity Pleading and Practice, Bill. Probate Court, Proceedings in equity. Fraudulent Conveyance.

A demurrer to a petition in equity in a probate court, brought by a creditor of a deceased person for the benefit of the estate, to set aside certain conveyances of property by the decedent as in fraud of creditors, rightly was sustained for insufficiency of averments as to the fraud, which was charged only in general terms, and for lack of averments that the grantees were not bona fide purchasers.

PETITION IN EQUITY filed in the Probate Court for the county of Norfolk on March 2, 1937.

A demurrer was sustained by McCoole, J. The petitioner appealed. The case was submitted on briefs.

H. J. Webb, for the petitioner.

H. L. Metcalfe & A.

T. Handverger, for the respondents.

DOLAN, J. This is a petition in equity in which the petitioner prays that certain conveyances of real estate and assignments of mortgages made by Domenic Arena, late of Franklin, deceased, be set aside and declared void, and that said real estate and mortgages be decreed to be assets of the estate of the deceased. There was also a prayer that the respondents be enjoined from "transferring, conveying, mortgaging, assigning or in any other manner encumbering or affecting the title to the real estate and mortgages" involved. A temporary restraining order was granted "as prayed for." The respondents are Louise Erler, and John Arena individually, as he is trustee under separate trusts for Domenic J. Arena and Mary Louise Arena, and as he is executor of the will of the deceased.

The petitioner alleges that he brings the petition not only for his own benefit, but also for the benefit of the estate of the deceased and for the benefit of all creditors of the estate who may desire and who may be allowed by the court to intervene or join in and become parties. It is further alleged in the petition that it would be useless to request the respondent executor, John Arena, to bring the petition. Further allegations are that on September 21, 1935 the deceased, who died on April 23, 1936, was indebted to the petitioner in the sum of $2,150 and interest, no part of which has been paid; that on that date in September the deceased, being possessed of certain real estate and mortgages, conveyed the real estate and assigned the mortgages to certain of the respondents in fraud of creditors; that the petitioner had brought an action in the District Court of Western Norfolk against the respondent John Arena in his capacity as executor to recover his claim, but that such action affords him no protection against or remedy in case of conveyance or assignment of the real estate and mortgages in question by the respondents.

The conveyances of real estate were as follows: a parcel on Chestnut Street, in Franklin, and one on Pleasant Street, also in Franklin, by separate deeds to the respondent Louise Erler; two parcels also in Franklin, by separate deeds to the respondent John Arena. The assignments of mortgages were as follows: the "Newcombe" and "Lamagna" mortgages to the respondent John Arena in trust for Domenic J. Arena; the "DePoto" mortgage to the same respondent in trust for Mary Louise Arena; and the "Pierrie" mortgage to the respondent Louise Erler.

The respondents appeared and filed a demurrer alleging, as amended, eight grounds. The judge entered a decree sustaining the demurrer and dismissing the petition, and the petitioner appealed. The petitioner points out that the judge did not state the grounds on which he sustained the demurrer, but, while sometimes helpful, that is not necessary because upon appeal all grounds stated are open. Ratte v. Forand, 299 Mass. 185 , 187, and cases cited.

Among the grounds assigned in the demurrer, the respondents set up that the petitioner...